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Should privilege against self-incrimination apply to corporate investigations?


Privilege against self-incrimination is a fundamental principle that protects witnesses from revealing information which might expose them to an accusation or criminal charge. Many legal systems recognise this privilege, and in Norway the right to protect oneself against self-incrimination is a rule of law. The privilege derives both from the right to a fair hearing as defined in article 95 of Constitution and article 6(1) of the European Convention on Human Rights in addition to article 14(3)g of the United Nations Convention on Civil and Political Rights. In the US the privilege is enshrined in the Fifth Amendment to the Constitution.

The precise scope of the privilege may vary from country to country, but the core principle remains the same. A potential accused has the right to remain silent and can decline to answer questions in criminal investigations without suffering any penalty for doing so.

However the privilege can only be asserted in connection with investigations by public authorities, typically hearings or interrogations during a police investigation or proceedings before the public courts. The question is whether this privilege can be invoked in relation to investigations in the private sector, for instance, when companies are investigating a "red flag" matter as part of their corporate anti-corruption compliance programme?

Employer's instructional authority in corporate investigations

With regard to corporate investigations the starting point is opposite as employees are obliged to participate in the investigation and to answer questions fully, even concerning potential incriminating matters.

Whether the company should waive this obligation, and rather call for participation on a voluntary basis, raises the question as to the reason and purpose behind the privilege to protect oneself against self-incrimination. The right to remain silent has a natural connection to the principle of justice that places the burden of proof for criminal wrongdoing on the prosecution authority, as well as the right to be presumed innocent until proven guilty. These parts of the reasoning behind the privilege may not have equal force in connection with corporate investigations, but the core purpose behind it is even though relevant as this calls for a questioning procedure that respects the will of the accused and ensures that the investigation reaches a materially correct conclusion.

For the witness who may be forced to expose herself to the accusations there is a difficult choice between two burdens; answering the question risks the possibility of suffering a penalty related to the accusations but remaining silent may equally result in a penalty for not contributing to the investigation. Compared to voluntary questioning, imposing such an unenviable choice on a witness may result in a higher risk of answers being given that are wrong or at least unclear or incomplete. The correctness and reliability of the witness evidence is usually much greater when the witness does not risk suffering a penalty for choosing to remain silent.

The purpose of the investigation should be examined

Normally corporate investigations are conducted in order to respond correctly to an allegation of non-compliant activity that may have occurred. Consequently, it is necessary that witnesses are obliged to participate to ensure fully disclosure of the matter. However, it is also of key importance that the factual basis is correct as the response may result in internal sanctions being imposed on individuals. In addition the findings from corporate investigations may serve as factual evidence in subsequent legal hearings before the courts regarding either criminal proceedings or related economic claims. If the corporate investigations do not recognise or grant witnesses the right to exercise the privilege against self-incrimination, then there is a risk that the findings of that investigation may be either challenged or be found to be incomplete or potentially materially incorrect. Thus the decision as to whether to allow witnesses to exercise the privilege should be closely examined in each case before conducting corporate investigations.

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Elisabeth Roscher
E-mail elr@wr.no

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