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There Remains a Lack Of Regulation In The Private Investigation Industry

A Conservative Government committed to less regulation . . . . . . but is that good for everyone?

“There remains a lack of regulation in the Private Investigation industry. That could seriously affect those who instruct!”

We have had a few weeks to contemplate how the UK election result will affect us all. But what will it mean to the many honest and hard-working investigators who have been waiting patiently, and occasionally less patiently, for regulation within their industry?

Sadly, the most probable answer to this is . . . . ‘nothing’!

This new Conservative Government is committed to reducing red tape. I for one, will not be sorry about that. But in the case of the investigation industry, regulation remains long, long overdue. It is perturbing; crying out to be an exception to the rule.

An obligation lingers unfulfilled. Yet unless there is another public scandal, for example where someone calling himself “an investigator” is shown to have unlawfully accessed the private data of a politician or a celebrity for whom the public may have sympathy, I fear we can expect further procrastination.

It’s not as though the investigation industry has been sitting on its hands. The Association of British Investigators (ABI) was founded in 1913. In those days the members were mainly retired police detectives and a substantial percentage of the work for “private eyes” comprised the collection of adultery evidence to satisfy the quaint and almost bizarre requirements of the divorce courts. In the early years of the Security Services of MI5 and MI6, it was, nevertheless, accepted practice to readily engage many of these same trusted detectives to carry out clandestine enquiries, (one imagines for the public good). But the profession failed to override the rather murky and undeserved public reputation it gained. To a point, it exists to this day.

Skipping over the fictional Falco and Cadfael, whose exploits were recorded a thousand or two years after these cunning characters meticulously examined a blood-stained toga or interrogated a murderous monk, the very first factual and accredited private detective was the Frenchman, Eugene Vidocq. He had a somewhat shady past, to say the least. He spent many of his first thirty years in prison before becoming a spy for the Police. Using disguises and assumed identities, he assisted in the conviction of many criminals. In 1811, he established and headed up the Sûreté, shortly afterwards to be ratified by Napoleon. He served two terms in charge before resigning and forming a very successful private investigation firm. This success immediately drew the attention of his erstwhile (and maybe jealous) colleagues in law enforcement and over the next fifteen years he was arrested several times, being charged with operating outside of the law.

Arthur Conan-Doyle admitted to having studied the exploits of Vidocq, not least via the writings of Poe and Balzac, who wrote extensively about him. And so was created the greatest PI of them all . . . Holmes. This ‘consulting detective’ used guile and deceit which, far more than just being accepted, was expected and applauded by his audience . . . and still is! Just imagine, however, that Sherlock had actually lived; and lived a hundred years later. Going about his business as recounted in the sixty books of Conan-Doyle’s canon, there would be hardly one tale in which our hero would not have fallen foul of the Data Protection Act, the Theft Act, the Bribery Act, or a multitude of other acts . . . . and ended up in the dock! Yet we never question his admirable methods and would shudder at the thought of Inspector Lestrade hounding him to gaol.

The recent acquittals of journalists charged with criminally gathering personal data has given some newspaper editors an opportunity to present themselves as ‘holier than thou’ and somehow deflect the responsibility for their sordid actions onto others within the chain. “It wasn’t us who broke the law! We didn’t know where those private investigators were getting their information!” I hear them bleat. “It was they who hacked the phones or bribed the officials!” Private investigators? Were any of these individuals, (or cowboys as they are referred to in the industry), who were sub-contracted by the journalists, actually PIs? Were any of them openly out there in the industry offering their services as a detective to commercial or private clients? Were any of them members of an accredited organisation such as the Association of British Investigators (ABI)? Or were they merely criminals who used highly illegal methods to obtain personal data for the benefit of their reporter/editor paymasters in order to line their own pockets?

The truth of the matter is that none of these reporters’ lackeys would have qualified as an ABI member.

