Forensic investigations are usually reactive to prove, or disagree, on suspicions or wrong doings and provide evidence for legal proceedings. They may also be proactive to prevent unethical conducts. The practitioner must possess necessary skills and pre-requisites to avoid professional negligence in the course of engagements.
The phrase “professional negligence of a forensic practitioner”.
THREE ways by which professional negligence may occur during the course of a forensic investigation.
FOUR consequences of professional negligence to practitioners.
How professional negligence may be mitigated or managed.
FOUR skills that the forensic practitioner must possess.
TWO codes of ethics and the circumstances that might be applicable in different countries. This is considering the fact that ethical views differ between countries and cultures, and the behaviour and circumstances that might be considered slightly unethical in one country might be perfectly normal or acceptable in another.
ONE artificial intelligence tool that can enhance the work of the auditor.
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Professional negligence in forensic investigations › Incidence of negligence in a forensic investigationSuggested answer
(a) “Professional negligence of the forensic practitioner” when conducting forensic investigation, refers to failure of the forensic practitioner to:
(i) comply with professional standards of care; (ii) provide detailed attention expected of him, leading to avoidable errors or omission that can compromise the integrity of evidence, investigation or court proceedings; (iii) prevent injury to a person or, damage property through the practitioners action; (iv) observe duty of care to his client; like the doctor would do to his patient; and (v) act with regard to the safety and right of others.
(b) Ways by which professional negligence may occur during a forensic investigation include:
(i) Investigation–related negligence
- Inadequate planning: This occurs when the practitioner does not have adequate or comprehensive investigation plan on the assignment. This will invariably lead to overlooking required evidence or his inability to meet the investigation deadline.
- Inexperience or lack of required skill: Professional due care may be breached, if the practitioner is not duly experienced or lacks required skills. Professional accountants are not expected to take up any assignment for which they lack required skill or sufficient training.
- Insufficient resources: This will occur when the professional or forensic firm lacks adequate resources for the engagement. This would include time, finance and personnel for the engagement.
(ii) Evidence-related negligence: Evidence obtained should be able to prove or disprove allegations. However, negligence occurs when: - evidence is corrupted as a result of improper handling, storage or transmission; and - evidence collection and analysis are inadequate: Evidence, be it physical, digital and testimony obtained in a forensic investigation must be appropriate and sufficient to stand as a proof or disproof of allegation or assertion. Failure to properly analyse evidence, including misinterpretation or misrepresentation might lead to negligence.
(iii) Reporting–related negligence: The forensic investigation is expected to provide a report at the end of the investigation, however, negligence may occur when:
- the report is not complete, inaccurate and/ or not timely. This might lead to misinformed decision-making; - there is poor or lack of documentation of findings, such as property documentation, investigation findings, conclusion, recommendation and supporting evidence; and - investigation findings and recommendations are not duly communicated to relevant stakeholders.
(iv) Other manners where negligence may occur
- Conflict of interest: This will compromise the integrity of the investigation. - Objectivity: Lack of objectivity is viewed as a breach of required standard of care. - If investigation findings and recommendations are influenced by bias and prejudice. - Consideration of Res Ipsa Loquitur (The thing speaks for itself): That is, the event/circumstance implies negligence. The burden of proof now shifts to the defendants. - Failure to comply with established procedures, protocols or standards.
(c) Consequences of professional negligence to the practitioner
(i) Loss of credibility: The professional firm may suffer loss of reputation. (ii) Financial consequences: Financial loss would arise when there is negligence in carrying out forensic investigation. (iii) Professional sanction: There may be professional sanction against the practitioner – determined by the gravity of negligence. (iv) Justice: There might be miscarriage of justice as justice may be delayed, or denied the relevant party. (v) Stress: There may be emotional stress or harm to the client.
(d) Professional firms engaging in forensic investigation may avoid or manage negligence by adhering to the following:
(i) providing continuous training and education for all the staff, especially on new developments in forensics;
(ii) assessing the risks involved in the engagement and providing procedures for responding to identified risk;
(iii) peer review: There should be peer review among professional firms on forensic engagements as this will assist in identifying and addressing potential errors, reliability and other critical areas;
(iv) development and upgrading procedures: Procedures may change where there are latest developments in forensic investigations like computer forensics. Professional accounting firms should follow the update and bring it in the procedures of the assignment;
(v) periodic or annual conduct of quality management assurance in forensic investigation engagement by the professional firm; and
(vi) adequate monitoring and evaluation of investigation process will enhance quality services by identifying arrears for improvement.
(e) The skills that the forensic practitioner must possess include:
(i) accounting; (ii) data analytics; (iii) fraud detection; (iv) interrogative; (v) custody and preservation of evidence; (vi) investigative; (vii) presentation – ability to communicate understandably; and (viii) legal.
(f) TWO codes of ethics that are issued for application, based on different ethical views between countries and cultures are:
(i) Rules-based codes of ethics Rules-based codes of ethics apply to specific action that an accountant must take in specific circumstances, even if the circumstances are varied and complex, since the specific rules are made in advance and should not be varied, even with the changing environment. A rule book cannot easily make allowances for national and cultural differences.
(ii) Principle-based codes of ethics These are codes of ethics issued by regulating bodies containing general principles of ethical behaviour that require the accountant to act in accordance with the principles, using judgment in deciding whether in each case a particular course of action is a proper and ethical one.
(g) Artificial intelligence tools that can enhance the work of the auditor include:
(i) Data analytics and visualisation: These tools process large data sets using statistical tools to reveal anomalies and potential fraud.
(ii) Ai powered cloud-based audit platforms with analytics: This integrates data from various sources, automatically gathers evidence, supports risk assessment, sampling and audit strategy adjustments.
(iii) Robotic process automation (RPA): This helps to automate compliance, control testing, transaction monitoring. This is good for risk and control audits and for recurring audit procedures, for example, using drone for inventory count.
(iv) Natural language processing (NLP): This reviews and extracts important information from client documents e.g. minutes of Board meetings.
(v) Continuos monitoring tool: This tracks high-risk activities continuously and supports fraud prevention rather than just defection.
(vi) Machine learning (ML) predictive analytic models: This tool helps to detect abnormal journal entries, identifies more risky accounts and transactions and supports fraud-risk analysis.
Examiner’s report The question tests candidates’ knowledge of professional negligence of a forensic practitioner, codes of ethics and application of AI tools for audit purpose. Being a compulsory question, virtually all the candidates attempted it, but the performance was poor. The commonest pitfalls were apparent apathy of candidates to the forensics part of the new syllabus and the misrepresentation of the “external” codes of ethics for fundamental professional ethics which are “internal”. Candidates are strongly advised to adequately cover every part of the examination syllabus.
Marking guide Marks Marks (a) Explanation of the phrase “professional negligence of a forensic practitioner” (1 mark each for any explanation, subject to a maximum of 4 points). 4
(b) Ways by which professional negligence may occur (1 mark each for any point, subject to a maximum of 3 points) 3 (1 mark each for any explanation, subject to a maximum of 3 correct points) 3 6
(c) Consequences of professional negligence (1 mark each for any point, subject to a maximum of 4 points) 4
(d) How professional negligence may be mitigated or managed (1 mark each for any point, subject to a maximum of six points) 6
(e) Skills of the forensic practitioners (1 mark each for any skill, subject to a maximum of 4 skills) 4
(f) Two types of ethics codes (1 mark each for any correct code, subject to a maximum of 2 codes) 2 (1 mark each for any explanation, subject to a maximum of 2 explanations) 2 4
(g) Artificial intelligence (AI) tool that can enhance the worth of the auditor 2 TOTAL 30