More cloak, less dagger
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7 May 2013
The divorce scam used to be epitomised by a man in a grubby mac, a hired hotel room and a fake love affair. At the centre of this seedy melange was a solicitor.
The trick, at the centre of the film Under Suspicion, which starred Liam Neeson, was worked to circumvent the strict divorce laws which were in place in the fifties.
The client would meet a hired woman in a hired hotel room. The private eye would take snaps of the bogus lovers together and then present the "evidence" to the solicitor, who may or may not have known of the deceit.
Nowadays, the divorce laws are much more relaxed, and the relationship between private eye and solicitor more sanitary. Under pending legislative changes, moreover, there will be even less skulduggery.
First, section 161 of the Criminal Justice and Public Order Act will outlaw many of the time-honoured undercover ploys used by investigators.
Second, the Family Law Bill, with plans for "no-fault" divorce, could dramatically curtail the need to dig up evidence of marital infidelity.
As a consequence, private investigators will have to provide a service to law firms which is further above board than before and there will be a reduction in the number of cases in which they will have to be called in.
There are two main areas of work in which the legal profession uses private detectives: fraud and family.
At the higher end of the market, many detectives who work in the area of fraud are known as "corporate investigators". Often ex-senior police officers with accounting skills, they are called in to assess assets lost through dishonesty and, if possible, trace them.
"They are very necessary," says John Wood, a former director of the Serious Fraud Office and now a consultant at Denton Hall. "Fraud is a growth industry. It is for that reason that corporate investigators have come into their own.
"They can help in money laundering cases: tracing assets and so on. Generally, they can be used to look at the security aspects of a company and put in place defence systems to protect the company's interests."
A senior partner in another leading law firm says: "If you are in a bank looking at debt recovery, you might hire someone to assess whether someone is worth suing or not.
"With the kind of work we do, they are required to do more sophisticated jobs. For example: Can I show that Mr X met Mr Y who runs an offshore company, and that is where all this money has gone?"
Such investigations can involve the use of sophisticated forensic accountancy techniques such as document analysis and the combing of hundreds of bank accounts to trace illicit money movements which can span the world.
The other major area of work for private investigators involves the more traditional ferreting skills of the agent. Often they are required to do some digging in to the personal circumstances of one of the parties in a divorce case.
Nicole Hackett, a family law solicitor with Stephenson Harwood, says this could mean trying to find out if the party is committing adultery, behaving unreasonably, or sometimes, whether their earnings are what they say they are.
She explains: "For example, if you are acting for a wife, and the husband swears blind that he has got absolutely no money whatsoever, and you are deeply suspicious, you might ask somebody to keep an eye on his lifestyle."
Jane Keir, family law partner at Kingsley Napley, has extended the use of private investigators' skills to tracing children abducted overseas by one half of a broken marriage.
"Private investigators never cease to amaze me," says Keir. "They can get all sorts of records. They can find out who owns boats and use all kinds of disguises."
They are also used in other areas of legal work because their investigative methods are needed to trace information or possible witnesses in a case. They can also take on legwork, such as serving papers or taking statements from people who cannot come to the office.
John Harding, a partner at Kingsley Napley, says: "In some of the major crimes we deal with here, it is more cost-effective to use their expertise.
"They are often ex-policemen and can find individuals more easily. They are better at things like taking pictures of people or scenes, or tracking down people who can't - or won't - come to your office."
But cloak and dagger techniques can sometimes raise ethical and, when the case comes to court, legal questions.
One senior solicitor says: "A law firm must be careful it doesn't hire someone who is likely to do anything with which it would not wish to be associated."
Denton Hall's Wood adds: "The careful firms would brief the investigator very carefully and spell out what they want them to do."
But problems can arise after the briefing which have to be solved by the investigator thinking on his feet.
Kingsley Napley's Keir says: "Private detectives can be a double-edged weapon. Some of the information they can get for you can't be used because it would mean you would have to disclose how you got it."
So given the difficulties, why do law firms use investigators? The answer is a mixture of cost and technique. At between £25 and £40 an hour plus expenses in London, their charges for non-legal work, such as paper serving, are much cheaper than using a solicitor.
According to Stephenson Harwood's Hackett, they are much better at certain kinds of work than those normally employed in-house by a law firm.
She says: "On one occasion, I hired somebody to serve a divorce petition on a wife when we knew she would be dropping the children off at school, and he warned me off doing it in front of the children. It could have saved us embarrassment."
Robert Hunter, a fraud litigation partner with Allen & Overy, says: "On the right case, they can mean the difference between success and failure."
Nevertheless, investigators have been known to put cases in jeopardy through their tactics. Harding says any lingering temptation to cut corners must be quashed to stay in line with the new Criminal Justice Act. "If we get caught using information which is unlawfully obtained, we could be in trouble ourselves," he adds.
The Act makes it an offence to obtain information which contravenes certain sections of the Data Protection Act if the person acquiring the material knows it is in breach of those sections.
Detectives in divorce work will face added difficulty from the Family Law Bill, if it passes unscathed through Parliament.
Hackett says the Bill will add to the trend towards conciliation in divorce cases. People will not need to dig the dirt, and when it is time to serve papers, they will often be accepted.
"In the olden days, you would have all these private detectives digging round to see who hubby has gone off with. There is no need for that any more," says Hackett. "What we are moving towards is no-fault divorce, so you haven't got to prove that somebody has committed adultery."
Keir adds: "If fault, adultery and behaviour are abolished as grounds for divorce, then obviously we won't be using them [PIs] for that any more."
If that is the case, does it mean the end of the private eye in divorce cases? Hackett thinks not. She says: "It still doesn't matter as we will need reports on the financial side of things. What happened has no bearing on that side, and that is the side people are more concerned about when taking action."