ETHICAL ISSUES IN PROFESSIONAL INVESTIGATION

Government of India is yet to promulgate an enactment to regulate or empower the profession of 

private investigation. In the absence of any regulation (or restriction as the case may be) as also in the absence of any specific Governmental Authority, the profession of Private Investigation is an occupation which is neither prohibited nor empowered. As such, the profession is being pursued by private investigators according to self-acquired traits and concepts. There is no prescribed common 

code of conduct for individual players, till they affiliate themselves with professional bodies which 

have framed rules and regulations for enrollment as members. In India, Association of Private Detectives and Investigators is the legal entity incorporated ten years ago. It is also the only Association which is representing the cause of Private Investigators in addressing issues to the Government of India. This status has been acquired by practicing and projecting the profession in right perspective. APDI has formulated Code of Conduct to be abided by its members. Those not adhering to the prescribed conduct have to face action under the Disciplinary and Appeal Rules applicable to the members.

The purpose is to inculcate values of ethical conduct in discharging the duties as Private Investigator. “Ethics means the science of morals in human conduct”. Ethics is, therefore, a set of moral principles. These principles are to be adopted and practiced in right earnest. There is absolutely no scope for any professional to amend, dilute or interpret “Ethics” for taking advantage. The synonym for ETHICS is Honesty of Purpose. Once a conduct is “Unethical”, it cannot be justified by giving different meaning and connotation.

Let us take the example of “Ethical Hacking”. What is ethical about hacking? Nothing. “Hack” means to cut or chop roughly; to deliver cutting blows; gain unauthorized access to data in a computer etc. A “Hacker” is the person who gains unauthorized access to internet/ computer data. So called and self-styled ethical hackers try to adopt a different meaning by saying that hacker is a person who uses computers as a hobby. But what about the Right of Privacy of the person whose data is accessed in an “unauthorised” manner. The end use of such hacked data also cannot justify the act of hacking. Even if the data stored is improper, illegitimate, offensive or derogatory, a professional investigator is not an authorised person to hack and use it for defence or for initiating legal action. It is the original jurisdiction of the Police, law-enforcement agencies or the judiciary to take cognizance of the matter, investigate the crime, prosecute and punish the offender/ criminal. The victim of an offensive, criminal or illegal data and his representative (a professional investigator for that matter) can report the matter to appropriate authority for seeking remedy. They cannot take the Law in their hand and barge into the private domain of another person or entity to resolve, or dissolve the matter with a view to “right” the “wrong” committed by other. For all practical and moral purposes the word “unethical” means “extra-legal” for even “illegal”.

While “ethical hacking” is now a known phenomenon, yet another word is gaining coinage in the field. It is being called “ethical cheating”. There is nothing ethical about cheating. The main ingredients of the offence of cheating are:

1. There should be fraudulent or dishonest inducement of a person by deceiving him;

a. The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property; 

or

b. the person so induced to do or to omit to do anything which he would not do or omit to do if he were not so deceived (Ram Jas vs. State of UP (1980) sec 716 etc.).

Deceiving a person is common in both the ways of cheating. Thus cheats are those who defraud or endeavour to defraud another of his known rights by means of some artful devices which are contrary to the plain rules of common honesty. A professional Investigator must not accept any assignment wherein his services are being engaged by a client who has been cheated by unscrupulous persons and who in turn, decides to recover the loss from the “Cheat”, by considering it his right to undo the harm caused to him. Two “Wrongs” cannot become a “Right”. The wrong committed against him, does not bestow a right on the cheated person to reciprocate it as a justification to reclaim his rightful dues of property. 

Because the act of reciprocating the original act of cheating also contains the same ingredients of the offence of cheating.Both these examples of “Ethical Hacking” and “Ethical Cheating” go to show that there is nothing “Ethical’ in being “Unethical”.

ETHICAL ISSUES IN CORPORATE INVESTIGATION.

Professional Investigators are being increasingly hired by Corporate Houses and business world. Corporate Affairs Philosophy has now emerged as an important tool for management practices. Corporate Investigations, Business Intelligence and Competitive Intelligence have become buzz words. “Intelligence” is construed as timely information about a future event. 

In intelligence gathering, permissible and legitimate methodology is deployed. It could be about logistics of a competitor, employee union activities, disruptive activities, supply chain intricacies, manufacturing arrangements, procurement methodologies, distribution commissions, agency pay-offs, mergers, take overs, tie-ups, intellectual properties, product specifications, key employee and expert deployment, information technology, security set-ups and a plethora of other inside information. Methodologies for gathering all these information could have common denominators but different investigators adopt varying tactics. Much depends upon the ethical values attached to the methodologies. From under-cover deployment to open ended surveys and field inquiries, the dividing line between legitimate methods and extra-legal (or illegal) methods is often very thin and is often 

encroached. Trained and experienced executives are the answers to right approach. 

