Enforcing Corporate Security Policy Using Private Investigators
The private security sector is one of the largest employers in the UK (Jones and Newburn 1995) and comprises a wide range of commercial activities (Gill and Hart 1997a). These include the manufacture and installation of security hardware, the provision of guarding, patrolling and cash-in-transit services, and various forms of security and risk consultancies. Indeed, there is currently much debate about the role that the private security sector should play in modern society (see Johnston 1991). At least part of the difficulty in deciding what is appropriate is ideological: how much of what has traditionally been viewed as the state’s responsibility can be transferred to organisations who are governed by profit? There is also a lack of clarity about which form of provision is best (see Button and George 1994, 1998) and confusion abounds. This is certainly the case with the sub-group which forms the subject of this article. Although often marginalised, even scorned throughout its history (Gill and Hart 1996), the private security enterprise also encompasses the oftenmisunderstood and traditionally ignored sub-sector of private investigators (Gill et al. 1996).
Private investigators should be considered in any comprehensive study of private security. Clients seek private investigators’ services for many reasons, ranging from murder investigations to tracing missing heirs. Moreover, private investigators have various important roles in informing, supporting and enforcing corporate security policy. The importance of such policies is paramount as, within private organisations, they often have greater and more immediate impact on their members’ lives than any system of state law.
This said, like various other significant elements of the UK’s policing infrastructure, private investigators have never been subject to detailed and objective scrutiny. In fact, they are particularly conspicuous by their absence from much of the existing research, whether on policing as a whole or private security in particular. This inspired the authors to conduct a study exclusively dedicated to the work of private investigators in the UK. One of the earliest findings of this research was that many private investigators also felt that their role within society, the value of their services and the problems they faced, have been overlooked and undervalued for too long. Many individuals also felt a sense of grievance that no matter how diligently they observed both the law and voluntary codes of professional ethics, all private investigators were associated with devious behaviour and malpractice by default. In other words, while they accepted that ‘cowboys’ and ‘dodgy characters’ exist within the trade, they did not think it fair for society to cast all investigators in the same negative light. Perhaps for these reasons, many agreed to participate in the project and those that did provided a rare insight into their esoteric world.
With the aim of gaining the most accurate overview, the research utilised a variety of methodological approaches that yielded a good deal of interesting quantitative and qualitative data on a wide range of relevant issues. Following a comprehensive review of the available literature and some informal contact with practitioners, a postal questionnaire was distributed to 1,700 private investigation agencies and yielded 206 replies (12.1%). The purpose of the questionnaire was twofold. First, to gather general background data on numbers of employees working for private investigation agencies; their professional background and education; types of activity undertaken and methods used; most regular client groups; agencies’ typical fee rates and their gross annual turnover. The second objective was to facilitate further contact with respondents and achieve their participation in further more in-depth research. The authors and their researchers subsequently were able to conduct personal interviews, to study individual case histories and their outcomes and, whenever possible, engage in participant observation of ‘live’ investigations by private investigators. In addition, a second postal questionnaire was distributed to 1,500 solicitors – the most frequent users of private investigators’ services – and this yielded a response rate of 6.4% (96 responses). This part of the research asked solicitors why they used private investigators, how they selected investigation agencies and what kinds of tasks they asked them to undertake. It also enquired whether they employed private investigators for their own purposes or on behalf of their clients and what procedures they invoked to ensure they conducted enquiries and other tasks to the appropriate standards and how these were defined.
The authors have published various articles on private investigators, each of which examines private investigators from a specific perspective. These include their use and services (Gill et al. 1996); their history and culture (Gill and Hart 1996); as an example of ‘policing as a business’ (Gill and Hart 1997a); their legitimacy and relationship with other policing bodies (Gill and Hart 1997b); and comparisons of activities undertaken and cultural representations of private investigators in the UK with those in the US (Gill and Hart 1997c). This present article builds upon and differs from these in that it focuses primarily on the services private investigators provide to industry and commerce – probably the largest and most significant customer base for the private security sector as a whole. Private investigators’ operations within the private world of the corporate environment are of interest to anyone concerned with the scope of private security activities and their implications for other forms of remedial action. Of particular concern are their potential impact on employees and private investigators’ role as key actors in some important ‘alternative’ approaches to administering justice within the workplace.
