So, you have identified fraud in your organization, you want
to get to the bottom of the matter (unlike our government), how do you involve
the relevant law enforcement agencies, the criminal justices system (am not
sure whether ours is a system yet…) and then ‘move on’.
Forensic investigators or internal auditors may be required
to work with law enforcement agencies at some point of their career. Law enforcement
agencies could include the following: The local Police, The CID, Ethics and
Anti-Corruption Commissions, Central Bank Investigative units. Law enforcement agencies
may not be limited to local agencies but could include agencies from other
countries such as the FBI, the Scotland Yard among others. This is more so the
case where matters involved covers more than one particular jurisdiction or in
cases where foreign laws apply. For example if a listed American Company is
involved in bribery or corruption
allegations in Kenya, an investigator could end up dealing with the Kenya
Police, the EACC, the Securities and Exchange commission investigators and the
FBI, just to mention but a few.
An understanding of how the various law enforcement agencies
operate and their objectives is therefore important for any investigator/auditor.
In most cases, law enforcement agencies have wide experience
in handling court proceedings and complex criminal cases, while forensic
accountants have the technical skills required to understand technical
accounting and financial issues. It is therefore important and advisable that
by working together, the objective should be to realize the synergies of the
two teams working together.
Working with law enforcement agencies requires an
understanding of the roles, mandates and objectives of all parties. Ideally,
Law enforcement agencies and investigators should complement each other. Differences
may arise due to the following:
- Different mandates – investigators may have a narrower mandate and law enforcement agencies may not want to share all the relevant information. Sharing information on investigation mandates may prevent duplicity of roles.
- Time constraints – in my experience law enforcement agencies seem to have unlimited time to investigate a case. In working with the CID in Kenya for example, once they present suspects in court, they may request a number of months to complete investigations. This sometimes affects the work if forensic investigators who work with definite timetables.
- Access to information – Each team (investigators/ law enforcement agencies) may have access to privileged information that the other should not access for certain reasons. Understanding this is key for court purposes. For example, if investigators are reviewing loss of funds and want to trace proceeds, they may have difficulties obtaining the bank accounts of the suspect, however, these can be obtained easily by law enforcement agencies. If the information is shared with investigators, they may be able to use it in drafting their reports, as they cannot proof the information was obtained legally by them.
- Sharing of documents – it is important to maintain chain of custody.
- Be careful not to use confessions obtained by law enforcement agencies as part of the report.
- It is important to appreciate the different working cultures of the different groups and their reporting hierarchy. Public sector working culture is fundamentally different form private sector.
Some of the benefits of working with the law enforcement
agencies include:
- Have access to resources not available to the public – e.g. Bank accounts, phone records, mobile money, etc, recovery
- Can go to high risk areas as they are armed and well trained in hostile environments – adversarial in nature
- Can easily get a court order to search the suspects residence and other relevant places
- They apply a street smart approach -Law enforcement officers apply a street smart approach which adds value to the investigation, law enforcers may also be in a position to cover a wider jurisdiction.
While working has its benefits it is important to bear in
mind the following:
- Law enforcement agencies will only be interested in certain aspects of an investigation report, they will not read the entire forensic/audit report, therefore, ensure the report is not prone to misinterpretation and most importantly let it be factual.(remember that once the case goes to court, you have to share any investigation or audit report with the defendants)
- Law enforcement agencies in certain jurisdictions are susceptible to bribery or other forms of misconduct which may have far reaching implications on the success of criminal or civil proceedings.
Once investigations are over and court proceedings commence,
bear in mind or note the following tips that may assist during the court
process:
- Document the source of evidence – Make sure you get the evidence through the right channels otherwise it won’t be admissible in court.
- Scan the evidence and preserve the originals in evidence bags to avoid contamination
- Index the evidence to allow for easy reference and retrieval
- In case of signatures, always state that you are not a handwriting expert when alleging a suspect signed the document. Obtain a copy of signature from the HR file and get his/her colleagues to attest that the signature is his/hers, this adds weight to your claim.
- Always try to get an interview from the suspect to query him/her on the suspicious transactions– Helps show that you were not biased or witch hunting.
- Get all the minutes/consultation notes signed.
- Be aware of strong and weak points in your report ie, know or understand your report by heart.
- Explain technical issues in a language that the judges understand, avoid jargon.
- Remember, when testifying, your credibility is on the line, be factual, in most cases you will be a witness of fact and not an expert witness.
Working with Law enforcement agencies can enrich an
investigation if the two teams understand that they bring different skill sets/
resources. As noted above, there are a few things to consider to ensure a
successful working relationship which will result to a conviction.
This article was prepared with great input of David Mathuva
of Strathmore Business School (dmathuva@gmail.com).
David presented a paper on the same topic during a ICPAK organized workshop
held on 15th-16th October 2015 at Park Side Villa Hotel,
Kitui, Republic of Kenya.
