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12.1 Introduction
Witness interviews are a key part of most corporate investigations. While documentary evidence can provide the underlying facts of a case, it is often the accounts given by witnesses that deliver the context and detail of what has happened. They can provide vital background information, shed light on the motivations of those involved and allow for an individual’s credibility to be assessed. However, the timing, preparation, record-taking, content and use of the interviews need careful consideration.
Witness interviews can serve a number of purposes in the context of a corporate investigation, including:
- to scope the investigation;
- to understand the facts and issues;
- to understand accountability and defences; and
- to assess the credibility of individuals and their accounts.
Interviews in this context can present particular difficulties because of the myriad of employment, criminal, civil and regulatory issues that can arise, and the fact that the interests of the company and the witness are often not aligned. These interviews are typically conducted confidentially and can be premised on a need to maintain legal privilege and the duty of confidence owed between an employer and employee. This can often be at odds with the expectations of some authorities for the company to provide details of the witnesses’ accounts.
There is often a tension between a company’s right to conduct its own enquiries into allegations of wrongdoing, including interviewing its employees, and the suggestion by the authorities that its enquiries could (depending on how they are conducted) be detrimental to a criminal or regulatory investigation. The position surrounding legal privilege in the context of witness interviews has become more complex in recent years following a number of court judgments.
This chapter explores these issues, considers the practices that can be adopted when conducting interviews and highlights some of the benefits and risks of these different approaches. It considers the preparation and formalities that may be required for witness interviews in the United Kingdom, and identifies particular complexities that can arise in global investigations when multiple jurisdictions are involved.
12.2 Types of interviews
Broadly, witness interviews in corporate investigations can be split into two categories: preliminary or scoping interviews, and substantive interviews. Generally, they should be distinguished from any employment or disciplinary interviews.
Preliminary or scoping interviews may be appropriate at the outset of an investigation to seek background information, identify further sources of evidence, obtain a quick understanding and provide context to an allegation. These interviews will generally take place at the start of the investigation and, depending on the specific circumstances, may take place before any firm view has been reached on the terms of reference or extent of material that will be reviewed. They are more likely to be conducted with employees who may have knowledge of matters under investigation but are not at direct risk of any criticism. Where there is one, it may also be necessary to undertake an interview with the whistleblower at this stage.
Substantive interviews will generally take place after most, if not all, of the relevant material has been reviewed. The purpose of these interviews is to obtain a detailed understanding of what went on, to provide explanations of key documents in the case and, if necessary, to test the account given. These interviews will often be used to inform an understanding of any individual and corporate liability and any defences. Timing is important and can depend on a number of factors, including the available evidence, whether the authorities are already involved and whether civil and criminal proceedings are contemplated.
More recently, there has been a rise in internal investigation interviews being conducted remotely, given advances in technology and the need for remote working.
Where interviews are conducted remotely, it is important to ensure that the integrity and effectiveness of the investigation process is maintained. Measures should be put in place to ensure that interviews are conducted confidentially and to limit the risk of any breach of this, whether intentional or inadvertent.
12.3 Deciding whether authorities should be consulted
The decision about whether to consult the authorities in advance of a witness interview is not dictated by statute, and, in general terms, a company may manage its internal affairs and make enquiries as it sees fit. The decision often rests on whether there is an implicit obligation on the company to notify the authorities under its regulatory reporting regime, whether it is in the interests of the company to co-operate with the authorities by notifying them of any forthcoming interviews and the extent to which the authorities are already involved.
Regulated firms may be obliged to report a violation or allegation of wrongdoing. For example, the Code of Conduct of the Solicitors Regulation Authority (SRA) requires a law firm to:
- report promptly any facts or matters that it reasonably believes are capable of amounting to a serious breach of the SRA’s standards or requirements of which they are aware;
- report any material change about the firm; and
- co-operate with the SRA and provide full and accurate explanations, information and documentation in response to any requests or requirements.
Accountants may hold similar obligations under the requirements of their regulators. There are reporting requirements under the Listing Rules for companies admitted to trading on a regulated market, and those in the regulated sector are required to submit a suspicious activity report if they know or suspect (or have reasonable grounds for knowing or suspecting) that another person is engaging in money laundering or terrorist financing.
Financial institutions regulated by the UK Financial Conduct Authority (FCA) must, under Principle 11 of the FCA’s Principles for Businesses, act in an open and co-operative way and disclose anything relating to the firm of which the regulator would reasonably expect notice. SUP 15 of the FCA Handbook provides guidance on matters that should be reported. Firms that are dual-regulated by the FCA and the Prudential Regulation Authority (PRA) have equivalent obligations under Fundamental Rule 7 of the PRA’s Fundamental Rules.
The FCA’s expectations under Principle 11 extend to requiring a firm to consider notifying it of a decision to investigate conduct concerns at the earliest opportunity. It has previously been suggested that self-reporting is the bare minimum that is required, and that a firm should discuss the scope of its investigation with the FCA as early as possible.
Furthermore, the FCA’s Enforcement Guide sets out that, in certain circumstances, the FCA may prefer that a firm does not commission its own investigation (whether by way of an internal audit or by external advisers) if that in itself could be damaging to an FCA investigation, particularly in the case of criminal investigations, where alerting the suspects could have adverse consequences; the guide states that firms are encouraged to be alive to the possibility that their own investigations could prejudice or hinder a subsequent FCA investigation and, if in doubt, to discuss this with the FCA. The guide further refers to the FCA’s recognition that firms may be under time and other pressures to establish the relevant facts and their implications, and will have regard to this in its discussions with the firm.
A firm should consider its regulatory obligations when assessing if, and when, to consult the FCA regarding any proposed witness interviews. It should ensure it does not take steps that might prejudice or hinder a subsequent FCA investigation.
The Serious Fraud Office (SFO) has similarly acknowledged that there are good and proper reasons for a company to carry out its own investigation, noting the potential dangers of an internal investigation ‘churning up the crime scene’, which could include the taking of first statements from witnesses in a way that influences their testimony. The SFO’s Corporate Co-operation Guidance sets out how it assesses co-operation from businesses, including its expectation that companies will consult with the SFO in a timely way before interviewing witnesses.
Where the authorities are not yet aware of the allegations under review, it is likely that preliminary enquiries will be necessary before the company is in a position to reach a view regarding whether to self-report. Where witness interviews are being considered, it may be inappropriate for the authorities to be consulted in advance where a decision to self-report has not yet been made. This can create a tension between the authorities’ expectations to be notified and the need for the company to bear in mind the risks of prejudicing a future investigation.
