Regulatory Investigations 31675186.1 Regulatory Investigations Sam Boileau
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 19 November, 2018
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 19 November, 2018
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 19 November, 2018
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 19 November, 2018
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 19 November, 2018
Case Study 19 November, 2018
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 19 November, 2018 I
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 19 November, 2018
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 19 November, 2018