High-profile cases of historic allegations, such as those concerning Russell Brand and David Walliams, show how quickly scrutiny shifts from just the accused individual to the people and the organisations around them. The questions soon become: who knew, who was told, and what was done?
Historic allegations are increasingly seen as a test of an organisation’s culture, governance and complaint-handling processes and of where it draws the line on acceptable behaviour. Expectations have shifted and conduct once dismissed as “banter” or tolerated in return for talent or commercial success is now under the microscope, and inaction can be viewed as complicity. In our experience, organisations that confront difficult truths early and act proactively are judged more favourably than those that wait until their hand is forced. It is rarely “too late” to investigate.
Lewis Silkin has extensive experience of conducting investigations into historic allegations, including matters relating to Russell Brand and Gregg Wallace. Drawing on that experience, this article considers why historic cases can be challenging, what an investigation should examine, and the steps organisations can take at each stage.
Why historic cases are particularly difficult
Investigating events from years, or even decades, ago brings particular challenges:
- memories may have faded, and accounts may have been shaped by later events or media coverage;
- evidence may be missing, or may never have existed;
- organisational structures and reporting lines may have changed, making it harder to establish who was responsible for what at the time; and
- key individuals may be uncontactable and cannot be compelled to take part.
None of these is a reason not to investigate. They do, however, mean that the investigation needs to be carefully scoped and expectations should be realistic.
Immediate steps to take
When historic allegations come to light, the first few days matter. Organisations should:
- set up a conflict-free internal team, excluding anyone who may have been involved in, or aware of, the matters under review;
- assess any immediate safeguarding and wellbeing concerns, including whether the alleged perpetrator still has contact with staff, clients or members of the public;
- preserve evidence, suspending routine deletion policies and securing email accounts, devices and HR records;
- decide whether regulators, insurers, law enforcement or other stakeholders need to be notified; and
- consider appointing an external investigator, particularly where senior leaders or governance may be scrutinised. Impartiality is often critical to the credibility of the findings and can help to persuade witnesses to come forward.
What would the investigation typically examine?
The investigation into historic allegations will usually look beyond the conduct of one individual. It is likely to cover three broad areas.