Where an investigating authority is already involved, it is prudent for the company to consult or inform it prior to undertaking interviews. Increasingly, the SFO and the FCA have sought to impose restrictions on the conduct of interviews in corporate investigations or to prevent them from taking place. While a company cannot be prevented from undertaking its own interviews, there is risk of criticism if it proceeds without the consent of the authority, particularly where it could be suggested that it has prejudiced an investigation. In particular, there may be circumstances where an investigating authority requests that the company refrain from conducting witness interviews during its investigation.
Indeed, the judgment handed down by Mr Justice Williams in the deferred prosecution agreement (DPA) reached between the SFO and Serco Geografix Ltd referred to the agreement of the company not to interview witnesses during the criminal investigation as an example of its co-operation. The DPA reached with Güralp Systems Limited in 2019 similarly referred to Güralp’s decision to defer interviews until the SFO was content for it to proceed, and to providing details of those witness interviews to the SFO as evidence of extensive co-operation.
12.4 Providing details of the interviews to the authorities
In the absence of a statutory duty to co-operate with the authorities with respect to a company’s witness interviews, guidance comes in the form of codes of practice, guidelines, speeches and precedents. Authorities often expect details of witness interviews to be provided, and it is crucial to consider beforehand the purpose of the interview, its intended audience, record-keeping and, if appropriate, to what extent and how this information is to be shared.
The SFO’s Corporate Co-operation Guidance sets out its expectations when assessing a company’s level of co-operation, which includes preserving available evidence and providing it promptly in an evidentially sound format.
It provides that: ‘Organisations seeking credit for co-operation by providing witness accounts should additionally provide any recording, notes and/or transcripts of the interview and identify a witness competent to speak to the contents of each interview.’
The SFO is clear in its expectation that for a DPA to be considered, co-operation must be forthcoming. According to the Deferred Prosecution Agreements Code of Practice (DPA Code), co-operation encompasses the identification of relevant witnesses, disclosure of their accounts and the documents shown to them and, ‘where practicable’, ensuring witnesses are available for interview when requested. The SFO’s Operational Handbook (in the DPA section) underlines co-operation as a key factor when considering whether to enter into a DPA, and its Corporate Co-operation Guidance states: ‘An organisation that does not waive privilege and provide witness accounts does not attain the corresponding factor against prosecution that is found in the DPA code.’
The Director of the SFO, Lisa Osofsky, said in a speech in 2019 that companies needed to take certain steps for their efforts to count as co-operation: ‘First, in carrying out their own investigation, we need to see the ultimate objective of cooperating with law enforcement by preserving vital evidence such as first-hand accounts and witness testimony.’
In (SFO) R v. Sweett Group PLC (unreported), Sweett Group’s refusal to hand over details of the witness interviews undertaken during its internal investigation was deemed unco-operative by the SFO.
The DPA with Güralp Systems Limited in 2019 referred to the extensive co-operation through provision of information from witness interviews. Co-operation was similarly referred to in the DPA between the SFO and Airbus SE in January 2020 despite the company being slow to engage with the SFO, with the SFO examining internal investigation documents, including interviews, over which Airbus had waived privilege on a limited basis. The DPA between the SFO and Airline Services Limited (October 2020) also referred to the provision of full co-operation to the SFO.
This contrasts with the DPA between G4S Care and Justice Systems (UK) Limited and the SFO (July 2020) where the reduction in financial penalty for assistance to the prosecution and guilty plea was 40 per cent, reflecting the ‘delayed nature of G4S C&J’s substantial cooperation with the SFO’s investigation’. The judgment noted the ‘less than full co-operation with the SFO investigation until a relatively late stage’.
While the SFO clearly expects to be told what witnesses said in interviews (with a particular emphasis on ‘first accounts’), what is less clear is how the detail of the accounts should be imparted and the level of detail that is required. In the case of SFO v. ICBC SB, it was sufficient for oral reports of first-account witness evidence to be provided by the bank to the SFO to enable full co-operation to be established.
Summaries of witness interviews were similarly supplied by Rolls-Royce in the context of its DPA reached in January 2017, with Sir Brian Leveson, then President of the Queen’s Bench Division, noting within his judgment the ‘extraordinary cooperation’, referring to the disclosure of interview memoranda (on a limited waiver basis) as an example of this, and that the company co-operated with the SFO’s requests in respect of ‘the conduct of the internal investigation, to include the timing of and recording of interviews and reporting findings on a rolling basis’. However, in 2017 the former SFO General Counsel refuted suggestions that the provision of summary notes would be standard practice in all cases and that it is not the case that summaries will always be sufficient.
In the case of SFO v. Sarclad Ltd, oral summaries were provided without the company’s badge of ‘genuine co-operation’ being compromised. However, the SFO’s decision to accept oral proffers in this case was subject to judicial scrutiny in R (on the application of AL) v. SFO, with Mr Justice Green describing the provision of summaries as ‘highly artificial’, questioning the SFO’s decision not to take a more robust stance. The SFO was similarly criticised for its failure to challenge the assertion of privilege and require the notes in circumstances where it believed the material not to be privileged.
While the SFO’s approach has not always been consistent, it is unlikely that the SFO would accept oral summaries for key witnesses in future to secure a DPA.
The FCA expects regulated firms to notify it of any matters that occur in an internal investigation, in accordance with their Principle 11 obligation and guidance under SUP 15. While this does not explicitly apply to witness interviews, the FCA Enforcement Guide makes clear that if the FCA is ultimately asked to rely on submissions or an investigation report in the context of its own decision-making powers, it would ordinarily expect the firm to provide the underlying material, which could include notes of witness interviews, in addition to the report itself. While the level of information will undoubtedly differ from case to case, the FCA has indicated that an oral report may not be sufficient and that information should be shared in a transparent manner, with a proper record. Furthermore, if an individual performing a controlled function or a member of senior management is suspended, the firm must submit a Form C explaining the reasons for suspension.
The guidance surrounding co-operation with the authorities and what is expected continues to evolve. In cases where the company or its employees are at risk of further investigation, prosecution or civil action, the company will want to consider the benefits that early co-operation may bring. However, whether it is in the interests of the company to co-operate will depend on the facts of each case.
