This is an Insight article, written by a selected partner as part of GIR's co-published content. Read more on Insight
Background and context
Interviews form an integral part of the investigative process. This chapter outlines the importance placed into the planning and preparation phase of an interview and the subsequent manner in which the interview is conducted in order to achieve the objectives of the investigation plan. As well as information gleaned by the investigator from work such as reviewing files and extracting data. Information concerning matters under investigation will be held by a wide range of individuals including:
- Whistle-blowers or reporters
- Concern raisers
- Affected parties
- Subjects of the investigation
- Third parties
Consequently, the approach the investigator must consider when interviewing is that all of the above parties require equal regard.
All parts of an investigation contribute to the overall outcome and findings. However, interviewing is probably seen as one of the most important aspects. It is common for witness and subject interviews to form the basis of primary, or direct, oral evidence which is seen as crucial to proving or disproving the concerns or allegations under investigation.
Interviews remain such an essential part of most corporate investigations. It is important for those conducting an investigation to understand that whilst documentary evidence can provide the underlying facts of a case; it is often the accounts given by those who are spoken with which deliver the context and detail of what has happened. Those conversations and they are ultimately conversations, albeit sometimes in a more formal context, can supply vital background information, shed light on the reasoning, rationale and motivation of those involved and allow for an individual’s credibility to be assessed.
However, as the age old comment has it, ‘poor planning leads to poor performance’. The timing, preparation, record-taking, content and use of the interviews all require careful consideration.
In this chapter, we will set out the planning aspects and then visit the performance and good practice in delivery. It is really important to grasp, from the moment you are considering an investigation and the subsequent interviews which may follow, that local law and legislation will always guide best practice. Whilst things do not differ entirely, whether you are interviewing in AsPac, EMEA, the USA or Latin America, there will always be local guidelines and possibly constraints that must be followed. That is why it is vitally important at an early stage to ensure that you engage with appropriate legal and human resources (HR) colleagues during the planning stages.
The approach to interviews is crucial. The mindset should be that you learn something from each and every time you interview; it is a splendid premise to work by. Experienced interviewers will always tell you that, despite the best planning and execution of an interview, something always crops up and potentially surprises an interview team. You cannot legislate for all events, do not worry if something you were not expecting actually happens. Approach each interview with the mindset that by learning something new every time, you will be better prepared for the next interview.
Interviews serve several purposes in the context of a corporate investigation, including the scoping of an investigation, understanding the facts and issues from witnesses, understanding accountability and potential aggravating or mitigating evidence from a subject.
We know that interviews in this context can present some difficulties due to the numerous and global requirements of local employment, criminal, civil and regulatory issues which may arise. It is a fact that the interests of the company and the witness are often not aligned. Many interviews are conducted confidentially, when considering legally privileged investigations suitable caveats should be put in place to ensure that legal privilege is maintained together with the duty of confidence between an employer and employee. It will not surprise you to know that interviewers often find themselves in conflict with various stakeholder demands for the specific output from an investigative interview to be shared widely. Legal advice is always recommended before considering who is and should be, entitled to details of the accounts provided during interviews.
Wherever you are in the world the right of a company to conduct its own investigations into allegations of wrongdoing, including interviewing its employees, is often confused with the assertion by external stakeholders that such investigations could, depending on how they are conducted, jeopardise a criminal or regulatory investigation. We also know that in recent years, the situation regarding legal privilege in the context of witness interviews has become more complicated.
Do note that in general and simply put, there are two types of interviews which take place in internal investigations, witness account interviews and subject account interviews. They are wholly separate to employment or disciplinary interviews, given that the purpose of an investigation is to determine the facts against the investigation scope and reach considered findings.
The initial witness interview process is generally appropriate in order to understand background information, identify additional sources of evidence, obtain an understanding of why concerns and allegations are raised and provide relevant context. These interviews are generally conducted early into the investigation and depending on the circumstances, may well take place before any view has been reached on the terms of reference, scope, or extent of material that will be reviewed. They are likely to be undertaken with individuals who may have knowledge of matters under investigation but are not at direct risk of any concerns being directed towards their conduct. Possibly the most important of these is the interview with a reporter of concerns, the individual or individuals, who have raised concerns or allegations in the first place.
