Regulatory Crime

Criminal investigations lead to business interruption, adverse publicity, lost management time, cost and potentially fines or even prison. Avoiding, managing, reducing and mitigating those consequences saves money and protects a brand.

The time immediately after an incident - whether that's an accident, pollution event or raid by a regulator - is critical in the final outcome of an investigation. Establishing what happened and why it happened at an early stage, and building a constructive relationship with the investigator is essential.

Looking after those involved, managing the press, dealing with the disclosure of documents and interviewing witnesses are all necessary to achieve the best outcome possible.

Understanding what it is like to be in that situation, we expect to drop everything to help when it happens to our clients. Our philosophy is to stand alongside them and come up with a strategy to achieve the best possible outcome.

For example, we attended the scene of a fatal accident on a construction site on the day it happened. We gathered crucial evidence from the scene, prevented the generation of potentially damaging documents and persuaded the Health and Safety Executive not to take formal enforcement action against our client, the principal contractor. Ultimately no criminal charges have been brought against it.

Vital time can be saved if we already understand our client's business and the systems procedures and culture that it has in place to manage risk. We therefore invest time at our expense with our clients before an event, helping them to prevent incidents where possible, so that we can hit the ground running if something happens.

We spent time touring a client's manufacturing sites, for example, and speaking in detail to its head of risk management so that we were fully familiar with the business and the sector. We also give bespoke training sessions or attend our client's own sessions as part of our commitment to help manage risk.

Establishing a relationship of trust with our clients so that they feel able to contact us with quick queries or for a discussion, knowing that there will be no charge, also allows us to add value while learning about their business.

With one client, for example, which operates in the housing and care sectors, we help the risk management team with inquests. The client knows that we will only suggest that we get involved formally if some of the consequences outlined above are likely.

We discuss the details of the case and agree a strategy based on risk. Sometimes we need to do very little, and remain in the background but occasionally, the circumstances require us to take a more prominent role.

Throughout our cases, we remain focused on achieving the best possible outcome from our clients. Each member of the team is passionate about helping them through what can be a difficult and stressful experience, one which they may well never have been through before and which they will never want to repeat.

Emergency response

When an incident occurs, it needs a rapid and thorough response. Our experts are available 24/7 to help protect your business' interests immediately following an incident and throughout any subsequent investigation. We are available to help you respond to any regulatory investigations including by the Police, Health and Safety Executive (HSE), Environment Agency, European Commission and the Competition and Markets Authority (CMA).

Health and Safety Executive, Environment Agency, Police and Local Authority

For assistance, please contact:

Andrew Litchfield, Telephone: +44 (0)121 393 0400; Mobile: +44 (0)7921 881 409; email: andrew.litchfield@gowlingwlg.com

Do's and don'ts for staff under investigation

When dealing with the Police, HSE, Environment Agency or Local Authority Investigators you must comply with the following (failure to comply may be a criminal offence):

• Allow an inspector access to the premises and permit them to carry out any examinations and investigations reasonably necessary for the purposes of their inquiries
• Adhere to any instruction from an inspector to leave defined areas or equipment undisturbed for a reasonable period of time to enable them to investigate
• Allow an inspector to take measurements and photographs and make such records as they consider necessary for their investigation
• Allow an inspector to take samples if they so require
• Adhere to any instruction from an inspector to dismantle (but not destroy) or test any item or substance if they reasonably believe it may have caused or is likely to cause danger to health and safety
• Produce to the inspector any specific documents they require which may assist their investigation
• They are not entitled to access any correspondence or advice to and from in-house or external legal advisors. Keep a list (and ideally a copy) of any documents or items removed from site
• Comply with any prohibition or enforcement notice served. It will be a criminal offence not to.

Statements to the HSE, Environment Agency or Local Authority investigators

• Voluntary oral statements - An inspector may ask for informal oral replies to questions about an incident. Keep to the facts and what you know, and don't be tempted to offer an opinion. These statements are entirely voluntary. Your oral statement cannot be used against you in evidence.
• Voluntary written statements - You are not obliged to give a written statement but inspectors often request one. If you do provide a voluntary statement then be honest and again, stick to the facts - don't speculate about what might have happened or offer opinion in relation to matters of which you are not directly aware. Make sure that what you are asked and your answers, are taken down verbatim. Since these statements are voluntary, you can insist that you are given a copy as a condition of providing the statement. Check your statement very carefully before signing.
• Compulsory written statements - An inspector must be clear about the authority under which this statement is requested (e.g. Section 20 of the Health & Safety at Work Act 1974). You must answer questions posed which are relevant to their investigation. You will be asked to sign a declaration of truth concerning your answers. Your evidence cannot be used against you, but may be used against the company. Be honest and stick to the facts. You can ask for, but may not be provided with, a copy of your statement. You can also ask for someone to be with you when you provide the statement (e.g. a union rep or lawyer).
• Compulsory statements under caution (PACE interviews) - These are formal statements taken when you are suspected of an offence. Seek legal advice before attending. You don't have to attend, and you don't have to say anything, but it is important that you put forward any defence that may be available to you. The interview is recorded and may be used against you in proceedings. Ensure you know in advance what offences you are suspected of committing, and are given a summary of the evidence against you. You are entitled to a transcript of your statement.

Competition

For assistance, please contact Bernardine Adkins, Telephone: +44 (0) 870 733 0649; Mobile: +44 (0)7841 899 302; email: bernardine.adkins@gowlingwlg.com

Competition Dawn Raids... your first response should be to:

• Keep calm.
• Your receptionists should:
• Take the names of the officials, check their identification, and ask if any other officials will be attending.
• Call the most senior member of staff on-site (the 'Manager'), explain the situation, and confirm to the officials the name of the Manager who is coming to meet them.
• Take the officials to an empty meeting room as soon as possible.
• Have the officials sign-in, issue them with visitor passes, and take a scanned copy of their documents.
• Email the scanned copy to your company's 'Dawn Raid Distribution List' set up on your system, so that your senior staff and the Dawn Raid Response Team at Gowling WLG receive this - the email should be marked as 'URGENT - Private & Confidential'.
• Following the call from your receptionists, the Manager should:
• Immediately contact Bernardine Adkins, or their usual contact at Gowling WLG, who will confirm the ETA for the Dawn Raid Response Team.
• Delegate the task of assembling a team of the company's staff to act as 'shadows' - their role will be to observe the officials during the course of the investigation.
• Meet with the officials as quickly as possible, and have a member of staff take a note of the meeting.
• Confirm to the officials that the company's policy is to cooperate fully with the investigation, and explain that lawyers from Gowling WLG are on their way.
• Give an ETA for your lawyers, and ask if the officials will wait for their arrival.
• If the officials are not prepared to wait for your lawyers to arrive (and they are not required to do so), the Manager should:
• Offer a call with Gowling WLG.
• Review the officials' authorisation or warrant to confirm the relevant scope of the investigation (e.g. business area, and whether the investigation is civil or criminal), and extent of the officials' powers.
• Ask the officials how they wish to conduct their investigation, what type of documents they are looking for, and who they wish to talk to - seek to agree a 'modus operandi' under which staff may continue with their work.
• Offer an overview of the business and premises to help officials to focus their investigation.
• Send an email informing staff of the investigation, explaining that it is company policy to cooperate fully, reminding them not to remove or destroy any documents (including emails and text messages), and confirming that the investigation should not be discussed with anyone outside of the company.
• Finally, the Manager should confirm whether any staff have failed to report for work that day - if so, it could be that they are currently being interviewed at a police station and potentially facing criminal charges. The company will need to confirm this as soon as possible.