CHAPTER 4: PRIVATE INVESTIGATIONS

4.1 Context

“Whether its corporate investigations or comedy, there are certain inherent truths to trying to get what you want while trying to be a decent person doing it.” – Nick Kroll, comedian and actor.

This chapter will reflect on the private investigations’ operating environment that has emerged after the 2012 Lord Leveson inquiry into mobile phone message intercepts by newspapers and hired private investigators in the UK. We will look briefly at any relevant isomorphic lessons for security practitioners. This chapter is also designed to provide an insight into the demands, role and expectations of a private investigator and investigation caseload. It will enable readers to formalise existing knowledge and provide a framework for conducting investigations in business environments or in private client casework. This section will provide readers with knowledge, skills and the procedural context to conduct investigation work in a legal and ethical manner.

Not all investigations need be conducted by a law enforcement agency. Indeed, as a security consultant, or as part of an in-house security team, the need to conduct a robust and auditable investigation post a breach of security, may be a critical process for an organisation when people, finances and reputations are involved. Our content will include direct and/or indirect coverage of:

•   the role of the private investigator in commercial, industrial and private client cases

•   affidavits and process serving

•   tracing missing people (MISPERS)

•   surveillance techniques (on foot and by vehicle; concealment)

•   electronic surveillance, the law and ethics

•   witness statements, interviews and accident reports

•   repossession

•   criminal investigations (criminal damage; criminal defence; counterfeiting; false accounting; forgery, fraud; theft)

•   crime scene analysis

•   forensic investigation and evidence

•   legal issues and the court process

•   data protection issues.

Government involvement in investigations and criminal detection was virtually non-existent until the nineteenth century. Modern policing (the ‘new’ police) was introduced in the UK from 1829 and professionalised publicly-owned police authorities became embedded across many American, European and colonised territories from the late 1800s onwards. According to Johnston, central government: “… made little or no attempt at criminal detection. Crime was brought to the courts when victims prosecuted offenders. Officials did not go out to find it. Justices dealt with the evidence, but detection and apprehension of suspects was left to victims, who often went to great lengths to regain stolen property” (1).

No matter how peaceful or well organised a society becomes, many potential crimes, misdemeanours, suspect prosecutions and civil law disputes, do continue to require investigation. The “vacuum of government provision created a market for private investigators” before the twentieth century (2). This remains the case today. In the nineteenth and early twentieth centuries, companies formed in-house security services – or company ‘police’. Governments and some subversive groups recruited private companies with investigators to gather and disseminate intelligence on competitors, including the use of Pinkerton National Detective Agency to carry out espionage upon confederate force activity during the American Civil War. Moreover, Gill and Hart point to industrial intelligence gaining traction whereby PI companies began “infiltrating labour unions during the Great Depression” (3). Another vast private security company was named Brinks.

Private investigators (PIs) have been given certain descriptions throughout history; old literary and screen references to leathery, cynical old ‘gumshoes’ became quite popular in American movies well before, and after, the Second World War. A PI’s work can also overlap with the role of an enquiry agent who is often tasked with identifying the location of, and subsequently issuing, legal notices. This could be to recover property and debts. Other terms describing allied work in this sector include bailiff, process servers or commercial agents.

In the UK, felon associations and thief taker organisations formed to help victims seize and recover stolen items from alleged perpetrators, and to perhaps mete out some summary justice. Bounty hunters or variations, including vigilantes who carried out neighbourhood self-defence among other tasks, existed within some communities and areas of common banditry. The supposedly ultra-maverick lifestyle of private detectives and their cases became popular to depict and embellish by a plethora of fiction authors. Perhaps some of the most famous characters being Conan Doyle’s creation of Sherlock Holmes, Agatha Christie’s Hercule Poirot and Miss Marple in Britain and Raymond Chandler’s sluggish but resilient gumshoe, Philip Marlowe, from Big Sleep fame in 1930s America (4).

4.2 Role of private investigators

Some tasks and requests to PIs will overlap with other security management functions. This will therefore raise various issues around integration with other projects and employees. Do bear in mind that in many domains, activities carried out by PIs may require a state or government licence. If a security enterprise extends its operations into running what might be considered traditional PI activity, it is advisable to be clear on the structure and processes of managing and accounting for these types of security functions. It is therefore crucial to be quite clear and task/team accountability must be permanently prioritised and successfully managed. If something goes wrong with a lack of oversight, or legal compliance, ignorance is not a mitigating factor with many prosecutors. Roles and responsibilities of PIs can be very diverse and include the following activity:

•   process serving and affidavits

•   finding missing persons

•   identifying, monitoring and recording potential corruption or system abuse

•   gathering business intelligence

•   finding or retrieving stolen assets

•   identifying and investigating criminal activity, with a view to supporting the police and prosecutors in making a successful case before the judiciary

•   ‘spotting’ and recording/reporting suspicious behaviour

•   carrying out business intelligence, including due diligence checks.

A core publication for many aspirant private investigators is The Security Institute’s well-received Good Practice Guide, 2010 (5). Another good source of information is the Association of British Investigators (ABI), now more than a century old. According to the organisation’s informative website: “The ABI campaigns tirelessly for regulation in our profession and promotes excellence, integrity and professionalism within its membership”. The association believes that it has, “become the kite mark of the investigation industry” (6). Such information is vital in order to help enterprises remain legally compliant. In 2013, the UK Home Office announced plans for PI activity to require a Security Industry Authority (SIA) licence, yet this provision had not been introduced at the time of writing. International NGOs have also been formed to share knowledge and improve working practices within the sphere of private investigations. The Institute of Professional Investigators and also the World Association of Professional Investigators are two of the most prominent support networks in a field of expertise that involves several hundred thousand operators around the world (7 & 8). The ABI produce an excellent toolkit An Introduction to Private Investigation, deliver professional investigation training (Level 3), and suggest that future licensing will perhaps synchronise to standards set out by the corresponding BSI publication BS 102000 Code of Practice for the provision of investigative practices (9). Compliance can only be guaranteed though by the reader consistently monitoring governmental and legislative initiatives in this sphere, within their country of operation.

4.3 Affidavits and process serving

“Process servers have never been busier than during these challenging economic times dealing with a rising number of collections, foreclosures and other legal matters.” – National Association of Professional Process Servers (NAPPS) (10)

This type of violent incident around process serving is unusual but not unique. In September 2011, a process server was shot in the abdomen as he exited some domestic premises in Prescott, Arizona, US. Bob Palmer from Palmer Investigations told local police that his colleague had, for the fifth time, attempted to serve the alleged assailant with a civil summons (12). During 2012, Meldenhall Mayor, Steve Womack More, was found guilty of ‘simple assault’ upon a process server. While the very same process server was charged with ‘trespass’ but later cleared (13). The service of process has been defined as the … “Delivery of a writ, summons, or other legal papers to the person required to respond to them” (14). The NAPPS newsroom provides a cacophony of tragic stories of investigators being attacked, summoned to court, or even being shot at (15). Process servers thus work in a dynamic and volatile work environment. There are more than 2,000 members of NAPPS and most PIs are sole traders or work in small companies. The widely regarded Hallcrest Report found that there were around 70,000 private investigator employees in the US working for some 15,000 companies (16). It is not uncommon for small companies to be evolving networks of close-knit family members, or ex-military and police colleagues; a tight network with trust and intuitive partnership at its core. Process serving is viewed as a critical, impartial, third party public service by its membership body NAPPS. “Very few people really know what we do, and the few who do often are misinformed and have an inaccurate perception of what a professional process server actually does”, reports NAPPS Board President Jeff Bannister (17). The delivery of legal notices to parties and witnesses in legal actions can include the distribution of Affidavits of Service which have been defined as: “a written or printed declaration or statement of facts made voluntarily, confirmed by the oath or affirmation of the party making it, and taken before an officer having the authority to administer such oath. An affidavit of service is intended to certify the service of a writ, notice or other legal document”, explains NAPPS (18).

The domain of private investigations has tightened in modern times. Such an appetite for regulation is likely to grow, due to substantial scandals involving some PIs, and the roll-out of surveillance-facilitating technology down to street level. Moreover, the true implications of the 2012 Leveson inquiry and report into unlawful communications interceptions by journalists and PIs, mainly in the UK, are yet to be fully absorbed (19). To promote professionalism and public reassurance, NAPPS and other PI-related professional associations have produced standards and best practice guides. NAPPS recently published its much heralded Policy Manual which provides rules and guidance in relation to conflicts of interest, grievances and unprofessional conduct (20). Such clear guidance should not be viewed as a hindrance to aspiring entrepreneurs and managers in the PI field. Moreover, it serves to drive up professional competence and reinforce parameters for a workplace sphere that can be highly discretionary and emotionally draining. By its very nature this type of work does create, “strong pressures for misconduct”, says Prenzler (21).