12.5 Identifying witnesses and the order of interviews
Where interviews are to be conducted, the company, its representatives, or both, should seek to interview all company personnel who were involved in the facts under investigation, including those who should have been involved by virtue of their position. Reporting lines of those involved should also be considered. The witness list may expand as more information becomes known, and should therefore be reviewed regularly.
Employees generally have a duty to co-operate and are likely to owe a duty of candour towards their employer, and a failure to comply could result in disciplinary action.
If there is one, it may be preferable to interview a whistleblower at the start of the process. The structure of an investigation is fact-specific, but, broadly, the order of other interviews should be based on the level of risk that the witness poses to the business, beginning with those who present the least risk. For the most part this is likely to follow levels of seniority, starting with lower-level employees and leaving senior management until later. Timing considerations sometimes mean witness interviews need to be taken out of the normal order, and consideration should be given to the creation of a ‘leavers list’ to ensure that potential witnesses who are due to leave the company are identified.
See Section 12.6
The benefit of this approach is that the company may be better positioned to obtain an overall sense of the extent of the issues before focusing on particular areas of risk, although it is important that sensitive or confidential information is not referred to unless strictly necessary as there is a risk that information may be shared.
While it may be appropriate to conduct early interviews with senior employees to obtain initial accounts (particularly where there is likely to be more than one opportunity to interview), generally members of senior management should be interviewed when the investigation is further advanced. Typically, senior employees are more likely to pose a greater risk from the perspective of corporate liability; therefore, it is important that any potential risks are identified beforehand. Under the principle of identification in the United Kingdom, a company can be criminally responsible for the actions of employees that represent the ‘directing mind and will’ of that company, which is generally restricted to board directors, the managing director and other senior officers who carry out management functions on the company’s behalf. The principle of identification is explored in more detail in Chapter 1.
This can cause difficulties when interviewing board members and senior management who may be the ‘client’ for the purposes of the investigation but who may need to be interviewed in the context of their own involvement. For the most part this can be avoided by identifying the client at the outset of the case as made up of a group of senior employees or board members with no involvement in matters under investigation. However, depending on the size of the company and the nature of the case, this is sometimes unavoidable; therefore, the basis on which the interview is being conducted must be made clear to the witness.
There are a number of statutory exceptions to the principle of identification, such as the offences of failure to prevent bribery and of failure to prevent the criminal facilitation of tax evasion, and the government has been examining the case for reform of the law on corporate liability for economic crime. The Law Commission was tasked by the Ministry of Justice to undertake a review of the law relating to the criminal liability of non-natural persons, including companies, and to provide options for reform. The Law Commission published its options paper on 10 June 2022, presenting 10 reform options to the government, for further consideration.
When the issues under investigation fall within the statutory exceptions, it can be difficult to identify the appropriate individual to interview on behalf of the company. Again, the purpose of the interview and the basis on which it is being conducted needs to be made clear from the outset.
Senior employees are also more likely to owe fiduciary duties to the company and potentially be liable for breaches of those duties and become defendants in civil proceedings by the company. As a result, these interviews should generally take place when the company is in a better position to identify the extent of any breaches.
Relevant information may also be sourced through interviews with third parties, including former employees, customers and contractors. The obvious benefit is that these witnesses may be more forthcoming where there is no risk of disciplinary proceedings. However, third parties cannot generally be required to attend an interview, and unless there is a contractual obligation requiring their attendance, they may refuse to attend. Even in circumstances where a contractual obligation exists this could be difficult to enforce, as could a confidentiality clause. The interview process itself is also likely to notify the third party of the investigation and the subject matter under review and, depending on the nature of the relationship, it may not be appropriate to interview them at that time, particularly when the decision on self-reporting is outstanding.
12.6 When to interview
The timing of interviews can be influenced by a number of factors, including the stage of the investigation and whether any record of interview would be covered by legal privilege. Scoping interviews usually take place at the outset of an investigation, most likely with a few individuals who have a general knowledge of the subject matter under investigation.
See Section 12.11 and Chapter 18 on privilege
Substantive interviews are likely to be most effective once the bulk of any document review has taken place. This will allow for any key documents to be identified and put to the witness, and for questions to focus on the areas of risk. It is best to plan for only one interview; while there may be circumstances where a second or third interview is appropriate, it is by no means guaranteed that the witness would agree.
Timing of the interviews can pose particular difficulties when there are competing considerations. For example, it may be necessary to delay when the company has a claim for injunctive relief against individuals to avoid assets being dissipated in advance of a freezing order being granted. However, it could be that there is only a limited amount of time to interview an employee who is leaving the company or the company may need to speak to an individual at short notice to assist in an assessment of whether to self-report. Clearly such factors need to be prioritised.
It is important to allow flexibility for factors outside the company’s control. Where the corporate investigation is likely to remain an internal review, there is little risk to the company conducting interviews to a timetable that suits it, although it will wish to consider whether legal privilege would apply. Where there is suspicion of a criminal or regulatory violation and a formal investigation has commenced, there are a number of risks associated with conducting interviews in parallel with such investigations.
As a general point, any interviews with individuals at risk of criminal exposure should be postponed until all evidence has been secured to minimise the risk of evidence being destroyed. This is particularly important where a criminal or regulatory investigation is likely. Similar concerns apply where the individuals are potential defendants to civil proceedings by the company.
Both the SFO and the FCA place significant emphasis on the first accounts of witnesses, and take the view that they can help inform an understanding of what went on and allow for the accuracy or integrity of a witness to be tested. However, depending on the facts of the case, this view can often be misplaced; the first account given by a witness is not necessarily always the best one, particularly in complex investigations that span a number of years and where there is extensive underlying material. The quality of a witness’s evidence can often be improved after they been given the opportunity to review the evidence and recall the context. Nonetheless, the SFO and the FCA have increasingly sought to place restrictions on interviews of key suspects in corporate investigations and may seek to prevent them altogether.
In such circumstances it may be prudent for a company to seek to agree an approach with the authorities prior to conducting any interviews.
The authorities are also increasingly sensitive to the risks of witness contamination, and a company whose conduct of witness interviews has caused prejudice to a criminal or regulatory investigation could be subject to serious criticism. At best this could involve comment or views that are unhelpful for the company; at worst this could include allegations of perverting the course of justice.
Mark Steward, Director of Enforcement and Oversight at the FCA, has commented on the importance of an ‘independent public body investigation’ being able to conduct itself without ‘the crime scene being trampled over’.
