OG117-3 Investigations Work - Assessing Evidence in an Investigative Context

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Policy Statement/Overview

IMPORTANT NOTE

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Summary of the guidance

Casework Guidance

Please read the IMPORTANT NOTE on the front page 

OG117 A3 - 4 September 2012

OG117 A3 Assessing Evidence in a Regulatory Context

 

1. Why does this matter?

In assessing regulatory issues that come to our attention (by whatever means) we need to be as sure as we can that the facts are correct and we do not act on a false or unproven premise. We rely on information as evidence in our casework when making decisions.

We also have to act fairly and need to be able to explain our actions to trustees and those directly affected by our decisions when we exercise our legal powers. We may be called to justify our actions by the First Tier Tribunal (Charity) or by the court. In doing this we need to show that our action has been taken on the basis that relevant issues have been properly considered. In assessing information and deciding to use it, it is important that we act fairly and consistently in line with the principles set out in this guidance.

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2. What is the difference between information and evidence in our casework?

Information usually relates to:

  • knowledge or facts about an issue, person or situation;

which can be:

  • presented in a variety of ways;
  • from a variety of sources; and
  • may be true or partially true.

Information can be given to us, solicited by us or uncovered as part of our casework research. We use the information we hold and collect about charities in our casework. Some information given to us may not be true at all.

Those providing information will vary and might include complainants, trustees, beneficiaries, the Police, banks, other regulators, agencies or government departments.

Information can take different forms, such as:

  • bank statements;
  • web information;
  • emails and letter correspondence;
  • formal written statements;
  • meeting minutes;
  • photographs;
  • newspaper articles;
  • intelligence reports;
  • accounts;
  • annual reports;
  • receipts and invoices;
  • details on social networking sites;
  • text messages;
  • telephone records and memos;
  • a verbal account of an event which has been witnessed.

In general terms information becomes evidence when it has relevance to and is used in our casework, section 3 below looks in more detail about what this means. 

Information we hold or collect may be used as evidence:

  • for the purpose of establishing the facts of what happened;
  • to prove or disprove a specific regulatory concern (for example, that conflicts of interest have not been properly managed); or
  • to support regulatory action we decide to take – in most cases this will be to show misconduct and/ or mismanagement in the administration of a charity and/ or that there is a risk to charity property.

However, not all information is good evidence.

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3. The overriding principles involved when assessing information

When assessing evidence to be used in our casework we need to understand the evidential standard to which we work. That standard is the "balance of probabilities". This is particularly important when considering whether the evidence itself is likely to be true as well as when using it to establish the facts, prove or disprove a specific regulatory concern or prove misconduct.

Using the balance of probabilities means that when we consider information we have to decide whether it is "more likely than not" that the information is true or false when weighed against the nature of that information and circumstances in which it occurs. Where we are unable to show this likelihood (of being either true or false) then the standard has not been met.

Where we decide that information has some relevance to our case we need to go on to consider its quality and how much weight we should give it. This usually involves three key considerations:

  • how material the evidence is:
  • how reliable it is; and
  • how relevant to our casework.

This leads us to make an assessment about its veracity, ie whether it is likely to be true or not and whether it is good evidence.

In more detail these principles mean:

"material" – it must relate directly to one or more of our regulatory concerns, having direct relevance to our enquiries on that matter. It will have a particular importance or be something significant. The more material a piece of information is, the more weight it will have. However, if evidence is not relevant whether it is material or not is of little consequence;

"relevant" – how far does it go to prove or disprove a material issue being considered as a regulatory concern or matter in question? Where we can say certain information can prove or disprove a regulatory concern or complaint that has been made to us, that information is relevant evidence. The more relevant it is the stronger the evidence will be;

"reliable" – can we depend on it? Is it capable of being corroborated or come from a trustworthy source, eg accounts audited by a professional company or written independent testimony of an event? In considering reliability we also look at the source of the information and potential motives of individuals when giving us information. Information that we may decide is not of direct evidential value may still help us in pointing to other evidence that is reliable or in indicating something about motives of individuals giving us information.  

Our assessment of information will require us to drill down to see if it possesses these qualities.

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4. Considering reliability

In considering reliability we look at the source of the information as well as the information itself. Here are some questions to think about.

How reliable is the source of the information?

  • Is there any doubt about the authenticity, trustworthiness or competence of the source?
  • If information has been supplied by this source in the past has this source been wholly or partly reliable, or unreliable?
  • If this source has never provided information before what do we know about them?
  • Might a provider of information have an ulterior motive in giving us this information?
  • Has this person provided the same information to us before?
  • Is the information from an anonymous source?
  • Is the information from a protected source?
  • What is the nature of the relationship between the source and the charity?
  • What does the source expect to happen as a result of our involvement?
  • Why has the source decided to provide this information at this time?
  • Does the source stand to gain or lose anything by our involvement?

In general terms the most reliable sources of information are likely to be:

  • the Charity Commission (information we hold and know to be relevant and reliable)
  • other government departments;
  • public bodies;
  • the police;
  • statutory whistleblowers.

Less reliable sources will include:

  • those who have ulterior motives;
  • individuals who have proved to be unreliable in the past;
  • vexatious or malicious complainants.

Even though some sources may be considered less reliable than others we will, nevertheless, consider the information we have been given.

Information supplied anonymously does not mean necessarily that it is unreliable or that it should be discounted. As with any other information given to us we will consider it objectively and look for corroboration.

How reliable is the information itself?

  • Is the information known to be true without reservation (eg evidence contained in bank statements)?
  • Do we have reason to believe that the information is false?
  • Is the information known personally to the source, or are they repeating information they have been told by other people.
  • Can we corroborate the information with evidence from other sources?
  • Is the information coherent and consistent, ie it doesn't contradict itself and makes sense?
  • How has the information been presented to us – does it appear to be objective, is it skewed to support a particular view or does it contain rancour or prejudice?
  • Has the information been given to other regulators or agencies?
  • Does the information appear to be based on speculation (either informed or ill-informed)?
  • Is the information opinion or fact?

In general terms the more reliable types of information will be;

  • documentary evidence relating to a charity such as audited accounts, bank statements, annual reports or letters;
  • written admissions by the individual concerned;
  • written statements or accounts by eye witnesses;
  • admissions made to us in the course of an investigative interview.

Information that does not constitute good evidence is:

  • anything which is speculation, hypothesis or assumption whether or not the person has knowledge of the situation.

Information supplied anonymously does not mean necessarily that it is unreliable or that it should be discounted. As with any other information given to us we will consider it objectively and look for corroboration.

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5. Making the assessment

Case work will usually involve making a decision about what information should be used as evidence to prove or disprove the issue in question or to establish the facts of what has happened.

The principles above will help decide what evidence will be used after which the next step will usually be to analyse all the evidence together to make a judgement, on the balance of probabilities, on whether the relevant issue is proved or not. Questions which may help in doing this and deciding whether obtaining further evidence is necessary, include:

What do we know as fact and how can we prove it?

What remains unproven and why?

What remains uncertain and what are the reasons for our doubts?

Is there anything further we could look at to confirm or dispel any doubts?

Recording reasons for including or discounting information or evidence is important to the exercise of our powers and provides transparency in decision making

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