Subject interviews will generally occur after the most relevant material has been reviewed. The primary purpose of this is to gain a clear understanding of what happened, to seek an account or explanation for actions and potentially to provide responses to evidential documents presented to them and to test account or accounts provided to the interviewers.
All interviews may be used to understand and clarify any individual or corporate liability in the concerns raised, also focusing on possible internal policy or process breaches. Timing is crucial and it can depend on several factors; e.g. the evidence available at the time of interview, whether external authorities are already involved and whether civil and criminal proceedings are being considered.
Planning and preparation
The investigator must approach the interview in an objective and transparent way, with no predetermined views. A professional hypothesis can be formed from the outset of an investigation, but this should form part of the investigation plan and should be used to form the ‘what and how’ aspects of an investigation.
We know that the role of an investigator is to obtain facts and evidence in a fair and unbiased way to ensure that findings can be determined and reported. This naturally requires individual competency, objectivity and professionalism when delivering interviews and that, despite any training received, everyone learns from interviews when they are conducted. Training in this discipline often comes from supporting skilled interviewers by co-interviewing, learning by observation or roleplay in a training environment. Certain skills may be necessary for specific interviews and particularly when a level of knowledge or subject matter expertise is required.
There is a view which suggests that interviewers should be at a level of seniority which is commensurate with the interviewee. The interviewer should seek guidance before starting, as this may not necessarily be the case. Learning and development often comes from pushing through boundaries which are sometimes unnecessary.
Interviewers are not just from the skilled interviewer cohort, many organisations use different personnel to perform the investigative interviews, such as:
- Internal audit
- Internal investigators
- A combination of colleagues
Vitally important is the ability to demonstrate good oral, written and above all, listening skills. Having a scripted interview plan where all questions must be asked does not necessarily deliver a good investigative interview. It often focuses on asking questions and noting responses rather than focusing on the key areas of the interview, developing accounts and probing or challenging where required.
The best interviewers will always ensure that the goal of the interview is achieved whilst treating interviewees with respect and fairness, it is important to be objective and be seen to be objective. If there is any thought or perception of a potential conflict of interest between the interviewer and interviewee, then find another interviewer to ensure the integrity of the process and, in particular, to help protect against any abuse of process argument that might follow.
When preparing to conduct an interview, the time required should never be underestimated. It is really important to establish a sound and thorough understanding of the case, the concerns and allegations raised. Care should be given to the policy, procedures, regulations or laws of which there is potentially a breach, if concerns are substantiated. Investigators should be familiar with relevant documents, evidence, exchanges, whether obtained through a robust eDiscovery process or provided to them by reporters or witnesses. The preparation time is likely to include obtaining knowledge of sufficient technical and procedural issues to understand what an interviewee might add to the case and therefore, to identify gaps in the evidence.
A solid and detailed interview plan which reflects and refers to what is already included in an investigation plan will seek to identify, through interview, what is known and what is not yet known. It is important to distill the responses to questions into areas which are clear and those which require further investigation to support the interviewee’s position.
The interview plan will be regularly revisited against the investigation plan during and after interviews. It is useful to have a decision and action log running through the investigation, which documents and provides a rationale for changes to or deviations from the scope or plan so that this clearly demonstrates why interview questions are tailored, improved or amended during the interview phase. The process is iterative remaining a living and breathing process in order to meet the investigative objectives.
Investigation plans essentially drive interview plans and the subsequent practical aspects of the interview process. For example, the order of interviewees’ interviews, whether the interview will be carried out on or off site, how it will be performed and recording method including audio, video, handwritten notes or a combination of methods.
