Interviewing and interrogation are an essential part of every investigation process. No probe is ever complete without noting the suspect’s side of the story. However, there are a number of pitfalls involved in this process. The most common relates to wrongful restraint or confinement of a suspect to allegedly extract confession or ensure restoration of property.
Faced with such allegations, a company undertaking the process of investigation can run into a number of complications. This can be understood with the following illustration:
As part of an internal investigation, my colleague was asked to preside over a sensitive probe of theft. During the process, the said colleague identified a likely suspect and called him for interrogation. It became apparent during the course of the investigation that that suspect had been rightly identified. He was thus asked to stay till the probe was complete to assist in the recovery of the said property.
The interrogation lasted two hours after which the suspect was asked to return. However, the said person ended up lodging a complaint of wrongful restraint and confinement against the investigator with the police. The investigator thus became the accused and had to do rounds of the police to clarify the company’s stance on internal investigations. The company also had to provide explanation on the process of interviews and interrogation during internal investigations.
However, the police noted that they needed to be informed in case of commission of a cognizable offence and, by detaining the suspect person for two hours for questioning during the interrogation process, the investigator had committed the offence of wrongful restraint and wrongful confinement. This makes explicit as to why one needs to be clear about the rules to be followed during the course of internal investigation, and have clear understanding of the terms wrongful restraint and wrongful confinement.
This term refers to keeping a person out of the place where he/she wishes to be, and has the right to be. The slightest unlawful obstruction to the liberty of the subject to go, when and where he/she wishes to, provided it is done in a lawful manner, cannot be justified. The following illustration will elucidate the meaning of wrongful restraint:
A threatens to set a wild dog at Z if Z goes along a path which Z has a right to go. Z is thus prevented from going along that path. A thus wrongfully restraints Z. If the dog is not wild, but if A voluntarily causes Z to think that it is, and thereby prevents Z from going along the path, A again wrongfully restraints Z.
Thus, a person may ‘obstruct’ the other by making it appear and creating the fear that it is impossible, difficult or dangerous to proceed or by actually causing a situation where it becomes impossible, difficult or dangerous for that other to proceed. This obstruction may be caused not only by physical force but also by threat, the criterion being more the effect than the method. Physical obstruction even by usage of threatening words would fall under the ambit of wrongful restraint.
However, if a person places an obstruction on a road, say in case of repair, but duly leaves a portion for others to pass through, it cannot be considered a case of wrongful restraint. In another case, suppose A invites B to his house but uses no physical coercionor threat to detain B in the house, and where B remains in the house of his own will, the court has held it was not an offence of wrongful restraint.
It refers to wrongfully confining any person for the purpose of extortion, confession or information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the person confined or any person interested in the person confined to restore or to cause the restoration ofany property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security.
Wrongful confinement, a form of wrongful restraint, is thus keeping a person within limits out of which he/she wishes to go, and has the right to go. This restraining, which suppresses the victim’s will, can be enforced through use of power. But there can be no wrongful confinement when the desire to proceed has never existed, nor can a confinement be wrongful if it was consented to by the person affected. It cannot be affected merely through words but requires voluntary obstruction so as to prevent a person from proceeding in a direction in which he/she has the right to proceed. To support a charge of wrongful confinement, the proof of actual physical restriction is not essential. It is sufficient if evidence shows that such an impression was produced on the mind of the victim so as to create a reasonable apprehension in his/her mind. The courts have found wrongful confinement to have been committed in cases where police officer detained some persons as suspects for several days without permission; where a person living in a town where medical assistance was available was being kept in chains; and where parents were prevented from meeting their child.
Moral force – detention through exercise of moral force, without the accompaniment of physical force or actualconflict, is sufficient to constitute this offence.
Period of confinement – the time during which a person is kept in wrongful confinement is immaterial, except with reference to the extent of punishment.
(1)The accused obstructed a person; (2) Such obstruction prevented him from proceeding in the direction in which he had a right to proceed; (3) Such obstruction was voluntary. Similarly, for wrongful confinement, the facts that need to be proved are (1) the accused voluntarily obstructed the complainant; (2) The obstruction was to prevent the complainant from proceeding beyond the limits imposed, which he had a right to proceed.
In case where the suspect is a female, the company should ensure that a third party is present in the investigation room. It is preferable to have a member of the same sex present in the room, to have the suspect sign each page of the statement and have someone witness the statement.
Besides, the room where the interview takes place should establish a sense of privacy. The door should be closed but not locked. No physical barriers should prevent the target from leaving. This is to avoid allegations of custodial interrogation.
The companies should bear in mind that when interrogation of an employeecan result in disciplinary action against him/her, he/she is entitled to representation by a union or other individual. The rule is limited to those employees who are union members.
It is usually not necessary to inform the subject that he/she should have counsel present. Of course, this right cannot be denied if the subject wishes to have a lawyer. However, a counsel can only act as an observer; they are not entitled to ask questions. Other than the subject and maximum two examiners, no other observers usually should be permitted in the interrogation room. If the accused is the member of a union, a union representative may have the right to attend the proceedings. However, this may present legal problems in “broadcasting” the allegations to a third party. It is difficult to obtain a confession with witnesses present.
During the fact-finding stage of investigations, employees have a duty to cooperate. Unlike police investigation where a person shall be bound to answer all questions put to him, during a company investigation, employees must answer all relevant questions and be honest and forthright in their answers whether they are under suspicion or witness. Refusal to answer a question or otherwise cooperate in an investigation can be construed as insubordination and the employee can be punished for that refusal. An employee can be recommended for termination of duty if he/she not only refuses to answer andcooperate in an investigation but also instigates/pressurizes colleagues to influence the outcome of investigations.
The company must provide representation during an investigation with a unionized employee who may be subject to discipline, if the employee requests for it. This may be applied to non-unionized employees and witnesses also, if they request for it. If representation is sought, certain ground rules apply. The employee’s representative has the right to clarify facts and suggest other witnesses, but does not have the right to direct the employee not to answer, to answer for the employee or to interfere with the questioning. Also, the investigator is not supposed to hold up the investigation for an unreasonable period of time due to the non-availability of a representative. What is an unreasonable period of time will depend on the facts and circumstances of the case and its seriousness of the matter for the company.
The union agreement may also give the employees’ representative the authority to challenge an investigation where techniques contrary to the provisions of the agreement are used. In fact, the nature of investigative techniques applicable is a subject matter of some union agreements.
Keeping in view the above discussion, corporate investigators need to understand that in most instances, legal authority is not required to interview or inquire into matters. Fraud investigators should also be able to inquire into virtually any subject area, as long as the rights of individuals are not transgressed in the process.
Interviewing suspects and witnesses always lends credence to the investigation exercise and is appreciated by courts. In fact, it becomes an inherent tool of detection but needs to be properly handled. The circumstances leading to occurrence of a certain event can be fully drawn and explained by bringing out the conduct of the interviewee through his oral evidence, which is capable of being reduced in writing as per law. Disclosures of material circumstances in oral statements of suspects are independent evidence relied upon by courts across the world. Therefore, retracting such statements by suspects is of no consequence and courts are bound to draw suitable inferences.
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