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Legal and practical issues when conducting an internal investigation

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There are several legal issues that you would have to pay close attention to. One of them is privilege. This is covered by, in Singapore, by the Evidence Act. There is a difference between external counsel where I think the privilege is a little bit more extensive, versus the in-house counsel where documents have to be sent to them, for the specific purpose of getting their legal advice in order for the company to use privilege as a defence against releasing documents. So it's something that companies must be aware of, but just marking, in-house counsel is not enough. There must actually be a clear demonstration of a request for legal advice. When you have investigated and you either know or have reasonable grounds to suspect a crime has been committed, and that proceeds have been gained from that crime, there's legislation in Singapore that makes disclosure mandatory. Penalties are very severe and disclosure obligations get triggered. The threshold is not high, and there's very little guidance in case law, so you've got to take the legislation at face value and err on the side of caution. Apart from that, there's the issue of tipping off the person that you are investigating and that prejudices investigation by the authorities. You have to be very, very conscious not to do that. And there are other obligations, like protection of data, personal data and so on, that you need to be aware of when you're conducting an investigation. The first thing to do is: don't panic. People need to take a step back when they receive an allegation. Carefully consider the validity of the allegation, the elements of the allegation that might amount to a breach of either company policy or law or regulation, to determine whether or not there's something that really needs investigating in the first place. Once they've decided there is, they needed to break it down. You break it down into a series of testable propositions where you can say 'is this thing true or not?' Once you've done that, you're able to start thinking about the evidence you might need to prove each of the propositions that otherwise come up. You then should know what you are going to try and find out, so you've got the various different types of evidence that you're going to want to think about obtaining. You're going to want to preserve that evidence, and potentially other evidence which you feel may become relevant later. Then, once you've done that, you can start to review the evidence and start to interview witnesses. You can then start to work your way through the investigation. So it's quite a complex exercise. Its legal issues are embedded within that exercise and it's important for you to get good advice. We want to navigate your way through potential pitfalls.

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Posted by: clydecomarketing on Jan 14, 2020

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