Interview outlines are highly useful in order to create interview plans. Interview outlines are the broad subject topics, think of them as ‘buckets’ which need to be covered in the process. If we use an example of a potential misuse of an expenses process for personal gain, the ‘buckets’ may include the expenses process, the systems used, the authority levels required, permissible and prohibited expenses submissions and accepted or otherwise, deviations from process. The interviewer will then seek to gain a first account for each area, and then probe into further detail until each ‘bucket’ is thoroughly covered.
Having an interviewee walk the investigator through a specific process, their engagement with the process, how other individuals or parts of the business dovetail into the process provides excellent background to the particular tasks undertaken as part of their job role relevant to the concern under review. It is when investigators prepare a list of questions and then remain rigid in not deviating from the prepared questions that an interview will fail to uncover key elements or areas of evidence, and as such may not be as effective.
Presenting evidence, documents
Interviews will often require the presentation of documentary evidence acquired during an investigation. Any documents must be considered and prepared well in advance, with copies used as opposed to original.
Thought should be given to the timing of introduction for such evidence, whether this is in advance of an interview for example the previous day, immediately before or during an interview. Each has its own merits and disadvantages. Early presentation may give an unscrupulous interviewee time to construct a story, or the more open and transparent interviewee time to provide far greater context and detail than might otherwise be available.
There is no hard and fast rule. The objective is to drive a meaningful conversation whilst giving the subject of any investigation the opportunity to explain any documents that might otherwise be used to reach investigative findings. Whatever disclosure is made to an interviewee, it is very important that a clear and complete record is made of it, including the circumstances in which it was made.
When dealing with virtual interviews such as through MS Teams or Zoom calls interviewers should recognise that sharing documents on screen may lead to interviewees taking screen shots of the documents presented. Even though investigators should ask interviewees not to do so before sharing, it is highly possible that this will happen as it is out of their control. Hence, investigators should weigh up the advantages and disadvantages, considering the risks if such screenshots were disseminated more widely before sharing them online with interviewees. It should always be possible to ask interviewees about the circumstances surrounding any piece of documentary evidence without the need to share, if the questions are asked correctly.
The post Covid-19 era is upon us, and there are many questions that will guide the investigator in deciding how, where and when to conduct an investigative interview. For instance;
- How significant is the investigation?
- How long will it take?
- Is it possible to find a suitable location and travel there?
- How much time will this add to the investigation?
- What are the cost benefits?
Cross border investigations are possibly the most widely impacted. Often, the evidence required is only available ‘in country’ and there are therefore many issues to consider when conducting cross border investigations. As previously mentioned, the interview will have to be conducted in accordance with local law, governance and regulation. This is even before considering the interviewee’s native tongue, local customs and practices.
Investigators may need to consider whether interpreters are required and whilst the investigative toolbox may reach a second language, the global workplace is so huge that dialect and syntax will often present challenges in their own right. In choosing an interpreter, it is important that they speak the correct dialect so that communication between interviewer and interviewee is as clear as possible
This is where the emotional or soft skills come into their own, e.g. empathy, rapport building, the ability to communicate appropriately and speaking slowly will prove beneficial in the long run. Whilst English may seemingly be a first language, investigators should never assume this to be the case.
When arranging interviews, this must include a suitable time and place for the interview. Investigators may choose to conduct interviews in remote, neutral locations which are away from an interviewee’s usual workplace. In certain circumstances it may be necessary to hire external meeting facilities, such as hotel meeting rooms.
Nevertheless, Covid-19, has required many investigators to conduct investigations remotely. There are many advantages; it may be easier to arrange, speedier, less costly and may serve to put the interviewee at ease. There are also disadvantages, the interviewee may covertly record an interview, may be ‘coached’ by someone else attending out of sight, and screenshots taken without the interviewer’s knowledge. When planning for a remote interview, investigators should ensure that the interviewee has unfettered access to the required technology, including an inbuilt camera or webcam to allow for face to face interaction.
