1.Effective Interviews in Regulatory Investigations
Paul Hanna
Deputy Director of Criminal Enforcement
Conducting Effective Regulatory Investigations
Friday October 20th 2017
2.
2
The CCPC Structure & Functions
Criminal Enforcement Division
Legislation
Cartel Convictions to date
CCPC Investigations
Theory in Practice
CCPC Challenges
Presentation Overview
3.3
Chairperson: Isolde Goggin
Patrick Kenny
Fergal O’Leary
Brian McHugh
The CCPC
4.Inform consumers about their rights
Assess specific mergers
Enforce consumer protection law
Advise Government & influence policy
Foster business compliance
Enforce
product safety regulations
Monitor compliance with Grocery sector regulations
Enforce competition
law
Authorise credit intermediaries
Provide personal finance information & education
Alternative Dispute Resolution
Our Functions
Enforce
Protect & Regulate
Inform
5.5
Criminal Enforcement Division
6.Competition Act 2002
Section 4 (1) Prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices which prevent, restrict or distort competition
(a) Directly or indirectly fix purchase or selling prices or any other trading conditions
(b) Limit or control production, markets, technical development or investment
(c) Share markets or sources of supply
Section 6 makes breach of section 4 a criminal offence
Section 8 sets out penalties (upon conviction on indictment by DPP)
10 years in prison and/or
€5m or 10% of turnover
Res judicata – follow on actions for damages
7.Criminal breaches of the Competition Act 2002
Bid Rigging: Illegal conspiracy in which competitors join to artificially increase the prices of goods and/or services offered in bids to potential customers
Price Fixing: An agreement between participants on the same side in a market to buy or sell products and/or services at a fixed price, or maintain the market conditions such that the price is maintained at a given level by controlling supply and demand
Market Sharing: When competitors agree to divide or allocate customers, products or territories among themselves denying consumers the benefit of choice
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8.8
Cartel Convictions to Date
9.CCPC Investigations
Approach & Strategies
10.10
What informs the CCPC’s work?
11.11
Stages of a CCPC Investigation
12.Investigative Strategies
Witness
It is advisable that there is no advance disclosure to any witness in advance of meeting them
No witness should be made aware of any other witness who has provided a witness statement to the Regulatory Authority
It is the preference that witnesses meet Regulatory Authority on their own but they may have someone present should they so wish, including a solicitor
No witnesses should be provided with their witness statements at the conclusion of any meeting with the Regulatory Authority
Investigative
Policy decisions recorded in a decision log and made by the Senior Investigator will always be of the utmost importance in determining the outcome of an investigation
Investigative strategies are carefully determined approaches and tactics that produce a plan for conducting important elements of the investigation
Examples of investigative strategies include: Intelligence, Witness, Interview, Arrest, Suspect, Family Liaison, Forensic, Search, Media
The ABC Principle
During an investigation, there is a golden rule to apply what is known as the ‘ABC’ principle
A Assume nothing
B Believe nothing
C Challenge (and check) everything
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13.Interview Strategies: Planning
Planning
Know your subject and the law relating to same
What information do you hope to obtain during the interview
Know the background of your witness insofar as you can, or endeavour to obtain this information during the early stages of the interview
Questions designed to induce the witness to tell a story rather than elicit a ‘yes’ or ‘no’ response
Suspect Planning
Voluntary interviews by appointment
Suspects told interview will be after caution and their entitlement to ‘legal advice’ and are ‘free to leave’
Right to silence – Constitution and ECHR
Conducting Interview
Generally not more than two investigators present
Ensure witness is aware of reason for interview and the implications of making a statement
Be aware of your own role in the process, take time for introduction.
Attitude counts for everything, avoid personality conflict
Control the interview, make notes
Presence of Solicitor
How do I deal with the presence of a solicitor
Pre-interview disclosure
Obstructive solicitor
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14.Interview Strategies: Recording
“If it’s not written down, it didn’t happen”
All disclosures, exhibits fully documented
Memo read over to suspect and requested to sign it
Video recording with consent of person
Avoid asking leading questions, ask open ended questions
TED – Tell me, Explain to me, Describe to me
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Do not be confrontational or oppressive
If evidence/documents/exhibits are available then have the witness produce them, mark them, hand them over and include in statement
Build rapport
Avoid interrupting the witness unnecessarily; at the same time ensure the witness remains focused
15.15
The Caution
16.Theory in Practice
Successful Prosecutions & Challenges Ahead
17.Convictions in 2017
On 17 July 2014, a consumer purchased a car from Jonathan McSherry
Car was advertised on carzone.ie with 135,000 km
Enquiries by the CCPC found the mileage on the 28 February 2014 had been 175,629 km
Jonathan McSherry was convicted of the offence of a misleading commercial practice and was sentenced to a prison term of three months
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Brendan Smith fined €7,500 for engaging in and implementing an anti-competitive agreement contrary to the Competition Act 2002
Handed a three-month prison sentence, suspended for two years, for attempting to impede a prosecution, contrary to the Criminal Law Act 1997
Aston Carpets was fined €10,000 for engaging in and implementing an anti-competitive agreement contrary to the Competition Act 2002
Ireland’s first conviction for bid-rigging
Aston Carpets, May 2017
First custodial sentence for selling clocked car,
Jonathan McSherry, July 2017
18.18
CCPC challenges
19.19
Questions
Paul Hanna
paulhanna@ccpc.ie
01 402 5547