Local idiosyncrasies

In summary, every country has a different legal and commercial environment. Many advanced industrial economies will operate licensing regimes for some or all PI-related work, either at state or national government level. Local laws can be rooted in cultural or local business practice, and can scupper investigations by some unique and seemingly idiosyncratic restrictions. In the US, for instance, process servers are widely prohibited from serving notices on Sundays and official public holidays. Rules around the delivery and execution of warrants are often clear cut and understandable after basic research. Yet aspiring PIs should exercise caution and further research around compliance: for example, what are the rules around contact hours? How does one mitigate counter-claims of harassment? Moreover, what constitutes trespass and self-defence? You may well locate the right individual, but will the courts take the view that you adhered to due process while executing your role as investigator and/or process server?

4.4 Tracing missing people

“Over 6.6 billion people, across 57,268,900 square miles, speaking 6,500 different languages ... Where do you start looking?” – Source: Missing Abroad website, a branch of the Lucie Blackman Trust (23)

This part of the book will seek to provide contextual commentary and routes into attempting to confront and answer some of the following:

•   What constitutes being ‘missing’?

•   Who goes missing and why?

•   How can we trace them, and hurdles?

According to London-based LBC radio station, 110 children go ‘missing’ in Britain’s capital city each day (24). Most are found safe and well. But many missing person’s cases – often known as ‘Mispers’ within police and detective environments – remain sadly unsolved.

The charity Missing People estimate that “an estimated 250,000 people go missing” in the UK (25). The National Policing Improvement Agency (NPIA) report that “an estimated 216,000 individuals were reported missing to UK police forces in the year 2010-11” (26). There appears to be an even gender split among victims (27). An estimated two-thirds of all missing persons reports to police forces do concern children and young people under 18 years of age (28). Among adults, those aged 24-30 years were the most likely to be reported missing, followed by 18-23 year olds (29). Moreover, researchers Tarling and Burrows found that some 99% of all reported missing person’s cases were ‘solved’ within one year (30).

Unsurprisingly, given the vast range of incidents and scenarios within the ‘mispers’ field of analysis, a single or pre-eminent definition of a ‘missing person’ has been difficult to establish. It is worth reminding ourselves, that under most (if not all) legal systems, individual adult citizens do possess an inviolable human right to go missing and disappear from known or unknown human contacts. That is almost universally the case in liberal democratic societies, unless an individual is restricted by some form of legal custody or sanction – such as a parole order, a control order, or, indeed, a detention order under mental health legislation.

Work carried out by the charity Missing People, and other likeminded organisations, is very useful in enabling those new to this topic area to begin to grapple with a complex and often upsetting topic area in which private investigators are often called to participate. Missing People explain that: “One problem with providing a definition is that a person who is considered to have gone missing by friends or family members may not see their situation in the same way. An individual may simply consider themselves to have started a new life elsewhere, or to have left a situation which they may have seen as negative or dangerous. This raises difficult questions about who decides if an individual has gone missing or not” (31). Nevertheless, the charity has usefully pulled together several definitions from a range of law enforcement and academic sources:

•   “A break in contact which either the missing person or someone else defines as going missing, and which may be either intentional or unintentional.” (32)

•   “… a social situation in which a person is absent from their accustomed network of social and personal relationships to the extent that people within that network define the absence as interfering with the performance by that person of expected social responsibilities, leading to a situation in which members of the network feel obliged to search for the missing person and may institute official procedures to identify the person as missing.” (33)

•   “Anyone whose whereabouts is unknown whatever the circumstances of disappearance. They will be considered missing until located and their well-being or otherwise established.” (34)

The final definition above is significant as it was set by the Association of Chief Police Officers (ACPO) in the UK and underpins police investigative practice. Working closely with ACPO, the UK Missing Persons Bureau is a government-funded agency that keeps a national database of “missing persons and unidentified cases” (35). The agency assists police forces and works with authorities to cross-match the identification of individuals, bodies and remains. Its website does provide some downloadable guidance for friends and families to establish whether, and why, a person has become missing. It enables lay people and police to ask some relevant questions in order to establish clues and information which may help to locate a loved one, or alternatively provide reassurance that they are not missing. The Bureau’s What you need to know factsheet provides examples of information types that police or investigators might require to establish risk levels and future search procedures (36). This website also provides links to other overseas national bodies committed to locating missing persons, such as the Brazil-based Missing Kids organisation, and the US charity, Let’s Bring Them Home, who focus their support towards locating missing adults (37). UK Foreign and Commonwealth Office consular sections and Consular Directorate will also be significantly involved in supporting families of UK nationals reported as missing overseas. Practical and emotional support includes the provision of isomorphic experiences in overseas investigations, prosecutions, right through to financial aid in some cases. Necessary supporting and counselling in psychological resilience for affected families and friends will sometimes be best provided from charities and NGOs. Such organisations will often have individuals and families who have suffered similar experiences. Moreover, they are often crucial, independent, information gatherers in that they can support missing persons cases. For example, The Lucie Blackman Trust (a charity formed by the family of a young English woman murdered in Japan), has now established Missing Abroad, a group network which provides emotional and practical support for families faced with missing persons cases. The Missing Abroad website provides guidance, toolkits and supportive contacts for those planning travel overseas, and focuses its support on families dealing with overseas Mispers cases (38).

Originally designed for police investigators, Grampian Police produced the now-widely-used Missing Persons: Understanding, Planning and Responding guide which focuses on many causes and also tracing historical patterns that can often unlock further clues and evidence in order to solve a missing persons case (39). The report makes clear some useful ‘rules of thumb’ in terms of linking possible causes of disappearance with logical follow-up search locations. Moreover, the document provides estimated search radiuses that correspond to a timeline traced back to the suspected or known time of disappearance. Other key organisations that will assist for child Mispers cases in the UK include the police-run Child Exploitation and Online Protection Centre (CEOP) and the campaign network Parents and Abducted Children Together (PACT) which now partners the UK Home Office around international parental child abductions (40).

How can we trace Mispers?

We have heard that some 99% of missing persons cases brought to the police receive some form of closure. Moreover, missing child cases will often be deemed ‘high-risk’ cases by police forces and quickly generate an allocation of police detectives and back-up. Private investigators may be commissioned to find children who have been either kidnapped overseas, or taken to foreign climes by separated parents. But some 34% of missing persons are adults in the UK (41). Some of these cases are highlighted on Missing People and Missing Abroad’s informative websites. Only a small minority of adult cases can generate significant public interest. Many cases have become deemed ‘cold’. Police services have been unable to resource, for various reasons (including an individual’s right to privacy), cold cases and therefore families, friends and employers turn to private investigators. Approaching a case may be overwhelming and for a layperson; where should they start? The metaphor of searching ‘for a needle in a haystack’ is apt, particularly if one is directly impacted by the trauma and uncertainty of a case. But to reverse the metaphor, private investigators should be adept at removing and reducing much of the haystack and closing in on the needle by systematic (possibly intelligence-led) detection techniques. Some tactics may require extremely resilient levels of versatility, spontaneity, self-discipline and granular attention to detail. Amateur and professional investigators are often up against careful, scared or manipulative people who do not share the same interests; for their own motives, or by their own reasoning, they may want the case unsolved. Case workers should expect the unexpected: to come up against hurdles that include cheating spouses, bogus insurance or welfare claimants, disappearing bail breakers, frightened witnesses, professional, organised criminals, worried co-conspirators, protective and blinkered family members, and so on. Indeed, the supposed missing person may have started a new life, accompanied by a blissfully creative new alias, official identity cards and an equally reinvented new wife to boot. A casual slip up by visiting a family tombstone at Christmas, or an indiscreet new family photo in an expat brochure, may be the only needle that some missing people throw back into the investigator’s haystack. A most entertaining read which helps the reader to step easily into a voluntary missing person’s shoes, was published by American investigator, Edmund Pankau. I’m not sure whether How to Hide Your Assets and Disappear gives more ideas to the investigator or the escapee, but it certainly is a favourite sunshine holiday read of mine! (42)

Building a missing person’s profile

Building a missing person’s personal profile is critically important in order to establish a plausible search strategy that is well organised, realistic and methodical. This will enable investigators to establish the routine and vapour trail of contacts, which might well lead to the person’s discovery. But ‘profiling’ will also facilitate an ability to ‘step into the shoes of the subject’; to begin to think and act as they might. To better anticipate their behaviour and decision making. Where might they go to? Who might they talk to? Who, or what, might they turn to in times of perceived vulnerability and adversity? What are they escaping from? (Including boredom.) What locations might be attractive options for them to move into, either for sanctuary or excitement?

Qualitative analysis will also include detailed physical profiling. A National Crime Information Center (NCIC) ‘Missing Person File’, at the FBI, will document many physical manifestations including medical conditions, personal descriptors, jewellery, body characteristics, internal characteristics, dental characteristics and other miscellaneous data (43).

