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How to run an investigation
KC who’ll review Schofield case for ITV explains how these things work
ITV has appointed Jane Mulcahy KC to review its handling of a relationship between Phillip Schofield and his colleague.
The former presenter of This Morning left the network last week after he admitted lying about the affair.
Mulcahy is a leading employment lawyer and joint head of Blackstone Chambers. Nearly two years ago, the barristers’ chambers published a brochure called Conducting Investigations. It included an article by Mulcahy in which she discussed the scope of an investigation.
This is what she wrote:
The first step to take at the start of any investigation is to determine the scope.
Investigations come in all shapes and sizes. At one end of the spectrum might be a relatively informal inquiry into a workplace issue which can be easily identified and speedily resolved. At the other, however, might be a wide-ranging inquiry in the public domain into alleged misconduct on a large scale, involving a host of individuals and a complex network of events.
Whatever the reality (and assuming a decision has been taken that an investigation really is necessary: the possibility of an alternative resolution should always be considered) it is important to identify at the outset what an investigation is trying to achieve and how that might best be done.
In relation to scope, the key document in any investigation is the terms of reference. This should be drafted at the outset. That is not to say the scope will not change: invariably circumstances will dictate a small (or large) rethink once the process is under way. But recording the “rules” at the start — and promulgating them as widely as is possible, bearing in mind any constraints as to confidentiality — gives an investigator a clear structure as to the way forward.
This is invaluable as a matter of practice for the investigator and provides a philosophical bedrock for the investigation itself. Most usefully, when someone asks why the process is being conducted in a certain way, the terms of reference are ideally the answer.
Matters to consider when drafting the terms of reference include the following:
• What is the investigation required to examine? Is the subject matter essentially private or public? How does that feed into the information gathering and any communication of the outcome (for example, by way of a report)?
• Is the investigation to be fact-finding only, or should the investigator make recommendations as to how the conduct found to have taken place should be addressed?
• What is the proposed timing? Is this realistic? (Timing is often an area where the terms of reference will need amendment: investigations can be much more time-consuming than first envisaged.)
• Assuming the investigation is to be independent (time and effort arguably being wasted, if it isn’t) how will the process be administered? Should the investigator liaise directly with the commissioning organisation (which close contact might lead to allegations of bias and partiality) or with an external law firm? Or should the investigator function entirely separately, supported by their own secretariat? The latter may sound extravagant, but many large investigations falter because of the failure to devote sufficient resources to administration at the outset.
• When it comes to documents, who will provide them to the investigator? Who can see them once provided? Where will they be stored? Data protection and confidentiality are obviously important issues. So is any claim to legal privilege.
• Interviews with individuals also need careful consideration. How will they be arranged? Where and when will they take place? Should an interviewee have the right to be accompanied? To what extent is it necessary for interviews to be noted/recorded and what input might any interviewee have into such a record?
• Finally, there are a range of considerations concerning the preparation of a final report. Who can comment on any draft and to what extent? Who should have access to the report once finalised? Separately, is there any regulatory context that requires a particular reporting structure?
These are just some of the likely matters that need to be thought through at the beginning of any investigation. In addition, such considerations should be revisited and monitored as the investigation proceeds. Such is the cost of any investigation process, both economically and in terms of time and human emotion, that it makes sense to carefully plan it from the outset.
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