Intelligence could become espionage which is called the dark sister of intelligence. In espionage the methodology is clandestinely used by resorting to bribery, blackmail, technological surveillance, violence and pilferage. These are totally unethical means, adopted by some players to achieve faster and better results. Real professional investigators must not fall prey to the temptation of short cuts. It is therefore essential that a corporate client’s intentions should be properly gauged before accepting the assignment. Brief must be specific. As far as possible it should be taken in writing. That also helps the Investigator to project specific fee component and Turn Around Time for completing each of the point. 

There always is a way in procuring a written brief in the form of an authority to conduct market survey, logistics appraisal and supply chain verifications etc. These are innocuous subjects and corporate client has no hassle in defining and fine-tuning the pointer for inquiries to be conducted on his behalf.Then again Private Business houses do not adopt internal vigilance as a visible corporate 

affairs philosophy. But they do want to keep a close tab on the activities; lifestyle; contacts with old employees and competitors of key functionaries. Professional Investigators can always devise methodologies to play the role of vigilance officer without visible presence. Security surveys, loss mitigation assessments etc. are some of the means to be adopted. 

Security personnel and regular maintenance staff are generally contractual in deployment. Some of these employees could easily be cultivated to become eyes and ears of Investigators controlling them from outside. But the exercise has to be undertaken with approval of the client and should be ethically handled. The advantage of cultivating security and maintenance staff is that their presence within the office and factory premises is not noticed and their easy access is not objected to by employees in an outfit.Corporate clients also hire professional investigators to ascertain, monitor and then control business activities of rivals or competitors. These are tricky issues and intentions of clients should be ascertained before accepting an assignment. Intentions may be differently defined by clients, but the ulterior motive could be hidden by them. We must gauge the motive part. Simple Competitive Business Intelligence about a competitor may not pose ethical problems but methodologies must not become espionage tools which are extra-legal or even illegal in operational mode. Then again the end use of intelligence so gathered should be the deciding factor in accepting an assignment to probe rival camps of the clients.

ETHICAL ISSUES IN PERSONAL INVESTIGATION

On the face of it, personal investigation appears simple and logical. In reality these are complicated issues to be handled with a lot of caution. Ethical issues involved for professional investigators vis-à-vis, ethical issues of the private client have altogether different values in intent and purpose. The first and foremost important consideration before accepting an assignment should be the status/ locus-standi or position of the client. Particularly so in the matter of pre and post matrimonial investigation. A client can always pose as the relative (guardian, husband, wife or even offspring) of the subject whose conduct, character, lifestyle is to be probed. Professional Investigator must ascertain the identity of the client himself and his relationship (past, present or future) with the subject of probe. Jilted lovers, criminals, and such like persons generally assume false identity of a concerned relative and hire investigative services to use the information for arm-twisting, blackmailing and extortion of the subjects . The second step before accepting the assignment should be to procure a letter of request or authority from the client to conduct a probe. Particularly so in the matter of probes to be conducted concerning ladies. The laws of stalking, outraging the modesty of women , molesting etc. are very strict and an investigator can become a suspect/ accomplice or an offender himself. There also is the moral duty of an investigator not to be instrumental in furtherance of criminal designs of an imposter client. 

In fact all personal investigations must be weighed with regard to their end use by the client. There could be a large number of ethical issues which need to be addressed by Professional Investigators. Wisdom should be used to exercise care and caution. We are experts and not mere service providers. Expertise also includes ethics as a necessary trait to be practiced. Profession in all its connotations is, a “vocation that involves some branch of advanced learning or science.” A professional is one who “is engaged in a specified activity as one’s main paid occupation.” And Professionalism means “the qualities or typical features of a profession specially competence.” Thus a professional must be competent to pursue a specified activity. And the activity we are concerned about is “investigation” which is systematic inquiry or search to arrive at the truth of the matter under examination. And ethical practise is an essential ingredient of any profession.

GUIDELINES FOR ETHICAL CONDUCT

It is the singular responsibility of an Investigator to maintain the integrity and the trust of the Private Investigation profession. In discharging this responsibility, the Professional Investigator must:-

1. Perform professional duties in accordance with the highest moral principles;

2. Direct concerted effort to support, advance and elevate personal and professional conduct;

3. Conduct the business in an upright and legitimate manner;

4. Remain faithful towards clients by determining true facts and submitting unbiased reports;

5. Ensure that all employees and support systems must work within four corners of Law;

6. Respect the right of fellow professionals without intruding or poaching their territory;

7. Report any unethical conduct  or unlawful activity of own employees and other professionals to appropriate disciplinary authority;

8. Remain true to the society, country and the profession without double crossing any;

9. Restrain from cornering limelight for personal or professional gain;

10. Support the Law enforcement agencies by rendering services in rightful manner;

11. Support Criminal and Victim Justice system by rendering honest services to ensure dispensation of justice;

12. Raise educational and training standards of fellow professionals to render expert services;

13. Observe precepts of truth, accuracy and prudence;

14. Establish a mutual feeling of trust, goodwill and friendship among fellow professionals;

15. Endeavour to win total confidence of society and Government and thereby earn favorable legislation and empowerment; and

16. Ascertain true identity of a client before accepting any assignment.