History shows us that there has always been a desire within the ABI for their members to be licensed. The association goes to great lengths to ensure members are creditable and credible. One imagines, however, that early in the twentieth century the profession attracted a scallywag element as, even in the 1930s, there was a delegation to Parliament asking for regulation of the industry. But it would take in excess of a further sixty years before the matter was addressed in Westminster. The Private Security Industry Act 2001 was and is a somewhat muddled piece of legislation. The main objectives were to tackle rogue security guards, doormen and wheel-clampers, but tagged on was the licencing of investigators, which in the initial proposals, included journalists. The immediate pressure from the media at such a suggestion quickly caused a U-turn and provided journalists with an exemption clause. From that moment onwards, it seems that no one has satisfactorily come up with a definition of a private investigator and, despite conference after conference and promise after promise, those of us real investigators who operate with integrity, occasionally in competition with the cowboys, are still staring forlornly into that Government pending tray!

On 26-Mar-15, (prior to the election of course), questions on the subject in the House of Lords evoked a response from the Parliamentary Under-Secretary of State, Home Office (Lord Bates, Con): “My Lords, the Government remains committed to regulation of private investigators and we have made good progress. However, it is important to ensure that the regulations target those who present the greatest risk to the public. We intend to lay regulations as soon as possible in the next Parliament.”

We shall see!

The ABI, with brute force and as a market leader, has brought about a cultural change for its corner of the investigative sector. In his evidence to the Leveson Inquiry in February 2012, the ABI President, Tony Imossi, highlighted the start point for this change as the ABI’s publication of Richard Newman’s ‘DPA Best Practice Guide’, which was first introduced in 2003. (Richard is a former ABI President.) Then, around 2006, the ABI started to tighten the membership ‘fit & proper’ criteria by introducing compulsory Professional Indemnity Insurance. The raising of standards and good practice policies has continued. Such policies led to The association exclusively achieving the DVLA approved status, the respect and endorsement of The Law Society of England & Wales and the acknowledgment of The Law Society of Scotland in addition to getting doors open within government departments and the attention of other professional bodies and Law Enforcement Agencies.

The ABI has a substantial membership. The validation of those members ensures the association remains solid, professional and respected. Members have privileges and meaningful status and the organisation continues to reach out to better its own position and that of its members. The ABI strongly encourages its members to gain the only sector recognized qualification in competency. (Indeed, in recent times, the award has been the entry-level for new members.) There is now a BS102000 Code of Practice for the provision of investigative services, which for the present is a voluntary . . . . but encouraged.

But what of those who instruct investigators? How do they fare if the investigator they employ flagrantly disregards the law in order to obtain the required evidence/information. I’m pleased to say that despite those recent acquittals of journalists, the law will normally pursue those who instruct the ‘blaggers’ and thieves as well as those actually carry it out.

So, if the professional investigation industry is doing its level best to side-line the cowboys, what can lawyers, companies and private individuals do to protect themselves? The answer is simply to instruct professional investigators who work within the law. A lawyer will invariably know what can and cannot be acquired lawfully. The professional investigator has the knowledge and ability, through research, interview or surveillance, to obtain it.

And how does one ensure that the investigator to be employed has that credibility? The first consideration would be to confirm that he or she belongs to an accredited organisation, such as the Association of British Investigators. An ABI full member will have:

Passed an in-depth screening process, including:

Criminality;

Probity;

Character;

Professional standing;

Competency.

Notified and is compliant with Data Protection.

Holds Professional Indemnity Insurance.

Follows an industry-leading Code of Practice.

So, the private investigation industry has been trying its level best to clean up the industry. Successive governments claim this is what they want but have so far failed to deliver. In the meantime, our advice to those who instruct private investigators . . . . . . always confirm that you are engaging a reputable firm. Safest is to ensure that they belong to a professional organisation which insists on stringent criteria in respect of integrity.

Dick Smith QPM is a director of IP Forensics (GB) and has been a professional investigator (mainly specialising in commercial fraud cases) since his retirement from the Police. As Membership Chairman, he serves the Governing Council of the Association of British Investigators, which is endorsed by the Law Society of England & Wales.

www.ipfgb.co.uk

www.theabi.org.uk

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