Following an incident, the police, HSE or other investigator is likely to take statements and/or interview members of staff, witnesses and company representatives. Topics covered often include company systems and procedures, as well as the incident itself. It is helpful to understand what methods of information gathering investigators can undertake, and what steps you should take to prepare for this crisis situation including information control, management and recording.
Methods of information gathering
There are three kinds of statements/interview that investigators can undertake: section 9 statements (voluntary statements), section 20 statements (compelled statements) and interviews under caution.
This distinction between methods sometimes causes confusion for businesses under investigation and is not always explained properly by investigators.
1. Section 9 statements (voluntary)
In the immediate aftermath of an incident, police and other investigators will interview employees and eyewitnesses and produce section 9 statements, which the witnesses will be asked to sign.
Anyone suspected of an offence should not be asked to give this kind of statement.
As an employer, you can request that section 9 interviews take place with a member of your staff in attendance. However, this is not always practical as investigators can begin talking to witnesses within hours of an incident, and you may not even be aware that interviews are taking place.
2. Compelled statements
Some regulators, including the HSE, FCA and SFO, have the power to require witnesses to provide ‘compelled statements’. These inspectors usually obtain this information through the form of a ‘question and answer’ format interview.
A compelled statement is different from the ‘standard’ section 9 voluntary statement. It cannot be used as part of committal evidence, read in court or used against its maker (or their spouse or civil partner), and so witnesses are protected from self-incrimination when they provide a compelled statement.
Employers or other company representatives are not usually allowed to sit in on these interviews, as the regulators tend to believe this may prejudice their investigation.
The police cannot require witnesses to provide a compelled statement.
Obtaining copies of statements
A witness is entitled to request a copy of any statement they provide to investigators. However, there is no automatic right to this
If one of your witnesses is provided with a copy of their statement, upon request, and they are agreeable to giving a copy to you, this is often a useful way of maintaining a record of what information has been provided to investigators.
3. Interview under caution
A person should only be interviewed under caution where there are reasonable grounds to suspect that they have committed an offence.
Once the immediate aftermath of an incident has passed, your organisation and/or members of its management team may be invited to be interviewed under caution. It is crucial that you seek legal advice at this point, if you have not already, as this process needs to be handled with extreme care.
An interview under caution is a serious step in an investigation. It involves attendance at a police station or other investigator’s premises and being asked questions under caution ("You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.") while the interview is recorded. You are entitled to a copy of the recording or your interview under caution.
What you can do
Managing information following an incident is key, although it is often difficult to coordinate. Ensure you are prepared for a crisis in the first place by:
- Nominating a single person within your organisation to liaise with the various authorities and investigators for any future incidents
- Having in place a crisis plan, of which all your staff are aware
- Ensure you know who to contact in the event of a crisis to ensure you have the right support in place.
DWF’s Crisis Response service marries expert crisis management advice together with PR and business continuity support to ensure you are covered in the unfortunate event of a crisis. For further information contact Tristan Meears-White, Partner or Daniela Shepherd, Solicitor, Regulatory.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.