Profiling processes will include, and map-out, the daily, monthly and, if appropriate, the annual routine of an individual. Social and professional networks will be examined. Family, extended family and genealogy (family trees) might provide clues. Travel routines, workplace journeys, transport mode preferences and radiuses will be looked into. Contextual behaviour and psychology in relation to the individual will be addressed. Strong likes and dislikes should be recorded. The following information based upon background questions to a personal risk assessment may be useful for profiling (44):

Personal history: who in their family is influential to/over them? Who are/have been business partners?

People: who do they come into contact with, such as close friends, colleagues and teachers/trainers/instructors? Or perhaps those who dislike, or are fixated, or jealous of them? What type of things do they buy?

Places: locations they visit or hang-out? Favourite places and routines, such as gym or secret friend, and location/routine timings?

Personality: what sort of personality do they have and how does it impact upon others?

Prejudices: Are they perceived to have any strong prejudices, or do they possess any strong prejudices that may get them into difficulty?

Politics/religion: Are they perceived to have associations or strong beliefs? Are they a member of a religion or group commonly targeted by adversaries?

Private life: What complications, background history, leisure pursuits, affiliations and associations are there?

Records that may help you locate a missing person

Based in picturesque Kew, London, the UK National Archives provides a good starting point for official documents that may help us trace a missing person. A visit to its expansive and meticulously organised premises may not however be necessary. National Archives online provide for birth, marriage and death indexes, and electoral registers and records. Contemporary election address records are also offered by the private company: 192.com. This company’s approach to disclosing UK citizens’ names and addresses as a paid-for service (unless one opts out, and by then it’s often too late), is, admittedly, of potential use for investigators. As we have seen in prior chapters, records are kept of all registered private company directors by UK Companies House, or parallel organisations outside the UK. Although an obligation to publish a director’s home address was removed by UK Companies House several years ago. People hoping to find out about a person who may have changed their name will “often find that it [proof] does not exist”, states National Archives guidance (46). This is because changing one’s name via deed poll is a private contract with just one other party. A name change can be recorded between a private citizen and a solicitor, who may choose to retain a copy for several years afterwards. But there is no obligation to record this data elsewhere. To provide a sense of formalisation, the party may pay to register their deed poll with the Enrolment Books of the Supreme Court of Judicature (formerly the Close Rolls of Chancery). If this optional process occurs, researchers can check the London Gazette (or Belfast Gazette, in Northern Ireland) where all enrolled deed polls must be advertised (47). But the London Gazette is not a publicly available newspaper. Alternatively, the Royal Courts of Justice carry details of cases registered at the Supreme Court from 2004. The National Archives contain the indexes of deed polls prior to 2004 but do not offer an online database to research, by the time of writing.

The DVLA also host a wide range of vehicular data. But do bear in mind that conformity with data protection laws are the fundamental modus operandi for any reputable PI. (Although, noticeably, the DVLA has gotten into difficulties by selling drivers’ details to car park management companies who have themselves been fined for malpractice (48).) In some countries, tax returns and welfare benefit accounts are being used to locate missing children; possibly caused by parental or family abductions. Family members can drop their guard and declare obligations around supporting previously undisclosed children, or in some cases family members have used a missing child’s social security number within tax returns or benefit claims (49). Dental and medical records can also be key tools for checking against any profiles of unidentified individuals carried across thousands of web and social media sites. Current or outdated passports could indicate preferred locations, routes and reveal past travel patterns that were undisclosed or perhaps hidden from families and friends. Those who had formal relationships with missing persons or suspects, such as parole and police officers, GPs, nurses, and former employers, can all be considered for use in Misper enquiries. Often knowledgeable people, beyond the sphere of family or friendship influences and conspiracies, can be very useful in helping to join the dots of clues together. This was evidenced in the eventual success of locating Californian kidnap victim, Jaycee Dugard. Ms Dugard was missing for 18 years and the case ran cold until a vigilant campus security officer became suspicious about the activity of one Phillip Garrido around a young lady. After checking with Garrido’s parole officer and discovering that the Garridos were biologically childless, the barriers to investigation unravelled and Dugard was set free (50).

Search tactics for Mispers cases

Internet search engines: Go to Google and other search engines and enter various name combinations, phone numbers, possible favoured work and residency locations, favourite trade and hobby publications, local newspapers, sports clubs and video links, dating and social meeting websites.

ICT: Try to access the internet search history on equipment used by the missing person. Don’t forget that pertinent information may be stored in the Cloud, or in a variety of known or unknown email accounts. Ask authorities to do this, if appropriate. Search diaries, workbags, trouser and jacket pockets for passwords, if you can’t guess them.

Social media: platforms such as Twitter, Facebook, MySpace and other sources of OSINT, have been continuously useful in attempting to identify the location of missing people and the self-declared dead, some of whom aim to gorge themselves on ‘winnings’ from insurance pay-outs and unpaid loans.

192.com: Online ’information directory’ but also offers ‘background reports’ on property ownership, addresses, directorships, alive or dead status, county court judgments, among other nuggets of nosiness. The website also offers a ‘see who’s looking service’ for people to find out who may be checking them out; a ‘watching the watcher’ service so-to-speak (51).

Media and professional databases: such as Lexis Nexis which are regularly accessed by journalists, lawyers and professional investigators (52).

Magazine subscriptions: people can change their official identities but it is far harder to change hobbies and interests. For example, if somebody lives and breathes their subscription to Motor Boat Monthly, then chances are that they will continue to pine for hardcopy images of super-yachts, fly-decks and tropical harbour locations. They may even have moved to one, or redirected the subscription to a new address.

Surveillance: dates such as anniversaries, birthdays, St Valentine’s Day and the Christmas festive period are schedules when missing persons are prone to expose themselves to past emotion anchors. Places of sentimental value, including family tombstones or sites of major family incidents (such as honeymoons, deaths and suicides), can also be fruitful locations to monitor.

Documents and communications: wallet contents, CVs, receipts, bank cards, bills (including itemised phone accounts), credit card and bank statements, diaries and address books, medical and pharmaceutical correspondence, old phones, SIM cards, and PCs and old desktop computers, all provide clues and pointers. Bank and phone records are only accessible by police and official government agencies in most circumstances.

Saved files and cuttings: what types of documents, either on a computer or in hardcopy newspapers/magazines, have been saved or consciously recorded by the missing person, or suspected witnesses and perpetrators? Check generic sounding files as benign file titles are often used to hide or forage away secret vices; such as sexual predilections, debts, feuds or travel planning.

What hurdles may investigators face?

What issues may impede successfully finding a missing person? The following barriers will require resolution and prior planning by security management professionals:

Trauma management: The charity Missing People produced a report into Families and Missing that gives us some insight into the impact on family and friends of the Mispers. Manifestations of family and friends’ trauma can be memory loss, fatigue, impatience and anger management issues, insomnia and physical illness.

Misinformation: Transferred by friends and witnesses either deliberately or unintentionally, sometimes acting out of a sense of misdirected duty towards the missing person (for example, covering up a sexual or embarrassing encounter). Moreover, there may be heightened suspicion among family members and friends that another family member or friend is to blame. In this scenario, information may not be forthcoming. Be aware of who else is in the room if it appears key information is explicitly being held back, appears vague, or is in conflict with prior accounts.

Law and regulations: Each domain is different but UK investigators should pay particular attention to the RIPA Act 2000; Data Protection Act 1998; the Children Acts of 1989 and 2004; the Human Rights Act 1998; the Bribery Act (2010); the Health and Safety at Work Act (1974). You may need to look back at Chapter 3, Security Regulations and also pay careful attention to the upcoming surveillance sub-chapter (4.5).

4.5 Surveillance techniques

In the previous section, the subject of missing persons was introduced. One possible technique that may be needed to trace a missing person would be the use of surveillance. This sub-chapter will examine techniques used by investigators to conduct surveillance operations. Much of the open source literature, whether training courses or manuals, has been developed from police, military and security service techniques. An excellent example of this is P Jenkins’ book, Surveillance Tradecraft (54).

Surveillance has long been regarded as a ‘dark art’. However, with much information and commercial training available, there is a lot more awareness of the topic, by not only those wishing to avoid surveillance but also by the general public. In this section we shall examine the reasons for surveillance, the various elements of a surveillance operation, and look at methods used to defeat surveillance and the legal and ethical aspects of conducting surveillance.

At the end of this section we should understand the process and techniques required during a surveillance operation. This will not, nor is it intended to, replace practical experience.

According to the Regulation of Investigatory Powers Act 2000:

Surveillance includes:

•   [Continuous] Monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications

•   Recording anything monitored, observed or listened to in the course of surveillance

    And

•   Surveillance by or with the assistance of a surveillance device (55).

Surveillance can be either overt or covert. If surveillance is overt then the subject of the surveillance will be aware this is taking place. If the aim of the operation is to deter undesirable or criminal activity then this may be a suitable option. Covert surveillance should ensure that the subject and third parties are unaware that surveillance is being conducted.

