The Home Office is to bring in regulation of private investigators, from the autumn of 2014. Operating as an unlicensed private investigator will become a criminal offence, Home Secretary Theresa May announced on July 31.
This represents something of a turn-around by the Coalition, which has sought to avoid more regulation, stigmatised as a brake on business. Under the previous, Labour, Government, the SIA nearly got as far as licensing investigators. However adding to the sectors badged by the SIA – and that regulator’s very existence – was thrown into doubt by the Coalition’s so-called bonfire of quangos in autumn 2010 that is still being worked through; the SIA is due to move – by 2015 now – to a new ‘regulatory regime’.
The Government points out current unregulated arrangements, allows anyone to work as a private investigator, regardless of their skills, experience or criminal convictions. This presents a high risk of rogue investigators unlawfully infringing on the privacy of individuals, according to the Home Office. Investigative activities that are carried out for the purposes of publishing legitimate journalistic material will be excluded from regulation, the Home Office was careful to point out. That – and the wider issue of how to define investigation – proved a stumbling block in the 2000s to badging of investigators, although they were among the sectors named in the Private Security Industry Act 2001, which led to the forming of the SIA (Security Industry Authority). The blurred lines between journalism, blagging of information, and hired investigators (often with police background or contacts) has come out in the Leveson and Information Commissioner’s Office inquiries, making it seemingly unlikely that a Government of any political colour would tackle something so difficult.
The Home Secretary said: “It is vital we have proper regulation of private investigators to ensure rigorous standards in this sector and the respect of individuals’ rights to privacy. That is why I am announcing today the Government’s intention to regulate this industry, making it a criminal offence to operate as a private investigator without a licence. Anyone with a criminal conviction for data protection offences can expect to have their application for a licence refused. Journalists will be excluded from regulation to allow them to carry out legitimate investigations in the public interest.”
SIA to grant licences
Licences will only be granted by the SIA when an applicant has completed training and achieved a government-recognised qualification, which includes understanding of relevant laws and standards, and the skills required to conduct activities ethically;
confirmed their identity; and done a criminality check.
As with other licensed sectors of the private security industry, all applicants will need to meet these standards to receive a licence. This includes any contractors working on private investigations for companies. The Coalition says that regulation of private investigators will be introduced as quickly as possible and the new regime will begin next year.
The maximum penalty for working as an unlicensed private investigator or supplying unlicensed investigators will be a fine of up to £5,000 and up to six months in prison.
This original announcement did not go into details as to costs; or what (if any) training will be required of an investigator to gain a badge; or what counts as being ethical; or whether experience as a police or other investigator will count towards a qualification; or whether a specialist (say) accident or interviewing investigator will have to show that they know about laws and standards to do with other specialist investigations (into missing persons, say) that they never do. The Home Affairs Select Committee of MPs suggested in a July 2012 report on PIs urged that PIs be regulated by the end of 2013. The committee defined the business of private investigators as ‘essentially the gathering and reporting of information, with a premium paid for information that is more difficult to obtain, confidential or important to the buyer’. That committee recommended then a two-tier system of licensing of private investigators and private investigation companies; and registration of others undertaking investigative work. Also its MPs called for a code of conduct for PIs, including sub-contracted and part-time investigators: “The core of any training regime for investigators ought to be knowledge of the Code of Conduct and the legal constraints that govern the industry.” As for invasion of privacy and blagging of personal data, the committee asked that a criminal record for breach of section 55 [under the Data Protection Act, that is, for blagging data] should disqualify individuals from operating as private investigators.”
The Government recently responded to that Home Affairs Committee report. It rejected a code of conduct and the MPs’ two-tier system. Instead, the Government said that PIs would have to pass ‘competency training’ defined as ‘the skills and knowledge to conduct investigations; conduct interviews; search for information and preserve evidence; conduct surveillance; and understand, and work to, relevant laws and standards’. As for a section 55 offence, the Government said that it ‘could prevent’ a PI from operating.
Where the MPs queried private firms doing police-style work, given out-sourcing due to police budget cuts, the Government replied that ‘private companies, such as those who deploy private investigators, will not be able to carry out police activities which require warranted powers’.
The Home Affairs Committee raised a concern that various official commissioners – the Information Commissioner, the Chief Surveillance Commissioner and the Interception of Communications Commissioner, the Surveillance Camera Commissioner covering CCTV – overlap. The Government while admitting there’s going to be yet another commissioner, a Biometrics Commissioner, answered that the commissioners are co-operating.
The MPs also urged a cooling off period of a minimum of a year between retirement from the police force and working in private investigation. To that the Government said that it is ‘considering whether it would be appropriate for members of the police to have formal restrictions on employment after leaving’.
For the Home Affairs Committee July 2012 report – http://www.publications.parliament.uk/pa/cm201213/cmselect/cmhaff/100/100.pdf
For the Government response visit – http://www.parliament.uk/documents/commons-committees/home-affairs/32420_Cm%208691%20v0.1.pdf
