Good Practice Guide ¥ A For Workplace Investigations Se‘The Security Institute 1 The Courtyard Caldecote Warwickshire VIO OAS Tel: 08453 707717 Email: [email protected] Authors: Angus Darroch-Warren BA (Hons) MSc FSyl David Gill MSc ‘Syl (Linx Intemational Ltd) Contributors: Chris Brogan MA LLM FSyI (Security International Ltd) Bill South MSyl (Willian Hill Pie Editors: Jemy Woods BSc (Hons) MA FSyl Dr Alison Wakefield BA (Hons) MPhil Ph.D FSyl Mike Hurst MSyI This Guide does not nei arily reflect the views of the Security Institute, nor should such opinions be relied upon as statements of fact, While all due care has been taken while writing and producing this Guide, neither the Security Institute, nor its authors or contributors, accept any liability for of the contents or opinions expressed therein and no responsibility can be accepted for inaccuracies The data contained in this docume ¢ accuracy is for general information only. Readers are advised that the law and practice may change from time to time, This document is provided for information purposes only and does not constitute legal advice, Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document © The Security Institute 2010Contents, i Glossary iii List of Figures iv Table of Legislation and Cases v Foreword vi ‘The Authors vil Executive Summary x Introduction 1 The Purpose of this Guide 1 Who is the Guide for? 2 What is in the Guide? 2 The Legal Framework 3 Civil Law 3 Criminal Law 4 Differences between Criminal and Civil Matters 4 Criminal Offences 5 Key Investigation Legislation 6 Investigation Management 8 Initial Assessment Investigation Planning Procedural Faimess 2 Information, Intelligence and Evidence 4 Open Source Information 4 The Intelligence Cycle "7 Evidence 18 Searching for Evidence 21 Preservation of Evidence 2 Continuity of Evidence 23 Interviewing 24 Interviewer Qualities 4 PEACE 2s ‘Communication 21 Buy Signs and Lie Signs 28 Interview Questions 30 Managing Complainants and Witnesses 32 Recording Interviews 3Reports and Concluding the Investigation Information Management Investigation Reports Maintaining Confidentiality Legal Considerations Human Rights Act 1998 Data Protection Act 1998 Freedom of Information Act 2000 Police and Criminal Evidence Act 1984 Regulation of Investigatory Powers Act 2000 Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 The Criminal Procedure and Investigations Act 1996 The Disciplinary Process Disciplinary Principles Achieving Good Practice in Workplace Investigations Suggested Reading References 38 38 39 40 40 42 52ACAS ACPO BSI cctv CPIA DPA EAT FOIA FSA HRA HSW Ico PACE PIA PIDA RIPA Advisory, Conciliation and Arbitration Service Association of Chief Police Officers British Standards Institute Closed Circuit Television Criminal Procedure and Investigations Act 1996 Data Protection Act 1998 Employment Appeals Tribunal Freedom of Information Act 2000 Financial Services Authority Human Rights Act 1998 Health and Safety at Work Act 1974 Information Commissioner's Office Police and Criminal Evidence Act 1984 Privacy Impact Assessment Public Interest Disclosure Act 1998 Regulation of Investigatory Powers ActFigure 3.1 Figure 3.2 Figure 4.1 Figure 5.1 Investigation Stages The Investigation C The Intelligence Cycle Communication 10 12 18 27Legislation Companies Act 1985 Companies Act 2006 Criminal Justice Act 2003 Criminal Procedure and Investigations Act 1996 Da Employment Act 2008 Fraud Act 2006 Protection Act 1998 Freedom of Information Act 2000 Health and Safety at Work Act 1974 Human Rights Act 1998 Police and Criminal Evidence Act 1984 Regulation of Investigatory Powers Act 2000 Public Interest Disclosure Act 1998 Theft Act 1968 Regulations and Statutory Instruments ACAS Disciplinary and Grievance Procedures (Code and Guidance) Employment Act 2002 (Dispute Resolution) Regulations 2004 Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 Cases British Home Stores v Burchell (1978) IRLR 379 Joy v Federation Against Copyright Theft Ltd (1993) Crim LR 588 McGowan v Scottish Water (2004) UK EAT 0007_04 2309 R v Twaites; R v Brown (1990) 92 Cr App R 106 Ci R (on application of Robertson) v Wakefield (2001) 2 WLR 889 1s 1s 20 6,43 6, 21, 38, 39 45 7 6, 40 7 6, 16, 36, 38, 42, 47 6, 18, 25, 33, 40, 41, 47 6, 16, 41, 42, 43 6,32 5,7 7, 12, 36, 44, 45, 46, 49 44 43 46, 47 4 16 Al 15As President of The Security Institute, I welcome the publication of this guide as the first in a new series of Good Practice Guides being introduced by the Institute, The Security Institute is at the forefront of helping to raise standards and professionalism in the security sector, and this guide is an example of that important contribution. I have no doubt that this publication will prove to be of great value and usefulness to professionals in security and Iruman resources disciplines, and that it will become an essential read for all those who have an interest in the issue of investigations in the workplace. Me, GAA. Lord Carlile of Berriew, QC‘Angus Darroch-Warren is currently a senior consultant with Linx International Ltd, subsequent to a police career in South Africa and employment as an independent security consultant. conducted numerous Focusing on compliance, specifically in relation to security and risk issues, he ha fraud, theft and malpractice investigations, security and risk reviews and written security programmes in industries ranging from food and drink, education and healthcare to transport and parking. Angus has designed and delivered investigation training courses for international clients and written and presented on the subject of investigation in a number of forums. He has a Bachelors degree in Economics and has an MSc in Security Management through Loughborough University, completing a research project into the impact of the privacy