Choosing Independent Corporate Investigators
Sometimes in business, issues often arise which require timely, discreet, and often complex enquiries to provide answers and peace of mind or reassurances to stakeholders.
Large corporations may have internal risk management and compliance, or human resources function supported by legal counsel to take care of any potential misconduct or wrongdoing, but is that always the right route to take Smaller enterprises don’t have the luxury of a wraparound team of lawy?ers and investigators, but to them, the stakes are equally as high and the potential for reputational damage is as real. They therefore would need to find an external supplier of such services, often at short notice. But how do you begin to sift through the many providers out there claiming to be competent and professional in a mainly unregulated industry?
Do I need an independent investigator?
A critical decision when considering the need for an internal investigation and prior to any action, is whether it can be carried out by internal staff, or is the problem so serious that a court case can be foreseen, and it requires an objective view and the gathering of admissible evidence? How would it look to stakeholders should it be suggested that a failed investigation was due to the lack of impartiality in the process, or merely due to a reluctance to spend?
Having considered the costs to be worthwhile, are you prepared to accept that the independent investigation team may find failings in your company’s processes and procedures?
Whether the issue in question is around insider threat, criminality, a whistleblowing instigated enquiry, or any other form of potential misconduct, decision-makers need to act quickly to understand the facts surrounding the case. Engaging an independent team can be costly and such an action is likely to create some disruption. However, it remains the most effective way for responsible companies to learn lessons, inform policy and procedural review, prevent future incidents, and remain compliant.
What services can investigators provide?
There are many companies and credible individuals providing what they describe as investigation services and their credentials can seem impressive. Some lead with the headlines around the provision of surveillance services and tracking devices, or online ‘investigation’; eye-catching stuff, but will it contribute to your investigation plan and provide the information you need? There is a vast difference between investigation, and analysis, and intelligence gathering, which can inform an investigation. They may be useful tools in the investigator’s armoury, but the methods and information gathered should feature on disclosure documents and where improperly or unlawfully conducted, they could bring adverse comment in a court and in-turn cause damage to your brand reputation. It is worth noting that intelligence services may be all that is required however, even then, they should be deployed where necessary and proportionate to do so. Choose wisely!
A professional and credible investigation team will suggest the various options available to meet objectives, but a more rounded approach should be taken during important cases such as fraud, corruption, director misconduct in insolvency cases, to name but a few. It may be that your company will seek to bring a private prosecution for example, and a full evidential package is required. In such cases, it is essential to ensure that the evidence is gathered lawfully, and submissions are admissible.
Asking if they have access to experts such as financial investigators, various forensic specialists, cyber investigation experts, disclosure officers, and legal experts is entirely reasonable given the potential cost in terms of financial outlay and reputational risk.
A less complex case may still require in-depth investigative knowledge, but it could be dealt with by a small team or individual with experience in corporate investigation. Ask for examples of cases of note they have completed and if possible, references and qualifications for peace of mind.
Engaging with your chosen team
Any professional team, whether you’re hiring a law firm, a risk management company, or private investigators, should first offer a free consultation so you can gauge whether they are the right fit for your company and that they can deal with the matter at hand. Equally, they should also be assessing compatibility and their own capabilities against the objectives.
You may have by this point, discussed confidentiality, and had an agreement signed. Whether vetted or not, this shouldn’t be a problem for any service provider. Dependent upon the elements of the case, requesting a DBS certificate or other credentials may also be appropriate.
Where you can, provide a full overview of the circumstances and your overall objective. This will help your investigators formulate an investigation plan in consultation with any experts or specialist counsel. It will also ensure that from the outset, evidence is gathered appropriately, and the correct documentation is maintained surrounding disclosure.
Taking the decision to involve an outside body in sensitive commercial matters is never easy. There can be a tendency toward an ill-informed choice or accessing the cheapest option, particularly when there is an urgency for action.
Doing your due diligence around investigation and intelligence service providers can help you minimise the potential for adverse publicity in the future and making the right choices can even help bring the case to an early satisfactory conclusion.