It must be remembered that provisions within the UK RIPA law only apply to official bodies. However, commercial surveillance should bear in mind the structures of RIPA when planning to conduct covert surveillance activities. Covert surveillance, whether directed or intrusive (RIPA, 2000) should only be undertaken when all other methods of gathering the required information have been exhausted, or would have been deemed unlikely to succeed. To ensure that resources are not wasted, the method and tactics adopted for the surveillance have to be tailored with reference to:

•   the intelligence already available about the subject of the task

•   the objectives of the task

•   the limiting factors.

Once the decision has been made to conduct surveillance on a subject, the techniques to be used must also be chosen. Note: throughout this sub-chapter, subject is used to describe the focus of the surveillance. The other term that may be encountered is target. This is another example of how an operator’s background can influence their terminology. In military circles target has been used, however civilian organisations prefer subject as it removes the implication that the target will be fired at.

Surveillance methods – foot, mobile, technical

Surveillance has been likened to surrounding the subject with a net, to keep a subject under constant observation directly, or using technical aids; this net therefore needs to change shape to allow the surveillance operators to remain unnoticed. ‘Unnoticed’ is used as opposed to unseen, as it is impossible to conduct surveillance without being seen, if not by the subject then by the third parties in the area. Very often it is these third parties who will spot, and potentially compromise, the surveillance operator rather than the subject.

This leads to another aspect of surveillance; the need for the surveillance operator to blend into the background. This is achieved through careful choice of clothes, appearance and vehicles, not only as an individual but also as a team. The operator needs to be the ‘Grey Man’, a ‘Mr Everybody’ who looks like Mr Average or Mr Nobody. This equally applies to Ms Everybody too (56).

Case study

A surveillance operator was approached by two young adult males while driving past a taxi company’s offices. The car being driven was a large saloon and resembled the taxis used in the area. The situation was such that it would have been unwise to offer them a lift, the operator therefore mimed that they weren’t a taxi and continued on their way. Here the third party was not only the two males but also the locals who by the nature of the underlying threat took notice of what went on in their locality. The surveillance task was in a ‘rough’ estate and the local ‘neighbourhood watch’ was very effective at monitoring unusual activity too.

The case study illustrates an aspect of surveillance, that of third party awareness. Should the subject become aware of surveillance, the team (and it is unusual for a surveillance task to be conducted solely by an individual) may notice another aspect of surveillance – anti surveillance. Here it is necessary to distinguish the difference between two similar terms, counter surveillance and anti surveillance.

Although they would appear to mean the same, in surveillance terminology they have different applications.

Anti surveillance: is an action, or series of actions, carried out by the subject in order to detect or defeat surveillance being carried out against the subject. An aware subject (cognisant of surveillance and its methods) will carry out routine anti surveillance (AS) as a matter of course. An alert team will become aware of this and adapt their behaviour accordingly.

Counter surveillance: is the act of imposing surveillance, on behalf of the subject by a third party, against a person or persons suspected of monitoring the subject. In brief they are ‘watching the watchers’. Counter surveillance (CS) is an aspect of tradecraft that takes ability and skill, as the CS team will be working against ‘aware’ targets.

Covert surveillance: The subjects of a surveillance task are usually people. However, vehicles, places and objects can also be monitored. In the trade, the reason for surveillance can be boiled down to the following pattern of questions, known as the ‘5Ws and How’.

1.   Where          they go

2.   What          they do

3.   Who          they meet

4.   When          they do it

5.   Why          do they do it

6.   How          they do it

Surveillance may be imposed in order to:

•   obtain evidence of illegal or unauthorised activity

•   obtain a detailed pattern of life

•   develop or confirm information from other sources

•   locate missing people

•   confirm the whereabouts of an individual at all times

•   obtain evidence for use in a court of law.

In order to achieve continuous monitoring of the subject, the following methods of surveillance are needed, often in combination. Foot, in this case the team will deploy to monitor the subject when the subject moves on foot. Should the subject use a vehicle then the team will need to use similar means to be mobile. Very often locations used by the subject can be observed from a static location and these three methods can employ technical aids to assist in gathering information, which when analysed may produce intelligence.

When engaged in foot or mobile surveillance, the progressive or ‘leap frog’ method can be used. It involves the observation of the subject as they progress along a certain route, with the operators stationing themselves at fixed points, until the subject disappears from view. Use of this method is not too common because of the time involved and the poor chances of obtaining good results.

If subjects follow the same route each day, their destination can be determined without following them, if the operator stations himself each day at the point where the subject disappeared from view the previous day. This is an option for an operator working without a team. To further assist in understanding trade methods, the anatomy of a surveillance task will be dissected:

Planning and briefing

Before any surveillance takes place, careful planning will have been undertaken. It is likely that the legal aspects of the task will have been examined. This is especially true in commercial tasks. It is at this stage when the need for surveillance is confirmed and the decision is taken to use a surveillance team.

Be aware that while criminal enterprises or terrorist groups will still do the planning, they will not scrupulously obey the law. It is likely, however, that they will deploy similar tactics. Following the planning, all members of the team will be thoroughly briefed. Documents pertaining to the planning and briefings should be retained for future use and to demonstrate duty of care, in the event of any incidents during the task.

Following the planning and briefing, a surveillance operation comprises of four phases. Once begun, the four phases form a continuous cycle that may continue for hours, days, weeks or months.

1. The ‘stake out’ or the ‘plot’

(Terminology varies depending on the backgrounds of the operators. Some agencies will use ‘stake out’ others will use the expression ‘the plot’.)

A stake out comprises of a trigger and other operators covering the ground options that the subject may take. These possible ‘stand-off’ (start) locations are sometimes referred to as the box. The trigger may be at a static location, a person on foot, in a vehicle, in a building or a rural observation post (OP). It may also be a technical trigger, a remotely viewed camera, a movement sensor or an audio device. Alternatively, the trigger may be an insider, or an informant, however these can be unreliable due to delays in passing information. Should it not be possible to position a trigger, then the operators forming the box will need to be continuously aware and ever-vigilant to enable the correct subject to be picked up as they pass out of the box.

The trigger needs to able to observe the start point. The start point may be a residential or business premises, an associate’s address, or any known location the subject habitually visits. This may be provided by a client or result from investigations carried out as part of the planning process. The trigger should be close enough to be able to identify the subject when they appear but not in an obvious position. The trigger should have adequate communications; a covert radio ‘fit’ is preferable, although mobile phones can be used by the team forming the box. The trigger location should be capable of remaining in place for as long as necessary, although the trigger’s duties can be rotated through team members, should the situation demand. The entire team will need to be consciously aware of any suspected third party interest.

The team forming the box should provide cover to all the potential routes, or options, that a subject may take. This will be dictated by the ground. They should remain relaxed, yet alert, in communications with the trigger and out of sight of the start point.

Case study

A subject was due to visit a certain address that could be observed from a café opposite on a given date. The team was able to put a trigger into the café and by rotating the team cover, the expected time of arrival of the subject. As often happens the subject did not show and the team lifted off to return the next day, which also led to a fruitless observation.

2. The pick up

This is probably the most crucial phase, as failure to pick up the subject will result in there being no follow. A poor pick up can be caused by information not being passed on in a timely manner by the trigger. A failure of the trigger to identify movement by the subject will result in a poor follow and possibly a ‘lost’ subject.

To avoid this, a good pick up should consist of:

•   clear indication of movement by the subject. ‘Standby-standby’

•   mode and direction of travel. ‘On foot, right – right – right towards ...’

•   acknowledgement from team when possible

•   continuous commentary by the trigger of the subject’s actions, until the trigger is ‘unsighted’

•   ‘control’ taken of the subject by an operator in the box – ‘Golf has the eyeball’.

It is imperative that the trigger does NOT move until the subject is out of sight and has broken the box. This is an occasion when a subject, or those acting on behalf of the subject, may become aware of the surveillance, as they spot people or vehicles moving at the same time as the subject.

3. The follow

The follow phase of the operation starts when the subject leaves the box. Once this has occurred, the whole of the team will move into position in order to follow the subject to the next location. An aware subject may, as part of their AS procedures, leave their location, break the box and return to test for movement by a team. The team ‘on plot’ should have been made aware of this possibility during their briefing.

A successful follow will depend upon:

•   no movement until the box has been broken

•   good communications

•   clear continuous commentary from the ‘eyeball’ [the operator in control of the subject]

•   good navigation and the forward thinking of the team

•   teamwork

•   competent and regular handovers

•   competent foot and mobile skills – competent driving

•   effective lost subject drills

•   determination and initiative.

4. The housing

At some point the subject will have to come to a stop. This initiates the housing phase. The ‘stop’ could be a residence or business address, a shop, or all manner of locations. When the subject stops for any amount of time, other than for a temporary halt in traffic, etc., then the subject should be classed as housed.

A successful housing will be achieved if:

•   control is maintained at all times. An initial ‘stop-stop-stop’ from the eye-ball

•   followed by a continuous commentary

•   a trigger is established as the priority

•   consider whether to move in or remain outside a premises – operational objectives and intelligence will dictate this

•   multiple entry and exit points. Can these options all be covered by the team?

