“The Court of Appeal has placed reliance on the factual context and on the beliefs of key individuals within the organisation,” she says. “It is possible that grey areas may arise in some cases where an investigation evolves over time as new facts emerge or where it is unclear at what point the specific risk of a criminal prosecution is the dominant purpose driving an internal investigation.” An entity investigating potentially criminal conduct, suggests Ms Laming, should be clear about the purpose of instructing external counsel and of any internal investigation. “This should be carefully documented from the outset and kept under regular review.”
