The last 10 to 15 years has seen a significant increase in criminal enforcement against companies, and an increase in co-operation between states when investigating and prosecuting corporate crime. As a result, multi-jurisdictional companies (and their employees) are at greater risk than ever of becoming involved in a criminal investigation, whether as a suspect or a witness. It is therefore important that companies and their employees are aware of the process that will be followed if they are required to provide evidence as part of a criminal investigation, and how best to prepare for that process.
In this paper we will outline the process of taking evidence for use in criminal proceedings in Spain and in England & Wales, specifically witness evidence. First we focus on the domestic position in each jurisdiction, but then we turn to focus on the use and execution of European Investigation Orders (EIOs). EIOs were introduced in May 2014,1 with the aim of simplifying the process of obtaining evidence from EU member states in cross-border criminal cases. We will conclude by addressing the question of preparing and assisting witnesses for giving evidence as part of criminal investigations, particularly within the framework of an EIO.
Domestic approach to gathering witness evidence: Spain and England & Wales
In Spain, criminal proceedings are regulated primarily by the Criminal Procedures Act (CPA), which has been in force since 1882. The CPA divides criminal proceedings into two stages: the investigative stage and the trial stage. Each stage is functionally entrusted to separate judicial bodies.
The first stage (the investigative stage) is aimed at carrying out an investigation of the suspected criminal conduct, in order to determine whether the conduct should be admitted for judgment at trial (the second stage). The first stage is when so-called “investigative measures or procedures” are carried out to establish, based on the available evidence, the possible existence of a crime, as well as the type of offence(s) and the alleged perpetrator(s).
One of the main investigative measures deployed in the first stage of Spanish criminal proceedings is that of witness depositions. This investigative measure is regulated by Articles 410 to 450 of the CPA.
Witness testimony is obtained personally from the witness. It consists of a natural person, other than the suspect, testifying to the facts as they know them. Witness testimony is based on sensorial perceptions that were acquired outside the proceedings and in relation to some past event.
Witness depositions must be ordered by a judge and their purpose is to investigate the facts, to determine who was responsible and, as appropriate, to order other measures.
As a general rule, any individual residing in Spanish territory, regardless of their nationality, may be called as a witness if they can provide some information of interest in relation to the investigation of the facts. To that end, the witness will be summoned by the court clerk via subpoena (except in urgent cases). The subpoena will include, among other information, the subject matter of the summons and the place, date and time the witness is to testify.
Testifying constitutes a duty that, in turn, generates a number of obligations that arise from Article 118 of the Spanish Constitution2 and which can be classified as follows:
- The obligation to appear before the judge constitutes the first obligation of a witness.3 Like most obligations, violation of it entails a penalty; specifically, a fine that can range from EUR 200 to EUR 5,000. In certain serious cases, it could entail arrest for the obstruction of justice or gross disobedience.
- When appearing before the court, the witness is obliged to testify, and refusing to do so could trigger prosecution for obstruction of justice or gross disobedience.
- This general rule has certain exceptions: (i) any person that is obliged to observe secrecy due to their office or position is exempt from testifying; (ii) said exemption is also enjoyed by the suspect’s closest relatives;4 and (iii) individuals with physical or moral disabilities that impede them from giving a statement are also exempt.
- Finally, the witness is obliged to tell the truth. To such end, they will testify under oath and failure to comply with said obligation constitutes the crime of perjury.
In addition to these obligations, witnesses also have certain rights, such as the right to receive adequate compensation from the party that calls them as a witness.5 Said compensation must be sufficient to cover travel and subsistence. However, failure to receive such compensation in advance does not absolve the witness from their obligation to appear before the court. Likewise, as part of witnesses’ fundamental right to the presumption of innocence, they are entitled not to testify against themselves nor declare they are guilty, pursuant to Article 24.2 of the Spanish Constitution. Witnesses shall not be obliged to testify about facts or respond to questions that could imply criminal liability for them. If, in the course of the deposition, such circumstance becomes evident, the deposition will be suspended immediately and the legal provisions established for suspect depositions will be followed.
