Witnesses in proceedings arising from the same event are likely to be the same; the company involved will want to get their recollections of events but prosecutors and regulators may warn against interviewing key witnesses.
How can a company prepare for the various proceedings without falling foul of the authorities?
A company defending proceedings relies on the individuals involved in, or aware of, the relevant conduct or events to provide it with a full and accurate account so that it can:
- disclose the correct information to the market and the authorities
- assess the merits of the allegations made against it, and
- advance a robust defence.
In certain circumstances a company may be unable to access complete or accurate information from relevant witnesses, hindering its ability to defend itself.
For example, where a witness is due to give evidence in criminal proceedings, in the absence of appropriate procedural safeguards a corporate defendant will face resistance from the SFO to discussing their account or any documentation disclosed for the purposes of related civil proceedings where doing so presents a risk of contaminating their evidence in the criminal case.
In addition, a witness concerned they may implicate themselves in criminal wrongdoing has a right to refuse to give evidence in civil or criminal proceedings, requiring the judge or jury to determine the outcome of the matter without the benefit of their account.
Similarly, a witness who gives evidence that is inconsistent with a previous account of the relevant events may also undermine the strength of the corporate’s defence, requiring the judge or the jury to determine which (if any) of the evidence given represents their true account.
A company defending civil or criminal proceedings may need to rely on witnesses who are concerned that they could be asked to give answers that might implicate them in criminal wrongdoing.
In such circumstances, a witness has a right to refuse to give answers that could expose them to a risk of criminal prosecution by claiming their privilege against self-incrimination. This right to refuse to give self-incriminating evidence belongs to the witness alone and cannot be exercised or waived by anyone else, including the party which called them. If a witness invokes this right, not only will the judge or jury have to make a determination without the benefit of the privileged and potentially highly relevant evidence, the prevailing view of the courts is that adverse inferences can also be drawn from the witness’s refusal to answer which also may reflect negatively on the corporate defendant.
Long before a witness enters the box, the party who seeks to call them will need to carefully consider the risk that they may claim privilege against self-incrimination, the potential implications that may have both in the present and any parallel proceedings, and whether any practical safeguards can be adopted that would permit the witness to give evidence while mitigating any risk they may incriminate themselves.
Related issues may also arise in regulatory or internal investigations where an employee is asked in interview to give answers that could expose them to criminal prosecution. In the regulatory context, provided the interview is taking place under formal compulsion, generally a witness’s answers may not be used as evidence against them in any criminal proceedings. In internal investigations, it is unlikely that the same protection will be available. It will also be much more challenging in that context for an employee to refuse to give potentially incriminating answers - they may, for example, be required to co-operate with an internal investigation under the terms of their employment contract.
Where an interview conducted pursuant to an internal investigation presents a risk of self-incrimination, a corporate defendant may elect not to interview the individual for fear (particularly in the very early stages of an investigation) of creating a potentially non-privileged account of criminal wrongdoing that may also implicate the company, and/or of "churning up the crime scene" by interviewing a potential suspect before the relevant enforcement authority has had the opportunity to do so.
- Contamination risk
There is broad agreement across both the criminal and civil spheres that a witness in proceedings should give their honest recollection in their own words. However, there are differences in the way in which this is achieved.
In criminal proceedings, witnesses are forbidden to discuss their evidence with each other in order to ensure that it is “uninfluenced by what anyone else has said, whether in formal discussions or informal conversations”. Consistent with that, statements and proofs of one witness should not be disclosed to any other, and a witness waiting to give evidence in person must not wait inside the courtroom unless that witness is a defendant or an expert witness (Criminal Procedure Rule 25.11). In contrast, in civil proceedings, provided no actions taken by the lawyer could amount to the improper coaching or pressuring of a witness, the extent to which a witness can be shown documentary evidence, or the testimony of other witnesses, appears to be a matter of judgement.
These differences in approach present challenges when the same individuals are to act as witnesses in both civil and criminal proceedings. In that situation, if a company and its legal advisers were to proceed to prepare their witnesses to give evidence in the civil proceedings in the "usual way" they may show them documents or information which could contaminate the account they will give in oral evidence, and thereby risk causing prejudice to the criminal trial. In a worst-case scenario this could cause the criminal trial to collapse, potentially leading to allegations of perverting the course of justice against the company and serious public criticism.
In this situation a company needs to carefully consider whether there are any practical safeguards it could adopt to mitigate the risk of contaminating a prosecution witness which would not unduly restrict it in the preparation of its own evidence in civil proceedings. If none are available, it may consider an application to stay the civil proceedings, pending resolution of the criminal prosecution.
For further commentary on witness handling, please read our article.
For information about seeking a stay of proceedings see Utilising procedural mechanisms: Seeking a stay.
- Inconsistent testimony
Where individuals are required to give multiple statements or accounts of the same events (with sometimes long periods of time in between), it is to be expected that there will be some differences in the evidence given. However, where those differences amount to inconsistencies this can undermine the credibility of a witness, damaging the position of the party seeking to rely on their evidence.
A previously made statement of fact - whether made in a witness statement in civil proceedings, to a regulator or criminal investigation authority (including to the SFO, by means of an interview pursuant to section 2(2) Criminal Justice Act 1987) or in the context of an internal investigation - that is inconsistent with an oral account given by a witness or defendant in ongoing criminal proceedings, is likely to be admissible as evidence in those proceedings (see s.119 Criminal Justice Act 2003, and ss.3 - 5 Criminal Procedure Act 1865).
If admitted, the statement will be treated as evidence of the truth of matters stated within it, if oral evidence on that same matter would be admissible. This includes statements which amount to a confession to an offence if relevant to a matter in issue in criminal proceedings, and where the prosecution can demonstrate that the evidence was not obtained by oppression.
Where inconsistent statements have been admitted in evidence, it is likely to be necessary for the judge to direct the jury to consider carefully whether reliance can be placed on:
- the witness’s oral evidence
- on what was said in the previous statement, or
- whether the conflict is so great that the evidence of the witness cannot be relied on at all.
It goes without saying that where the evidence given is critical to a defendant’s case, the impact of this can be significant. In coming to their view, the jury will need to consider:
- the circumstances in which the original statement was made
- the witness’s explanation for the inconsistency, and
- the evidence of any other witnesses on the matter.
It would appear to be open to the jury to conclude that the earlier statement made is the correct account and reject the witness’s oral evidence, notwithstanding that an earlier statement (as hearsay) carries less evidential weight.
Evidence of previous inconsistent statements can similarly be deployed in civil proceedings to contradict oral evidence given by a witness (see s.6(3) Civil Evidence Act 1995, and ss.3 - 5 Criminal Procedure Act 1865). Such statements can also be admitted to contradict written evidence which has been adduced as hearsay only (s.5(2) Civil Evidence Act 1995).
Douglas Robinson, Managing Associate
Where the same witnesses are relevant to criminal and civil proceedings, companies need to tread with care. The approach is very different and if a company gets it wrong it may end up being accused of interfering with the criminal process, possibly even to the extent of perverting the course of justice, a criminal offence in its own right. Understanding the rules and expectations in each set of proceedings is vital to navigating these situations.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.