Ethics and the Private Investigator
Trevor Pillinger
An undergraduate paper for the Bachelor Social Science (Public Safety) Australian Institute of Public Safety
Introduction
Investigations (criminal and civil matters) are carried out by government and quasi-government agencies and also private industry. With the growth of private policing throughout the world, more and more emphasis is being placed upon non-government agencies conducting investigations. Whilst government agencies such as police investigators have stringent internal controls placed upon their investigative techniques and private agencies are regulated by various bodies, conducting an investigation within the law does not necessarily mean that the investigation is conducted in an ethical manner.
It was envisaged that initially this paper would look at investigators in general including those from both government agencies (primarily police) and private industry but research has shown that the private investigation field is sufficiently important and unique to the criminal justice area to be dealt with as a subject within itself. As a result, this paper will concern itself with the ethical issues faced by investigators variously classified as Inquiry Agents, Private Investigators or Private Agents – all terms that are interchangeable and concentrate mainly on those investigating fraudulent claims. The term “private investigator” will be used for the sake of consistency.
Background
The private investigation industry has rapidly grown over recent years. Private investigators conduct investigations in many areas including insurance and welfare fraud, workers compensation, factual inquiries locating missing persons and in serving of legal documents such as summonses. Prenzler’s research and subsequent report to the Criminology Report Council showed that private investigators play an important part in the criminal justice system in that “private agents constitute an essential element of the criminal and civil justice systems in terms of investigations, service of legal documents, and recovery of assets wrongfully obtained” . With government privatisation and outsourcing they also are increasingly becoming involved in those areas such as social security fraud previously covered by public investigation officials.
There are major areas of difference between the roles and responsibilities of private investigators and that of police. Private investigators do not have the same powers of detainment; they cannot hold someone for questioning, they generally work on behalf of private organisations and are paid on a performance basis. Police on the other hand, have more powers of arrest, can (under certain circumstances) detain for questioning and work for the State. Their individual performance is not overtly governed by a success rate and their ongoing work is not threatened by any downturns in industry. This in itself creates major differences in how investigations are carried out. Whilst it can be argued that there are difficulties in ensuring proper accountability for police, the private sector investigators have less direct control over their activities and less accountability to the public at large . This in turn could lead to private investigators abusing their positions and behaving unethical in a number of ways.
There is a maxim that an investigation is “a search for the truth, in the interest of justice within the specifications of the law”. This encompasses the technical aspects of investigation itself, but it neglects a number of issues vital to carrying out a “good investigation” and importantly, it neglects the ethical issues associated with conducting an investigation. Anybody who makes inquiries into the true facts of a matter is by definition an investigator, and as such must
abide by those rules that make the investigation not only legal but also ethically acceptable.
Surveillance
Surveillance is a legitimate form of investigation and the most appropriate form of detection of illegal acts under some circumstances. The Victorian Law Reform Commission’s report Privacy Law: Options for Reform, cite Judge Cooley’s interpretation of privacy, in that everybody has a right to privacy but that this right is not “an absolute right. It involves balancing privacy interests with competing interests – for example, the interest of the community in freedom of speech or in the apprehension and conviction of people who have committed criminal offences” It is beyond the scope of this paper to fully go into the relevant aspects of privacy legislation especially as the issue of what is private and what is public domain has been identified as being subject to a great deal of discussion and dissention . From a private investigator’s ethical viewpoint, whilst there are codes of practice and specific legislation, whether evidence that has been obtained has been gathered ethically is for the courts to determine. The Victorian Workcover Authority’s Code of Practice for Private Investigators for example specifically states “an investigator must avoid any actions which may unreasonably impinge on the privacy or other rights of others” and “All surveillance must comply with all applicable laws, rules and regulations …… and such policies and directions notified by the VWA from time to time” . Where evidence is submitted that is deemed to be unreasonably obtained, it would more than likely not be admitted.