The SFO has similarly made clear that corporate investigations that ‘trample over the crime scene’ are unhelpful and that integrity of evidence, especially regarding witness accounts, should be respected. It has also noted that internal investigations may result in first accounts of witnesses being taken, delivered or recorded in a form that may be less than full and accurate, as opposed to recording the account by way of a transcript. The SFO’s former Joint Head of Bribery and Corruption, during a speech in 2018, commented: ‘The data needs to be identified, collected, preserved and analysed in a way that does not tip off potential suspects into deleting data and protects its integrity and continuity.’
The SFO’s Corporate Co-operation Guidance lists indicators of good practice, including consulting with the SFO in a timely way before interviewing potential witnesses or suspects and refraining from tainting potential witnesses’ recollections, for example, by sharing or inviting comment on another person’s account or showing the witnesses documents that they have not previously seen.
When a criminal or regulatory investigation is anticipated or already under way, a company may wish to consider engaging with the authorities at an early stage to avoid any criticism that might follow. However, engaging with the authorities may not necessarily be appropriate in every case and runs the risk of loss of control. Each case will need to be assessed on its specific facts and surrounding circumstances, and interviews should always be conducted to minimise the risk of contamination or prejudice.
12.7 Planning for an interview
Interviews in a corporate investigation can be conducted by various people: internal or external lawyers, accountants, forensic experts, specialist investigators, human resources (HR) or compliance officers, and others. Careful thought should be given to who is best placed to undertake them.
As a general rule, where a company is engaged in a corporate investigation into allegations of criminal or regulatory misconduct, it is preferable to have lawyers (internal, external or both) present at interviews to take notes and identify the key risk areas to enable confidentiality and for any claim to privilege to be strengthened. Generally, it is preferable for the same person or persons to conduct the interviews of all the witnesses who provide similar types of information to allow for consistency of approach and for the credibility of witnesses to be more readily assessed. It is also preferable to have two interviewers present to allow for one to take notes while the other asks questions.
Where external lawyers have been instructed, they should generally conduct the interviews. External lawyers often bring (and importantly are seen to bring) expertise, objectivity and independence, which can be very important when assessing the credibility of the investigation. Although it can bring a degree of formality that can make the experience more daunting for the witness, the use of external lawyers will strengthen a claim to legal privilege.
Where external lawyers have not been instructed, the company may consider resourcing the process internally by using compliance personnel, internal auditors or HR officers, or by using in-house lawyers. Either way, those conducting the interview should not have had any involvement in the allegations under review.
While the use of non-lawyers may decrease the levels of concern among employees, in general they may be less skilled in conducting these types of interviews and less familiar with the issues that may arise. In-house lawyers will have a good understanding of the business, and legal advice given to the company will generally be privileged in the United Kingdom. However, the protection of legal privilege will not apply to advice given by in-house lawyers in the context of European Commission-related investigations, and it may be necessary in those circumstances to engage external lawyers.
See Section 12.11 and Chapter 18 on privilege
Where forensic experts (internal or external) are engaged, it may be prudent to involve them in interviews with key individuals. If so, it is generally advisable for these interviews to be conducted alongside in-house or external lawyers to ensure that the contents can be covered by the company’s confidentiality and privilege, as appropriate, and to strengthen a claim to this privilege.
Prior to the interview, a core bundle of documents relevant to the particular witness should be prepared. Consideration should be given to whether the witness is given access to documents, either before or during an interview, and what documents, if any, should be put to the witness. Referring to documents can be a very useful tool to assist in refreshing a witness’s memory and to allow for specific comment. Key documents can be put to provide a better understanding of their content and to give an opportunity for the witness to provide an explanation.
In general, copies of confidential or sensitive documents should not be given to witnesses where there is a risk these could be shared or used contrary to the company’s interests. In complex matters, providing pre-interview disclosure will enable the witness to prepare; however, in general this should be done on a restricted and confidential basis with the requirement that the material is either returned or destroyed at the conclusion of the interview. It is preferable that a witness not be given access to documents that he or she has not previously seen. Where the interview is to be conducted remotely, access could be given to material on a secure data sharing platform or screens could be shared. In any event, the need for confidentiality and security of data remains.
The provision of documents may also give rise to data protection issues in light of the company’s obligations under the data protection principles, particularly where multiple jurisdictions are involved.
A detailed interview plan can be useful to ensure that all relevant questions are put to the witness, although this should not be restrictive, and in general, topics should be addressed in a chronological order that develops facts in a logical way.
When providing topics in advance of an interview, it is generally helpful to indicate the main areas that may be covered to assist the witness to prepare, particularly where the subject matter is complex. However, giving a list of detailed questions is generally not appropriate, as questions are likely to evolve as the interview progresses, and there is also a risk that the questions might be shared.
Interviewers should ask questions in a measured and courteous manner with a clear and professional tone. There is little point in adopting an aggressive approach or engaging in lengthy cross-examination; this is unlikely to be effective and could give rise to criticism, or employment or personal injury claims. A skilled interviewer will seek to put the witness at ease before addressing the key topics. Where there are two interviewers, different interviewing styles can often be effective.
12.8 Conducting the interview: formalities and separate counsel
Professional obligations can affect how witness interviews are conducted. Solicitors have a duty to act in their client’s best interests, and they must not take unfair advantage of a third party. These duties do not always align, and it is therefore important to balance the competing requirements.
The interviewer should be satisfied that witnesses understand the basis on which they are being interviewed, the purpose of the interview and the use that could be made of the information provided. This may impact its admissibility in any future proceedings.
In the United States, an Upjohn warning is given at the start of the interview, where lawyers are present. This practice is often adopted in internal investigations in the United Kingdom, even where there is no involvement of US authorities at that time. The warning sets out that:
- the lawyers represent the company and not the employee or witness;
- privilege in the interview belongs to the company and not the employee; and
- the company might choose to waive its privilege and disclose matters discussed in the interview to the authorities.
Upjohn warnings derive from the case of Upjohn Co v. United States, where it was held that the privilege that attaches to communications between a company’s lawyers and its employees is the company’s privilege and not that of its employees. While there is no formal requirement for these warnings to be given in the United Kingdom, it is considered best practice to do so.
