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Regulatory Investigations

31675186.1. Regulatory Investigations. Sam Boileau. 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. How do regulators gather information?.

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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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