We are going to highlight ten of the most common mistakes made as part of investigation processes. We have picked these up as part of our experience conducting investigations, reviewing briefs of evidence, and from reading and learning from integrity agencies who oversee regulatory and investigative work.
In no particular order…
- Poor communication processes. In a climate where caseloads are high in many agencies, ineffective communication processes often translates to risk to the individual investigation but can also have wider implications. All the stakeholders need to be communicated with throughout a matter, and each have different needs and definitely different expectations. A common failure in agencies is a) not recognising those differences and b) failing to manage those expectations from the start. Complaints and conflict with stakeholders are a time-consuming distraction. Consider best practice communication processes that are practical to implement. There are some great models in existence, for example the PAR – Process, Action, Reason – chart to help investigators to manage and create efficiencies and also record these conversations at all stages.
- Failing to use regulatory powers effectively (or even lawfully…). As investigators, Authorised Officers, Inspectors, whatever your legislation calls you – you have certain statutory powers. These powers override a person’s common law rights to silence, privacy or property access. A common mistake is not exercising these properly. So, using powers inappropriately resulting in potentially inadmissible evidence or worse, a civil suit, complaint or inquiry about our actions. Alternatively, failing to use powers as part of gathering evidence in an investigation which has then undermined the outcome and findings. The key message: know your powers and more importantly when you should exercise them.
- Inadequate investigation planning skills; “Failing to plan is planning to fail” – proverb. There are many reviews, reports and inquiries on investigations conducted which cite the impact of poor investigation planning processes. This has resulted in inefficiencies, inadequate evidence gathering, extended time delays and can create a further negative impact on all stakeholders. It also makes it very difficult internally to manage caseloads and hand matters over professionally among staff. Investigation management plans (IMP’s) don’t have to be voluminous and can be tailored to each Agency requirements, but using IMP’s in your process is part of an appropriate investigative response. The best agencies make them meaningful and useful as part of that communication process which also addresses record keeping about decision making and risk management.
- Poor evidence management practices. Processes around collecting all the relevant, reliable, probative evidence in an admissible form and time efficient manner does not always happen. This point links closely to the investigation planning above and highlights why investigation planning is so important. Draft your evidence matrix, look at your sources of evidence and gather and manage them appropriately.
We have recently reviewed a matter which highlighted that evidence was collected and managed contrary to the own organisation’s procedure which was very problematic when identified as part of a review triggered by an outcome appeal. When sanctions or penalties are imposed, the investigative process followed is usually (and appropriately) tested by those impacted. Proof of poor evidence management practices has underpinned many successful appeals or sanction reviews. - Inconsistent and ambiguous case selection practices. Every regulator nowadays calls themselves risk based, and outcomes focussed. But do we actually practice this? I have seen an agency that risk assessed matters as “low” but still investigated them and sometimes kept them open for extended periods despite minimal/no action. I’ve seen agencies that a) do not risk assess anything in case they get too many highs or b) constantly manipulate the criteria around reporting requirements and agreed investigative actions that correlate with the risk rating. A wise person once said, “It is the fish that John West rejects that makes John West the best!” An even wiser person taught me same goes for investigations. If we want to do things well, we can’t do everything. We need to throw some fish back. Design a contemporary triage process around what is achievable. Implement the process consistently and communicate with stakeholders to manage expectations.
- Inadequate record keeping throughout a matter, but particularly at decision making points. Discipline around recording is a critical skill for professional regulatory officers. We all know what it feels like to have picked up a matter with not many running log entries and nothing to go on. Decisions need to record the WHY and not just the decision. Accountability and associated scrutiny of regulators and agencies has never been higher. No one has ever looked back and said “Geez I recorded too much in that report”, but certainly we can look back the other way and wish you had included your thought process in your case notes. The skill is in doing it effectively and using technology and templates to support you.
- Officer capability. It is important that those responsible for conducting matters have the necessary skills, training and knowledge to do the job. This capability extends to currency in undertaking key processes such as interviewing people regularly, managing technology and also being across current legal trends and interpretations is part of contemporary investigation practices. Continued development of staff is in everyone’s interest.
- Inconsistent cautioning practices within an Agency. For some agencies who are strengthening their regulatory approach, there are several different practices in place in terms of issuing a caution as part of their work. It is worth discussing with your teams the important purpose of the caution and how it fits in with the questioning process – and more importantly how that can impact your evidence gathering and the outcome of the regulatory process.
- Inappropriate, interview questioning techniques. Irrespective of who is being interviewed (witnesses, suspects, persons subject of allegation, or complainants) the shaping and questioning format is a critical skill of a regulatory officer. Reviews of Records of Interviews and witness statements can indicate cultural practices such as routine use of leading questions, badgering questions or use of questions that fall outside of the elements or proof resulting in allegations of impropriety and unprofessionalism on behalf the officer. Understand the different types of questioning techniques, (e.g., closed, open, TEDS, 5WH etc..) and when and how to apply the techniques as part of your overall interview strategy.
- Failing to review investigations adequately as part of processes. Many agencies discuss a “lessons learned” process, but unfortunately reviews indicate a pattern of inadequate processes over a period of time which would appear to undermine that claim of continuous improvement. Identifying the ‘learning’ opportunity is important but equally important is the implementation of the improvement to address the practice that puts individuals, colleagues and the broader agency at risk. Genuinely do reviews of the work of your team. Allow for the good, the bad and the ugly to be discussed, document actions, and importantly follow them up and make change.