During the deposition, a witness cannot be accompanied by a lawyer, unless they are a victim of the crime, in which case they may be accompanied by their legal representative and a person of their choice. Likewise, in the case of witnesses who are minors or who lack capacity, the examining judge may agree to have the deposition executed through the intervention of experts and the public prosecutor.
Depending on the technical capabilities of the court, the deposition will be recorded in writing (transcribed) or in an audio-visual format.
Once the witness has been summoned and has appeared before the court, they will testify, assisted by an interpreter if necessary (always in the context of executing an EIO) and, after verifying their identity by means of their national identity card, and once they have taken an oath to tell the truth, they will answer “general legal questions” regarding their personal data and their possible relationship or conflict with the other parties in the proceedings.
The witnesses will then freely and spontaneously narrate the facts that are the subject matter of the lawsuit. Thereafter, the judge will ask the questions they deem necessary to clarify the facts, then allowing the Public Prosecutor’s Office and the rest of the parties (or their lawyers) to ask their questions.
Once the deposition is over, the court clerk will inform the witness of their obligation to appear and testify again before the competent court when they are summoned to the trial to provide their part of the witness evidence. The court clerk will also warn the witnesses that they are obliged to keep their testimony confidential and that they are forbidden from disclosing its content or from making any public statement in relation thereto.
The witness deposition (whether transcribed or in audio-visual format) will be documented in the appropriate certificate, which will be legalised by the court clerk and provided to the parties.
England & Wales
The process in England & Wales for gathering evidence during a criminal investigation differs to that in Spain. In England & Wales, the police and particular regulators/prosecution authorities have their own powers to gather evidence and interview suspects or witnesses, which is then presented before a judge/jury during the course of a criminal trial.
The Police and Criminal Evidence Act 1984 (PACE) governs the powers of the police to investigate and gather evidence in relation to suspected crimes. PACE will also apply to persons other than police officers who have been charged with the duty of investigating offences or charging offenders.6 PACE (and its accompanying codes of practice) sets out the relevant powers (and the conditions on the exercise of those powers), including to interview suspects.
In addition, specific bodies charged with the investigation of financial and business crimes have their own powers to investigate offences that fall within their remit. Such bodies include the Serious Fraud Office (SFO), which investigates (and also prosecutes) serious or complex fraud, bribery or money laundering, in respect of offences committed by both individuals and corporates. Section 2 of the Criminal Justice Act 1987 grants certain investigative powers to the SFO (section 2 powers), which include powers to:
- search property
- compel a person to provide information or documents to it
- compel a witness or suspect to attend an interview
In respect of (b) above, the SFO will issue what is known as a section 2 notice to an individual who it believes holds any information relevant to its investigation, thereby compelling it to produce this to the SFO. If the section 2 notice is being issued in respect of documents or evidence held by a company, it will usually be personally addressed to the most senior member of the organisation who is aware of or responsible for the matters under investigation. A deadline for compliance will ordinarily be set in the notice. It is a criminal offence to fail to comply with a section 2 notice without a reasonable excuse. A section 2 notice will supersede any obligations of confidentiality, but legally privileged material does not have to be provided.
In respect of (c), the SFO can compel a potential witness to attend an interview in order to answer all questions on any matters relevant to the investigation fully and accurately. As above, it is a criminal offence to fail to do so, without a reasonable excuse, or to make a statement recklessly or deliberately that is known to be false or misleading.7 However, the witness is otherwise protected against self-incrimination, meaning that anything said in the interview cannot (in most circumstances) be used as evidence against them,8 and the interview cannot be used as a means to obtain material subject to legal professional privilege.
As in Spain, anyone who is required to attend the SFO’s premises to be interviewed as a witness may be entitled to seek reasonable expenses from the SFO (but this does not apply to any legal representative accompanying them).
Finally, it is worth noting that, in relation to suspected offences under the UK Bribery Act 2010, the SFO can request the disclosure of information under its section 2 powers even before an investigation has commenced.
If the SFO elects to interview a particular witness during an investigation, it may be as simple as a phone call or an invitation to attend the SFO offices on a voluntary basis. However, as explained above, the SFO also has the option to compel a witness to attend an interview by issuing a section 2 notice.9 Once the notice is issued, the recipient must attend the interview at the time and place specified10 and answer all questions truthfully on any topics relevant to the investigation.