The article will begin by summarising private investigators’ history and traditional activities before going on to outline and discuss the services they provide to business. As one of the most interesting and important features of their use is the client demand to circumnavigate formal systems of due process and ‘state justice’, the article will then focus on the legal, ethical and commercial issues that pervade private investigators’ activities. It will conclude by building upon previous work by the current authors and others to consider the social implications and impact of rigorously (and invariably secretly) policed systems of private justice in the workplace.
WHO ARE PRIVATE INVESTIGATORS?
There is no precise legal definition of private investigators in the UK. However, such a person may be reasonably described as “an individual who either runs or is employed by a business which provides investigative services for a fee” (Gill et al. 1996). Private investigators’ origins, like most other elements within the private security sector, pre-date the advent of public policing by many years. In fact, in the UK (with the exception of a few enterprising members of the legal profession), private agents once provided the only form of post-incident intervention in the policing of crime (Draper 1978; Johnston 1991; Gill and Hart 1997a). Until the midnineteenth century, virtually all other policing activities concentrated on either prevention by deterrence or public order functions. Until this time, the British establishment considered all forms of investigative policing to be intrusive and distasteful (Reiner 1994).
Practitioners remained entirely unregulated and it was only the introduction in 1847 of a detective branch in the Metropolitan Police that brought about significant change to these circumstances. At this point the integration of investigative policing into the crime control activities of the public police caused private investigators to seek pastures new to ensure their survival. This led them for the most part to two areas of activity, both of which continue to be in high demand. First, as the public police dealt exclusively with criminal matters, the need for investigative services to support actions under the civil law did not diminish. However, the second area of activity in which private investigators flourished was the rather more murky world of matrimonial enquiries, tracing absconded debtors and various tasks for the burgeoning industrial sector – invariably to undermine the trade union movement (Draper 1978; Johnston 1991; Gill and Hart 1997a).
While public police investigators were theoretically subject to similar public accountability, discipline and codes of practice of their uniformed colleagues, private investigators were left to police themselves: a situation that remains entirely unchanged to this day. Although the Metropolitan Police made a concerted effort to control the activities of its detectives and protect their vulnerability to corruption, (e.g. by rotating them back to uniformed duties after short periods of time) history suggests that there are inherent problems in monitoring certain forms of investigative work (Reiner 1994). This seems to be a consequence of the covert nature of many investigations and the close proximity it affords between detectives and offenders, particularly when infiltration of organised criminal networks is required. If this can be a problem with legally and democratically accountable public officials, then it inevitably raises many questions about the implications for an entirely unregulated group of like practitioners. Private investigators in the UK have no obligation to demonstrate proof of either competence or good character, neither must they belong to any form of professional association – the most common and accepted form of self-policing for other comparable professions. The truth of the matter is that, at least within the UK, no one national professional association for private investigators has very much in the way of recognised authority.
A link between public police and private investigators does exist, perhaps most significantly in the constituency of their members. The authors’ research revealed that some 80% of private investigators are retired or former public police officers and many stated this to be their main selling points, particularly to local members of the legal profession. However, as notorious cases of malpractice by ex-police officers working as private investigators indicate (not to mention those still serving, particularly in certain detective branches) former police officers may be just as capable of certain types of offending as are other groups. One interesting finding that emerged from the research was the view, common among many private investigators, that former police officers often feel dis-empowered in private practice because they no longer have access to police powers or police information resources. A few practitioners, including some former police officers, suggested that this often causes them to break the law. They argued that as police training does not prepare officers to infer confidential information from fragments legitimately gleaned from publicly accessible sources, many feel compelled to rely on ‘old boy networks’ whose members can access statutorily controlled police records on their behalf.
These factors, coupled with the covert and confidential nature of much of their work and the fact that they are commercially motivated (Gill and Hart 1997b), affords many opportunities for malpractice and even criminal activities by private investigators (Draper 1978; Johnston 1991; Reiner 1994; Gill and Hart 1996). This is not a repeat of the allegation that all private investigators are scoundrels. The current authors’ research found that many private investigators are dedicated to the rule of law and relevant ethical codes and feel very strongly that the trade should be subject to greater accountability. In support of this, the principal British trade associations – the Association of British Investigators and the Institute of Professional Investigators – have both campaigned in earnest for the introduction of a system of statutory regulation. These have enjoyed the support of a number of British politicians, including Bruce George MP and Norman Fowler, who have submitted various Parliamentary Bills over the past 25 years advocating such a system. However, none of these have succeeded in becoming law and the British Government has seemed remarkably reluctant to introduce what has been described as a ‘licence to snoop’ (Draper 1978; Heims 1979). In addition, the nature of their work generates significant problems in formulating a regulatory system which would be practical and enforceable given the nature of the rationale by which private investigators are usually retained (George and Button 1997a).
