When should I tell my regulator about a criminal investigation?
Being subject to a criminal investigation can be overwhelming, particularly for a professional of good character. It is therefore understandable that professionals often fail to comply with their disclosure obligations due to the pressure of the situation or a lack of familiarity with the process. Whilst it may be easily done, not controlling how and when your regulator is informed of a criminal investigation can lead to further complications. These difficulties can often be avoided by controlling the narrative presented to your regulator from the outset.
Who does this apply to?
Many professions are subject to oversight by regulatory bodies. For instance, medical professionals are regulated by the General Medical Council (GMC), and dental professionals by the General Dental Council (GDC). I would urge any professional who finds themselves being investigated for a criminal offence to carefully consider which organisations they may have professional duties of disclosure to. The earlier, the better.
It is crucial to familiarise yourself with your obligations to disclose a criminal investigation to your specific regulatory body. Instructing a solicitor to advise on the requirements of a specific regulator can provide valuable assistance and offer reassurance during what is usually a challenging time.
Whilst it does not negate the need to check your regulator’s specific requirements, professions generally impose broadly similar requirements. This means many considerations concerning when to disclose a criminal investigation transcend specific professions.
When should I notify my regulator?
Strictly speaking, you are not always required to inform a regulator simply because you are subject to a criminal investigation.
Your obligation to disclose typically arises when you are charged with a criminal offence, or formally admit guilt, such as by accepting a cannabis warning, police caution, or community resolution, or if the matter is resolved by an antisocial behaviour order (e.g., a Criminal Behaviour Order or a Community Protection Notice). Thereafter, you are also ordinarily obliged to inform them if you are found guilty of a criminal offence.
However, it is often in your best interests to notify your regulator as soon as you become aware of a criminal investigation. This is quite simply because they are likely to find out anyway, and proactively informing them can be beneficial to your defence in any subsequent regulatory proceedings. Demonstrating transparency and insight by notifying them early can strengthen your defence strategy.
How would my regulator find out about a criminal investigation?
Your regulator could become aware of a criminal investigation through various channels. Common scenarios include a complainant in the criminal proceedings also reporting their grievance to the regulatory body, or the police contacting the regulator directly. Additionally, regulators often have agreements with other organisations to collaborate in achieving their respective objectives.
As a result, your regulatory body could be alerted to the investigation due to your compliance with additional disclosure obligations, such as those to your employer, the NHS, or the Care Quality Commission (CQC). These obligations may require you to report the investigation earlier than you would to the regulatory body itself.
It is also important to consider other early disclosure obligations, such as informing your professional indemnity insurer and, importantly, any defence organisation you belong to, as they will ordinarily be able to offer you valuable support during the process.
How should I tell my regulator about a criminal investigation?
Whilst it is often preferable for the notification of an investigation to come from you as the professional, this can include someone instructed to act on your behalf. Professionals sometimes think that involving lawyers increases the seriousness of a matter. In my view, this thinking is particularly dangerous in this context, where the content of the report is more likely to have a pivotal impact upon any future proceedings than where it originated from.
If you are being investigated for a criminal offence, the criminal process is likely to be your primary focus. Therefore, it is understandable that, when self-reporting a matter to a regulator, professionals can tend to emphasise the lack of criminal conduct. However, reporting without advice risks inadvertently making admissions to conduct which could prompt regulatory proceedings for misconduct, which could persist even if the criminal investigation concludes with no further action. This is because conduct that does not necessarily constitute a criminal offence, or which may not be provable to the criminal standard of beyond reasonable doubt, is regularly found to amount to professional misconduct (where the standard of proof is often lower).
It is therefore prudent to instruct solicitors as soon as you become aware that you are suspected of an offence. Your solicitor will be able to advise and assist you in navigating the intertwined criminal and regulatory processes in a way that considers your overall defences strategy in both arenas.
Contact us
Hannah Cheesebrough is a solicitor in our regulatory and crime team. If you have any questions or concerns relating to the topics covered in this article, or if you need legal advice, contact us today.