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Home Affairs Committee - Minutes of EvidenceHC 100
Taken before the Home Affairs Committee
on Tuesday 7 February 2012
Keith Vaz (Chair)
Mr James Clappison
Mr David Winnick
Examination of Witness
Witness: Christopher Graham, Information Commissioner, gave evidence.
Q1 Chair: Could I call the Committee to order and ask everyone to settle down? This is the Committee’s first session in our inquiry into the regulation of private investigators. I refer everyone present to the Register of Members’ Interests, where the interests of all Members of this Committee are noted, and I welcome the Information Commissioner as our first witness. Thank you very much for coming in. You have read our terms of reference in respect of this inquiry. We have asked you to come because, of course, part of the regulation is already done by you in terms of data management.
Christopher Graham: Indeed.
Q2 Chair: In your written evidence to this inquiry, Commissioner, you state that there are relatively few examples of complaints against private investigators. Why is that?
Christopher Graham: Perhaps I could begin, Chairman, by agreeing with you that the Information Commissioner regulates part of the private investigator scene, but only part of it, and perhaps I could just explain. Of course, we enforce the Data Protection Act, and that is a very important aspect of the work that private investigators undertake. I should make it clear that we do not regulate private investigators as such. We regulate some of what all private investigators do and we are concerned about what some private investigators get up to.
But, as we stated in our evidence, despite the fact that we get thousands of complaints each year about breaches of the Data Protection Act, those involving private investigators are relatively few. I have some investigations in train at the moment, although I will not be specific because I do not want to compromise the investigation. For example, prosecutions for section 55 breaches-unlawful obtaining of personal information-have in the past involved some private investigators, but the most recent cases have involved individual members of staff who have misbehaved and have been accessing information that they should not access or selling information.
Q3 Chair: Yes. If you would give us a figure-it is obviously an estimate, but how many private investigators do you think there are?
Christopher Graham: The only figure I could give would be those who are notified with the Information Commissioner and who have said that they are notifying an investigatory process. I would estimate that figure to be around 2,000, but I might need to check back on that.
Q4 Chair: And actual complaints against those roughly 2,000 are very limited?
Christopher Graham: Very limited, but of course we have regulatory priorities and we have an information rights strategy. If the activities of private investigators were very high up on the radar, I would have prioritised them higher than I have. Our priorities are really around the financial services, the health sector and so on.
Q5 Chair: Of course, but do you think there ought to be regulation? Because you obviously only regulate a tiny part of this, those who register and those who are able to access data. I do not know whether you have been following the-
Christopher Graham: I am aware of the work of the Security Industry Authority and of the work of the various self-regulatory trade associations and selfregulatory bodies.
Chair: Sure, but do you think there ought to be statutory regulation?
Christopher Graham: I understood that was the direction of travel and it was simply a matter of time.
Chair: But what do you think? We understand that that is where-
Christopher Graham: It would greatly aid the work of the Information Commissioner if there were others labouring in this particular vineyard. We will look after the application of the Data Protection Act and we will deal particularly with breaches of section 55, the unlawful obtaining.
It would help us in our work, and I think it would give greater confidence to the public at large, if there was a comprehensive framework of regulation of private investigators. It is for others who are more intimately involved to comment on this, but the model surely would be the statutory regulator-the Security Industry Authority-as the backstop and an effective self-regulatory structure within that doing the day-to-day. Before I became Information Commissioner, my experience was as Director General of the Advertising Standards Authority, and that was the relationship we had with Ofcom for television and radio advertising. It is a system that works.
Q6 Chair: Indeed. We are not just looking at this issue because of what happened over the phone hacking, but that is one of the aspects of this matter that we will cover. In our report last June, we made reference to your office and we said that, "There should be additional powers for the Information Commissioner to deal with breaches of data protection, including phone hacking and blagging. Mobile phone companies should give greater prominence to security advice in the information provided to their customers". Do you know if any of those recommendations that we made, specifically in relation to your office, have been implemented? Have you been given any additional powers to deal with these breaches?
Christopher Graham: The particular point that I made before the Committee last year was that sections 77 and 78 of the Criminal Justice and Immigration Act, dealing with the blagging of information and the unlawful accessing of personal information, should be implemented so that a stronger and more deterrent penalty could be available to the courts. As you know, at the moment it is just a question of a fine. I wanted to have access to the full range of penalties, so that when a health service worker or a bank clerk goes rogue they are not simply facing a modest fine in the Magistrates Court, because they are of limited means, but they could face a community punishment of tagging or whatever. The more serious players would know they were facing the prospect of jail. I have to say with great regret that no progress has been made on this at all, and it is now rather stuck with the Leveson inquiry because it has been tied up with what the press have had to say.