To gain a better understanding of these ideas, in particular what is argued to be the need for some form of meaningful control, it is helpful to identify private investigators’ principal client groups and their rationale for employing their services. This information provides an indication of the nature of private investigators’ activities and helps to remind observers that they respond to a market demand. Certain aspects of the nature of this demand are important because they impact directly upon any initiative to regulate or control private investigators.
WHO USES PRIVATE INVESTIGATORS?
The private investigators’ postal questionnaire invited respondents to list their most common client groups and which kind of client they had worked for on their most recent case. Their responses mentioned miscellaneous private companies, insurance companies, private individuals and members of the legal profession. However, this latter category clearly emerged as dominant in the client population and personal interviews with investigators and studies of case histories subsequently supported this. However, the postal questionnaire to solicitors asked respondents to indicate which type of clients they were acting on behalf of on the most recent occasion that they had instructed a private investigator. These responses revealed that over one quarter had been acting for private companies. In addition, over three-quarters of private investigators stated that they had worked directly (that is, without receiving instructions via a solicitor) for private companies in the preceding year. Indeed, following instructions issued to private investigators by the legal profession, insurance companies and miscellaneous private companies are the most frequent customers of private investigation agencies.
Receiving instructions from private individuals is still common enough to be noteworthy. However, the research showed the Hollywood image of a wealthy and attractive female approaching a private investigator to gather information about her husband’s extra-marital affairs to be outdated. Although many private individuals seek help with regard to matrimonial matters, the research indicated that this has greatly diminished following changes in matrimonial law. Many investigators also stated that they would not accept such cases under any circumstances, partly because they found it difficult to extract payment from such clients. However, another reason cited was that they felt their involvement risked scandal and this could undermine their credibility in the more lucrative field of providing commercial support for private companies. As this client group is the primary focus of the article, it is important to consider why they use private investigators and for what purposes. Only by understanding the needs that private investigators meet can a rational and informed appraisal of their role be developed. As the article will now show, these needs may be more closely related to ‘procedural avoidance’ than ‘law enforcement’.
WHY AND HOW DO PRIVATE COMPANIES USE PRIVATE INVESTIGATORS?
Private companies’ use of private investigators can be seen as an extension or ‘contracting out’ of the enforcement of corporate security policy and the sorts of tasks private companies ask private investigators to undertake are many and varied. The research revealed the most common to be: claims investigations for insurance companies; employee vetting, theft and internal fraud investigations for other types of companies; debt collection, asset tracing and ‘due diligence’ enquiries about other companies; and to a lesser extent corporate intelligence gathering and counter-espionage activities.
In the legal context, the civil law provides the context for the majority of private investigations which come under the scrutiny of due process. These include the majority of claims investigations on behalf of insurance companies, many of which serve to establish either liability or the precise consequences of the incident which led to the claim. With regard to organisations other than insurance companies, it is important to remember that no public investigation service exists to provide comprehensive support to anyone pursuing civil actions (often imprecisely termed ‘private prosecutions’). Although the central government’s Department of Trade and Industry investigators or local government-based Trading Standards officers may accept certain types of problem for investigation, private investigators are in many cases the only professional investigative resource available to support civil matters (Gill and Hart, forthcoming). Public support may be granted in the form of legal aid, although this is only available to private individuals and subject to rigorous means assessment criteria. In the civil context, typical activities undertaken by private investigators include the serving of writs and other legal documents and gathering evidence to inform and support civil actions. Both companies and private individuals may seek court actions for such matters as debt recovery, culpability or negligence resulting in accidents and nonconformance with court orders.