laws on ‘commercial sector investigations and a thesis on the potential impact of private investigator licensing on the sector. ‘Angus is a Fellow of The Security Institute and a member of its Academic Board David Gill a e age of 22 was one of the youngest police officers to be selected for detective training. During his 11 year police career David worked in a number of specialist units; he received several commendations from crown court judges and his Chief Constable for his leading role in securing the convictions of many top-flight criminals. David entered the commercial sector in the mid ‘80s, specialising in product counterfeiting investigations for intemational pharmaceutical and fashion brands. In 1987 he formed his own consultancy, Linx Intemational Ltd, David is a Fellow and a Vice Chairman of The ional rity Institute, @ member of the Institute of Pro! Investigators since 1986 and as a member of an expert advisory group contributed to the drafting of the National Occupational Standards for Security Consultants, David has given evidence as an expert witness at the high court and is also a qualified trainer David delivers I tures on corporate investigation methodology at UK universities and to various sector organisations. He has also written articles on a range of security and investigative topies which have been published in leading industry journals. He recently completed an MSc in Security Management, with his dissertation focussing on the regulation of the security consultancy sector.Chris Brogan is a career corporate investigator specialising in duc diligence and competitor/business gence. He read for a law degree and went on to study for an MA at Leeds Business School and recently completed a Masters in Law at Northumbria University. His dissertation was entitled “The Private Security Industry and the Privacy Laws: Can They Co-Exist?| Chris is a Fellow of The Security Institute and sits on @ number of its committees. He is a previous chairman of The Council of Intemational Investigators, The National Liaison Group for Small Business Clubs, and The London Business Club. He is a member of The Fraud Advisory Panel and former chairman of its Data Protection Group, He is also a Fellow or Member of the following organisations: The Association of Advanced Legal Studies; The Intemational Bar Association; Leeds University Law School; Northumbria University Law School; Association of Law Teachers; ASIS and The Institute of Directors, If Chris had a motto it would be: ‘Education is a process not an achievement, If you have experienced it, share it. Bill South served with the Cambridgeshire Constabulary for 23 years ending his career as a Chief Inspector. He held various roles including Detective Chief Inspector, Chief Inspector Operations Cambridge, and various senior intelligence and strategic roles within the Constabulary — including Senior Investigating Officer on a number of major inquiries (including the Soham murder investigation) In 2004 Bill joined the British Horseracing Authority (formerly the Jockey Club) as Head of Intelligence. He was responsible for the creation of an intelligence environment aligned to the strategic aims of the organisation and ensured that the recommendations of the British Horse Racing Board/Jockey Club security review were implemented. In 2005 c was seconded to the Gambling Commission (formerly The Gaming Board of Great Britain) and tasked with formulating and delivering strategic aims in relation to intelligence development prior to the introduction of the 2005 Gambling Act. Most recently Bill was a member of the Sports Betting Integrity Panel set up by the Minister for Sport to address issues threatening the integrity of sport, The Panel's report was published in February 2010, He is currently Director of Security at William Hill ple.This Good Practice Guide to Workplace Inves Security Institute and written by its membership. The Good Practice Guides aim to provide the reader igations forms part of a series of guides published by The with a broad overview and guidance on various specialised areas of security risk management. This guide covers key areas of the investigative process. It outlines the principles and cone including equality and diversity considerations that investigators need to be aware of, in order to conduct effective and legally-compliant workplace investigations, ‘The investigative framework is considered in various phases, from initial planning, evidence gathering and interviewing to the submitting of reports and concluding an investigation, all set within the current legal framework. Each section concludes with a series of hints and tips’ designed to focus the reader's mind on good practice and potential pitfalls The guide is not intended to be a training manual, nor does it set out to provide a ‘one size fits all? methodology for investigators — the range and types of workplace investigations conducted preclude such an objective. Nor is the guide intended to be @ complete legal reference. It is recommended that the reader continues to develop their own knowledge through research, training and exchange of ideas with other practitioners,Properly conducted investigations are an essential business function and should form part of an organisation's overall risk management strategy; however, if poorly managed an investigation can lead to increased exposure and significant damage to an organisation’s reputation. Potential risks to an organisation include: increased costs, injustice, adverse publicity, civil litigation and even criminal prosecution, Malpractice and criminality in the workplace, including theft and fraud, can leave many organisations ‘wondering if they should pursue criminal or civil litigation, A willingness to investigate and sanction staff for theft/fraud (for