Chairman, remember that the ICO has nothing to say about hacking, which is a breach of the Regulation of Investigatory Powers Act, but as your Committee pointed out last year, this report, long overdue; in 2006 my predecessor drew attention to the unlawful trade in personal information, specifically flagged what was going on with some private investigators and called on the Security Industry Authority-
Q7 Chair: That has not been acted on, so you feel it should be acted on?
Christopher Graham: There was quite a good response from the industry and in the second report, which we published later in the year, progress was reported, but it is really about putting in place the regime for licensing, recognising private investigators and accepting that a breach of section 55 of the Data Protection Act ought to be a disqualification from operating in the business. There were warm words, but we need to see progress being made in that direction.
Q8 Chair: Finally from me, on 26 January you told Lord Justice Leveson that thousands of people whose personal data was illegally targeted by Steve Whittamore, uncovered during Operation Motorman, will not be informed that their personal information had been used because your office has become overstretched and you did not have the resources to cope. This is pretty serious, isn’t it, if there are all these people out there-17,000odd?
Christopher Graham: I did not quite say that.
Chair: What did you say?
Christopher Graham: What I said was that there are 17,000 lines in the Motorman files.
Chair: Seventeen thousand what?
Christopher Graham: Seventeen thousand lines of information in the dossiers of the Motorman files. There are 4,000 surnames; I do not think I went into quite this detail with the inquiry, but there are 4,000-
Chair: No. But it is extremely helpful to the Committee.
Christopher Graham: Okay. There are 4,000 surnames within those dossiers. Those surnames may, of course, include multiple members of the same family and I cannot say that the same name does not appear in more than one of the four dossiers-there was one for News International, one for Associated, one for Trinity Mirror and so on.
Right from the first, individual citizens have been able to exercise their subject access rights under the Data Protection Act and they have been able to say to the Information Commissioner, "Do you have anything on me in the Motorman file?" We have had a number of applications. We have had lawyers acting for litigants in civil actions. There is access to that information under the Data Protection Act. But I realised that there was concern that I was not proactively alerting everybody.
Q9 Chair: Basically, you cannot do it because there are so many names?
Christopher Graham: Basically, I cannot do it for two reasons. One is that it is a breach of section 59 of the Data Protection Act for me, or any of my staff, to make available information we recover in the course of our investigations without lawful authority. A subject access request provides the lawful authority. A court order provides the lawful authority. What I have done, Chairman-
Q10 Chair: What is the second reason?
Christopher Graham: The second reason was that if, despite section 59, it was felt that I ought to be alerting all those 4,000 people, despite the fact that we do not have any addresses to go on, it is not clear who the 4,000 are, and so on and so on. If it was suggested that I should do that-and I said to the judge, "If that is a recommendation from your inquiry, of course, I will have to do that, but it would be a monumental task", but it is not the monumental task reason that is stopping me doing it.
Q11 Chair: No. But you have 4,000 surnames and you are not able to contact these people. But this matter has been going on since 2005, is that right?
Christopher Graham: Since 2003, when we raided Mr Whittamore’s office, so the information would relate to the period 1999 to 2003.
Chair: So for nine years, you have-
Christopher Graham: For nine years, individuals have been able to apply to the Information Commissioner and exercise their subject access rights under the Data Protection Act and that they have done. What I have done, because of the hue and cry, is to say we will put in place an arrangement, as we had for the construction industry database, of a fast track where you can email the Information Commissioner’s Office and say, "Am I in the Motorman files or am I not?" If you are not in the Motorman files, we can tell you straight away. If we say, "There is a name that looks a bit like you-could be. We will help you to make a subject access request and we will investigate it". But, Mr Chairman-
Q12 Chair: At the moment, how many people have actually emailed and who knows about this, apart from your evidence presented-
Christopher Graham: It is being announced today because I was responding to the Hacked Off campaign and to various parliamentarians.
Chair: You are announcing to this Committee today that you are going to take these steps?
Christopher Graham: I am announcing to the Committee today that I put in place a fasttrack system that enables anyone who believes they may be in the file to email my office, and there is information on our website to that effect with the address to email. We will then, as quickly as we can, give you a yes/no answer. In most cases, it will be, "No, we do not have anything", but if we have the slightest scintilla of a suggestion that your name might be in a file, we will then help you to make a proper subject access request to get all the details.
Q13 Chair: You do not feel that this should have been done nine years ago?
Christopher Graham: No. Because we have had lots of applications from individuals, and that is how we have been processing it.
Chair: Thank you. David Winnick and Mark Reckless on this point, and then we will move on.
Mr Winnick: Returning to earlier questions from the Chair-
Chair: Can I please take that in a second? Mr Reckless has a question
on this point.
Mr Winnick: Okay.