The SFO has the discretion to allow a lawyer to accompany the witness to the interview. Accordingly, on receipt of a section 2 notice, it is important for the recipient to promptly seek legal advice; especially as the lawyer is required to apply to the SFO in order to attend the interview. The SFO will approve the request in the event that they consider the lawyer will either assist the purpose of the interview or provide essential assistance to the witness (whether to give legal advice or provide pastoral support). An additional legal representative is also able to attend to take notes by hand, though the interview is not allowed to be recorded or transcribed by the attendees.11 If the lawyer in any way obstructs the interview process or prevents the free flow of information, the SFO is able to exclude the lawyer from the interview. The SFO retains discretion to refuse the presence of a legal representation at the interview, for example if the lawyer’s attendance would cause a delay to the interview.
During the interview process, the SFO is required to uphold certain standards including treating the witness fairly, explaining the investigation process and ensuring the witness is protected from undue influence or intimidation. Once the interview is completed, the witness is required to keep all matters discussed confidential (though discussions are, of course, permitted between lawyer and client). The confidentiality requirement is to ensure the investigation is not disrupted (and disruption of an investigation could amount to a criminal offence). This is of particular importance when employees are called as witnesses in respect of an investigation into their employer (or facts relating to their employer). In these situations, it is of particular importance that the employee has its own independent legal advisor, separate to the company’s lawyers. Finally, the SFO may also ask the witness to provide a written statement, though it cannot compel the witness to do so.
In the context of a police investigation, a person may be brought to a police station under arrest (if they are a suspect) or otherwise attend the station voluntarily. The police must allow for proper breaks (at least 15 minutes every two hours).
Importantly, in the case of voluntary attendance, the attendee is free to leave at any time.
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1 EIO were introduced by way of Directive 2014/41/EU of the European Parliament and of the Council, dated 3 April 2014 DOEUL no. 130, dated 1 May 2014. In Spain, the directive was transposed via Act 3/2018, dated 11 June, which amended Act 23/2014, dated 20 November (regarding the mutual recognition of judicial decisions on criminal matters in the European Union) and regulated the European Investigation Order. Act 3/2018 was published in Spain’s Official State Gazette (BOE) on 12 June 2018. In England & Wales, the directive was transposed via the Criminal Justice (European Investigation Order) Regulations 2017 (SI 2017/730).
2 “Individuals are obliged to comply with the final judgments and decisions issued by Judges and Courts, as well as to collaborate with them in the course of the proceedings and in the enforcement of court decisions.” Art 118 Spanish Constitution.
3 This duty has some exceptions, as can be expected, in the case of the King, the Queen, their respective consorts, the Crown Prince, the Regent and diplomatic agents. The other persons in the royal family, as well as presidents or members of the government will also be exempt from having to appear before the judge but not from testifying, as they can do so in writing, regarding facts that they know due to the office they hold, among others.
4 “The following individuals are exempt from the obligation to testify: the direct ascendant or descendent relatives of the accused, their spouse (or person holding a de facto relationship analogous to marriage), their siblings by blood or marriage, and the collateral blood relationships up to the second degree of consanguinity, as well as the relatives referred to in Article 261.3. The examining judge shall warn any witness included in the preceding paragraph that they are not obliged to testify against the accused; but that they may make such statements as they deem appropriate, and the clerk of the court shall record their response to said warning.” Art. 416 CPA.
5 Either the prosecutor or the defendant.
6 Section 67(9) of PACE.
7 Section 2(14) of the Criminal Justice Act 1987.
8 The main exception here is where the witness is later prosecuted for a separate offence and the evidence the witness gives for the separate offence contradicts the evidence previously given for the earlier interview.
9 Pursuant to section 2 of the Criminal Justice Act 1987. Importantly, the SFO does not need to obtain a court order to issue this notice.
10 In practice, the time and location is usually agreed by the SFO and the recipient in advance.
11 For this reason, digital devices are not allowed in the interview room. However, the SFO are likely to digitally record the interview and will explain this procedure in advance of the interview.