However, in spite of the apparent monopoly of the public police over criminal investigations, many companies also prefer to seek private provision for solutions to crime problems. There is nothing new about this, even in the context of recent history. Nearly 25 years ago, studies on private security in the United States found that up to 80% of employers acknowledged that there were certain types of offence they would not report to the police (Cunningham et al. 1990). While the results of many (and probably most) criminal investigations by private investigators never come to court (discussed later), it is interesting to consider why companies choose to refer criminal matters to fee-charging private investigators when they may have every right to ask for public police assistance free of charge.
First, many investigators claimed their clients had often approached the police in the first instance following discovery of criminal activity either against or within their organisations, but the police either directly expressed disinterest or otherwise indicated this by inaction. “The police tend to consider it a ‘private matter’ and have even informally referred clients to our services on occasion having assessed the nature of the complaint” (Personal interview). Indeed, there is supporting evidence that the public police regard crime within the workplace to be of secondary concern (see Gill 1994, 1998) and that they prefer to concentrate their resources on dealing with offences against the general public.
Secondly, there appears to be a dominant view within many private companies that police involvement should be considered the last resort, especially in response to internal offences. This is based on the rationale that companies risk losing control of the investigation once the police are invited to respond. This creates the possibility that investigative activities are more likely to be conducted with police interests, as opposed to corporate or business interests, as the first priority. As the role of the corporate security function is to defend assets in a way that supports and facilitates the organisation’s core activities (Burrell 1998), police involvement may be defined as potentially contrary to the company’s interests – especially if they were to argue for prosecution. In these circumstances the ultimate objective is loss prevention rather than law enforcement (Clarke 1987; Johnston 1992) and resorting to court action may incur more direct or indirect losses than the offending behaviour. This view is further emphasised in high profile cases which, if publicised without the organisation’s management and control, can undermine market confidence and other aspects of corporate reputation and market position. As Johnston observes: “[w]ashing one’s dirty linen in public is both counterproductive and pointless when deviance is defined ‘in instrumental rather than moral terms’” (Johnston 1991, p. 503).
Finally, private companies may feel under pressure to disclose certain information which they would prefer to remain confidential to the police during an investigation. This may concern working practices, customer and supplier details and other ‘company confidential’ information. Private investigators offer an attractive solution to all the above problems. Understanding the nature of the advantages they offer provides an important insight into the potential limitations of many systems of statutory regulation, the current limitations of informal systems of accountability and mechanisms of the ‘market regulation’ of private policing activity.
The first thing to acknowledge is that all criminal investigations in the UK are subject to various statutes, perhaps most notably the 1984 Police and Criminal Evidence Act (PACE). PACE provides the legal framework for the police in terms of evidential standards, operational procedures and rules for interviewing suspects and witnesses and the recording of statements. While this law is slightly ambiguous when applied to private agents, it is generally accepted that best practice is to abide by PACE in all investigations into suspected criminal activity. If, therefore, private investigators are instructed to conduct enquiries into any form of crime, they are effectively obliged to adhere to these standards if they intend to present evidence in a court of law. Despite this, corporate clients as paying customers still retain a far higher level of control over the activities of private investigators than they would over any public policing body. This control is manifested in various forms. First, they can choose which investigation agency to retain and even approve or otherwise individual investigators allocated to their case. Secondly, they can retain total control over which members of staff and information sources investigators will be allowed access to and impose contractual obligations to observe a ‘code of silence’ regarding any aspect of the company’s activities. Thirdly, they can also abort the investigation at any time they see fit for whatever reasons and without an explanation.
On reflection, it is difficult to argue against the availability of such an alternative to public provision. Put another way, it is even more difficult to argue for coercing victims of crime to use the public police if such action is likely to cause them more harm than the original wrongdoing. The requirement for all investigations for presentation in the criminal court to be conducted according to the rules of PACE, provides a universal and apparently effective standard to ensure against malpractice or other forms of abuse by private investigators. The present authors therefore have no difficulty in expressing their support for the availability of competent and ethical alternatives to public police investigations in such cases.
However, beyond the high level of control over criminal investigations under PACE, clients can also specify a key feature of investigations which rests completely beyond the control of their public sector colleagues: their outcome. This provides an even greater array of options: “[t]here is a ‘private’ criminal justice system wherein employer reprimands, restrictions, suspensions, demotions, job transfers, or employment terminations take the place of censure by the public system” (Cunningham et al. 1990, citing the 1971 Private Security Task Force).