Q14 Mark Reckless: I understand the expense difficulty issue, but are you seriously saying you do not have lawful authority to tell an individual that that individual is on the file?
Christopher Graham: No. I do have lawful authority to respond to a subject access request, but to answer your question-
Mark Reckless: We are clear on that, but if you can see that someone is there, you know how to contact that person, are you seriously saying that there is something illegal about your contacting that person to tell them that they are in there?
Christopher Graham: Proactively, I could not do it for everybody. The frustrating thing is, if I could show you the dossier-your colleagues on the Culture, Media and Sport Committee sent their Chairman to have a look; I think he got the point. In effect, the dossiers are a series of notebooks noting down requests, in this case from newspapers, for information on particular individuals. It is pretty much written in code. You have a series of surnames. It is not absolutely clear who anybody is, so the idea that I should proactively have been alerting everybody is fanciful because-
Mark Reckless: Fanciful but not illegal?
Christopher Graham: Possibly both, but to get beyond fanciful-
Q15 Mark Reckless: How would it be made illegal by a judge saying in an inquiry report that it is okay to do it? Either it is illegal or not. It is a law made by this place, not by a judge in an inquiry report.
Christopher Graham: I have had court orders in relation to applications from litigants, in civil actions around hacking, who have been looking for evidence that journalists might have been interested in them, for whatever reason, and I have responded to the court orders. I have had subject access requests from individuals; I have responded to the subject access requests. If a judge in a statutory tribunal makes a recommendation that I should proactively inform everybody else, then I would take that as lawful authority. But I am just getting ahead of the game by saying-
Q16 Chair: Anyway, you have done it now?
Christopher Graham: Yes.
Q17 Mr Winnick: Mr Graham, you will accept, coming back to some of the earlier questions that the Chair put to you, that the areas covered by private investigators are pretty extensive and can be very sensitive?
Christopher Graham: Indeed.
Q18 Mr Winnick: What people must be surprised about is that anyone can undertake such activity regardless of-leaving aside skills or experience; that does not come into it, apparently-even criminality. Someone with a criminal conviction can become a private investigator without any difficulty whatever.
Christopher Graham: I am sure you are going to have to raise these issues with the Security Industry Authority and with the representatives of the industry who follow on next, but I agree with you that that is a concern.
Mr Winnick: A concern?
Christopher Graham: As the Information Commissioner, I am acting on individuals rather than the industry. I am dealing with individual behaviour, and where we have evidence of people breaching the Data Protection Act, that is what we investigate and act on. I keep coming back to the point that we raised right back in 2006 that, unless Parliament indicates that they regard the breach of people’s personal information, people’s privacy, as being sufficiently important to warrant more than a modest fine in the Magistrates Court, it is very difficult to send a message to the industry that they are operating in an area where the game is not worth the candle.
Q19 Michael Ellis: Mr Graham, is it your evidence to this Committee, from the information you have available to you and from your expertise, that the private investigating industry in this country is effectively out of control?
Christopher Graham: I do not think I can help the Committee in that respect. "Out of control" is a very dramatic way of saying "pretty unregulated". The only bit that I can speak of with authority is the data protection aspect, which does come within my sphere of influence. I am saying that we are doing what we can to deal with those members of the industry who are not sticking to any standard of good behaviour but, more to the point, are breaking the law.
Michael Ellis: So it is not properly controlled.
Christopher Graham: It is not an industry that is properly controlled.
Q20 Michael Ellis: As far as breaches are concerned, particularly with private investigators, I read from your written evidence that you come across two fundamental areas where there can be breaches-for example, breaching of the data protection principles and the use of bribery or deception in order to obtain personal information. Do you often see those sorts of malfeasance?
Christopher Graham: Yes. It is the difference between the civil offence, not processing data fairly, and if you are in the investigation business you are going to be notified as a data controller, you are going to be processing data, so if you are not sticking to those principles there is a civil breach of the Data Protection Act. Then also, if you are going round bribing to get information, you are breaching section 55 of the Data Protection Act, which is a criminal matter. Both are of concern to us. I do not want to overdramatise the situation and say that this is an area of mass trespass, but nevertheless both are serious breaches.
Q21 Michael Ellis: Section 55 of the Data Protection Act-what are the maximum penalties? You have referred to the fact that, usually, only fines tend to follow.
Christopher Graham: Under the law at the moment, section 55 of the Data Protection Act, it is a fineonly offence. In the Crown Court, it can be an unlimited fine; in the Magistrates Court, it is up to £5,000. Very rarely do we get cases into the Crown Court. In the Magistrates Court, although £5,000 is available, over the last year or so the run of play has been around £100 per count. That is simply because if a fine is prescribed, the magistrates have to take into account people’s ability to pay.
