If you are considering launching an investigation, here we share ten key tips for how to do it robustly, effectively, and independently.
Investigations are aimed at establishing the facts behind allegations of misconduct, institutional failings or other internal crisis.
Organisations may decide to launch an independent, rather than internal, investigation for a number of reasons: perception or fears of a 'whitewash' due to internal dynamics, increasing pressure on the organisation due to adverse media attention or other external factors, or where previous internal reviews have been ineffective.
Recent investigations such as the Independent Review into Racism in Scottish Cricket demonstrate the importance of an effective review process. The public impact of an investigation (including the media attention it may generate) can be greater than anticipated, and it is vital that an investigation can stand up to both internal and external scrutiny.
Define your scope
Clearly define the scope of the investigation from the outset. Consultations on an investigation’s terms of reference can, in the right circumstances, be an effective way to seek input on the scope and ensure that it meets expectations. This will also empower interested groups and members of the public affected by the investigation to voice their opinions and engage in the process. In this respect, it is important that the investigation team has a resourcing plan in line with its scope, alongside built-in resilience to scale up and down in case of any unexpected staffing changes.
Set realistic timelines
When planning your timelines, and considering your anticipated publication date, be transparent in how you communicate them, and remember that this is a good way to foster trust. Timelines that are too ambitious could lead to disappointment when deadlines are extended. However, you may also face criticism if the schedule is too conservative. It is therefore important for both managing expectations and retaining trust that publicised timelines for the investigation be realistic, clearly communicated and (where necessary) appropriately caveated.
Plan for disclosure
Early on in your decision-making, consider how much disclosure (and in what forms) you anticipate receiving. This will affect the resourcing of your investigation and the decision to engage with third parties such as external document review providers. You also should consider what disclosure will be provided to interested third parties, if any, or stakeholders and how this will be disseminated, i.e. through document-sharing platforms.
Consider parallel cases
Build in resource to ensure you can map the landscape and keep up to date with the progress of parallel proceedings. Put in place robust contingencies in the event that any parallel litigation or judicial review commences. These may have a direct impact on the investigation and delay the investigation process. It is not uncommon for investigations to down tools pending the outcome of judicial review or other hearings.
If you establish something as 'independent' ensure that decision is given effect. Where prior relationships exist between the investigation team and the company or organisation being investigated (however tenuous), it is integral that careful thought is given about the impact and propriety of that, as well as any declarations that need to be made.
Protect your data
Establish how you will share data. Data protection obligations should not be a barrier to carrying out an investigation and organisations must carefully consider where to strike the balance between their legitimate interests and those of the data subject. Consider comprehensive data sharing agreements or disclosure protocols from the outset of the investigation, so that all parties are aware of how their data will be processed, reviewed and possibly published prior to any engagement.
Adopt clear policies for reviewing and redacting privileged documents. In the context of an investigation, privilege only encompasses confidential legal advice from a legal adviser – there is no equivalent to litigation privilege to rely on. During the course of your investigation, you may receive privileged material as part of the disclosure process, and all such material should be handled carefully to avoid inadvertently waiving privilege.
Plan your interviews
Determine early who to invite to attend an interview. Interviews provide a valuable opportunity to actively involve witnesses in the investigation process, as well as enabling the investigation team to gather evidence and analyse witnesses’ accounts. It is important to have protocols in place to ensure that interviewees are treated fairly, and to draft clear interview plans such that both the investigation team and the witness can prepare properly. Where necessary, consider collaborating with relevant authorities to conduct your interview, and ensure you have effective safeguarding in place to protect interviewees.
Confidentiality is key
Check whether you need interested parties to sign documents agreeing to keep disclosure confidential. Managing the information disseminated both internally and externally is key to ensure an effective fact-finding exercise and avoid prejudice. You may want to consider this prior to the disclosure of any documentation to interested groups or witnesses. Where necessary, consider setting up information barriers between conflicted teams or individuals.
Do not forget that the success of an investigation can heavily rely on both internal and external perceptions. In the age of social media, it is vital that individuals publicly associated with the investigation refrain from making statements that could be harmful to its reputation or draw allegations of bias. For particularly contentious investigations, members of the team should sign a declaration stating that they have not made and will not make in future any public statements that may bring the investigation into disrepute.
With thanks to Andrea Carrera (Solicitor Apprentice) for his input.
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