11. Assessing the Evidence
The principal objective of this guidebook, and the type of investigation explored here, is to support better enforcement of timber laws. Not every investigation, however, will lead to an actionable case. While investigators may set out to build a body of evidence that is sufficiently strong and detailed for a prosecution under the Lacey Act or EUTR, it may prove to be impossible to do so.
In these instances, there are a number of other ways in which well-documented and well-presented evidence can support implementation of the law, improvements to it and influence private sector behaviour. The options that are available for enforcement or advocacy will depend on the strength and type of evidence that is gathered during the investigation.
In the course of their research, investigators should be consistently asking whether they have reached a threshold where the findings should be packaged-up and made public, presented to enforcement agencies, or both. Releasing evidence too early can be counterproductive – it may be incomplete, insufficient to effect change, and reduce the ability to investigate further. In the US, it is also not legally possible to provide additional information on a case which has already been submitted to the authorities, so it is essential that all possible evidence is collected before a submission is made. But holding on to evidence for too long may be equally counterproductive – the validity of evidence often reduces over time, and methods and supply chains change.
It is critical to consistently assess the status of the investigation, considering the options available if the case is exposed now, and whether further investigation will improve those options. The main options that can be considered when assessing investigation findings are as follows.
If there is proof of a supply chain connection from source to the US or EU, with some evidence of illegality, the information can be supplied to enforcement agencies in the relevant jurisdiction. The information does not have to be complete, as enforcement agencies can carry out their own further inquiries where there is a credible case that they should do so. In the EU, the due diligence component of the EUTR introduces the potential for making a case to enforcement even where the source of the product is not clear. At the same time, the more complete the evidence, the greater the probability that action can and will be taken.
Exposing high-risk supply chains
Where there is evidence that a significant proportion of timber from a given source is illegal, this information can be presented to enforcement agencies and publicly exposed, whether or not there is a clear connection to a specific company in the end market. Doing so can assist enforcement agencies in their monitoring of companies within their jurisdiction, encouraging them to pay attention to products from the given source. If the information is publicly exposed, whether through the media or by circulating the information to a targeted audience, it can have a ‘chilling effect’ on imports from the source. Companies in the EU must conduct due diligence on imports, while companies in the US are subject to greater sanctions if they fail to exercise ‘due care’. Ensuring they are properly informed should encourage them to undertake greater scrutiny of high-risk sources.
Exposing issues beyond the scope of timber laws
Many investigations may give rise to evidence of wrongdoing that falls outside the scope of timber import laws. The EUTR and Lacey Act are based on laws in the source country; if source countries have not prohibited certain acts, these laws in market countries cannot be brought to bear. This is of particular significance with regard to human rights and land rights. If states have not legally recognised the customary rights of indigenous communities to forests, the EUTR and Lacey Act cannot be used to prosecute the taking of resources from those forests. This does not mean there is no benefit in publicly exposing this. If a broad or specific supply chain connection can be made to the EU or US, exposing it can change the behaviour of the private sector. Companies in the EU and US are conscious of reputational damage, and the risks to their business if they are associated with human rights abuses or loss of biodiversity.
‘Companies in the EU and US are conscious of the risks to their business if they are associated with human rights abuses or loss of biodiversity’
Exposing supply chains to unregulated markets
Though the EU and US account for a significant proportion of global trade in timber, several other countries import significant volumes. These states, particularly Japan, China and India, account for a growing proportion of the trade in illegal timber, and do not have laws like the EUTR and Lacey Act. If investigations lead to these countries – as many will – the Lacey Act and EUTR may be brought to bear if the timber is later re-exported to the EU or US, but making these connections is notoriously difficult. Nonetheless, the Lacey Act and EUTR were enacted as a consequence of public pressure – and, critically, evidence – of the scale of the illegal timber trade. Pressure is growing on China and Japan to introduce similar legislation. Exposing illegal supply chains to these countries can support these efforts. In such instances it is worthwhile exposing the case publicly, but also seeking to provide the evidence formally to government agencies in both source and market country.
Deeper or broader investigation
There may come a point in an investigation where it is determined to be impossible to prove a case against a particular target, or there is insufficient evidence to support a hypothesis. It is important to be meticulous and not abandon a line of inquiry altogether prematurely. Either drilling down into more detail on a tighter, more refined target (whether an area or company), or broadening the inquiry to a larger area or supply chain, can lead to new breakthroughs. The process may lead to new insights that allow the investigator to return to the original target with fresh ideas.
‘Drilling down into more detail on a tighter target or broadening the inquiry can lead to new breakthroughs in an investigation’
The Dead End
Not every investigation will result in actionable evidence or information that can have a ‘chilling effect’ on a supply chain. But all investigations will guide further investigations, improve the investigators’ understanding of the actors involved, and improve their campaigning. If the decision is taken to end an investigation without taking further action, some simple principles should be implemented to ensure the work is not wasted. All evidence gathered during the investigation, whether hard or digital data, should be filed or stored in such a way that it can easily be recovered. A single document should be drafted summarising the investigation aims, progress and conclusions. The document should reference the evidence and note how it can be found. It should be considered that what may seem like a dead end can become a live lead within weeks, if new information becomes available. At that point – whether weeks or years later – the ability to re-access and understand an investigation will prove invaluable.