The witness should be reminded of the confidential nature of the interview and, where appropriate, be told that it is a fact-finding exercise. If a company has decided to waive privilege prior to the interview and provide details to the authorities, the Upjohn warning may need to be strengthened. The company could consider whether to give a more formal caution, similar to that given by the police when investigating suspects, although this will rarely be required. If necessary, the witness should be told that while not part of a disciplinary process, the information provided could inform a decision on whether to instigate disciplinary action.
The company should consider whether its own legal advisers can advise the witnesses or whether to allow them to have their own lawyer in attendance. The company may wish to offer to pay for the independent legal adviser. Clearly a company cannot prevent its employees from obtaining legal advice of their own volition and expense; however, it can control who can be present in an internal interview. If an authority investigation is under way, the witness may have contractual rights or rights under an insurance policy (directors’ and officers’ insurance) to fund an independent legal adviser. Former employees may have an indemnification or contractual right as part of their exit package.
Witnesses who appear to be at little risk of criminal or regulatory exposure are unlikely to need independent counsel to protect them against any risk of self-incrimination, and the provision of an Upjohn warning or a similarly worded preamble should suffice. However, a company may nonetheless offer separate legal advice to these witnesses if this would allay their concerns or ensure that appropriate advice is given (including from an employment or civil perspective). Perhaps most importantly, an independent adviser’s role will assist in preparation and increase the likelihood that the individual will give their best account. Moreover, it is often not easy to predict where risks may be at an early stage.
Where the interview is conducted remotely and the witness is advised by an independent legal adviser, thought should be given to allowing a separate remote consultation room to allow confidential and privileged access to that legal advice.
The provision of independent legal advice is particularly important where there may be a conflict of interest between the company and a witness. This can arise where a witness is a whistleblower or at risk of criminal or regulatory investigation, or where the company could be implicated in corporate wrongdoing. In these circumstances, the interests of the company and the witness may not align, and it would be prudent to consider suggesting an independent legal adviser.
While the interview may be delayed to allow advice to be given, it ensures that the witness has had the opportunity to obtain their own legal advice and, depending on the facts, could make the interview more effective. Conversely, the involvement of an independent legal adviser could result in the witness being less inclined to attend the interview or answer questions, although an employee would then be at risk of disciplinary action for not co-operating.
The decision of when to offer independent legal advice may also depend on the account given by the witnesses, and it may be appropriate to stop interviews if they give an account that indicates that the company has a potential civil claim against them or that they are making potential criminal admissions.
Ultimately it would be difficult for witnesses to assert that they had not been fully informed where they had been separately represented, or that the interviewer or company had taken an unfair advantage.
12.9 Conducting the interview: whether to caution the witness
Where a witness may be suspected of involvement in a criminal offence, a caution may be considered. A caution is used by police officers and other investigators when conducting interviews of suspects to ensure that any resulting account (or refusal to answer questions) is admissible in criminal proceedings.
The duty to caution applies to SFO investigators, but is not restricted to state authorities and can also apply to private store detectives and commercial investigators who are appointed by a company to investigate its employees for the commission of criminal offences. The requirement to caution is, however, unlikely to arise in an internal investigation where criminal offences are being considered, as the authorities have shown great reluctance to allow a company to interview the suspect and effectively act on their behalf in gathering a suspect’s account with a view to it being used at a criminal trial.
Importantly, the duty to have regard to the relevant provisions of the Police and Criminal Evidence Act 1984 also does not apply in the context of an internal investigation where the sole purpose is to determine what recommendations should be made to an internal disciplinary panel. It is therefore unlikely to apply in circumstances where an employer investigates allegations that could give rise to disciplinary action and where the sole purpose of the investigation was to inform the company how to respond.
12.10 Conducting the interview: record-keeping
A record of a witness interview may be kept in a number of ways. Where it is audio-recorded and transcribed, a verbatim record would exist, removing the risk of any challenge to the accuracy of what was said, and the recording would capture the tone and any pause or emphasis, which can often give context and allow for an overall assessment. However, it could affect the witness’s account by adding an element of formality, potentially having an unsettling effect on the interviewee, who might become less forthcoming.
More importantly, there is significant uncertainty over whether legal privilege would apply to a recording, particularly where the interview has been conducted as a fact-finding exercise. Even where privilege can be properly asserted, it is likely to be challenged by the authorities, and where a transcript exists, the authorities are likely to request a copy.
See Section 12.11 and Chapter 18 on privilege
An alternative approach is for the legal adviser to prepare a note of what the witness has said. Legal privilege is more likely to apply in circumstances where notes contain some form of legal comment, advice and analysis. This may include the lawyer’s own impressions and assessment of the interview. Alternatively, two sets of notes could be prepared, one containing the factual account and one containing the lawyer’s own views. If so, at a minimum, the authorities are likely to seek a copy of the factual account.
The company will need to decide whether to provide the witness with a copy of the note. Where it is likely to rely on the witness’s testimony in civil proceedings, it may be helpful to agree a note at an early stage to limit any future challenge to its accuracy. This, however, carries the risk that it may be passed on, and any applicable privilege would be lost, which may cause issues if the account is materially disputed.
Where proceedings are anticipated, there are some advantages in preparing a witness statement at an early stage. If the witness decides at a later date not to co-operate or for whatever reason he or she is no longer able to assist, the company may be able to rely on the evidence given, or compel the witness to attend and give evidence, having already taken a record of the witness’s evidence. However, even if privilege can be maintained, it is likely the authorities would nevertheless seek a copy.
Where interviews are conducted remotely, steps should be taken to ensure that the interview remains confidential and to limit the risks of it being recorded either deliberately or inadvertently.
12.11 Legal privilege in witness interviews
Legal privilege in witness interviews raises a number of complex issues, and a claim to privilege will be closely scrutinised by the authorities. Over the past few years, the SFO has claimed that it does not want to undermine legal privilege, which is respected as a legal principle and fundamental right, but that any decision to waive privilege would be viewed as a positive feature. The SFO has said it is not interested in material that is ‘genuinely privileged’, but that it will challenge ‘overly ambitious’ privilege claims, and that a company’s decision to structure its investigation so as not to attract privilege would be viewed as significant co-operation.
During a speech in April 2019, Lisa Osofsky commented that legal professional privilege is recognised as a ‘fundamental right in our legal system’, but that companies can waive that privilege if they wish to co-operate with the SFO. This was a precursor to the Co-operation Guidance that followed.
When an organisation elects not to waive privilege, the SFO nonetheless has obligations to prospective individual defendants regarding disclosable materials.
