Due process: build confidence in your investigation … confidence in your investigation process ... ©Dr Paul Ekman ... build confidence in your investigation process

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Due process:

build confidence in your investigation process

Compliance & Ethics Institute, October 2017

Cedric Bourgeois

Principal Investigator – UNESCO

1. Due process: applicable to investigations?

2. Impact on perception and « tone at the top »

3. Due process in investigation policies

4. Due process in investigation practices

Agenda

Las Vegas – October 2017 – C. Bourgeois – UNESCO





Agenda


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Due process: the source?

Safeguard from arbitrary denial of life, liberty, or property by the

King or Government…

Magna Carta (1215), clause 39: “No free man shall be seized or

imprisoned, or stripped of his rights or possessions, or outlawed or

exiled, or deprived of his standing in any other way, nor will we

proceed with force against him, or send others to do so, except by

the lawful judgment of his equals or by the law of the land”


5th Amendment to the United Stated Constitution: “No person

shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall any person

be subject for the same offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for public

use, without just compensation.”


European Convention on Human Rights, article 6: “In the

determination of his civil rights and obligations or of any criminal

charge against him, everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial tribunal

established by law. (…)

Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.

Everyone charged with a criminal offence has the following

minimum rights: (a) to be informed promptly (…) of the nature and

cause of the accusation, (…) (c) to defend himself in person or

through legal assistance (…).”

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Due process: applicable to investigations?

ECDH case law tends to extend the procedural guaranties to pre-

trial phases. Article 6 on fair trial is applicable to:

- Questioning of a person, even if not a suspect (Aleksandr Zaichenko v.

Russia, §§41-60),

- Practical measures such as search (Foti v. Italy, §§52-53)

- The whole investigation as soon as suspicions against a person

are officialy notified (Eckle v. Germany, §§73-75)

Benefits of implementing due process to

internal or administrative investigations?

� Admissibility of evidence across multiple jurisdictions

(FORENSIC standards)

� Protect investigators and organizations from prosecution (data

privacy, safety and freedom of persons, property right,…)

� Build acceptance of the investigative function

� Deterrent effect on fraud and misconduct

� Convey proper « tone-at-the-top »

� CAVEAT: consult with a lawyer on applicable law

Agenda






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Make the process known and predictable

� Publish your investigation policies

� Consult with staff representatives

� Report on investigative activities and disciplinary outcomes

� Audit clause in standard contract

� Focus on organizational learning points and prevention

Be positive! Our business is integrity, not sanction

Fraud awareness training

Fraud training for Managers/Executive and Employees reduce the

impact of fraud:

� Median duration reduced by 47%

� Median loss reduced by 40%

Source: ACFE Report to the Nation 2016

Perception of fairness

Video

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Agenda






Independance of the investigative function

� Fact finding mission

� Testimony can be sought in court

� Impartiality

� Reporting line (head of the organization, board, other?)

� Segregation of duties in the disciplinary process

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Fair investigation

� Presumption of innocence

� Duty of care (subject, witnesses, whistle-blower)

� Confidentiality

� Data privacy (emails, recording of interviews,…)

Fair investigation

� Timely action (statute of limitations and duty of care)

� Incriminating and exculpatory material

� Be aware of the cognitive bias in investigation: tendency to

validate assumptions

Notice of the charges

� Paramount to fair interviewing

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Meaningful opportunity to respond

Subject is presented with all factual elements during the

investigation

� Evidence material

� Testimonies → right to confrontation?

Opportunity for the organization too

� Avoid erroneous decision or solidify the case with admission

� Find out the extent of the fraud

� Identify control weaknesses

Standard of proof

� “Something is more probable than not” (CII)

� “Preponderance of evidence” (UNAdT)

� Burden of proof is “heavier in disciplinary matters than in

administrative matters” – but not “beyond a reasonable doubt”

(UNDT)

� Standard for employment tribunals in your jurisdiction?

Agenda






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Balance Policy / Practice

Tu patere legem quam ipse fecisti

Right to remain silent in administrative

and internal investigations?

� Defense cannot be compelled to self-incrimination (art.6

ECHR, 5th Amendment)

Vs.

� Duty of loyalty of employees and officers (labor law, mandate)

Right to assistance or legal counsel?

� Right to a lawyer (explicit in art.6 ECHR & 6th Amendment)

Vs.

� Contractual relation governed by labor law, collective

agreement, internal rules (union rep., staff member, lawyer,…)

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Access to the investigation file?

� Investigation phase (be confronted with evidence)

Vs.

� Disciplinary procedure (access to the full dossier?)

Interviewing techniques

REID – a confession

method (9 steps)

� Positive confrontation

� Accusatory

� Convey certainty of

guilt

� Offer a rationalization

� Loaded or alternative

question: “Did you

plan this out or did it

just happen on the spur

of the moment?”

PEACE – non-accusatory

method

� Preparation and

planning

� Engage and Explain

� Account (cognitive approach

or conversation management)

� Closure

� Evaluation

ACFE – 5 steps

� Introductory

� Informational

� Assessment

� Closing

� Admission seeking


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Respect

“I speak to everyone in the same way, whether he is the garbage

man or the president of the university.”

― Albert Einstein


Interviewing technique

Use Empathy

Manage the

relationship

Use emotional clues to

deception

©Dr Paul Ekman – Emotions revealed

Fair investigation and interviewing

Due process protects your organization and investigators against:

- Reputational risk

- Civil liability: evidence can be void

- Criminal liability: data protection infringements, privacy

violation, false imprisonment,…

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Tempted to cut corners?

Due process:

build confidence in your investigation process

Compliance & Ethics Institute, October 2017

Cedric Bourgeois

Principal Investigator – UNESCO

Documents

Due process: build confidence in your investigation … confidence in your investigation process ... ©Dr Paul Ekman ... build confidence in your investigation process