•   the ‘stake out’ plotting up phase begins again as the team readjust their locations to ‘box’ the subject by covering as many options as possible.

It is a rare surveillance task that consists of a single stake out, pick up, follow and housing. The subject may visit many locations, meet many people, use different modes of transport, etc. They may leave their home on foot, walk to a bus stop, catch a bus to the railway station, meet a colleague [co-conspirator?], take a train to an airport, transfer to a taxi or hire a car. A surveillance team will gradually build up a picture of their subject and be aware of these options and thus prepare for them. Therefore a capability to change from foot to mobile, to foot surveillance, is essential. Fortunately the principles are the same for both of these methods.

4.6 Technical surveillance

The team may not have the assets to continue surveillance of a subject. Consider how many operators that a national agency might be able to deploy in comparison to a commercial organisation. Often commercial operations will work to sub optimal levels, perhaps a two person team. A Mispers case may only have a single operator. National agencies will have greater resources and be able to muster helicopters, drones, motorcycles, covert observation vans and cars, all equipped with state of the art technical aides.

The four phases of an operation apply to both foot and mobile surveillance. They can be assisted by the use of technical devices. Technical surveillance is constantly evolving as the technology available changes. The devices available to provide technical surveillance include: video cameras (in various configurations, both overt and covert); audio recording and transmitting devices; tracking equipment and computer monitoring. All these are available to commercial companies and individual operators (57).

Cameras in many guises can be used to gather evidence of the subject’s activities. They can be carried by the surveillance team, mounted in cars, vans and motorcycles, or body worn. Static cameras can be deployed to provide a trigger, or to capture activity at a location. They can be set to record at a pre-set time, or to be motion activated. This will allow operators to leave the vehicle unoccupied, thereby reducing suspicion.

Another technical aid often used is a tracking device. These are now cheaply available. They rely on a combination of GPS and mobile phone technology. These devices can be monitored remotely on a laptop or smartphone to allow the surveillance team to give the vehicle or package they are attached to greater separation, thus reducing the possibility of compromise. However, be aware that it is only the tracker which is traced not the subject (58).

Lift off, stand down and debrief

At the end of a surveillance serial, the building block of a surveillance operation, the team will, on instruction from the team leader, ‘lift-off’ the subject. This is when surveillance is temporally removed from the subject. This is usually after the subject has been housed and is unlikely to move again, or when the task has achieved its goal. A debrief will take place when all the information about the subject’s movement, meetings and other activity is collated, referenced to the log books, kept by the operators or a dedicated loggist, and to any photography or other evidence gathered. The team leader may then decide, in consultation with the client, that sufficient information has been collected and the team will then be told to ‘stand down’. This is the end of the surveillance task.

Surveillance and the law

Although we have already covered law and regulations (Chapter 3), this section outlines UK-based legislation that affects surveillance operations carried out within the UK.

The Human Rights Act 1998

This act applies to public authorities but individuals and companies engaged in surveillance activities should bear it in mind when planning and conducting an operation, as they may be sued in a civil court for an infringement. (60)

Article 8: Right to respect for private and family life

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Regulation of Investigatory Powers Act 2000 (RIPA)

It should be noted that while RIPA applies to official bodies, the police, military and local authorities for example, a commercial organisation or individual carrying out surveillance is not bound by RIPA. Following the principles of the act should ensure their actions are within the law, especially with regard to Article 8 of the HRA.

Covert surveillance

Section 26(9)(a) of RIPA states that: surveillance is covert if, and only if, carried out in a manner calculated to ensure that persons subject to the surveillance are unaware it is taking place.

Surveillance

As previously mentioned in Part 1, Section 48(2), RIPA defines surveillance as:

•   monitoring, observing, listening to persons, their movements, conversations, other activities or communications

•   recording anything monitored, observed or listened to in the course of surveillance

•   surveillance by, or with the assistance of, a surveillance device.

Surveillance can be directed or intrusive, these are defined as:

Directed surveillance

Section 26(2) of RIPA:

This is covert but not intrusive (and not an immediate response to events) but undertaken for a specific investigation or operation in a way likely to obtain private information about a person. It must be necessary and proportionate to what it seeks to achieve and may be used by the wide range of authorities identified in the legislation.

Intrusive surveillance

Section 26(3) of RIPA:

This is covert and carried out in relation to anything taking place on any residential premises or in any private vehicle. It involves a person on the premises or in the vehicle, or is carried out by a surveillance device. Except in cases of urgency, it requires a commissioner’s approval to be notified to the authorising officer before it can take effect. The power is available to the same law enforcement agencies as under the 1997 Act.

Private information

Section 26(10) of RIPA: In relation to a person, includes any information relating to his private or family life.

Collateral intrusion

This is when third parties are in the area being observed but are not the subject of surveillance.

Sensitive collateral intrusion

When a subject meets with a person for which it is expected there is a professional code of confidence. For example, this would include a doctor or solicitor (60).

The official government body dealing with suspected surveillance breaches is the Office of the Surveillance Commissioners. The chief surveillance commissioner, commissioners and assistant commissioners are appointed by the Prime Minister. Commissioners hold, or have held, high judicial office. One of their chief responsibilities is to scrutinise all notifications, renewals and cancellations of authorisations of property interference and intrusive surveillance (61).

Data Protection Act 1998

One of the main functions of the Information Commissioner and his staff is to ensure that organisations that are processing data are doing so in line with the obligations that are placed upon them by the various pieces of legislation, such as: the Data Protection Act, Freedom of Information Act, and the Privacy and Electronic Communications Regulations. This means that information gathered through surveillance should be protected correctly under the terms of the act (62).

Trespass

A person who strays from a right of way, or uses it other than for passing and re-passing, commits trespass against the landowner.

In most cases, trespass is a civil rather than a criminal matter. A landowner may use ‘reasonable force’ to compel a trespasser to leave, but not more than is reasonably necessary (63). Unless injury to the property can be proven, a landowner could probably only recover nominal damages by suing for trespass. But of course you might have to meet the landowner’s legal costs. Thus a notice saying ‘Trespassers will be Prosecuted’, aimed for instance at keeping you off a private drive, is usually meaningless. Criminal prosecution could only arise if you trespass and damage property. However, under public order law, trespassing with an intention to reside may be a criminal offence under some circumstances. It is also a criminal offence to trespass on railway land and sometimes on military training land.

It may be necessary, from an operational point of view, to access private land to place a tracking device. Considering trespass it may be better to seek an opportunity when the vehicle is on public land.

Criminal Procedure and Investigations Act (CPIA) 1996

This allows surveillance to take place in any public place with the proviso that trespass has not been committed (64).

Protection from Harassment Act 1997

A person must not pursue a course of conduct which amounts to harassment of another, and which he knows, or ought to know, amounts to harassment of the other. This legislation has been used by subjects who detect surveillance and identify those conducting it. However, chapter 40 of the act states that there is a defence of preventing or detecting crime, or that the conduct was reasonable (65).

Protection of Freedoms Act 2012

This act concerns various aspects of RIPA. This mainly applies to government organisations (66).

4.7 Witness statements

“Witnesses are not 100% accurate. They are giving you an idea of what they think they saw.” – Professor Kesser, CompTIA Security (67)

Witnesses can be incredibly useful sources for assisting investigations and piecing together unexplained cases. However, the flip-side is that witnesses can be notoriously unreliable or inconsistent with other perspectives at the scene. People often think that they have witnessed something, but an entirely different set of circumstances may well have occurred. Thus, corroboration and verification, by the use of other witnesses, or gathering physical evidence, will hopefully build an evidential picture and/or provide new lines of inquiry.

Witnesses or complainants can be notoriously unreliable. Some may be vexatious, by having ‘an axe to grind’. Others could be over-keen and embellish facts to assist investigative procedures. Some could be hesitant and cautious, unsure that they have seen anything of significance, so that they hold back on coming forward and then the memory fades. A British celebrity recently had allegations of sexual assault dropped against him that formed part of the UK police’s overall investigation coined Operation Yewtree. One complainant reported after several decades that she had been assaulted by the defendant upstairs in a seaside theatre. Following a site-visit by the defendant’s own private investigator, and the examination of architectural planning documents, diaries and local newspaper records, facts revealed that the comedian had not performed at that theatre on the cited evening. Moreover, the theatre, and alleged crime scene, had no upstairs. Indeed, a whole host of allegations cited by police officers had to be systematically researched and were successfully rejected by the entertainer’s own private investigation team. This defence was achieved principally by site visits, the interviewing of friends and former partners, and cross-matching diaries and local newspaper records (68).

Timing in witness statements is crucial. “The more time goes by, the more we tend to forget”, explains Professor Messer of CompTIA Security (69). For Messer, three basic rules to taking witness statements apply:

•   Identify who might have seen the incident. You won’t know until you ask.

•   Interview and document ASAP. People may not be around later.