Misuse of information
Several Australian inquiries have been held into privacy, the use of confidential information and the role of private investigators which have shown that, in the past there have been abuses of confidential information. Private investigators were implicated in the 1983 Australian Law reform Commission Report into Privacy and in 2000, the Queensland Criminal Justice Commission exposed the trading of information between police and private investigators . Although Prenzler goes to lengths to point out that, in the case of the Queensland inquiry, the number of private investigators involved was minimal; it still indicated that there is a ready market for information that was not generally available to the rest of the community.
Where anybody has the ability or contacts to access the private information of any other individual, there is always the potential for that information to be misused. This may be justified as being necessary for an investigation to produce results, particularly where fraud may be suspected or where an investigator is being paid to recover debts, but where safeguards have been put in place to protect information, the general community expects that those without the legal authority cannot access that information. The 1983 Report into Privacy found, “private agents can be strongly tempted to engage in breaches of privacy” .
Subtle Coercion
Prenzler suggests that his figures of approximately 21,333 licences that are held by private agents in Australia do not represent an accurate figure of those who may be employed in the industry . One of the major employment areas for private investigators is with insurance companies and in the investigation into fraudulent claims. When a major insurance claim is made, a Claims Officer will generally brief a Loss Adjuster, who in turn may make recommendations that an investigator be bought in to make further inquiries into the circumstances surrounding the claim. The investigator, then acting on behalf of the insurer is charged with establishing whether the facts as stated by the insured are true and correct. This usually entails interviewing the insured and others directly related to the claim. An ethical investigator will ensure that as there is little disruption to the insured as possible and that genuine claim is settled as quickly as possible.
In making his/her inquiries the investigator has the right to request “all information that may assist with their inquiries”. This may include telephone records, permission to obtain any police records (IBR check), bank records, full details of receipts or any other information that they feel may assist in establishing veracity of the claim. The insured may refuse to give this information but to the possible detriment of their claim. Most insurance policies have a clause that the insured has little choice but to supply these details if requested. Whereas police would require a warrant to gain this information in a criminal case, the private investigator, on behalf of the insurance company can “request permission” to obtain it. The claimant naturally has the right to refuse which of course will more than likely delay the settlement of the claim. The unethical investigator has then, an unfair advantage in encouraging compliance with his/her request for information even though the claim may well be a legitimate one. Where the claimant believes they are being treated unfairly, they have recourse to the Insurance Ombudsman.
Interviewing
The Victoria police have recently obtained successful prosecutions in several cases where suspects were recruited into “gangs” that were in fact undercover police. The police managed to convince the suspects to confess to prior crimes committed. The courts have accepted this as a legitimate means of gaining evidence for prosecution of those prior offences including murder and arson . There is still some argument by defence layers that this method of gaining confessions is unethical by virtue of the fact that the “offender” was entrapped into making statements.
In Australia there is no defence of entrapment but it could be argued to what degree an investigator could ethically go to in order to ensure a claimant either withdrew or minimised a claim. Both legally and ethically, an investigator must not make any threat, promise or offer inducements in order to further their investigation or to disadvantage those they are dealing with in the investigation.
Interviewing of clients whether for an insurance or workers compensation claim or welfare places the private investigator in a powerful position. Their subsequent report may well mean the loss of income; denial of claim or in some circumstances may result in prosecution. The Victorian Workcover Code of Practice for Private Investigators for example, expressly states that an investigator must not:
“Conduct any interview with a minor without the presence of that minor’s parent or guardian. The investigator must obtain the signature of both the minor and the parent or guardian to the minor’s statement whilst on a VWA related matter”
This is to ensure that a minor who may not be aware of the consequences of answering questions is protected against an unscrupulous investigator. The same concept also applies when the interviewee is under the influence of medication, drugs or alcohol or not in a fit state of mind to give appropriate or non-self incriminating responses. Should the investigator conduct the interview and, as a result a claim is denied, it is difficult for the claimant to prove their state or mind at the time of making that statement. Where an investigator is being paid on results (denial of claim) information obtained through dubious means could well be a means of ensuring ongoing work.
