In defence of deception
2 June 1996
There is no question that criminal activity is increasing on a global scale. And it is equally clear that law enforcement agencies are incapable of stemming the tide or coping with existing levels of crime.
The manpower in the private security sector outnumbers government agencies by at least two to one and without its help the consequences of crime for society are grave indeed. And if you tie the hands of private investigators who benefits? Certainly not the public.
Section 161 of the Criminal Justice and Public Order Act 1994 makes it an offence to obtain computer-held personal files by deception. Whether you agree with this legislation or not, it was to be expected as a result of abuses perpetrated by a number of unscrupulous investigation agencies.
However, there are times when an investigator must use deception to elicit the truth; what is the purpose of any investigation if it is not the pursuit of justice through truth?
The good thing about section 161 is that it makes provision for punishing wrong-doers, providing they can be caught, and in so far as this amendment of the Data Protection Act affects these unscrupulous operators, the Association of British Investigators (ABI) supports it.
But we fear this legislation will do little to deter those in the profession who do not care whether their activities break the law. Tying the hands of lawful investigators will just hinder them obtaining justice for clients. What price section 161 now?
The implications for the legal profession are equally significant. Solicitors will also be at risk if their investigator has used illegal methods to obtain the information requested.
But there could be worse to come. It has been suggested that the use of pretext enquiries should be outlawed completely. This would be a criminal's charter, virtually eliminating the possibility of detecting certain types of crime, principally personal injury fraud.
If an investigator was obliged to reveal his true identity at all times, it is most unlikely that a fraudster would immediately respond with "It's a fair cop, guv". Indeed we might as well give up trying to combat this type of crime.
Similarly, a law prohibiting the use of covert cameras or long-range lenses would eliminate the possibility of obtaining photographic evidence in most cases of theft and personal injury fraud. Such laws only protect the guilty as the innocent have nothing to fear from legitimate enquiries of this type.
The International Federation of Associations of Private Detectives (IKD), which represents some 50,000 invest- igators, proposes that, in order to combat the rise in crime, the profession needs privileges which should encompass the following:
pretext enquiries, with a proviso that no private investigators could pretend to be a member of an official police force or member of any government department, for example a Customs & Excise or Inland Revenue officer;
the use of surveillance equipment to collect evidence;
access to certain official records when an investigation cannot be properly completed without information contained in those records.
Such privileges only come with the introduction of the correct legislation. IKD recommends this would include issuing 'practising certificates' as a requirement for anyone wishing to practise as a private investigator. Practising without a certificate would be a criminal offence.
IKD also suggests setting up a government body responsible for issuing, monitoring and, if necessary, withdrawing these certificates. It would operate along the same lines as the Law Society and consist mainly of members of the profession, as well as representatives from the legal profession, the press, the police and the insurance and banking industries. Such legislation would raise standards to protect the public and also increase our effectiveness in the investigation and detection of business crime.
Meanwhile, the only way solicitors and the public can protect themselves is to use an investigator who is a member of the ABI. Members of the organisation are approved by the office of the Data Protection Registrar and bound by a strict code of ethics which dictates that they must conduct all investigations within legal, moral and professional ethics.
But the public will continue to be at risk until the government introduces statutory control of the profession.