•   Not all witness statements are 100% accurate. Humans are fallible (70).

Interviews, witness statements and accident reports

The Police and Criminal Evidence Act (1984) is perhaps the most significant law in relation to gathering witness statements and was introduced to strengthen the integrity of interviewing techniques. Previously, high-profile cases of over-zealous police interviewing techniques that led to miscarriages of justice, had led to rising and alarming levels of social discontent. Moreover, a creeping realisation materialised within criminal justice and policing communities that several high-profile criminal convictions were, in all likelihood, ‘miscarriages of justice’. Two famous cases where police interviewing intimidation was documented became known as the Guildford Four and Birmingham Six miscarriages. Both groups subsequently had convictions quashed in 1989 and 1991 but only after serving more than a dozen years each in prison for terrorism offences that they did not commit and were entirely uninvolved with.

The Police and Criminal Evidence Act (PACE) tightened rules around taking witness statements by ensuring that interviews were formalised and audio-recorded. Otherwise, so-called evidence would potentially become inadmissible, if it was suspected to be extracted under duress, or conditions that broke any of the new seven codes of practice for rules of evidence.

PACE: Code C: of particular importance to those taking witness statements is Code C for the detention, treatment and questioning of persons by police officers, and Code E on the audio recording of interviews with suspects. A new Code of Practice was introduced in the UK in 2010 and this is outlined in its entirety by the most useful Health and Safety Executive website (71).

Police services are not the only organisations that ask people to produce witness statements. Other executive agencies, tribunals and many private companies may wish to carry out investigations and produce legally valid witness statements.

Guidance for conducting a witness statement

For your own purposes, Figure 17 provides a witness statement template based upon some good practice found in UK police services:

Don’t forget:

The critical importance of producing a highly professional and legally compliant statement from suspects and witnesses is absolutely paramount. If corners are cut, cases will collapse. Moreover, if allegations can be substantiated that due process was not followed, it is likely that the end result will be dissatisfaction for all parties concerned.

Victim personal statements

Victim personal statements (VPS) have been introduced in the UK in order to provide the justice system – including the police, legal representatives, magistrates and judges – the opportunity to see the impact of a crime upon a victim’s life. Making a VPS is voluntary and the initiative is offered to all individual victims of crime, as well as small and medium sized enterprises in the UK.

According to the UK Ministry of Justice, a VPS is an important document to record for official purposes because it is can:

•   explain the effect that the crime is having (or has had) on the victim’s life physically, emotionally, financially, or in any other way

•   express concerns about intimidation from the suspect

•   express concerns about the suspect being granted bail

•   ask for support from victim support

•   request compensation.

Police officers will also need to complete a support form – MG19 (80). The VPS scheme also applies to UK Health and Safety at Work cases and prosecutions. According to the Health and Safety Executive: “A ‘victim’, in relation to HSE’s work, is an individual, injured as a result of another person (including a corporate body) committing an offence under the relevant statutory provisions or, where there has been a fatality, the bereaved relatives or partners” (81).

4.8 Crime scene analysis

“Crime scene investigation is the meeting point of science, logic and law.” – Julia Layton (82)

Establishing borders of a crime scene, recording its contents, and deploying a systematic approach to identifying and collecting evidence, are just some of the highly skilled requirements necessary for successful crime scene analysis.

The science of crime scene analysis was strengthened by one Edmond Locard, who developed what was thought to be the world’s first forensic crime laboratory in Lyon, France, in the early twentieth century. Locard began to introduce forensic science into criminal investigations work and was pivotal in shifting the circumstantial and unscientific elements of crime investigations, into more scientific, dispassionate, evidence gathering. Locard’s celebrated work underpins many crime scene investigation approaches today.

Locard famously said that: “It is impossible for a criminal to act, especially considering the intensity of a crime, without leaving traces of this presence” (83). This idea subsequently became popularly known among investigators and teachers as Locard’s Exchange Principle.

The FBI’s six-step investigations model is one of the most widely taught methods practiced around the world today. It is common practice for various police forces dotted around the world to send employees to take part in the Bureau’s Fellowship Programme. Another important source of information for investigators is ACPO’s Murder Investigation Manual (2006 and 2012 editions). The guide is open source and helps to teach, support and provide operating procedures for investigators. The comprehensive ACPO document is an engaging and vital read for investigators. Sections relating specifically to crime scene management tend to be in the document’s second chapter (85). Credible guides on crime scene analysis can be found online and these include Griggans’ MS PowerPoint slides (86).

4.9 Evidence: What is it? Why is evidence so flawed?

“An individual’s perception of events and memory of what happened can be incomplete or inaccurate.” – National Forensic Science Technology Centre (87)

What is evidence? How is it that, on so many occasions, we read about dead certain prosecutions collapsing into a pyre of recrimination and regret? At a recent murder trial, a famous defendant claimed that he had mistakenly shot his girlfriend, several times. He discharged gun rounds through an opaque bathroom door, at around 3am, believing his partner to be an unknown intruder. The forensic evidence showed that the first bullet hit the young lady’s hip; the fourth round fatally entered her head. The young victim was likely to have omitted sounds during the incident that would have specifically identified her to her partner, so the prosecution argued. Their case was rejected as a South African judge accepted that athlete Oscar Pistorius had mistakenly identified his girlfriend as an intruder.

Recently, this author sat hoping for a quiet, solitary lunch in a Hampstead café. A group of four young people soon sat at the next table at 1pm. In strong American accents they spoke raucously and very loudly to one another. They took turns to refer to a young female group member as ‘Duchess’. Some customers at surrounding tables raised their eyebrows in bemused frustration; others simply got up and left after a while. The last thing that those diners will remember, in all likelihood, is a loud group of American students in that damned Hampstead café!

Another male in this boisterous group remained noticeably quiet and took notes. After 20 minutes of near-deafening noise, this author resolved to interrupt this awful group of perceived hooligans. But before he made his move, quite suddenly, silence fell across their table. “Guys, that was really good”, said the quiet young man in a crisp, tangible London accent, “but Christopher you do keep coming in late with that second question. It threw Katie”. This group of British drama students then set about quietly discussing, correcting and perfecting a scene from a famous American play. For those who left the café earlier, before 1.15pm, an impression of boisterous behaviour by a group of uncontrolled young Americans had probably been firmly established. But for the rest of us, we had the privilege to watch some quite brilliant synchronised group acting. Perhaps by tomorrow’s stars of theatre and cinema.

To be clear, evidence “is the information that helps in the formation of a conclusion or judgement” (88). Evidence can fall into two categories – circumstantial and direct. Circumstantial evidence depends on inferences to connect together which may corroborate an emerging, irrefutable conclusion of fact. Direct evidence supports the validity of the conclusion without further need of examination or deliberation. Testimonies, including witness and expert witness statements (verbal and written), are usually treated as circumstantial forms of evidence.

For example, several witnesses saw Heidi enter the house she shared with her partner. A passing couple of witnesses then heard a pop of three or four gunshot rounds. Three minutes later, several witnesses saw Heidi exit the house quickly and run towards her motorbike. The forensic scientist, an expert witness, then attested to the court that Heidi’s boyfriend’s blood and DNA samples had been found on the motorbike handlebars. Moreover, a 9mm semi-automatic pistol, later confirmed to be the murder weapon, was hidden behind a mouse hole in Heidi’s father’s back garden shed. Several circumstantial witness testimonies corroborate some key observations. Now there is a strong inference that Heidi is guilty of the manslaughter, or murder, of her boyfriend.

However, direct evidence from the upstairs flat has been retrieved by way of a covert mini-CCTV camera. Footage shows that her boyfriend was violently threatening Heidi for approximately 90 seconds with a pistol. After stamping up and down, possibly in anger, he turns the gun upon himself. During the coroner’s proceedings, no known reason is given for the covert surveillance. There is evidence from detectives that Heidi’s boyfriend was the purchaser and regularly viewed private footage of Heidi in his lounge. The weaknesses of circumstantial evidence and the strengths of direct evidence are an enduring dilemma for investigators and prosecutors alike.

Types of evidence

Testimony: a solemn declaration (oral or written) as to the truth of something made by a witness or an ‘expert witness’. ‘Hearsay’ evidence (an out-of-court statement provided by somebody who won’t be cross examined) is often not permissible in criminal court proceedings in many countries unless specifically permitted by the judge or both legal teams.

Documentary: invoices, contracts, wills, photographs, tape recordings, films, printed emails, phone bills, delivery receipts.

Real: physical evidence that plays a role in proving the case (or in some countries, or of possible use to the defence team as ‘exculpatory evidence’ – see below). This could be a suspected murder weapon, hidden documents, prior editions of documents before they were tampered with, biological evidence including DNA, significant crime scene parts, such as blood and saliva samples, vehicle tyre prints, crushed garden foliage, direction of ingress and egress (entry and escape route).