This possibility takes criminal investigations into a realm beyond due process and affords almost absolute control over the investigative process and, in effect, the administration of what effectively becomes ‘private justice’. This term has sinister overtones evocative of ‘retribution’, ‘revenge’ and other words that denote rejection of democratically accountable systems for dealing with behaviours deemed to be undesirable. However, private justice systems can be essentially benign and are supported, even encouraged by public systems as being in the interests of the greater good. For example, Henry (1987) suggests how they have helped to rationalise and assist industrial relations:
Irrespective of their political position, [. . .] theorists agree that a change has taken place in the form of discipline at work from ‘authoritarian-punitive’ which is characterised by harsh, rigid, irregularly applied sanctions meted out to workers whose rule-breaking is perceived as wilful and deviant acts, to a ‘representative-corrective’ model that uses ‘the co-operation of employees’ to promote ‘self-discipline’. (Henry 1987, p. 48)
Nevertheless, as this article will show, more cynical interpretations of this freedom do exist and serve to meet private needs possibly at the expense of wider interests. Borrowing Henry’s terms, the use of private investigators to enforce corporate security policy does not always conform to the ‘representative-corrective’ model.
A common criticism of public systems of justice, particularly in leftwing criminology, is that they emphasise ‘working class’ anti-social activities (e.g. street crime) and favour private companies by immunising them from the risk of prosecution for deeds which may have greater negative social impact (see Croall 1992). However, private companies’ use of private investigators reveals another perspective on this argument in that they appear to feel that the interests of public justice do not coincide with their own, even when they are victims of crime. This is why many resort to particular forms of private justice as a more effective alternative.
Within the context of private justice, all notions of appropriate investigative methods, the paying client may (within reason) specify evidential standards and other aspects of the enquiry process. As the investigation and its results will rarely be subject to any form of legal scrutiny, investigators are free to use whatever methods they see fit in the interests of speed and efficiency. They are therefore under no obligation to conform to PACE or other statutes and may even choose to break the law. Taking the example of an incident of employee theft, once investigators establish an offender’s guilt to the client’s satisfaction, he or she may/can be pressured into resigning the post, forfeiting any back pay and the right to a period of notice. In cases where criminal collaboration is suspected, the threat of prosecution as a response to non-co-operation can be used to learn the identities of accomplices. When confronted with what appears to be overwhelming evidence of guilt and the immediate prospects of dismissal and a criminal record, most suspects prove willing to comply with any request.
Clearly, these strategies and tactics provide a very attractive alternative for any client with various and possibly conflicting interests at stake. Private investigators can meet the need for cost-effective, rapid case disposal with no legal costs other than their fees, and absolute discretion and control by the client. They are motivated to respond to clients’ needs because they are engaged in the business of policing for profit and it is in their first interests to cultivate ‘returning customers’. Moreover, as indicated by the solicitors’ questionnaire, most clients choose private investigators based on recommendation by others who have used their services or established reputation. These are assets which private investigators are motivated to protect and this provides one form of market regulation of the trade. However, the freedom to use what are perceived to be the most effective investigative methods, does raise the risk of false confessions or even falsified evidence geared to ‘fit up’ a particular individual. Yet as in most cases this would not solve the client’s problems, it would be of little advantage – unless, of course, the client ordered the false allegations.
This raises an interesting and potentially distasteful range of possibilities that expose serious shortfalls in any system of ‘market regulation’. Many investigators who claimed to operate within ethical boundaries stated that there is a demand for services that can only be considered to be of dubious legitimacy. All those who participated in the authors’ research could cite instances when clients, including members of the legal profession, had directly asked them to perform illegal or unethical actions. While some cited occasions when they had been asked to organise a serious offence, such as murder or serious assault, these most commonly included gaining unlawful access to confidential information, such as criminal records, medical histories and bank account details. Such activity marks the point where many established investigators draw the line:
By breaking the law you risk everything: your business, your reputation and probably your freedom. One of my first priorities is to be able to sleep at nights without fear of someone coming knocking at my door, whether to arrest me or take revenge for something I shouldn’t have done in the first place. (Personal interview)
However, often in the same breath, many of the same investigators argued that there was a ‘moral precedent’ which they felt obliged to observe when conducting enquiries into certain types of ‘malicious’ behaviour.
