Managing internal investigations remotely

Insight shared by:

Gateley Legal

Article by

The world is changing fast, not only due to the ongoing Covid-19 pandemic, but also because of the pandemic-induced adoption of technology-enabled business processes. The organisations able to adapt quickly to new ways of working will be those that thrive both today and in the near future.

Investigations from afar: the implications of managing virtual interviews

One course of action is to put normal business-as-usual activities on hold and wait for difficult times to pass, but this is not an option for organisations that are trusted by shareholders to keep assets safe and deliver returns on investment. It’s also a particularly risky strategy to follow when dealing with instances of fraud.

Firstly, the longer fraud investigations are postponed, the greater the risk that evidence, data and witnesses will disappear. Secondly, if there is an opportunity to retrieve missing assets, this will dissipate as time goes on and funds are laundered or moved to locations that are more difficult to investigate. 

Fraud which is not investigated will have reputational impacts as well as financial implications. Ignoring fraud under these difficult circumstances is accepting the full amount of the risk to the organisation.

However, the challenge for organisations currently is that legal and audit teams, along with many others, are working remotely and away from colleagues. Fraudsters will exploit the situation and will certainly not wait for normality to return. 

As fraud incidents are on the rise, and remote working introduces new risks such as lack of face-to-face meetings to sign contracts, how can organisations deal with the current situation and continue managing internal investigations, particularly when it is not certain when travel bans and social distancing edicts will be lifted?

Investigation lifecycle

As outlined in our previous article, it helps to understand the internal investigation lifecycle, which includes business intelligence, interviews, data and documents. In many cases, business intelligence, data and documents can be gathered remotely without investigators having to travel to an organisation’s site, even if that means asking a trusted local team to provide images of email accounts or financial systems data which can be shared securely with investigators.

Interviews are the most problematic element to undertake remotely. There is no doubt that arranging face-to-face interviews with witnesses and suspects is the best way to manage the process. Once you replace physical interviews with virtual interviews, you compromise certain elements key to an investigation.

Considerations for when virtual interviews replace physical ones

  1. The investigator loses a level of control in the interview process. Normal interviews take place in a secured room containing two or three people. In a remote interview, it can be difficult or impossible to confirm that the interviewee is the only person in the room, that the interviewee is not communicating via another device with others, or that the interview is completely confidential.
  2. In a normal interview, notes are taken by the investigator and shared only with relevant people under legal privilege. With remote interviews carried out over a virtual meeting platform, there is a risk that meetings are recorded without permission, which is a criminal offense in itself in some areas of the world. 
  3. Most interviews require an investigator to share documents. Doing so in a remote interview can be tricky, since documents shared on email before an interview or even on-screen could be shared with other parties and may not remain confidential or secure.
  4. Remote interviews may take place across state or country borders. Decisions need to be made about whose legal framework interviewers and interviewees must adhere to.
  5. Despite improvements in technology platforms, these platforms are still dependent on communications networks to operate effectively. The quality of wifi and internet connections can vary and meeting connections can drop out completely. 
  6. The visual quality of a connection can make it more difficult for investigators to read visual cues from remote interviewees. An image on a flat screen is no substitute for being in a room with a witness or suspect.

In our view, now is the time to consider how to maximise the capabilities organisations have at their disposal and map out the best way to proceed. Despite the challenges above, pushing forward with remote interviews is a better option than postponing investigations. 

Some witnesses may be interviewed by telephone rather than by video, for example, and security settings on video platforms can be tightened for one-on-one interviews and document sharing.  Organisations can also utilise the secure online data rooms normally used for financial or legal transactions to share documents.

During any crisis, new and different working strategies emerge out of necessity. In the case of internal investigations, improvements to remote, more cost-effective processes that don’t rely on expensive travel may become widely adopted.

Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.

Got a question? Get in touch.