31 July 2015
Interviews in corporate internal investigations: Andrew Smith’s article published in GIR magazine
Interviews in corporate internal investigations: admissibility and ILAs
Andrew Smith at Corker Binning in London considers the admissibility of internal investigation interviews in English criminal proceedings where lawyers have failed to provide a witness with an Upjohn warning or the offer of an independent legal advisor.
This article considers the admissibility in English criminal proceedings of interviews conducted in corporate internal investigations. This is an underexplored subject. There are two possible reasons for this. First, the practice of internal investigations has received no judicial scrutiny in England beyond a small number of Crown Court trials.1 Second, the purpose of most internal investigations is not to gather evidence for use in a criminal prosecution, but to establish the facts so that the corporate client receives advice about the extent of any misconduct.
However, given the growth in internal investigations the admissibility of internal interviews is likely to become an increasingly important issue. If the corporate hands over the records of its internal interviews to a prosecutor, there may be unwelcome (and potentially unforeseen) consequences for the interviewees if the prosecutor seeks to rely upon them in a criminal trial. Moreover, the interview records will also be relevant to assessing the criminal exposure of a corporate suspect if the interviewee constitutes its “directing mind”. Any finding of guilt against the directing mind based on his admissions during an internal investigation would necessarily lead to the corporate, if charged, being convicted.
Ultimately, there is no straightforward answer to whether interviews in internal investigations are admissible in criminal proceedings. Their admissibility will depend on a variety of stipulations: how the interviews are conducted and recorded, and will sometimes turn on the related question of whether an independent legal advisor (ILA) was offered to the interviewee. Whilst there is no judicial or professional guidance regulating such interviews, there is a framework – derived from statute, case law and professional ethics – with which investigations lawyers should be familiar. This article starts by outlining this framework, before considering how compliance with it determines the question of admissibility.
Read the full article in Global Investigations Review here.