The existence of a valid privilege claim must also be properly established; the company will be expected by the SFO to provide certification by independent counsel that the material in question is privileged. If privilege is not waived and a trial proceeds, where appropriate, the SFO will apply for a witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965.
An organisation that does not waive privilege and provide witness accounts does not attain the corresponding factor against prosecution that is found in the DPA Code, but will not be penalised by the SFO.
According to the SFO’s DPA Guidance for Corporates: ‘A company would only be invited to enter DPA negotiations if there was full cooperation with our investigations.’ Companies should note the risk that disclosing information relating to witness interviews could result in a waiver of privilege more generally. Ultimately the information could be shared with authorities in other jurisdictions, and while the risk of a general waiver may in part be mitigated by a limited waiver agreement, whether the agreement’s terms would be respected in those jurisdictions would depend on the local substantive law.
In addition, once disclosed or shared with authorities in other jurisdictions, confidentiality may in due course also be lost, for example, if a defendant relies on a privileged document at trial.
There may be a statutory obligation upon UK authorities to disclose the material in criminal proceedings against third parties (e.g., former employees) in the United Kingdom that might follow from a company’s self-report, or in other proceedings, that may not be in the company’s best interests. The Law Society of England and Wales provides guidance to lawyers about their duty to act in the best interests of clients, including maintaining their claim to privilege.
The law surrounding legal privilege and records of interviews is complex and evolving. It has been made more complicated by the narrow interpretation of privilege that has been taken in several court decisions over the past few years. These cases are summarised below.
It was held in The RBS Rights Issue Litigation that the interview notes prepared by the bank’s legal representatives were not subject to legal advice privilege (it was accepted that litigation privilege did not apply). The court found that, for the purposes of legal advice privilege, the ‘client’ consists only of those employees authorised to seek and receive legal advice from the lawyer. In relation to interviews with witnesses, it found that privilege does not extend to information provided by employees and ex-employees outside the client group, and that in order for the lawyers’ working notes of the interviews to attract legal advice privilege, they must contain ‘some attribute or addition such as to betray or at least give a clue as to the trend of advice being given to the client by its lawyer’, which the bank had failed to demonstrate.
This judgment was followed by the High Court in Director of the SFO v. ENRC. ENRC’s argument that legal advice privilege applied to lawyers’ notes of interviews was rejected at first instance, and Mrs Justice Andrews found that the question of whether legal advice privilege applied was an evidential one regarding whether the notes demonstrated the legal analysis and ‘tenor’ of the advice. The judgment referred to examples of the type of evidence required to attract legal advice privilege, including a qualitative assessment of the evidence or any thoughts about its importance or relevance to the inquiry or indications of further areas of investigation that the author of the notes considered might be fruitful, and noted that the betrayal of further lines of investigation would not in itself have been sufficient to render the notes privileged.
Applying the case of Three Rivers (No. 5), Andrews J held that legal advice privilege would only apply to communications between the lawyer and those authorised by the company to obtain legal advice on its behalf, and therefore not to employees or former employees more widely.
Andrews J’s decision was appealed, and although the Court of Appeal did not need to reach a decision on issues relating to legal advice privilege (because of its decision on litigation privilege), it nevertheless gave its view (obiter) on how it would have decided those issues. The Court would have found that Three Rivers (No. 5) had been correctly interpreted by Andrews J (and by courts on other occasions) as having created a general rule according to which, in a corporate context, only the communications of those employees authorised by the company to seek and receive legal advice on its behalf are capable of attracting legal advice privilege. Significantly, however, the Court gave a strong indication that it felt Three Rivers (No. 5) had been wrongly decided and that it would have been in favour of departing from that case had it been open to it to do so, although ultimately it felt this was a question that only the Supreme Court could determine.
ENRC’s claim for litigation privilege was also rejected by Andrews J at first instance, who was not satisfied that, on the facts, litigation was in reasonable contemplation at the pertinent times or that the dominant purpose of the documents coming into existence was for use in the conduct of litigation, with an SFO investigation being seen as a preliminary step, and that a prosecution only becomes a real prospect once evidence is discovered to substantiate the allegation, or where the accusations appear to be true.
The Court of Appeal disagreed with this conclusion of the facts, holding that at the time the documents came into existence, ENRC reasonably contemplated a prosecution by the SFO, in particular noting that where the SFO ‘makes clear to the company the prospect of its criminal prosecution’ and legal advisers are engaged to deal with this, ‘there is a clear ground for contending prosecution is in reasonable contemplation’.
Although the Court did not accept ENRC’s alternative argument that once an SFO investigation is in reasonable contemplation so too is a prosecution, it held that in this case the evidence ‘pointed clearly towards the contemplation of a prosecution if the self-reporting process did not succeed in averting it’, and did not feel that the uncertainty a company inevitably experiences when faced with whistleblower allegations is a bar to litigation privilege.
As to whether the dominant purpose of the documents coming into existence was for conduct of the litigation, the Court of Appeal was satisfied that this requirement was met in this case, and that just because solicitors prepare a document with the ultimate intention of showing it to the opposing party, that does not automatically deprive the preparatory legal work they have undertaken of litigation privilege. Of particular importance was the Court’s view that documents prepared for the dominant purpose of avoiding or settling litigation are just as much covered by litigation privilege as those prepared for defending it.
ENRC provides very helpful guidance and several principles of wider application to assist corporates who find themselves in similar situations. However, it also highlights the extent to which questions of litigation privilege in the context of internal investigations turn on the facts (as indeed is the case with all questions of privilege).
In Bilta & Ors v. RBS & Anor, the High Court’s Chancery Division was concerned with the status of documents created during an internal investigation carried out by RBS’s solicitors, relating to a tax dispute with HM Revenue and Customs (HMRC). This included transcripts of interviews with employees and ex-employees that had come into existence following a letter from HMRC. Bilta and various other claimants sought disclosure of these documents, which was resisted by RBS on the basis that they were subject to litigation privilege. The Court held that the documents were indeed protected by litigation privilege, with the sending of HMRC’s letter considered significant and found to have marked a ‘watershed moment’, likened to a letter before claim. While RBS may also have hoped to dissuade HMRC from proceeding, it was found that this was only a subsidiary purpose subsumed into the dominant purpose.
