Due process: build confidence in your investigation process

Due process: build confidence in your investigation process Compliance & Ethics Institute, October 2017 Cedric Bourgeois Principal Investigator UNESCO Agenda 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 Las Vegas October 2017 C. Bourgeois UNESCO 1

Agenda 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 Las Vegas October 2017 C. Bourgeois UNESCO 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 2

Due process: the source? 5 th 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. Due process: the source? 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 ( ). 3

Due process: applicable to investigations? ECDH case law tends to extend the procedural guaranties to pretrial 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 4

Agenda 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 Las Vegas October 2017 C. Bourgeois UNESCO 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 5

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 6

Perception of fairness Agenda 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 Las Vegas October 2017 C. Bourgeois UNESCO 7

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 Fair investigation Presumption of innocence Duty of care (subject, witnesses, whistle-blower) Confidentiality Data privacy (emails, recording of interviews, ) 8

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 9

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? 10

Agenda 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 Las Vegas October 2017 C. Bourgeois UNESCO Balance Policy / Practice Tu patere legem quam ipse fecisti 11

Right to remain silent in administrative and internal investigations? Defense cannot be compelled to self-incrimination (art.6 ECHR, 5 th 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 & 6 th Amendment) Vs. Contractual relation governed by labor law, collective agreement, internal rules (union rep., staff member, lawyer, ) 12

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 13

Interviewing techniques Interviewing techniques Respect I speak to everyone in the same way, whether he is the garbage man or the president of the university. Albert Einstein Perception of fairness 14

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, 15

Tempted to cut corners? 16

Due process: build confidence in your investigation process Compliance & Ethics Institute, October 2017 Cedric Bourgeois Principal Investigator UNESCO 17