Case study 1 was brought to the attention of the client of Observation Company 1 by a police raid. The police had been investigating for some time already, the organisation being completely unaware of this. No information was given to the organisation about the allegations. Observation Company 1 was approached by the organisation to investigate. From the initial investigations, other investigations followed.
There was no cooperation, investigations ran parallel to each other. After some time, information was shared between the prosecutor and the law firm that acted as the client for Observation Company 1. This information was then made available to Observation Company 1. The information that was shared consisted of a notification that a suspect had been arrested, the grounds for the arrest and the scope of the investigations: “The investigations by the prosecution office are limited (capacity). They’ll only look into some dossiers. They will not investigate subject X unless we provide a report about him” [quote from the case journal]. The latter circumstance led Observation Company 1 to speed up its investigations, so police and prosecution could take the privately generated information about this person into account, alongside their own information.
Although information sharing or cooperation was very limited and happened only at a late stage (the prosecutor initially prohibiting this), the corporate investigators felt they had established good contact with the police. For a long time, the corporate investigators were in the dark regarding the police investigations (the same being also true the other way around). The corporate investigators did not volunteer all of their information, because, as one investigator explained, “it is not in the client’s interest to have law enforcement access all the information from the much broader corporate investigations”. Such access might have led to an indictment of the organisation, as there were major flaws in the control structures of the organisation.
it usually remains at the limited level described in this subsection, exemplified by case study 1. However, more extensive information sharing also occurs – in this chapter this is called ‘coordination of actions’.
3.3 Type C – Coordination of actions
Although ad hoc contacts between public and private actors commonly remain at the level of minor information sharing in one way or another, close cooperation also exists, though it is not very common according to respondents (see also Van der Lugt, 2001). In those rare cases, law enforcement actors and corporate investigators work together to get the best results. This may mean that the prosecutor and lead police or FIOD investigators meet with the corporate investigators to talk things over.
I think both sides can benefit from just talking to each other. And to confer, to learn to trust each other. Say a big listed company finds out at a certain point that they have a corruption issue within their company. That means the company is in trouble, they’re going to have reputational issues and the stock value will react but it also has a criminal component. It also brings about an environment that we don’t want to have as a society. I think, in a case like that, you can benefit greatly by coordinating with each other early on, getting the full picture, pinpointing the problem, deciding who is going to do what. I can imagine that we will focus from a criminal law perspective on that one employee who has behaved so badly and make a case out of that and that we coordinate with the company and give them the opportunity to put measures in place to prevent it in future. And to inform their stake holders. The company will definitely not be served by us running around in there, searching the whole premises without a plan and exposing them to bad press, we don’t want that either. I think you gain a lot by just talking to each other early on. And that’s hard, you know, it’s hard for us as well, we’re not used to sharing information. Or to trust that a company will cooperate. We know these companies as the bad guys. So it’s a process. But for the effect you want to produce, it’s best to inform each other early on. [Respondent 52 – prosecutor]
As this prosecutor indicates, close cooperation may also mean that tasks are divided between public and private actors. Police and prosecution typically only investigate what is necessary for a conviction. When, for example, fifteen instances of embezzlement have taken place, five may end up in criminal court. Corporate investigators may then – sometimes with the information which has come up during law enforcement investigations – focus their efforts on the remaining ten instances.
So everybody can do their own thing you know. Let the police and prosecution focus on the person, on the suspect and let the private investigator record the nature and
scope of the fraud, maybe together with the police and prosecutor especially when it comes to retrieving the assets. Then everybody is doing what they do best with respect for one-another and you just share information based on the possibilities our legal system grants you. [Respondent 13 – corporate investigator]
Case study 11 (see below) is a good example of this type of coexistence. In this case, the specialised FIOD detectives of the tax authority were investigating prior to the corporate investigators. From the beginning, there was much cooperation and coordination between the law enforcement and corporate investigators, coordinating their actions. For a large part, the criminal and corporate investigations were aligned in this case.