24 January 2019
Andrew Smith and Jessica Parker contribute to GIR’s Third Edition of The Practitioner’s Guide to Global Investigations
Representing Individuals in Interviews: The UK Perspective
This chapter considers the representation of individuals in three types of interview: interviews in corporate internal investigations, interviews of witnesses in law enforcement investigations, and interviews of suspects in law enforcement investigations.
Interviews in corporate internal investigations
When should employees have their own lawyer?
In many corporate internal investigations, it is common for employees not to receive or be offered legal advice, either before or during their interviews. This is because the employee is not normally treated as a suspect in what is commonly referred to as a ‘fact-finding investigation’. Their position is analogous to but distinct from an employee interviewed in disciplinary proceedings, in which an employee suspected of misconduct has no right to legal representation at the interview, but is entitled to be accompanied by a fellow employee or trade union representative.
However, in some corporate internal investigations, the corporate may recommend a lawyer (often called an independent legal adviser or ‘ILA’) who can represent the employee. Alternatively, the employee may prefer to benefit from legal advice, regardless of whether a lawyer has been recommended by the corporate.
Legal representation for an employee may be desirable in two main situations. First, if the employee risks self-incrimination or admitting regulatory breaches, there may be a conflict of interest between the employee and the corporate. In particular, conducting the interview without first offering the employee legal representation may place the corporate’s lawyers in breach of their professional ethical duty not to take ‘unfair advantage’ of a third party.
Secondly, legal representation for an employee may be desirable where the employee’s acts and omissions determine the criminal or regulatory liability of the corporate, for example where the employee is the ‘controlling mind’ of the corporate or an ‘associated person’ for the purposes of the Bribery Act 2010.4 In these circumstances, the corporate may consider that legal advice will enable the employee to render a more reliable account in an interview – an outcome that furthers the corporate’s interests in helping it more accurately to assess its own exposure to criminal or regulatory liability.
Read the full chapter in in GIR’s The Practitioner’s Guide to Global Investigations (Third Edition) here.