Yet more interesting investigations issues arise out of the No.10 Partygate scandal - this time it's the overlap between internal disciplinary issues and conduct which might constitute a criminal offence.
The latest revelation (as this is written, no doubt there will be more!) is that the Metropolitan Police have said that they won't investigate unless Sue Gray's internal investigation produces evidence of a potential criminal offence. According to The Guardian newspaper "a spokesperson for the Met Police said the force "has ongoing contact with the Cabinet Office in relation to its inquiry. If the inquiry identifies evidence of behaviour that is potentially a criminal offence it will be passed to the Met for further consideration.”"
This overlap between criminal and internal matters is not at all uncommon; for example, allegations of expenses fraud, a fight between colleagues, sexual harassment and many more all give rise to this issue and could result in parallel criminal and internal investigations. There is no specific requirement that an internal investigation should be put on hold while a criminal investigation takes place, although there are many practical considerations that will need to be taken into account and it would be prudent to allow the accused to have the chance to take legal advice before being interviewed.
The extraordinary issue arising out of the No.10 investigation is that the police have said they intend to wait to see what evidence Sue Gray uncovers before deciding whether they will investigate. The obvious problem with this approach is that an internal investigator does not have the same powers as the police. Sue Gray cannot obtain a search warrant, insist on seeing messages exchanged on personal devices or compel anyone to attend an interview. Internal investigations may well involve consideration of huge volumes of evidence, potentially including forensic analysis of data and devices owned by the employer, but there are limits to their reach and they often depend on the voluntary production of evidence by witnesses.
An internal investigator will not want to make determinations about whether a crime has been committed, nor should they. Instead, they will focus on making findings of fact and considering those findings in the context of the organisation's rules and policies. This is an important distinction because, when reaching its conclusions, an internal investigation does not need to reach the criminal standard of proof (beyond all reasonable doubt) and can instead determine matters based on the civil standard (on the balance of probabilities).
Internal investigations can have wide reaching and significant implications for those involved, but it is unheard of, in our experience, for them to have a role in determining whether an alleged crime will even be investigated.
Sue Gray cannot obtain a search warrant, insist on seeing messages exchanged on personal devices or compel anyone to attend an interview.