1. Regulatory Investigations
Regulatory Investigations
Sam Boileau

3. What risks do a regulatory investigation involve?
Criminal: Compromising company's position in criminal proceedings
Civil: Creating or increasing the company's civil liability exposure
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4. How do regulators gather information?
On-site discussions and questions during inspections
Taking formal written statements (s9 CJA)
Specific requests for information
Demands for information using statutory powers
Interviews under caution
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5. Where the law can protect a company
Law of evidence - to ensure evidence is gathered fairly and appropriately
Legal Professional Privilege - to control information flow during investigation
Public law / judicial review - to ensure regulator acts within law
Abuse of process - to protect against unjust decisions to prosecute
Criminal law and due process - to ensure company is tried fairly
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6. Interviews under caution
Police and Criminal Evidence Act 1984 (PACE)
Interview regarding suspected involvement of interviewee in offence
Answers can be used in evidence against interviewee
S34 CJPA - Adverse inference can be drawn from silence
Corporate suspect cannot be compelled to attend
Power of arrest - Serious Organised Crime and Police Act
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7. Risks of face to face interview
Having information introduced unexpectedly
Inaccurate answers
Answers which do not reflect corporate position
Answers which speculate on legal matters
"No comment" responses can harm position
Being unprepared with the "positive" aspects
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8. Case Study
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9. Interviews under caution - Tips (1)
Always consider requesting written procedure
Written procedure likely to be appropriate for most corporate interviewees
For individuals, face to face interview may be appropriate where
Serious allegations (e.g. fatality)
Simple facts (tree felling incident vs technical failure on oil rig)
Recent incident
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10. Interviews under caution - Tips (2)
Always clarify the basics - suspected offence; capacity of interviewee
Request list of documents / summary of evidence
Request questions in writing
Ensure prepared with positive aspects and any defence
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11. Handling an investigation: Balancing the business and legal response
Minimise legal liabilities for company
Reputation
Be as helpful as possible
Learn technical lessons
Re-commence operations
Control information flow
Protect directors/managers from personal liability
Business continuity
Safety of employees and general public
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