Digital/electronic: Emails, digital photos, ATM transaction receipts/logs, instant message histories, word processing and print histories, computer backups, GPS histories, Wi-Fi tracks, hotel electronic door locks, digital, video and audio histories, electronic travel cards (including the Oyster, in London).

Exculpatory: information that could materially benefit the defendant. In some countries, if prosecutors come across such data, it must be made available to the defence team. An example may be a witness statement or previously unknown alibi that either exonerates the accused, or reduces likelihood of their guilt or involvement.

Scientific: this is usually forensic and genetic evidence usually generated by subject matter experts. Due to the fallibility of scientific research, some court jurisdictions ask for findings to be peer reviewed and corroborated by other expert witnesses.

Science serving justice

The National Forensic Science Technology Centre (NFSTC) online provides some excellent descriptions as to how physical evidence can help to initiate and corroborate evidence provided by testimony. Detectives are taught to accept that physical evidence is left behind at every scene because “every contact leaves a trace”, as per Locard’s exchange principle. Examples of physical evidence cited by the NFSTC include:

•   biological material – blood, semen or saliva

•   fibres

•   paint chips

•   glass

•   soil and vegetation

•   accelerants

•   fingerprints

•   hair

•   impression evidence – shoe prints, tyre tracks or tool marks

•   fracture patterns – glass fragments or adhesive tape pieces

•   narcotics.

According to the NFSTC:

“… evidence tells a story and helps an investigator recreate the crime scene and establish the sequence of events. Physical evidence can corroborate statements from the victim(s), witness(es) and/or suspect(s). If analysed and interpreted properly, physical evidence is more reliable than testimonial evidence; testimonial evidence is more subjective in nature. An individual’s perception of events, and memory of what happened, can be incomplete or inaccurate. Physical evidence is objective and when documented, collected and preserved properly, may be the only way to reliably place or link someone with a crime scene. Physical evidence is therefore often referred to as the ‘silent witness’.” (89)

In fact, understanding the nature of evidence as a stand-alone concept, and its psychological and attitudinal impact upon any given audience, can be a powerful skill for all security practitioners. Whether one wishes to prove a business case to investors or colleagues, or is actually going through the process of running a workplace investigation, we might wish to be mindful that there are four dominant types of evidence:

1.   Statistical evidence: the use of numbers or data to emphasise a certain point; often deployed by TV advertisers to prove the credibility of their products, or airlines and rail networks to demonstrate punctuality.

2.   Testimonial evidence: the use of spokespeople, witnesses and authoritative endorsers to support an assertion or organisation. For example, this may be the use of independent ‘third party endorsers’ by political parties on literature, or in news reports prior to elections.

3.   Anecdotal evidence: sometimes dismissed as untrustworthy or merely ‘hearsay’, but such snippets and background information can be very useful sources to build a more complete evidential picture. Anecdotal evidence has a very obvious negative; a person or group of persons may conspire maliciously to create a chain of evidence in order to damage a person or organisation. Thus, it is important, for reasons of ethics and fairness, to seek to corroborate anecdotal evidence with other types of evidence, such as physical evidence.

4.   Analogical evidence: rarely (if ever) are two scenarios exactly the same. Therefore, analogical evidence is required to prove cases whereby existing research and understanding might be undeveloped or inapplicable. An example might be that a security consultant has been tasked to provide a regional risk analysis report on a newly established nation state. This new state will have different political, law enforcement and military structures. It may have previously been part of a wider Federation and/or have been occupied by foreign troops. Scenarios in recent history could be territories in former Yugoslavia, the 1993 split of Czechoslovakia, the creation of sovereign Southern Sudan or Aceh, formerly annexed by Indonesia. Estate agents (realtors) use powerful analogical data when valuing a home (90). Analogical evidence might be described as ‘comparative analysis’ in academic spheres.

False evidence

The term false evidence can be said to include:

•   forged evidence: an item of evidence manufactured or doctored to support a courtroom outcome

•   planted evidence: an item which has been deliberately left, or moved, at a crime or evidence scene, to imply or influence a courtroom outcome. For example, in the case of two policeman, Hutton and Johnston, who planted shell cases to secure two false convictions for the so-called ‘Crewe murders’ in New Zealand in 1970 (91)

•   tainted evidence: evidence incorrectly or unlawfully gathered, perhaps by an illegal search, robbery, intimidation/coercion, or incitement

•   suppressed evidence: evidence that is either lawfully or unlawfully prevented from being brought into the trial. (This omission could arguably distort any result or perceptions of guilt, so the defence could claim.)

Chapter 4: Wrap-up

In closing this chapter on Private Investigations, we reflect on some of the approaches and attributes that will help your company gain the competitive edge. These include:

•   Do bear in mind that activities carried out by private investigators may require a state or government licence. If a security enterprise extends its operations into running what might be considered traditional PI activity, it is advisable to be clear on the structure and processes of managing and accounting for these types of security functions. Relaxed or no oversight is not an option.

•   Formal guidance and standards should not be viewed as a hindrance to aspiring entrepreneurs and managers in the PI field. Moreover, it serves to drive up professional competence and reinforce parameters for a workplace domain that can be highly discretionary and emotionally draining.

•   Commercial surveillance operatives should bear in mind the strictures of domestic laws, such as RIPA in the UK, or the Espionage Act in the US, when planning to conduct covert surveillance activities. Covert surveillance, whether directed or intrusive (RIPA, 2000), should only be undertaken when all other methods of gathering the required information have been exhausted or would have been deemed unlikely to succeed.

References

1)   Johnston, L. (1992), ‘The Rebirth of Private Policing’, London: Routledge, p.9

2)   Prenzler, T. ‘Private Investigators’, in, Gill, M. et al (2006), ‘The Handbook of Security’, New York: Palgrave Macmillan, pp. 423-437

3)   Gill, M. and Hart, J. (1996), ‘Historical Perspectives on Private Investigation in Britain and the US’, Security Journal, Vo.l 7, pp. 273-80

4)   A useful synoptic reminder has been produced and published at the ListVerse website: ListVerse (2013), ‘Top Ten Fictional Detectives’ accessed on 17/12/2013 and downloaded from: http://listverse.com/2011/01/18/top-10-fictional-detectives/

5)   Darrock-Warren A., and Gill D., (2010) ‘Good Practice Guide For Workplace Investigations’, Warwickshire: The Security Institute

6)   Association of British Investigators (ABI) website was accessed on 17/10/2013 at: www.theabi.org.uk/

7)   The Institute of Professional Investigators website can be accessed at: www.ipi.org.uk/

8)   World Association of Professional Investigators: website accessed on 17/12/2013 at: www.wapi.com

9)   ABI toolkit for PIs available at ABI website (see above). BS 102000 can be accessed at: shop.bsigroup.com/ProductDetail/?pid=000000000030271051

10)   NAPPS Newsroom was accessed on 17/12/2013 at: www.napps.org/newsroom.aspx

11)   Garrison, J., (2012) ‘Judge candidate accused of assaulting person serving him with summons’, The City Paper (03/06/2012), accessed and downloaded on 17/12/2013 from: http://nashvillecitypaper.com/content/city-news/judge-candidate-accused-assaulting-person-serving-him-summons

12)   Irish, L., (2011), ‘Process Server shot by Prescott man after serving papers’, The Daily Courier (26/09/2011), accessed and downloaded on 17/12/2013 at: www.napps.org/pdf/newsreleases/TheDailyCourier_PrescottAZ.pdf

13)   WAPT.com (15/03/2012), ‘Meldenhall Mayor guilty of simple assault’, accessed and downloaded on 17/12/2013 at: www.napps.org/pdf/newsreleases/Mendenhall%20Mayor%20Fined%20for%20Assault.pdf

14)   LegalDictionary (2013), ‘Service of Process’ downloaded on 17/12/2013 from: http://legal-dictionary.thefreedictionary.com/Service+of+Process

15)   NAPPS, (27/01/2011), news release, NATIONAL PROCESS SERVERS ASSOCIATION UNVEILS NATIONAL EDUCATION CAMPAIGN, accessed and downloaded on 17/12/2013 at: www.napps.org/pdf/newsreleases/NAPPS%20Campaign%20Launch%20Release_01%2027_2011_FNL.pdf

16)   Op. Cit., Prenzler, T.

17)   Op. Cit., NAPPS news release

18)   NAPPS: Process Serving Best Practices: 2013: downloaded on 17/12/2013 from: www.napps.org/best_practices.asp

19)   Leveson Inquiry: (2012), ‘Culture, Practices and Ethics of the Press’, the full report can be accessed and downloaded at: www.levesoninquiry.org.uk/

20)   NAPPS online (2015), Policy Manual, accessed and downloaded on 03/03/2015 at: http://napps.org/members_policy.asp

21)   Op., Cit, Prenzler, p.429

22)   Gill, M. and Hart, J. (1997) ‘Policing as a business; the organisation and structure of private investigation’, Policing and Society, Vol.7, pp.117-41 (p.131.)

