11/06/2020 Podcast

This audio briefing covers:

  • the question of whether you need to carry out your own investigation,
  • how that might interact with other investigations,
  • the type of investigation you might need to carry out, and
  • some of the key points that have to be taken into account.


Transcript

Hi, I am Joanelle O’Cleirigh, a Partner in the Litigation, Dispute Resolution and Investigations Group in Arthur Cox. In this audio briefing, I am going to discuss how companies have seen a significant increase in the need for investigations in the Corporate Crime area.  I’m also going to cover four topics in relation to considering whether you need to carry out your own investigation.

Firstly, I’m going to look at the question of whether you do need to carry out your own investigation. Secondly, we’ll consider how that might interact with other investigations. Thirdly, I’ll look at the type of investigation you might need to carry out. And finally, we’ll consider some of the key points that have to be taken into account.

So, when do you need to carry out your own investigation?

There are lots of reasons why you might need to carry out an investigation. I’m going to talk you through some examples of them. For example, you might have an issue with internal fraud or third-party fraud on your company. You might also have a significant “me too” issue as it now is described that requires investigation. Issues now often arise in relation to data theft and internet misuse. And if you are a regulated business, and there’s many different types of those, sanctions in those areas can often be of a criminal nature. All of you would be companies under the Companies Act and there are hundreds of offences under that Act in relation to the conduct and business of companies. And those are just a few examples of why you might need to carry out your own investigation in relation to these types of issues.

Another point to consider is how might your investigation interact with other investigations?

When setting up your own investigation it’s important to also consider whether there is likely to be external parallel investigations. Some obvious examples might be an investigation by An Garda Síochána or if it involves an accident in the workplace there could also be an investigation by The Health and Safety Authority In addition, depending on what particular industry you are in, there might also be another regulator who would investigate you. Examples of those include the Central Bank if you if you are involved in Financial Services, HIPRA if you are involved in Life Sciences, or if you are involved in Healthcare it could involve HIQA.

What type of investigation might you need to carry out?

When considering the type of investigation to carry out there are two main considerations in the first instance. Firstly, will you conduct an internal investigation or will you instruct a third-party to carry out the investigation for you? Secondly, is it intended that the investigation report will be confidential and privileged? Some of the questions that you might ask in order to assist in answering those questions would include whether the risk is on-going. What the actual issue is? Whether there is a litigation risk?  Do you have reporting obligations? And finally, what is it likely to do from a reputational perspective?

Summisation

And finally, some of the key considerations for a company in terms of setting up an investigation are firstly to address the immediate risk, whatever that is, and to ameliorate it. Secondly, as I’ve mentioned consider who will carry out the investigation. Thirdly, look at the litigation risk and identify what that might be. And fourthly and very importantly, consider the terms of reference very carefully. What is the scope of the terms of reference, what is the methodology and what are the timelines.

I hope you found this helpful.

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