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Regulatory Investigations

Explore the risks and protections involved in regulatory investigations, understand how regulators gather information, and learn key tips for handling interviews under caution. This guide helps in balancing business and legal responses for a successful resolution.

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Regulatory Investigations

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  1. 31675186.1 Regulatory Investigations Sam Boileau

  2. What risks do a regulatory investigation involve? • Criminal: Compromising company's position in criminal proceedings • Civil: Creating or increasing the company's civil liability exposure

  3. How do regulators gather information? • On-site discussions and questions during inspections • Taking formal written statements (s9 CJA) • Specific requests for information • Demands for information using statutory powers • Interviews under caution

  4. Where the law can protect a company • Law of evidence - to ensure evidence is gathered fairly and appropriately • Legal Professional Privilege - to control information flow during investigation • Public law / judicial review - to ensure regulator acts within law • Abuse of process - to protect against unjust decisions to prosecute • Criminal law and due process - to ensure company is tried fairly

  5. Interviews under caution • Police and Criminal Evidence Act 1984 (PACE) • Interview regarding suspected involvement of interviewee in offence • Answers can be used in evidence against interviewee • S34 CJPA - Adverse inference can be drawn from silence • Corporate suspect cannot be compelled to attend • Power of arrest - Serious Organised Crime and Police Act

  6. Risks of face to face interview • Having information introduced unexpectedly • Inaccurate answers • Answers which do not reflect corporate position • Answers which speculate on legal matters • "No comment" responses can harm position • Being unprepared with the "positive" aspects

  7. Case Study

  8. Interviews under caution - Tips (1) • Always consider requesting written procedure • Written procedure likely to be appropriate for most corporate interviewees • For individuals, face to face interview may be appropriate where • Serious allegations (e.g. fatality) • Simple facts (tree felling incident vs technical failure on oil rig) • Recent incident I

  9. Interviews under caution - Tips (2) • Always clarify the basics - suspected offence; capacity of interviewee • Request list of documents / summary of evidence • Request questions in writing • Ensure prepared with positive aspects and any defence

  10. Handling an investigation: Balancing the business and legal response BUSINESS LEGAL Minimise legal liabilities for company Reputation • Be as helpfulas possible • Learn technicallessons • Control information flow Re-commence operations Protect directors/managers from personal liability Businesscontinuity Safety of employees and general public

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