23)   Missing Abroad, a group formed by the Lucie Blackman Trust, can be accessed at: www.missingabroad.org/

24)   LBC Radio: ‘Help a London Child: Christmas Appeal’ media notice was accessed and downloaded on 07/01/2013 from: www.lbc.co.uk/help-a-london-child-christmas-appeal-2013-82667

25)   Missing People charity online can be accessed and downloaded at: www.missingpeople.org.uk/missing-people/about-the-issue/about-the-issue

26)   NPIA (2011), ‘Missing Persons: Data Analysis 2010/11, National Policing Improvement Agency’, Bramshill: NPIA, p.6

27)   Ibid. p.15

28)   Ibid. p.16

29)   Biehal, N., Mitchell F., and Wade J. (2003) ‘Lost from View’, Bristol: The Policy Press, p.8

30)   Tarling, R. and Burrows, J. (2004) ‘The nature and outcome of going missing: the challenge of developing effective risk assessment procedures’, International Journal of Police Science and Management, Vol. 6, No. 1, 16-26, p.20

31)   Missing Persons Bureau (n.d.), ‘Has someone you know gone missing: what you need to know?’, accessed and downloaded from the MPB website on 07/01/14 at: http://missingpersons.police.uk/en/resources/report-a-missing-person

32)   Op. Cit. Biehal, Mitchell and Wade

33)   Payne, M. (1995) ‘Understanding ‘Going Missing’: issues for social work and social services’, British Journal of Social Work, 25, 333-348. p.333

34)   ACPO (2005), ‘Guidance on the Management, Recording and Investigation of Missing Persons’, (Bramshill: National Centre for Policing Excellence on behalf of the Association of Chief Police Officers), p.8

35)   UK Missing Persons Bureau can be accessed at: http://missingpersons.police.uk/

36)   MPB online (2015), ‘What you need to know’ factsheet and others were accessed and downloaded on 03/03/2015 at: http://missingpersons. police.uk/en/resources/factsheets-for-families

37)   Missing Kids (Brasil) website: http://br.missingkids.com/missingkids/servlet/PublicHomeServlet and Let’s Bring Them Home website: http://lbth.org/ncma/

38)   Op. Cit., Missing Abroad website

39)   Grampian Police (2007), ‘Missing Persons: Understanding, Planning, Responding’

40)   PACT online was accessed on 03/03/2015 at: www.pact-online.org/ and the Child Exploitation and Online Protection (CEOP) website can be accessed at: http://ceop.police.uk/

41)   Op. Cit., Missing People online

42)   Pankau, E., (2000), ‘How to Hide Your Assets and Disappear’, New York: Harper Collins

43)   FBI National Crime Information Center (NCIC) ‘Missing Person File’ was accessed and downloaded on 08/01/2014 from: www.oregon.gov/osp/CJIS/docs/missing_person_data_guide.pdf

44)   BSI (2008), BS 8507-1 2008 Close Protection Operations guidance

45)   National Archives: change of name guide can be accessed at: www.nationalarchives.gov.uk/records/research-guides/change-of-name.htm

46)   Ibid

47)   London Gazette can be accessed at: www.thegazette.co.uk The Belfast Gazette can be accessed at the same web address.

48)   Daily Mirror online (2012), ‘DVLA cashing in by selling drivers data to firms including illegal parking racket’, accessed and downloaded on 08/01/2014 from: www.mirror.co.uk/news/world-news/dvla-cashing-in-by-selling-drivers-data-1676004

49)   The Examiner: ‘Tax Returns could help find missing kids’: downloaded and accessed on 08/01/2014.

50)   Biography.com (2013), Jaycee Dugard Biography, accessed and downloaded on 08/01/2014 from: www.biography.com/people/jaycee-dugard-20993627

51)   192.com can be accessed online at: http://192.com

52)   LexisNexis can be accessed and downloaded at:

53)   Op. Cit., Missing People website

54)   Jenkins, P., (2010), ‘Surveillance Tradecraft, the professional’s guide to covert surveillance training’, Third Edition. Harrogate: Intel Publishing

55)   Harfield, C and Harfield, K., (2005), ‘Covert Investigations’. First Edition. Oxford: Oxford University Press

56)   Op. Cit., Jenkins

57)   Examples of technical surveillance platforms were accessed and downloaded on 02/02/2014 at: www.dogcamsport.co.uk/covert-camera-packages.html

58)   Examples of tracking devices were accessed on 02/02/2014 at: http://trackershop-uk.com

59)   Liberty80, (n.d). ‘Article 8 Right to a private and family life’ [online]: accessed 22/01/2015 at: www.liberty-human-rights.org.uk/human-rights/human-rights/the-human-rights-act/what-the-rights-mean/article-8-right-to-a-private-and-family-life.php

60)   RIPA 2000 accessed on 02/02/2014 at: www.legislation.gov.uk/ukpga/2000/23/contents

61)   Office of Surveillance Commissioners online can be accessed at: https://osc.independent.gov.uk/

62)   Data Protection Act was accessed on 02/02/2014 at: www.legislation.gov. uk/ukpga/1998/29/contents

63)   Tresspass law was accessed on 02/02/2014 at: www.cps.gov.uk/legal/s_to_u/trespass_and_nuisance_on_land/

64)   Criminal Procedure and Investigations Act (CPIA) 1996, accessed on 02/02/2014 at: www.legislation.gov.uk/ukpga/1996/25/contents

65)   Protection from Harassment Act 1997, accessed on 02/02/2014 at: www.legislation.gov.uk/ukpga/1997/40/contents

66)   Protection of Freedoms Act 2012, accessed on 02/02/2014 at: www.legislation.gov.uk/ukpga/2012/9/section/29/enacted

67)   Professor Kesser (2011), Video: ‘Screenshots and Witnesses’, CompTia (3.05): www.youtube.com/watch?v=pZVxzFaZJ_8

68)   Lasserri, A., with Davidson. J., (2014) ‘My sex arrest agony’, was accessed on 14/10/2014 at: www.thesun.co.uk/sol/homepage/news/5357950/jim-davidson-reveals-agony-of-sex-arrest.html

69)   Op. Cit., Kesser

70)   Ibid.

71)   Health and Safety Executive (2013), ‘Witness Statements’, and ‘Questioning of Suspects’, accessed and downloaded on 08/01/2014 from: www.hse.gov.uk/enforce/enforcementguide/investigation/witness-witness.htm

72)   Ibid

73)   MPS (2014) Conducting a witness statement

74)   Ibid

75)   Ibid

76)   The Guardian, (19/10/2012), ‘Sian O’Callaghan murder: the Detective’s Dilemma’, accessed and downloaded on 04/03/2015 at: www.theguardian.com/uk/2012/oct/19/sian-ocallaghan-murder-detective

77)   Ibid

78)   The Times (31/01/2014): ‘Detective guilty of misconduct over killer’s confession’: accessed at: www.thetimes.co.uk/tto/news/uk/crime/article3983432.ece

79)   BBC News (15/05/2014), Becky Godden Misconduct Detective Steve Fulcher Resigns’, accessed and downloaded on 05/03/2015 at: www.bbc.co.uk/news/uk-england-wiltshire-27431025

80)   Criminal Justice System (2009), ‘Victim Personal Statements: A guide for police officers, investigators and criminal justice practitioners’, accessed and downloaded on 08/01/2014 from: www.justice.gov.uk/downloads/victims-and-witnesses/working-with-witnesses/vps-guide-cjs-practitioners.pdf

81)   Op. Cit., Health and Safety Executive, 2013

82)   Layton. J. (N.D.), ‘How Crime Scene Investigations work’, accessed and downloaded on 18/03/2014 from: http://science.howstuffworks.com/csi.htm

83)   Edmund Locard quote, circa 1912

84)   FBI CSA model: accessed and downloaded on 18/03/2014 from: http://web.viu.ca/.../CASE_STUDY_REPORT_FORMAT_GUIDELINE.doc

85)   ACPO (2006), Murder Investigation Manual: accessed and downloaded on 18/03/2014 from: www.acpo.police.uk/documents/crime/2006/2006CBAMIM.pdf

86)   Griggans (2014), ‘Investigating a Crime Scene’: accessed and downloaded on 18/03/2014 from: www.slideshare.net/griggans/investigating-a-crime-scene

87)   NFSTC website (2014), ‘Types of Evidence’, accessed and downloaded on 02/04/2014 from: www.nfstc.org/pdi/Subject01/pdi_s01_m01_01.htm

88)   Writing Simplified (2014), ‘Four types of evidence’, accessed and downloaded on 02/04/2014 from: www.writingsimplified.com/2009/10/4-types-of-evidence.html

89)   Op. Cit., NFSTC online

90)   Op., Cit., Writing simplified (2014)

91)   NZ Herald (26/09/2010), ‘Book claims dead cop killed Crewes’, accessed and downloaded on 06/03/2015 at: www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10676159

92)   R v Ward (1993) 96 Cr. App. R 1