If somebody’s running a business which they put their back into every working day and someone comes along and starts taking it to pieces, whether through fraud, thieving or simply not paying their bills, we’ve got to do something to help. The people we investigate are professionals and by that I mean they’re bloody devious. (Personal interview)
Others elaborated on this theme by expressing disillusionment with the police, the courts and other elements within the criminal and civil justice systems. A common sentiment was that the law does more to protect the offenders’ rights at the expense of those of their victims and that this created the need to ‘cut a few corners’. This might involve impersonating someone to obtain their bank details, ex-directory or mobile telephone numbers or similar confidential information. This sort of activity can inform other ‘legitimate’ tactics which investigators may engage in if there is any chance of a case going to court, although the information gathered may be perfectly sufficient to inform the client’s decision on how to deal with the situation at hand.
If employers have no desire to pursue legal actions against offending employees, activities by private investigators have two objectives. The first is to gather evidence – preferably in the form of video footage of actual criminal or other offensive activity. This serves two purposes: first, to demonstrate to the employer that his or her suspicions were correct; secondly, to extract an admission of guilt from the offender. This leads to the second objective which is to persuade or coerce the offender to resign the post, in favour of what is presented as inevitable dismissal. It is the manner in which this second objective is sometimes achieved which is likely to raise greatest concern for civil libertarians. Faced with overwhelming evidence of their guilt, together with an opportunity to escape the consequences of a formal prosecution, few offenders are likely to insist on due process as a means of exposing a possible abuse of their civil liberties. While the purpose of tape recording all interviews under PACE aims to prevent this problem, this modus operandi by private investigators is often the primary means by which they can promise efficiency. Experienced investigators are able to operate in a manner that approaches the thresholds of legality without actually breaking any laws, even though the information they gather may not conform to the standards of evidence which the courts demand. However, their actions raise many issues about the legitimacy of such operations and this is best considered from two perspectives which, in these cases, are likely to be in conflict. The next section of the article will therefore consider legal and commercial perspectives on legitimacy.
While most countries have developed systems for law enforcement and policing which delegate the legitimate use of force to statutorily empowered public bodies, such as the public police, the right to defend private property within reasonable boundaries is an inherent feature of permitting its ownership. Reiss summarises the manifestation of this principle with the following examples: “to protect against illegal intrusion or to ensure redress against it we empower our public police to search, seize and arrest. To protect their interests against employees, we permit employers to develop files of personal information.” (Reiss 1987, p. 20)
The democratic state and its law enforcement agencies derive their legitimacy from democratic accountability. This gives government the legal right to define systems to ensure order in society, usually with the interests of the people it is elected to represent and the nation as a whole. Beyond the creation and maintenance of employee records, private companies evolve entire systems for maintaining their own definition of ‘internal order’. This can be legitimised by the concept of ‘private peace’: “private authorities can be authorised, at the discretion of the state, to define separate private peaces so long as they are not in conflict with the public peace” (Shearing and Stenning 1987, p. 11).
Hence an organisation can specify rules to which workers must adhere as a condition of employment and suppliers and even clients must conform as a condition of contract. Taking employees as an example, these rule structures are often far-reaching. They may apply both at work (e.g. undertaking to accept ‘stop and search’ by security officers) and elsewhere (e.g. agreeing not to discuss company confidential issues with people from outside the organisation). Within the bounds of legality, such systems provide important support for the protection and maintenance of organisations’ viability. In fact, with reference to the wider public interest, they relieve state agencies of a significant law enforcement burden (Cunningham et al. 1990). Moreover, as they are specific to and defined by each individual company, it is not the responsibility of the state to ensure compliance by providing policing services. In support of private justice, Henry writes that: “private justice, while opposing state law in the interests of its own social form (the factory enterprise), is simultaneously supporting the wider social structure, because industrial relations are maintained and industrial production continues to flow” (Henry 1987, p. 60).