example) can indicate that an organisation has a ‘zero tolerance’ approach to criminality and malpractice, This will send a strong message to all staff and provide reassurance to honest employees who suffer from having to work alongside dishonest colleagues. Companies must therefore strike a balance between conflicting needs when conducting investigations; they must weigh the reputation of the organisation, the protection of business assets and limiting potential liabilities, against the desire to prosecute those responsible for a loss, either through the criminal or civil courts The term ‘successful investigation’ can therefore mean a number of things; on the one hand it can refer to an investigation that leads to a conviction; on the other hand ‘successful’ may mean identifying culprits, applying intemal disciplinary measures, justifying dismissals, facilitating civil litigation or simply initiating revision of policies and procedures (Gill et al, 2006). However, prosecutions can be costly and time-consuming, may attract unwanted publicity and damage staff morale, Getting things wrong can be extremely costly in @ variety of ways. The overwhelming number of claims lost in employment tribunals is due to a failure to follow the correct legal process, regardless of the weight of the evidence. Employment tribunals have considerable powers and can make huge awards and while most HR managers will be familiar with the disciplinary and grievance processes, this docs not nei sarily equate to competence in the art of investigation, [A proper investigation enables the employer to uncover the facts which will help it to reach a decision as to whether or not there has been malpractice or even criminality. It also secures faimess for the employee by providing that person with an opportunity to respond to the allegations being made, If misconduct has been established, then such investigation will allow an opportunity for the employee to put forward factors which might mitigate the seriousness of the disciplinary offence and therefore the outcome of the disciplinary hearing The recurring words which need to be at the forefront of the mind of those charged with conducting ‘workplace investigations are lawful, reasonable and proportionate; i.e. ‘Do I have reasonable cause to interview Mr. X and is it reasonable to ask question Y"?‘A company must be seen, internally as well as extemally, to be acting fairly, appropriately and within the law. If required, litigation may be the final step, but the moves leading up to that decision are crucial and often require considerable time, effort and skill. With the stakes so high, managing an investigation properly in order to evidence malpractice becomes essential. Some organisations with a strong focus ‘on ethics and corporate governance recognise this and, as part of their strategy and commitment to the principle of natural justice, outsource complex cases to sp\ The guide is designed to provide practical advice and guidance on the basies of how to conduct ‘alist expert investigators. investigations in the workplace. It gives an overview of the investigation framework, both legal and ‘operational, and provides generic considerations with hints and tips summarised at the end of each section. The guide has been written primarily for those working in security managen the key skills. HR practitioners, business unit managers and others involved in the investigative process will find this essential reading. More experienced practitioners may also find it helpful as an aide sat who are relatively new to ‘The guide provides an overview of how to assess and plan a workplace investigation, setting out a framework for the investigation process, differentiating between criminal and non-criminal investigations, providing an introduction to relevant acts of parliament, regulations and codes of practice and giving pointers on interviewing techniques, information gathering and evidence presentation.Key words in this section are Natural Justice; Objectivity; Faimess; Impartiality: Compliance; Civil Law: Criminal Law; Offences Standard of Proof; Reasonable Doubt; Balance of Probabilities; Hearsay Evidence; Human Rights Act eee Res Mn CeCe ae can Roe team ee Cee ae While corporate investigations are not necessarily subject to the same stringent checks and balances as required by public agencies such as the police, workplace investigators need to have a sound knowledge of both criminal and civil procedure and, in particular, legislation that is designed specifically to regulate the investigation process. Without this knowledge it is likely that information gathered may render an investigation unfair and possibly unlawful. Additionally, corporate policies and procedures with regard to investigations, whether conducted in-house or outsourced, need to outline a legally-compliant framework and one which can be followed by the investigator. ‘The main principles which apply to workplace investigations concer: + Natural justice + Faimess, objectivity and impartiality + Consistency and proportionality + Legal compliance These principles will be referred to throughout the guide, but perhaps the most important is that of natural justice, which in essence covers the other three principles, Natural justice refers to the basic fundamental concept of fair treatment, the requirement to give someone a fair hearing; that decisions are made by an impartial arbiter and that there is the opportunity for appeal against a decision, Understanding the law and what constitutes an offence is essential for the investigator. This relates to laws that help govern everyday life and might relate to less serious offences such as contracts, debt recovery and employment disputes. Civil matters are generally dealt with at the high court, county court and employment tribunals.