At the beginning of any interview, either in-person or remotely, an investigator should always set out expectations including any guidance on whether the interview is recorded or not. Clandestine or secret recording of interviews is always not acceptable, often overcome with good dialogue and rapport building from the very start. There are significant advantages to the recording of interviews, in that it generally provides the best direct evidence available and in general cannot be contested. Explanations are required when presenting documents or evidence and when seeking an account. It is imperative that any non-verbal actions for example nods, shrugs of the shoulder, pointing to specific items, are fully described for the purposes of any recording.
It is also important to stress the need for confidentiality or to provide reassurance if anonymity is requested. Never overpromise or try to deliver on something that you cannot do. Confidentiality goes way beyond the realms of the discussion itself, continuing to the end of an investigation and often beyond that point.
Where the interviews take place in-person, it is always important to find a private interview room, somewhere all parties are comfortable with their surroundings to put interviewees at ease. If this is in the workplace then a remote or neutral venue is preferred, where once again the interviewee feels more comfortable with the confidentiality aspects. Often remote meeting rooms at hotels are used to ensure complete neutrality and also provide a comfortable and private space in which to hold the interview.
Ultimately it should not be possible for others to see into any interview room or overhear what is said. The room should be free from distractions, comfortable, with refreshment and toilet facilities available nearby. Cognisance is required of what is happening immediately outside an interview room, such as prying ears or eyes and people walking by. It should be possible for interviewees to enter and leave the room without being seen by other colleagues.
Rooms should have sufficient space for those participating in the interviews, as well as co-interviewers and note takers, as well as sufficient space for any other materials that may need to be referred to during the interview. Ensuring that there are no interruptions is a critical part of interviewing, everyone should turn off their mobile phones and asking the interviewee to do this also removes their ability to record the conversation on a mobile phone.
The interview room should be booked for sufficient time in advance to set up the room, the duration of the interview, and time afterwards to wrap up. It should also be booked in diaries confidentially so that the use of the room cannot be seen in shared diaries, which is of course also best practice when sending interview invitations via email. Invitations should always be categorised as private, so that those without a ‘need to know’ cannot determine the meeting’s purpose.
The duration of an interview often surprises many. One hour blocked out in a diary can easily become two or three hours and conversely a day set aside for interviewing is, in many circumstances, unnecessary. This is always determined on a case-by-case basis and far better to plan for more and then finish early. Where the facts are complicated, interviews can take considerably longer than one or two hours. The investigation plan and attention to preparing a detailed interview outline will help the investigator estimate the timing, although scripting a plan and being too rigid often does not allow for emerging detail to be unpacked.
Plan for interviews but be sufficiently flexible to modify the plan if needed and particularly when crucial elements of potential evidence are under discussion. If, despite your careful planning, an interview is running over the allotted time be sure to ask the interviewee if they can continue. It is better for everyone if it can be completed rather than segmented into two or three separate sessions.
When considering how much notice to give the interviewee of a forthcoming interview, do not risk an abuse of process argument that they have been ambushed into participating. Normally, two clear working days’ notice should be sufficient, but it may need to be less where there is a risk that the investigation will be compromised by interviewees sharing information with each other. It is also good practice not to alert interviewees late on the last day of the working week of something forthcoming the following week, as days of rest often lead to days of deliberation and possible discussion with others.
A good practice, where possible, is to send out meeting invitations on Monday for interviews later in that same week. Consideration should be given as to whether line management is made aware, not in the case where concerns directly relate to them, but from a perspective of colleague care for the interviewee. It also may be necessary to ask for assistance in ensuring that interviewees are free of work commitments in order to participate.
Naturally, investigators should consider whether HR or legal support colleagues are notified. It may be appropriate where the investigator expects employees to reach out to HR with further questions after the interview has finished. However, subject always to the requirements of local law, it is best practice for HR not to record the fact that an individual has been called for interview or is potentially connected to an investigation in the interviewee’s HR file.
