Those of you reading this are likely to be connected to the world of investigation. “Investigation” is a word that captures the many and various disciplines of a profession that prides itself on competence and ethical behavior.
As a lawyer specializing in the investigation of international fraud and cross-border asset recovery, I get to witness firsthand that in some overseas locations, investigation means different things to different people — especially when the word is used in the same sentence as the term “ethical.”
To investigate ethically, one has to abide by the imperatives of law and local rules governing the introduction of evidence into the court system. In my firm, we have a dedicated Investigations Unit, made up of retired UK police detectives, with many years’ experience in fraud and financial investigation.
Our UK-based operative has first-hand experience of what can happen when the rules are disavowed by well-intentioned officers failing to conform to the protocols in place. A major investigation with which he was involved saw swathes of evidence ruled inadmissible due to the well-intentioned but naïve actions of a fellow investigator.
When investigating to the criminal burden of proof, courts demand not only a higher evidential showing, but also stringent protocols to be followed in order for the evidence to be admitted. It is imperative that the courts and thereby the detectives and prosecutors who serve them are seen to be above reproach. Otherwise appeals are sure to follow, along with the potential for the guilty to ‘get off’ due to a technicality.
It is a similar situation in the world of civil litigation. It is fair to say that the rules on admissibility are slightly less stringent. But the expectation of an ethical approach to the investigative task is quite rightly demanded by the presiding judge. Without wishing to demean the excellent work of our law enforcement officers, as lawyers the expectations of an ethical resolution are even greater upon us given we are in effect litigation professionals and direct agents of the court.
As a firm, our investigators have been approached by people offering to sell information or evidence. However, they are too long-in-the-tooth to fall into such an obvious trap and we decline such invitations. However, all of us can tell a tale about opponents who have fallen below these ethical standards.
The UK’s Guardian newspaper has published a story regarding offenses dating back to 2005 that have just seen the court carry out its sentencing. The scenario concerns an insurance firm and two senior figures connected to the company being heavily fined for illegally obtaining private banking records of a businessman they were investigating. The information was acquired through a private detective (PI) and his colleague. As is often the case, one of the PIs was a former police officer.
Although this tale is UK-based, trust me, this could be the United States, Canada or anywhere else on the globe; that is why we must take note, especially in the context of the practice the Brits refer to as “blagging.” An investigative tactic that is often employed and one some of you may have fallen foul of: and one we all need to guard against.
The court heard how the insurance firm in question had hired the former cop in 2005, to acquire private banking information via “an illegal fishing expedition.” The PI obtained private and confidential information concerning a mortgage, account balances and loans from the two banks, Barclays and Abbey National.
The insurance firm wanted to know if the victim had sufficient funds to mount and pay for litigation in support of a disputed insurance claim. In essence, the insurance firm turned a blind eye to how the information was acquired. It knew full well that its source had to be illegal. This information can be extremely valuable if it is used unethically – in this instance to gauge a potential response to the threat of litigation. Such detail could influence this type of dispute, which may be likened to a form of brinkmanship.
The fines totaled £150,000 (about $214,000), the highest ever imposed under the UK’s Data Protection Act. The investigation — into the investigators — was overseen by the Information Commissioner’s Office. The nature of the infringements has previously been described as blue chip hacking.
The Information Commissioner, Elizabeth Denham, said:
The illegal trade in personal information is not only a criminal offense but a serious erosion of the privacy rights of UK citizens. As well as these record fines, the organizations and individuals involved also face serious reputational damage as a result of being prosecuted by the ICO.
By using organizational jargon unique to the bank concerned, allied to internal knowledge of computer systems, the blaggers pretended to be from another part of the organization. In doing so, they sounded plausible and often lulled the genuine employee on the receiving end to divulge sensitive information in the mistaken belief that they were dealing with a colleague.
In summing up, the judge, Charles Macdonald QC, said he regarded the offenses as “relatively serious,” adding that the motivations behind them were plainly commercial. To my mind, His Honor failed to grasp the gravity of what amounted to an attempt to perverting the course of justice. Yes, there was a commercial element, but those responsible were seeking an unethical advantage, directly impinging on the rights of the victim and effectively designed to ensure a miscarriage of justice in favour of the insurance company.
The crux of the matter is that we are all vulnerable to such hoodwinking. Our security systems and internal protocols will safeguard us to some extent; but a determined blagger, with the requisite knowledge and familiarity with your systems, could slip through the net.
Martin Kenney, pictured above, is Managing Partner of Martin Kenney & Co., Solicitors, a specialist investigative and asset recovery practice based in the BVI and focused on multi-jurisdictional fraud and grand corruption cases www.martinkenney.com |@MKSolicitors. He was selected as one of the Top 40 Thought Leaders of the Legal Profession in 2017 by Who’s Who Legal International and as the number one offshore lawyer for asset recovery.