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Independent Investigations: lessons from the Dyson Report

24.05.21

The Dyson Report (“the Report”) has generated much media coverage. In an exercise in journalistic self-flagellation, the BBC has widely reported the trenchant criticisms set out in the Report, together with the BBC’s grovelling apologies for the serious failures identified by Lord Dyson.

Martin Bashir’s interview of Princess Diana has been dubbed “the interview of the century”. The circumstances in which it came into being and the subsequent cover up has proved almost as riveting as the interview.

The Report itself is a fascinating read for anyone engaged in commissioning or conducting internal investigations. Here are a few points of interest:

• Terms of reference matter. Lord Dyson specifically identifies a number of issues not addressed in the Report because they fall outside the scope of the Terms of Reference. Those Terms of Reference consisted of 5 specific questions. Interestingly, the Terms of Reference were set by Lord Dyson, and approved by the BBC: they were not unilaterally determined by the organisation commissioning the investigation. Discussing and agreeing the Terms of Reference with the proposed investigator will increase the likelihood of the investigation “working”: the questions to be answered need to be clear and unambiguous and capable of being answered.
• Important procedural principles were specified and agreed in advance. A “Process Protocol” set out a number of agreed principles by which the investigation would be governed: the independence of the investigator; the thorough examination of the relevant evidence; fair treatment of affected individuals; value for money; and a commitment to the decision being reached with “all due expedition”. These principles are likely to be relevant to virtually all internal investigations and provide a useful roadmap for any investigator.
• Terms of witness interviews were agreed in advance. Lord Dyson specifically commented in the Report on the degree of cooperation that was forthcoming from interviewed witnesses, none of whom could be compelled to give evidence. No doubt that cooperation was enhanced by the pre-agreed “terms of engagement” (also set out in the Process Protocol). The most important were (a) the provision of at least 5 days’ clear notice of the topics Lord Dyson wished to discuss; and (b) notice of potential criticism before publication of the Report to affected individuals so that they had 14 days within which to respond to it (a practice sometimes called “Maxwellisation”). These safeguards – particularly the first – may not be practicable in all investigations but they obviously reduce the scope for unfairness and probably enhance witness cooperation.
• Privileged material. The Process Protocol also set out agreed ground rules for privileged material: the BBC would not withhold privileged material from the Investigator but in doing so no wider waiver of privilege was made. Lord Dyson could refer to such material in his Report but the “Investigation Sponsor” might decide whether to redact it prior to publication (at which point the redaction would be explained). The Investigation Sponsor’s role was to ensure that the investigator had the facilities and assistance needed to conduct the investigation and to brief the BBC on logistical progress. A separate individual, an “Investigation Respondent”, was responsible for advising the BBC in its responses to requests from the Investigator in respect of substantive matters under investigation.
• A botched investigation is probably worse than none at all. One of the most damning parts of the Report is Lord Dyson’s analysis of the internal investigation carried out by (among others) Lord Hall in 1996. That investigation was intended to be a “full enquiry” designed to “find out the entire truth behind [Martin] Bashir’s activities”. Yet Lord Hall did not bother to interview Earl Spencer, accepting at face value Mr Bashir’s evidence even though it was known that he had lied about the production of bogus bank statements. Lord Dyson is highly critical of that failure (“…. a most serious flaw in the investigation…”) and considered at length the reasons given to justify it, which he roundly rejects. Moreover, the interview with Mr Bashir was “woefully ineffective” and the conclusion that Mr Bashir was an honest and honourable man was not one that could reasonably have been reached.

The Report – whose findings have been accepted in full by the BBC – is as impressive a document as you would expect from the former Master of the Rolls. Not many organisations would be able or willing to incur the costs (estimated at “around £1.4 million”) associated with such a Rolls Royce investigation but the value of instructing someone of independence, intelligence and integrity to investigate knotty or controversial issues is evident from this exercise.

Daniel Tatton Brown K.C. specialises in employment law. He is experienced in carrying out workplace investigations or determining grievances.