Whether or not the interviewee is contacted by email or telephone is a decision of the investigator. Some interviewees may be contacted less formally for example a witness or subject matter expert, whereas others are more suitable for a more formal method of communication such as subject interviews. One advantage of using email is that the investigator can clearly set out what is expected of the interviewee. A simple notification may include:
- a high-level summary of the matter being investigated;
- instructions to keep the email and the investigation confidential;
- a notice to retain all relevant documents in any format;
- the proposed date and time of the interview;
- in the case of virtual interviews, how to set up for it and what to bring;
- the investigator’s contact details; and
- any other instructions.
The investigator may also choose to remind the interviewee of their obligations under the company’s code of conduct, investigations policy or any other documents which require them to maintain confidentiality. This may include a contractual obligation signed as part of their terms and conditions when joining the organisation.
While calling on the telephone can seem more personal and may serve to put the interviewee at ease, it can also lead to the interviewee requesting more, and sometimes detailed, information regarding the matter. The investigator should keep this to a minimum and record a file note confirming this was done and how other questions were answered.
Wherever possible the investigator should be accompanied by another investigator, often previously considered to be a note taker who also acts as a witness, this role should not be underestimated and is far better considered as a co-interviewer.
It is important that this individual supports with notetaking of course, but the role is far wider than that. It provides the necessary support for those leading a discussion, presenting useful summaries where a lead interviewer needs time to regroup to gather thoughts and also has the ability to probe into finer detail on points raised during the interview. This allows the lead interviewer to focus on asking questions, listening and reflecting on the answers given and watching the interviewee’s manner.
In larger or more complex investigations the co-interviewer should be another investigator who is working on the same matter. If not, the best choice is usually a lawyer or compliance professional. In these cases, it is imperative that the co-interviewers are also independent of the concerns under investigation and appropriately briefed in advance of the matter and the investigator’s expectations for the interview.
The interviewee should be given the option of being interviewed in their first or native language. As mentioned previously, the investigator will have planned for this in advance in the investigation plan. As always any translator needs to be independent, for this reason, they may need to be an external person. It is noteworthy that some interviews may take place in a language or dialect spoken by both the investigator and interviewee with more complicated or nuanced parts of the interview being conducted in the interviewee’s first language.
Generally, beyond the participants identified above, there should not be a need for anyone else to be present in the interview room. Guidance should be sought locally as to whether the interviewee can, or should, be accompanied by a colleague or friend or indeed by a legal representative, but their role is to be clearly stated or understood if this is the case. They are not participants to the investigation, merely support. Most jurisdictions state that there is no obligation to be accompanied or rights in this respect. This is generally more complex in countries or organisations where formal agreements have been reached with a workers council and a trade union, therefore being aware of this at the outset is important. If in doubt research or ask HR or legal colleagues. If there is a legal requirement to be accompanied, then so be it. However, do not write off the advantages of having someone else present if it really does put the interviewee at ease, it may still be a good idea.
Investigators generally try to resist interviewee requests to bring their personal lawyers or union representative on the basis that it is an interview to find facts, not a disciplinary hearing. If a personal lawyer or union representative is allowed to attend it should be with prior agreement that they are attending as a witness only. They are not there to answer questions on the interviewee’s behalf.
Refusing to cooperate or be interviewed
This can happen. Investigators cannot compel interviewees to be interviewed or to answer the investigator’s questions. If an interviewee refuses to be interviewed or to answer questions during the interview, the investigator should remind the interviewee of their obligations, usually in the company’s code of conduct or investigations policy, to cooperate with company investigations. If they still refuse, the investigator should cease the interview, and it is important that this is recorded in a file note to this effect.
It is then often referred to within a final investigation report, not that an inference in itself is drawn, that is not the role of the investigator, but it does allow a decision maker to consider, in accordance with the legal regime governing the process, why an interviewee failed to cooperate. Guidance should also be sought from legal or HR colleagues if needed.
It is not out of the realms of possibility that an interviewee is immediately on sick leave once they learn they have become the subject or even a witness in an investigation. The investigator should seek advice from legal or HR colleagues, if this is the case, but a general rule of thumb is that prospective interviewees should not be approached or expected to attend an interview until they are certified fit to do so and have returned to work.