In R (for and on behalf of the Health and Safety Executive) v. Paul Jukes, following a fatality at work, solicitors instructed by the employer concerned carried out an investigation. A statement was obtained from the appellant Mr Jukes, a former manager, as part of the internal investigation, after the Health and Safety Executive (HSE) had begun its investigation but before it commenced proceedings. This statement was relied on heavily during the subsequent prosecution of the appellant, and following his conviction he appealed, partly on the basis that the trial judge had been wrong to allow the prosecution to rely on the statement as it was protected by privilege. The Court of Appeal rejected this argument and found that at the time the statement was made there was no evidence that anybody within the company knew what the company’s and the HSE’s investigations would unearth, such that it could be said that prosecution by the HSE was reasonably in contemplation. It was held that the statement was not therefore protected by litigation privilege.
In Jukes, the Court of Appeal approved part of the first instance ENRC decision. The Court of Appeal in ENRC addressed this potential issue but felt that its conclusions were not invalidated by Jukes, on the basis that the endorsement of Andrews J’s judgment in that case had been obiter.
Notes of interviews and the status of privilege were further considered by the High Court in R (on the application of AL) v. SFO. A judicial review was brought against the SFO for failing to pursue Sarclad Ltd (initially anonymised as XYZ Ltd) for non-compliance with its DPA through not disclosing the full interview notes, having instead accepted oral proffers. The SFO’s position was that there was no need to obtain the interview notes because the company’s claims of privilege were ‘not obviously wrong’ and that it had exercised legitimate prosecutorial discretion in accepting the oral proffers. In the judgment, the SFO was criticised for (among other things) its failure to challenge the assertion of privilege and require the notes in circumstances where it believed the material not to be privileged. It was found that, even if the assertion of privilege could be made out (which, in light of case law, the court said was not supported), by providing oral summaries the privilege had been waived. The judgment noted the SFO’s failure to fully consider whether to require Sarclad to waive privilege over the notes, given its contractual duty to co-operate under the DPA, and whether privilege had been waived, even on a limited basis.
Litigation privilege in the context of an investigation report was examined by the Commercial Court in Qatar v. Banque Havilland SA and Vladimir Bolelyy. The Court was not persuaded that a report prepared by an accountancy firm was created for the dominant purpose of contemplated litigation; instead it found that the purpose of the report was to establish facts and satisfy the regulator, noting that while dealings with the regulator may have become adversarial at a later stage, this was not the case at the time it was prepared, and it was therefore not considered sufficient for a litigation purpose. The fact the bank had retained the accountancy firm through local lawyers (rather than directly) was given limited weight by the Court as evidence suggested that the decision to instruct the firm pre-dated the engagement of lawyers. Similarly, the litigation hold letter received by the bank was not considered to change the dominant purpose of the report at the time.
Case law has also determined that a dominant purpose test also applies to legal advice privilege. In R (on the application of Jet2.com Ltd) v. Civil Aviation Authority, the Court of Appeal clarified that legal advice privilege will only apply to communications made for the dominant purpose of obtaining or giving legal advice. While the Court noted that the concept of legal advice and the continuum of communications can be interpreted broadly, this is nonetheless a reminder for those conducting internal investigations to bear in mind the purpose of any interviews when considering legal privilege.
In the absence of any further judicial interpretation, those conducting internal investigations should therefore be conscious that a claim to privilege over records of interviews with those outside the client group could be subject to challenge, notwithstanding the helpful decision of the Court of Appeal in ENRC, and whether a claim to privilege will be successful will depend on the facts of each case. It should also be borne in mind that a dominant purpose test also applies to legal advice privilege.
For litigation privilege to apply, litigation must be in reasonable contemplation, and the dominant purpose of the interviews must be the conduct of that litigation. This will depend on the facts of the case, but where litigation is in contemplation, this should be documented to assist in defending any challenge to a claim for privilege.
Factors that may strengthen a claim to litigation privilege over interview notes include where, for example, notes arise from interviews with likely potential defence witnesses in contemplated litigation or where interviews are conducted with a view to assessing the potential risk the witness may pose in likely proceedings.
Those conducting investigations may wish to consider the timing of witness interviews in the context of when the likelihood of litigation (civil or criminal) is clearer, in the absence of which there is a risk that claims to privilege of records of witness interviews will be challenged.
Where privilege can be established, the best position may be to ensure that any notes taken during interviews are done to strengthen a claim to privilege and to leave any decision on whether to waive privilege until the course of the investigation and interests of the authorities are clearer.
12.12 Conducting the interview: employee amnesty and self-incrimination
As a general point, an employer cannot provide amnesty from criminal or regulatory action. Similarly, an agreement cannot prevent disclosures to regulators or inhibit criminal investigations.
While, in theory, amnesty against internal disciplinary action could be offered, this is very rare. More commonly, discussions take place with a view to the employee leaving under the terms of a settlement agreement, which can include a financial settlement and avoids the dismissal of the employee. Such discussions can take place ‘without prejudice’, or they may take place as ‘protected conversations’ and therefore should not take place during a witness interview. These discussions, providing they meet the required criteria, cannot be used as evidence in unfair dismissal proceedings, although, unless the without prejudice rule can genuinely apply, they could be used in whistleblowing or discrimination claims.
Though in theory it is possible for an employer to agree a certain course of action (for example, to retain an employee and waive the right to bring disciplinary action), this would not be advisable in circumstances where facts are not yet known or understood. If an amnesty is given, the employer would want to ensure that any waiver against disciplinary action related to closely defined and identifiable incidents only.
Employers also need to be wary of consistency. Where two employees have committed misconduct, allowing one employee to remain and dismissing another would support an unfair dismissal claim that the dismissed employee may bring. The employer would need to justify the difference in treatment, which may be easier to do when an employee has left under the terms of a settlement agreement.
An employee may also seek to claim privilege against self-incrimination and refuse to answer questions on that basis, particularly where he or she is advised by an independent legal adviser. While there may be clear advantages to this approach from a criminal or regulatory perspective, this in itself would not provide a defence against dismissal. An employer could reach a decision to dismiss on the basis of the information that it had at that time. Although it cannot compel employees to answer questions, their failure to do so could be deemed to be unco-operative and in breach of the terms and conditions of employment, resulting in further grounds for disciplinary action. A dismissal for gross misconduct can still be fair in circumstances where a decision has been made not to prosecute, or where the employee has been acquitted of criminal charges for the same offence. Acts that could constitute gross misconduct are broader than criminal offences and the requirement that gross misconduct be ‘fair’ is lower than the criminal standard of proof.
