Something bugging you?
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8 November 2011
Nick Hilborne finds it's sometimes difficult to stay on the right side of the law in investigations
Information is power. The problem for the private investigation business is the means used to acquire that information. Illegal methods tend to be quicker and cheaper than legal ones.
Imagine a jealous wife wants a 24-hour watch put on her home while she goes away on a week's business. Few people can afford to have a team of private detectives staking out their house in case their husband's girlfriend turns up. A cheaper solution might be to tap the couple's phone and find out exactly when the husband is meeting the girlfriend. This way, a private detective could restrict his monitoring activities to a few hours. The client, who budgeted paying for a week's surveillance, would find the bill reduced.
But is phone tapping legal? Using a wireless bug is a contravention of the Wireless Telegraphy Act. The detective might also be guilty of stealing electricity. In certain circumstances, however, and if the consent of the owner of the phone has been obtained, it is possible that telephone tapping is within the law.
Then there is the widespread practice known as "rummaging". Originally it was thought that anyone who put a rubbish bag outside their house was granting an implied licence not only to the dustmen but to anyone else, to do what they pleased with the rubbish. This included sorting through it for incriminating information.
One recent case has held that the licence was confined to the dustmen alone. The scope of this case is disputed by many private detectives and there is no question that "rummaging" still goes on. If an investigator takes anything from the rubbish bag back to the office there is the additional risk of being charged with theft.
As the use of private detectives by solicitors becomes increasingly widespread, careful thought must be given as to which agency is selected.
"Litigation is becoming increasingly tough and bitterly fought," corporate fraud specialist Graham Huntley at Lovell White Durrant says.
"Clients are reluctant to fight a case unless they have a good chance of winning and information about their opponent is a key component of success.
"Private investigators who overstep the mark can end up damaging both the firm that instructs them and its clients."
One of the most common problem areas for investigators is confidentiality. Past and present employees both have an obligation not to release confidential information and investigators can be liable if they procure a breach of confidentiality. Private detective agencies are cautious employers and write tough confidentiality clauses into workers' contracts.
A related offence is corrupting public employees by persuading them to release State-owned information. This might also involve a breach of the Official Secrets Act.
In the absence of a helpful insider, hacking into computer systems to find bank or mortgage details is prohibited under the Computer Misuse Act.
Private investigators must also be alert for one statute their targets might use to mount a counter-attack, the Data Protection Act.
Under the act anyone can request a private investigator to reveal all the information they hold about him on computer. The investigator then has 40 days to comply with an electronic search warrant. The Data Protection Act can also be used to make sure that people holding data about an individual keep it confidential.
Private investigators are unlikely to admit that they themselves break the law. But many accept that it goes on.
"If the price is right, some people will do anything," one experienced Home Counties detective says.
"Going about things the legal way usually takes longer and costs more. Sometimes solicitors don't want to know how information is obtained in case it compromises them."
The detective cites a case where a private investigator has been instructed by a solicitor to research somebody's finances. The investigator discovers by illegal computer hacking that this person has u70,000 hidden in a deposit account. The solicitor might not be able to use this fact in the main evidence he puts before a court but it might be worked into the cross examination.
A major problem for this industry is how far solicitors should enquire about the means used by private investigators. Solicitors appear to adopt different practices. Should a solicitor merely instruct an investigator to get hold of information or should he try and find out how the investigator intends to obtain it? If the latter is the case and illegal activities are carried out, he may have some difficulty avoiding some responsibility for them, says Huntley.
Nick Hilborne is a freelance journalist.