In a similar vein, from time to time subjects or witnesses resign during an investigation. Ideally, the investigator will be able to interview them during the period of notice, but there could be situations where this is not possible, and the investigation progresses without the input of key individuals. In these instances, the investigator should discuss the matter with the relevant department, such as legal or HR to understand the possibility of an interview after employment. This situation can be avoided by effective engagement with key stakeholders when an investigation commences, so that the investigation team is notified in the event of resignations.
On occasion, it may sometimes be appropriate to obtain information by means of written statements from potential interviewees, or indeed to receive a prepared written statement at the outset of an interview. This does not stop the interviewer continuing, but the interviewee may refuse to answer any further questions. However, there is however still merit in asking them.
Sometimes prepared statements are most useful where the issue or information sought is straightforward or has clear boundaries.
Interview recording, audio or contemporaneous notes
Much has changed in the world of Digital Interview Recording (DIR) in recent years. Gone are the days of large recording devices. Most handheld recorders and mobile phones have sufficient capacity to store lengthy interviews; interviewers should always maintain professionalism throughout and remember that any interview could be recorded by an interviewee without consent. We will leave the admissibility of this as a question for HR and legal colleagues, who may challenge the appropriateness of this at a later stage.
Whether relying on audio recordings or contemporaneous notes of interview, notes should always be taken in some form just in case technology fails, something is therefore available to fall back on just in case. Decisions as to which method often rely on investigation policies, local employment laws or practices, union rules, legal professional privilege and the type of investigation being conducted. The aim is always to create an accurate record of each interview that appropriately considers these requirements.
An investigator’s first step should be to consult their organisational investigation policy and enabling procedures. If in doubt, consult with legal colleagues. Where DIR is mandated the rationale for this often includes that:
- it provides a full, accurate, enduring contemporaneous record;
- it is seen as a more efficient approach which allows the interview to be conducted more quickly and at a more natural pace;
- it allows the investigator to focus on the interviewee and maintain eye contact;
- it protects the investigator from allegations of bias or unfairness towards the interviewee;
- it is seen as helping to build rapport as it gives the interviewee comfort that they will be fairly represented;
- it can be reviewed later by the investigator, stakeholders and indeed decision makers; and
- it may provide evidence required by external counsel, regulators, law enforcement, employment tribunals or civil or criminal courts, particularly in employment investigations.
Subject always to local legal requirements, digital audio recording is at the discretion and preference for each organisation. Depending on the severity and type of case, care and consideration should be given as part of the planning of the interview and advice should be sought from legal. In particular, in cases may involve the criminal justice or regulatory authorities, consideration will need to be given to any requirements they may make of co-operative companies to provide them with full interview records, even if those records are themselves covered by legal professional privilege.
Some organisations favour contemporaneous notes, on the basis that:
- note takers also provide a full, accurate, impartial contemporaneous record;
- audio recording is seen as freezing the conversation, thereby stifling rapport building;
- an investigator is unbiased and fair towards the interviewee in any event;
- an audio recording is not protected by legal privilege and can be required by the interviewee, the police, or regulators;
- interview notes are incorporated into a short form memorandum of interview which includes the investigator’s thoughts and mental impressions; and
- an audio recording is long and unwieldy.
Digital audio recording protocols
Ideally it should not be a surprise when interviewees arrive for a meeting that there is a possibility that the interview will be recorded. Taking time at the outset to build rapport and explain the benefits often outweighs the anxiety that this may cause.
Either way, as an investigator you should be able to explain the benefits and rationale, alternative options available but ultimately to put an individual at ease. Where the digital recording option is used, before the interview starts, the interviewer must check the recording device is working and has enough battery power. It should also be tested for vocal positioning, for example where participants will sit, as there is nothing more frustrating when trying to transcribe when questions and responses are not clearly audible. This test then determines the optimum recorder position for maximum clarity and to ensure that any background noise such as an air conditioning system does not interfere excessively with the recording. Equally do not place mobile phones in close proximity as this may interfere with the recording and sound quality.