In addition to employment considerations, it is always possible for an employer not to agree to pursue civil claims against an employee in return for information being provided. However, as set out above, this should generally not be offered until the full facts have been established.
12.13 Considerations when interviewing former employees
In general, unless there is a contractual commitment to do so, former employees can simply refuse to attend a witness interview. It is important to bear this in mind when negotiating an employee’s exit, although in reality (depending on the specific contract terms), once the employee has left there may be little a former employer can do to require attendance, even if it enjoys the benefit of a contractual commitment from the employee to co-operate in any future investigation or proceedings. Under Principle 4 of the Statements of Principle and Code of Practice for Approved Persons, former employees regulated by the FCA have a duty to co-operate with the regulators. It is unlikely that this provision would require them to assist with an internal investigation, and if asked, they could fairly argue that their duty was to the regulator.
Where a former employee is interviewed, there are some protections available in respect of whistleblowing, discrimination or victimisation, should such issues arise in the conduct of the interview or how he or she is treated afterwards. An employer should be wary of giving assurances of anonymity to a former employee in respect of information given, although this could be given on a need-to-know basis. Anonymity should not be guaranteed where regulatory obligations exist or where it could inhibit any criminal investigation, and assurances that any statement provided would not be disclosed to criminal or regulatory authorities should not be given.
Data protection issues may also arise if the account or statement given by a former employee contains personal data. Care also should be taken in global investigations that data protection rules from relevant jurisdictions are considered.
12.14 Considerations when interviewing employees abroad
Interviewing witnesses abroad can present particular challenges. Statutory employment law is generally of geographical rather than universal jurisdiction and, as a result, statutory employment laws of the jurisdiction where an employee is based will always apply, even if the employment contract is governed by English law. Nonetheless the governing law of the contract should also be considered, as should any rights or protections under that contract.
When planning interviews abroad, it is crucial that the law and procedure relevant to those jurisdictions are considered. Employment documents should be reviewed to ensure that procedures are followed. It is important to consider whether the employee or employer is covered by any regulatory rules within that jurisdiction (as well as the United Kingdom) to ensure compliance with any reporting obligations.
It would be wise to obtain local legal advice on laws and culture in that jurisdiction, which should be factored into the interview strategy. Clearly, interviews should comply with local laws, and in particular those relating to employment, data protection, privacy, privilege and blocking statutes. While the English rules of privilege determine whether privilege applies in this jurisdiction, authorities from other jurisdictions may also have an interest, and advice should be sought on how privilege is determined there.
A witness’s procedural rights in the jurisdiction where he or she is based, as well as in the United Kingdom, should also be considered. Compliance with local laws as well as collective consultation and representation rules should be factored in. In addition, the employer should take advice on whether the employee abroad is covered by UK statutory employment rights.
Issues often arise regarding access to documents, particularly where there are restrictions on the movement of information from one jurisdiction to another. Employees may also have a right to access and correct notes and files identifying them. The applicable directives, regulations or rules should be considered in advance to ensure compliance with data protection laws.
Finally, maintaining confidentiality can present particular challenges when interviewing witnesses abroad, and measures should be put in place to ensure that confidentiality remains.
12.15 Key points
Witness interviews are a key part of most internal investigations and can provide vital information for the investigation. Internal investigation interviews can take the form of either preparatory interviews at the outset of an investigation or substantive interviews likely to take place following a review of relevant material.
There can be a tension between the right of a company to investigate allegations of wrongdoing and undertake witness interviews as part of its review, and the expectations of the authorities to be consulted beforehand. Enforcement agencies may seek to restrict how the interviews are conducted or suggest postponement until they have carried out their investigation. Interviews should be conducted to minimise the risk of contamination or prejudice.
UK enforcement agencies have stated that a refusal to provide details of the accounts given by witnesses in internal investigations could be construed as unco-operative or a breach of regulatory requirements. The provision of this information and the form in which it would be provided needs to be balanced with the need to ensure confidentiality in an investigation and to maintain legal privilege.
Where a company is investigating allegations of criminal or regulatory misconduct, it is preferable to have lawyers present at interviews to take notes and identify the key risk areas, and to enable confidentiality and for privilege to be asserted, as appropriate. Where external lawyers have been engaged, it is preferable for them to conduct the interviews; they often bring (and, importantly, are seen to bring) expertise, objectivity and independence.
Interviews can be recorded in a number of ways: by recording and transcribing the interview; by counsel preparing notes; and with the preparation of a witness statement. UK and overseas enforcement agencies are likely to seek details of the accounts provided, and consideration should be given to ensuring legal privilege is capable of being asserted. How an interview is recorded, the privilege that may attach to that record, and whether to provide details of the witness’s account will depend on the circumstances of each case.
Legal privilege in the context of witness interviews raises a number of complex issues, and a claim to privilege will be closely scrutinised by the authorities. Notes of interviews with witnesses who fall outside the ‘client’ group may attract litigation privilege if circumstances allow, but the facts of each case must be carefully considered. Disclosing information relating to witness interviews could result in a waiver of privilege more generally.
When conducting the interview, lawyers should be satisfied that the witness understands the basis on which he or she is being interviewed, its purpose and the use that could be made of the information provided. While there is no formal requirement to do so, it is best practice for the witness to be given an Upjohn warning at the outset and to remind them of confidentiality. Where a company has decided to waive privilege prior to the interview, the Upjohn (or similar) warning may need to be strengthened. It is unlikely that a formal caution, similar to that given by the police when investigating suspects, would be required.
The company should consider whether its own legal advisers can give advice to the witness or whether to offer (and to pay for) separate independent legal advice, particularly where there may be a conflict of interest between the company and the witness and where the witness is at risk of criminal or regulatory investigation, or where the company could be implicated in corporate wrongdoing.
In general, a company cannot provide a witness with amnesty from criminal or regulatory action. Similarly an agreement cannot prevent disclosures to regulators or inhibit criminal investigations. Amnesty against internal disciplinary action is rare and while it is possible to agree not to pursue civil claims in return for information being provided, this should generally not be offered until the full facts have been established.
Interviewing witnesses abroad can present particular challenges in global investigations. It is crucial that the law and procedure relevant to those jurisdictions are considered and that any relevant regulatory rules are complied with. Measures should also be put in place to seek to ensure confidentiality.
Footnotes
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