However, private justice systems may facilitate greater discretionary power for its enforcement agents than state law confers upon public policing operatives. This flexibility can create opportunities for irresponsible or otherwise undesirable actions. Moreover, as they are not designated as ‘law enforcement officers’, private agents’ actions are justified “in terms of management practice rather than legal authority” (Reiss 1987, p. 25). This said, it is rarely likely to be in the interests of any private organisation to ‘justify’ certain actions publicly. For a private company to even admit that it has an internal theft or any other form of security problem may damage its reputation and have a negative impact on trade. This effect is likely to be exacerbated if any unconventional or ‘dodgy’ enforcement solutions are also exposed. This is aptly illustrated by the ongoing ‘McLibel’ case brought by fast-food company McDonalds. Consider the following extract:
The High Court fight – dubbed David meets Goliath – is between the world’s biggest fast food chain and ex-postman David Morris and former gardener Helen Steel. The pair are accused of distributing leaflets that claim McDonalds food causes cancer, destroys the environment and exploits children. McDonalds, which has a turnover of £15 billion a year, have hired a galaxy of QCs and solicitors to fight the case [. . .] The court heard yesterday how private investigators infiltrated group meetings in North London to find out why they were targeting the burger firm. (Midgley 1994)
The reference to David and Goliath was repeated in many papers on both sides of the Atlantic and clearly sets the stage with McDonalds in the role of villain. Four of the seven private investigators employed by the firm admitted to distributing the leaflets in question with the purposes of exaggerating their impact and the protestors’ commitment to wide dissemination of allegedly libellous material. Another admitted slipping the lock of the London Greenpeace office to gain entry, and then photographing the contents of the office1 (McSpotlight 1996). It is clear that public exposure of such actions can do little to support the company’s interests, although many would argue that it does a great deal to illustrate the lengths companies will go to in order to protect their assets.
These factors bring private agents ever closer to the limits of legal tolerance and clear conflicts arise when perceived private needs cannot be met within the overriding framework of state law. When the maintenance of private peace requires actions which are illegal other than merely ‘suspect’, the stakes are significantly heightened. By definition, state law then effectively constitutes a legitimate threat to illegitimate forms of private peace and illegal covert actions must be conducted in absolute secrecy to avoid discovery. This is the domain in which some private investigators may choose to specialise and that which, because of its covert nature, is the most difficult to monitor and control.
CONCLUSION
This article has described the nature of the services private investigators provide in support of corporate security policy and highlighted some situations when these may involve illegal or unethical activity. This overview raises some important questions about the practicalities of implementing an effective system of control for private investigators. Given the often covert nature of their work, how can any system of regulatory control ensure that the law and ethical standards are respected and observed? In short, how can one police the unseen?
It is clear that different systems of regulation contain their own difficulties (George and Button 1997; see also Vagg and Harris 1998). To be effective, any regulatory system must transfer responsibility for compliance to relevant actors, that is, to ‘those in the know’. The authors’ research revealed that the only parties likely to be privy to the specific methods used in the sorts of circumstances discussed in this article are individual private investigators, perhaps others working in the contracted investigation agency and the agency’s clients or their designated representatives. This begs the question of what responsibilities could be imposed upon each of these parties and how realistic it is that these measures will be effective?
Individual private investigators should be subject to some form of licensing system in the interests of their clients, people who may become the subject of investigations and society as a whole. This would require a commitment to operate within the law and the adoption of an ethical code supported by a recognised professional body. As with other professions, such a body would form the first regulatory tier and membership would be conditional upon meeting minimum training requirements and displaying core skills, and providing a way in which each firm could be audited. There would need to be a separate enforcement authority which had real teeth. Further, the publication of ethical standards and a clear mechanism for dealing with complaints would provide a strong incentive for investigators to ensure their behaviour conforms to standards.
The law could impose responsibility for investigators’ actions on their managers or the proprietors of detective agencies as well as individual investigators. In other words, both the organisation and the individual would need a licence to practise. The law could also impose clearly defined responsibilities for clients. These would not solve all problems because of the covert nature of the activity, but at least there would be meaningful penalties for those caught, and that threat would be likely to provide a greater deterrence than the rather limp system which presently operates. Moreover, just as Maguire and Norris (1992) have argued that policedetectives might be better controlled by training, stronger management, and the development of a culture based on ethical behaviour, so too might these help in making private detectives better accepted as an alternative to state policing and more accountable for the work they undertake.
There is every chance that, in line with other types of private security, the demand for private investigation services will increase. It is crucial that we consider and assess their role, they have too long been forgotten. Their work is important, and too important to be left to the shortcomings of selfregulatory forms of control.