At the start of the interview, participants must again be advised that the interview will be recorded and their verbal confirmation obtained that they are comfortable to proceed. All recording must be done overtly; the recorder must be placed in full view and only switched on with the interviewee’s knowledge and in their presence. Recording devices should not be switched on before an interviewee is made aware of it.
Investigators should maintain control of the recording device until the audio file has been uploaded to a restricted access network drive. As backup to the digital recording, the investigator’s support or co-interviewer should also take notes in the event that the technology fails.
Even if the interview is being recorded some written form of notes will be required, and it is good practice to take notes just in case the technology fails. The balance is between acceptable and understandable notes and focusing on the matter at hand, the interview itself will always be something for the interviewer to consider on a case-by-case basis.
Co-interviewers help with this process immensely. They may be handwritten or typed at the time, although typing notes can often be a distraction and affect the dynamic of the interview, care should be taken to type quietly so as not to distract from the interview itself. Sitting out of the lead interviewer’s ‘line of sight’ to the interviewee is also helpful to create an environment whether the lead interviewer retains primary focus on the interviewee.
Co-interviewers should take sufficient and accurate notes as possible, capturing the salient details and any key points in the interview, such as accounts, explanations and admissions. An experienced co-interviewer will capture significant details and provide an excellent base from which to create a note of the interview.
In certain investigations, investigators may wish to share notes and agree their content, with the notes approved or indeed signed by the interviewee. You can see immediately that the DIR process is a far cleaner approach, as this provides an almost uncontestable record of the interview itself.
Interviewing third parties
On occasion, it may be necessary to interview third parties. This may include former employees, suppliers, customers and those outside of a business reporting concerns or making allegations.
Care should be taken to obtain the right levels of business approval, without jeopardising the investigation outcomes, before reaching out to third parties, particularly if they are customers. Often discussions with legal colleagues will set out the necessary boundaries for such approaches and provide clear advice and guidance if a matter is considered to be legally privileged and confidential.
An investigator would generally invite a third party to attend an interview without providing too much detail at the outset. This may be framed in such as a way as “we would like to have a discussion about business issues in a certain region, and your knowledge, expertise and experience would be of great benefit”.
This is important to avoid the matters under investigation being disseminated and discussed more widely by third parties. Similarly, for the same reason, during the interview itself the investigator should take care to ask questions of fact and capture the responses rather than make admissions. This type of discussion may well be better suited to interview notes as opposed to digital interview recording.
Closing the interview
At the end of the interview, the investigator should:
- confirm requirements in respect of any information or materials that the interviewee is to provide following the interview;
- advise that they will be in touch if any further clarification is required, or if a further interview is necessary;
- provide the interviewee with the investigator’s contact details in case they wish to provide further information;
- where the interviewee will be asked to sign the memorandum of interview, explain the process that will be followed to do this; and
- thank the interviewee for their time and remind them to keep the discussion confidential.
Evaluating and assessing interviews
At the conclusion of an interview, it is very important that the notes of this, or indeed the DIR are considered and evaluated.
The evaluation and assessment will fundamentally consider whether any new or additional information was obtained, how this fits in with the facts and evidence already identified and whether any further investigative steps are necessary as a result of what was acquired during the interview.
A more thorough evaluation, following review of any final transcript may often help make further links which might not have been immediately apparent during the interview. The opportunity should also be taken at this point to reflect on how the interview went and consider what improvements could be made in the planning, preparation and conduct of future interviews, with feedback from the co-interviewer critical to this process.
There may well be considerable interest from other parties following the interview of a subject with a temptation to make immediate leaps of judgement or assessment. With this, investigators must caution that any information obtained at interview cannot be relied upon until it is properly tested and validated.
Legally reviewed by Alun Milford (Kingsley Napley LLP).