Conclusions and preparing an investigation report

In some cases, the findings of fact will depend on the credibility of the witnesses. Determining the credibility of a witness’s testimony must be based on objective criteria. Here are some factors a panel may use to assess credibility:

• any internal inconsistencies or inconsistencies with other statements made by the witness, taking account of whether the inconsistencies are on a material point
• whether the facts proffered as true by the witness are supported by the evidence, in particular any documentary evidence. Consideration can also be given to the inherent probability of the account (i.e. does the account require the panel to assume facts that are unlikely)
• the demeanour of the witness however remain mindful that an inability to recollect may not indicate lack of truthfulness, in contrast to a deliberate attempt to avoid answering direct questions, answering without any clarity, responding with evasiveness, or lack of responsiveness.
• the extent of the capacity of the witness to perceive, to recollect or to communicate the matters about which they are providing an account
• the witnesses’ ability to observe what they state they observed (were they actually present, are they in a position to know what they say they know, were they paying attention)
• the existence or nonexistence of a bias, interest or other motive
• any admission of untruthfulness.

The panel should assess witnesses’ evidence, using the factors above. Ultimately, the panel will make an assessment as to their credibility and therefore which account is credible. Corroborative statements made by a complainant to others after an incident can be relevant.

When assessing the evidence, it is important for the panel to distinguish between direct and circumstantial evidence. All this evidence is relevant, but not all evidence has the same weight.

• Direct evidence is, as it suggests, direct. If I saw Fatima shout at and insult Adrian, that is direct evidence of the fact that Fatima insulted Adrian.
• Circumstantial evidence is evidence that supports a fact. If Maria saw Adrian run and cry immediately after his meeting with Fatima, that is circumstantial evidence which may support a conclusion that Fatima did shout at and insult Adrian. In this case, this evidence is corroborative evidence of the central allegation.

Hearsay evidence may be corroborative and is evidence of what a witness heard others say: Sergio told Donough that he saw Sane at a restaurant last Wednesday with a colleague. Donough has no direct evidence of what Sane was doing last Wednesday; he can only give hearsay evidence of what Sergio told him. Hearsay evidence may be considered by a panel in the context of investigations of possible misconduct, but will have limited probative value on its own. However, it may open new lines of inquiry; in the example, the panel may want to interview Sergio to obtain Sergio’s direct evidence.

Adverse inferences may be drawn from a failure to cooperate or an evasive response to questions.

Relevant provisions:

• ST/AI/2017/1: 6.2, 6.18

Whether the evidence is sufficient to meet the requisite standard of proof at the end of a disciplinary process is ultimately a decision of the Under-Secretary-General for Management Strategy, Policy and Compliance. In cases where separation or dismissal is a possible outcome, the evidence must be clear and convincing, that is, the truth of the facts is highly probable.  For any other disciplinary measure, the preponderance of the evidence is required (more likely than not that the facts and circumstances underlying the misconduct exist or have occurred).

Panels should not reference the burden of proof in making its findings, and the assessment of sufficiency is for those who must take action on the basis of the panel’s investigation. Instead, the panel must ensure that it explains the evidence that it relies upon in making its findings of fact.

Relevant provisions:

• ST/AI/2017/1: 9.1

The panel must submit a report as the final product of the investigation. The report is based on the evidence gathered during the investigation. Disagreement amongst panel members can occur and can even persist until the end of the investigation. If the panel cannot eliminate disagreement through discussions, the disagreement should be reflected in the findings and conclusions. The disagreement may also be documented in more detail in a separate note-to-file.

The report is an official UN document and may become part of a subsequent internal process. It should, therefore, be:

• Factually correct
• Impartial and objective
• Concise, clear and complete
• Logically organized

Top tips:

• Write in short and direct sentences
• Write in the active voice (e.g. “she instructed him to…” rather than “he was instructed by her to …”)
• Use concise headings and subheadings to guide the reader
• Check grammar and spelling
• When setting out a fact, footnote the sources of evidence supporting that fact
• If helpful, use images and charts
• Give documents a number so they are easier to refer to in the panel’s report
• Label interview statements using initials, page numbers and/or line numbering so it is easy for the reader to find the original statement
• Avoid moral, cultural, psychological analysis or speculation
• Check the alleged offender has had a chance to respond to facts the panel is relying on in support of adverse findings against them

The exact structure of the report is for each panel to determine but every report should ensure:

• It addresses all issues contained in the Terms of Reference with factual statements supported by relevant evidence. This means each factual statement is based on a piece of evidence referenced (usually in footnotes).
• It contains consideration of any exculpatory evidence discovered during the investigation.
• It refers to all written witness interviews/signed statements with annexes/attachments and any other documents or records relevant to the claimed prohibited conduct
• It includes the panel’s conclusions and an explanation of how these conclusions were reached.

​More tips on drafting reports are in the templates section, as well as a checklist and a template report: see Templates 5.01 - Report Writing Checklist, 5.02 - Report Writing Guide and 5.03 - Prohibited Conduct: Panel Report Template.

The report should neither raise unanswered questions nor leave matters open to interpretation.

A suggested structure would be to:

• First outline the terms of reference (this helps focus the report: what exactly was being investigated)
• Set out the rules, norms relevant to the investigation (e.g. the prescribed definition of harassment)
• Then succinctly explain the steps taken to gather evidence (who was interviewed when, what documents were obtained etc.)
• Taking each allegation in turn, set out the evidence gathered (going at this point into more detail on what evidence was obtained)
• Separately have a section containing the panel’s findings, setting out the analysis and the conclusions reached in relation to each allegation.

The investigation report and case file should be submitted to the responsible official. It is possible that, due to the complexity of the case, or for reasons beyond the panel’s expectations, the investigation is delayed. The panel must make sure to keep a record of the reasons that delay the investigation.

The panel members should remain available to explain the investigation procedure and findings of fact, provide clarifications and additional fact-finding where necessary, and possibly provide testimony in any legal process that may follow.

The panel should not communicate the outcome of the investigation, or the investigation findings, to the alleged offender or affected individual. The appropriate communication will take place at a later stage depending on what action is taken on the basis of the evidence contained in the investigation report.