Complicity - Prosecution versus withdrawal of claim
In the author’s experience, an unwritten and to some degree, unspoken agreement often exists between insurance companies and private investigators.
Where the investigator finds that the claimant may have exaggerated a claim and can show same, the claimant is encouraged to withdraw the total claim, rather than the insurance company bringing the matter to the attention of police. This in itself brings into question the ethics of the investigator and the insurance company and the claimant. If the claimant has committed a crime, ethically, they should be prosecuted but then, if the matter was taken to court the insurance company may lose, in which case they may forfeit the whole amount. The claimant naturally is put in an awkward position. Do they pursue their original genuine loss through civil channels or risk being prosecuted for attempting to gain a financial advantage by “loading” their claim. The investigator could naturally encourage the withdrawal of the claim to save the insurance company’s money. Where the claimant confesses to an exaggerated claim, there is a question as to whether the investigator acting on behalf of an insurance company is a “person in authority” as “a confession made to a person in authority who has offered some inducement [not bringing the matter to the attention of police] is deemed to be involuntary and inadmissible” and therefore, whether a prosecution would have been successful anyway.
Unethical requests
Investigators are sometimes requested to carry out work that, for a number of reasons is ethically questionable. This may be either by implication, in that a client is not interested in how a result is obtained as long as it is in their favour or where the client wants information that may be used for illegal or inappropriate purposes. Former spouses or partners who had gone into hiding due to violent relationships, illegal placement of listening devices or cameras and in one case the (innocent) location of Crown Law witnesses, one of whom was later murdered . It must be the responsibility of the individual investigator as to how these requests are either refused, handed over to the authorities or appropriate advice given to the client.
Conclusion
It has been demonstrated that private investigators have a legitimate and important role within the criminal justice system. Whilst they are generally not part of the State criminal justice system as defined by police, courts and corrections, they are often instrumental in investigating cases that lead to prosecutions and result in criminal convictions. They are often in a position of power. They have access to information or knowledge where their behaviour and methods of operating might well disadvantage the community, clients or place the results of their investigation at risk. Whilst the field of private investigation often covers areas that are not specifically addressed in this paper, the concepts of ethical behaviour apply regardless of their specific task.
Ethical behaviour involves much more than just complying with the law – it is a standard to which each investigator should aspire to ensure that their behaviour is above reproach and that ensures that those they deal with in their investigations are treated fairly and equably.
Copyright Trevor Pillinger 2005
Bibliography
Prenzler, T., Private Investigators in Australia: Work, Law, Ethics and Regulation, Report to the Criminology Research Council, Research Project 15/99 -2000, (2001)
Prenzler, T., and King, M., The Role of Private Investigators and Commercial Agents in Law Enforcement, Australian Institute of Criminology Trends and Issues in Criminal Justice, 234, (2002)
Sarre, R., Accountability and the Private Sector, 10, Security Journal, (1998)
Privacy Law: Options for reform, Victorian Law Reform Commission, Victoria (2001)
Judge Cooley, Cooley on Torts, (2nd ed, 1888) 29, cited in Samuel Warren and Louise D. Brandeis, “The Right to Privacy” (December 1809) 4, Harvard Law Review193, cited in Victorian Law Reform Commission Report, Privacy Law: Options for Reform, Melbourne, (2001)
Evidence Act 1958 (Vic)
Private Agents Act 1966 (vic)
Private Agents Regulations 1990 No. 215 (Vic)
Surveillance Devices Act 1999 (Vic)
Other Sources
Code of Practice for Private Investigators, Victorian Workcover, (2003)
Munro, Ian., Perspective: True Lies, The Age Newspaper, Melbourne, 8 September (2004)