The use of private investigators has often been criticised for being, ‘aggressive, intrusive or inappropriate’. The UK’s leading sector trade association, the Association of British Investigators have led the way in issuing a strict ‘Code of Ethics and Professional Standards Policy Statement’ to its members and by bringing disciplinary action against members who are shown to have disregarded those high ethics and standards. The Associations of British Insurers also issued guidelines to insurance companies on how best to instruct and use private investigators, by recommending that insurers only appoint investigators “who operate to high ethical standards.” But how, exactly, does one define an ethical business practice and, more to the point, how does one measure high ethical standards in undercover or covert investigations?
Ethical benchmark in Investigations?
Proportionality is the key benchmark for ethical standards within investigations. Proportionality is about whether or not the potential risks or harms of a particular act outweigh the benefits of that act. The necessity and reasonableness.
Whilst some investigations are clearly proportionate and reasonable (e.g. checks to ensure that the claimant is who they say they are), some investigatory requests are certainly not.
Those considering the use of private sector investigators need to apply proportionality across two areas: the first is the decision about whether or not to carry out investigatory work in the first place, and the second is the decision about the methodology and tactics to be deployed in any such investigatory assignment.
The key question for me is does your legitimate interest outweigh the subjects rights and if so, to what extent?
This subject was recently covered thoroughly in the 2019 Supreme Court of British Columbia case Williams v. Sekhon (see paras 183 – 219). This was a road accident matter where the insurers of the defendant engaged private investigators to investigate the claimants claim and the extent of his injuries.
The claimant after being successfully awarded substantial damages for the injuries caused by the accident then tried to seek further special costs. The claimant’s legal team argued that investigators employed by the defendant’s insurers used excessive and intrusive investigative methods, beyond their legitimate interest and causing the claimant harm.
The judge reasoned that whist the defendant had limited means available to them and thus was at a disadvantage to test the claimants injury claim, that there are limits with respect to the purpose of an investigation, the degree of investigation that is appropriate, and the manner in which the investigation is conducted.
The case raised various key points to note. First was the court considered local industry standards to assess what was reasonable. It also identified three methodologies available to investigators in such a case: –
1. Open source research and social media research
2. Surveillance operations
3. The interviewing of witnesses
The court was clear that just because, in a decision on whether or not to investigate, where the benefits outweigh the harms by a clear margin, it does not then follow that investigators are given carte blanche to carry out the investigation in any way they wish.
In this case Mr Justice Voith noted that excessive investigation will inevitably get back to a claimant and will be at a minimum embarrassing. If investigations continue they become intimidating. They also present the prospect of casting a claimant in a poor light with others as someone who is not honest or who is malingering. Similar considerations pertain with respect to investigations or interviews with a claimant’s friends’ acquaintances or teammates.
Proportionality in method
Investigations can be carried out in a variety of ways and each investigatory method gives rise to a variety of risks and harms and each to a different extent. Proportionality is a key ingredient to any consideration of the ethics of private investigation.
What nearly all potential harms have in common is intrusiveness. The more intrusive a method of investigation, the more harm is likely to result. Clearly the type of information being collected is important – the more intimate the information, the more the risk of harm escalates.
Good practice teaches that before any investigation activity takes place, consideration of all the benefits and potential harms are documented in a data protection impact assessment (DPIA). Conducting a DPIA does not need to be complex or time consuming but there must be a level of vigour in proportion to the risks arriving.
Thank you to Tony Imossi of the Association of British Investigators for his assistance in writing this article.