It is essentially part of the process of investigating an alleged offence and may have a significant bearing on whether the individual or company concerned ultimately ends up being prosecuted through the courts. It is therefore important to get it right.
A look at some recently reported cases demonstrates the point.
In June this year, the owner of a pub in Caerphilly, South Wales, was prosecuted for a failed test purchase — allowing an underage sale of alcohol — and ordered to pay a £265 fine, prosecution costs of £514 and a £15 victim surcharge.
The employee who served the child was also issued with a penalty notice for disorder of £80. More substantial prosecutions in-clude a £54,000 fine and ban from running restaurants for the owners of a Chinese restaurant in Greenwich, south-east London, following a second prosecution due to major hygiene breaches.
A prosecution of a Merseyside branch of William Hill under health and safety law due to poor security measures following an attack on
an employee led to a £4,000 fine for each offence, plus the payment of £2,882 in prosecution costs.
The invitation to attend may follow a failed test purchase, an alleged breach of licensing conditions or perhaps even an alleged breach of a noise abatement notice. It is also part of the investigative process in dealing with health and safety, food safety and fire safety offences.
The vast majority of offences that may be alleged against an individual or company within this industry carry with them a potential due diligence defence. While it may be correct for those investigating the matter to say there has been a technical breach of some kind, the interview will give you the opportunity to demonstrate that nothing more could reasonably have been done to prevent the breach occurring.
If you present a persuasive case in your interview, the investigating officers and even their lawyers may be reluctant to prosecute you on the basis that there is a decent chance that the court will have sympathy with you.
When you bear in mind the significant fines and damage to reputation that can arise from a prosecution, it is absolutely essential to be thoroughly prepared for your interview.
In essence, this means that somebody within the organisation needs to take ownership of what has gone wrong.
They need to conduct a thorough investigation into what has allegedly happened, including visiting the site and speaking to any staff that may have been involved. They will need to make sure that people have been properly trained in relation to the issue in question.
If this is done properly, the full written investigation report can be presented at the interview under caution together with any documents (for example, training records) to which it refers.
A well-organised ring binder of documentation will give an immediate impression of professionalism and is therefore a good starting point for you.
What will ultimately make the difference, however, is what the documentation actually demonstrates.
If the investigation reveals shortcomings, it is imperative to be able to demonstrate that remedial action has been taken to plug any holes in the system. Equally, if disciplinary action is appropriate in relation to any member of staff, that action should be taken, documented and presented within the ring binder.
This might be, for example, because a member of staff has been properly trained but chosen to ignore that training, which has then given rise to the breach.
It is worthy of note that due diligence defences are notoriously difficult to run in court. This is because there is almost always something else that could have been done and wasn’t. Experience suggests, however, that relatively minor shortcomings will not necessarily lead to a prosecution. If a system can be shown to be good in the main, this may be sufficient to deter those investigating from prosecuting.
It may be that a formal caution or a letter of warning may be issued as an alternative.