We take a look at the misunderstandings that still exist when it comes to what commercial investigators can and cannot do in the course of their work. There still appears to be a lot of confusion surrounding what information such investigations can legally gain access to. This in turn has the effect of clients having unrealistic expectations of what the investigators they engage can legally do for them.
Before we start to get into what some of these misconceptions are, it is first important to understand and define what the process of an investigation actually is. It has been defined as:
‘The action of investigating someone or something; formal or systematic examination or research.‘
This is a helpful definition that provides an overall sense of what an investigation is but does not appear to go far enough in its explanation. In terms of a criminal or commercial investigation, there is something missing. That being ‘to establish facts that can (or could) be provided as evidence and submitted to a court‘.
A bit of history
We have used the term ‘commercial investigations’. The terms ‘private investigator’ or ‘private investigations’ can conjure up a negative image of this area of work, especially following the conclusion of the highly publicised Levison Enquiry in the UK. For those that do not know, this examined the behaviour of the press and its use of private investigators when it came to the gathering and use of personal information.
The enquiry was triggered as the result of an extensive police investigation and subsequent criminal prosecution that took place in the UK in 2007. It culminated in a private investigator and a newspaper editor being found guilty of illegally intercepting phone messages. For committing this crime, they both received custodial sentences. This brought the whole issue of how investigators working in the commercial environment operate to the fore.
One of the recommendations of this enquiry centred on the need for investigators to be licenced in the UK. This was further echoed by the former Prime Minister and then Home Secretary Theresa May. The idea being to ensure that commercial investigators had the knowledge and experience to perform the tasks that were required of them within the confines of the law.
Now that some background has been established, we can now look at and explain some of the key misconceptions that still surround the work of commercial investigators. It must be pointed out that this relates to investigations conducted in the UK, however, in the main, the issues are similar in most countries.
“They do not have to comply with the law.”
One of the most common misconceptions about commercial investigators is that they can ignore or circumvent the law. This is wholly untrue. A commercial investigator must obey and operate within the law at all times. In fact, they have to be extra careful in this regard as they are not afforded any additional powers, unlike the police. Even though they may hold the title of investigator they are working in the same capacity as any private citizen. This means that they have to acquire information very carefully and be able to account for where they got it from. This is especially the case if they are involved in an enquiry that is likely to end up in court where admissibility of evidence is a key consideration.
“They can obtain information outside the public domain.”
Any information that is not in the public domain is normally, by definition, private (personal) and therefore confidential and subjected to protection. This means that in order to legally obtain access it would, in most cases require the consent of the individual, the consent of the organisation that owns it or holds the information and in some cases an application to the courts to disclose. The introduction of GDPR has only made the rules more stringent around releasing personal data. However, this usually results in the owner of the information being informed of the details of the person requesting the information. A commercial investigator cannot gain access this information by utilising their contacts in the law enforcement community. To do so would be a criminal offence and it would more than likely result in the investigator and their contact facing a criminal prosecution.
“They can listen in to phone calls.”
The whole process of listening into live phone calls, notwithstanding the law surrounding it, is very complex requiring significant technology and not something an average investigator would have access to. Let alone the fact that we can think of no reason why a commercial investigator would ever be permitted to access such a capability. Accessing someone’s personal voicemails without permission (probably because they have a password to do so) will likely result in a prison sentence. Not only for the investigator but also anyone that colluded with them and benefited as a result of the information received. In the UK this activity is covered under the Wireless Telegraphy Act 2006. This makes it an offence for an unauthorised person to use apparatus to intercept and disclose messages. It is highly likely that this is true of most other countries and legal jurisdictions.
“They can gain access to bank account information.”
This again is something that seems to be asked of commercial investigators on a regular basis, particularly when it involves an asset tracing case. Clearly when carrying out this type of enquiry understanding what assets the subject has and where they are is likely to be very helpful. However, there is a big difference between knowing that a bank account exists and what is in it. Accessing bank account information requires consent or a court order. There is no way that an investigator can access this information legally without consent or a court order as the information held in an account is private.
“They can access individual credit history.”
This is an interesting as certain information in respect of an individual’s credit history can sometimes be a matter of public record. In particular when they are declared bankrupt or have entered into an Individual Voluntary Arrangement (IVA). That said the information in this regard is still limited as it will not provide detail as to the level of the debt the individual is in. Therefore, under normal circumstances the credit history of an individual is private information. The same rules ultimately apply, and the individual must consent to a credit check being performed on them. However, anything that has been decided by a court is normally a matter of public record and can be accessed.
“They can record conversations without consent.”
When conducting an investigation an investigator can speak to and interview several people. These include witnesses and suspects alike. However, in order to record any of these conversations and make them admissible in a court of law consent must be given by the individual. Then when it comes to someone potentially incriminating themselves, they should be afforded the right to legal advice. However, there is no law that would prevent an investigator from taking detailed notes of any interview or discussion that they have.
“They can fit tracking devices to cars and people.”
The idea of tracking devices is well known. They are commonly used by vehicle fleet management companies to track vehicles and employees (with them being informed) but having your private investigator place one on someone being investigated is not so simple. It again requires consent of the individual to track their movements because the information gathered uses a GPS system and it would be classed as personal data about their whereabouts, so Data Protection applies. Simply put, you cannot have the information without the consent of the individual, so again the evidence gathered is likely to be unusable. Having this information without a subjects consent could result in large fines.
In summary, it can be seen that there are still a number of myths surrounding the world of the commercial investigator. We hope that this has been an informative and helpful article as well as helping to set the record straight in certain common areas. However, if you are still unsure about what can and cannot be done please feel free to contact us to discuss your requirements further. We will be more than happy to help.
Martin Cartwright is head of Investigations at Proelium Law LLP. Martin has over 20 years’ experience in investigations and investigative management having worked in both the public and private sectors. Martin holds a BA (Hons) in Applied Investigation and represents Proelium Law LLP on cases both in the UK and overseas in high risk jurisdictions as well as complex environments.
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