Q22 Michael Ellis: Yes. On the other hand, there will be well-publicised cases where, for example, police officers have misused information available on the Police National Computer. Then there are separate criminal sanctions in the case of people in a public office misconducting themselves, which are much more severe, are they not, and usually result in a custodial sentence?
Christopher Graham: They are. Misconduct in public office is a very serious offence with much more significant penalties. If your information goes missing from your bank or your mobile phone company or your doctor’s surgery, it has gone missing and your privacy has been breached, whoever has done it. If it is a health worker-I can think of the case of the Liverpool Hospital health worker who was simply trying to settle scores with her ex’s family and trying to recover their numbers after they had gone ex-directory to escape her, or the Bury NHS walkin centre nurse who was passing on accident details to her boyfriend who was working for a claims management company, or the Haywards Heath bank clerk spying, and so on. The details, I think, are familiar.
Michael Ellis: It often has a domestic flavour-
Christopher Graham: It has a domestic flavour. It is not about private investigators-nothing as exciting as that. It is just grubby and nasty. The point I have been making is that if all you are going to face is a fine of a few hundred pounds in the Magistrates Court, it does not send a very strong signal. It is not a very strong deterrent.
Q23 Michael Ellis: From recent media coverage, with the focus on hacking and the conduct of national newspapers and the like, one could be forgiven for forming a distinct impression that private investigators are often focusing on the instructions from national newspapers, but in fact that makes up a very small part of the industry. How much of a significant problem do you consider the element of bribery, corruption and illegality is generally within the industry?
Christopher Graham: The hacking issue, which is what got the Leveson inquiry started, does not come under my responsibility. It is about the Regulation of Investigatory Powers Act, so that is really nothing to do with the Information Commissioner’s Office. I observed to Lord Justice Leveson the week before last that, although there is plenty of evidence of breaches of section 55, it was not on my watch involving the newspapers. Similarly, it is not on my watch involving private investigators at the moment but, as I say, we have a number of cases in train.
Q24 Steve McCabe: Mr Graham, can I just check that I understood what you were telling the Committee earlier? Were you saying that a typical sanction for a breach of the data protection principles is a fine of about £100 in the Magistrates Court?
Christopher Graham: On the criminal offence of a section 55 breach-unauthorised obtaining or disclosure of information-the Magistrates Court is limited to a £5,000 fine. That is where these individual cases are going and it is not providing a very effective sanction.
On the breach of the data protection principles, the civil offence, I now have, since April 2010, some very effective deterrent powers in the form of a civil monetary penalty. It is a civil monetary penalty of up to £500,000. I have issued 10 of these.
The most recent was to the Midlothian Council; I am afraid I had to fine them £140,000. It is a record fine. Data protection in local government and in the health service is giving cause for great concern, but I am encouraged that the civil monetary penalty regime that I now have in place is sending a very strong message. I am supported by the Chief Executive of the NHS, Sir David Nicholson, and the Permanent Secretary of the Department for Communities and Local Government, Sir Bob Kerslake, who have both written with me joint letters to leaders in the health service and local government saying, "This is important. This is about privacy, this is about good management and please bear in mind that the Information Commissioner now has power to issue a civil monetary penalty of an awful lot of money".
Q25 Steve McCabe: Most of these sanctions that you will issue, are they likely to be against public bodies or public authorities?
Christopher Graham: A couple of examples have been in the private sector.
Q26 Steve McCabe: What size of fine did you level against them?
Christopher Graham: Of course, the fine is determined by the nature of the offence. In one case, we were dealing with a bankrupt solicitor, so the fine was a token. Another very early case was the training organisation A4e, who were being cavalier with information about some quite vulnerable people.
Q27 Steve McCabe: I am drawing the distinction because when you level a very hefty fine against Midlothian you are actually levelling it against the council taxpayers, aren’t you? I am just trying to understand how effective this sanction is because it has a different impact if it is applied to an individual or a private company as opposed to a public authority. Can I ask about the situation where personal information is obtained by bribery or deception? What is the sanction in those circumstances?
Christopher Graham: In the case of bribery, it might well be a question of misconduct in public office and, of course, there is also the Bribery Act. In the case of trickery or misrepresentation, you are back to section 55 of the Data Protection Act. We need an even-handed approach to both the civil and the criminal offence. I have the effective power to deal with the serious breach of the data protection principles. I note your point that you think the private sector is getting off lightly, but let us follow the cases and the evidence and see where we go. What I would like is a similarly effective sanction to deal with the criminal offence and then I will be in a good position to enforce the Data Protection Act.
Q28 Steve McCabe: Can I just pursue this point some more? In evidence to this Committee, what you are saying is that the criminal sanction is nowhere near tough enough and you are telling the Committee that you think that that needs to be toughened up?
Christopher Graham: Absolutely nowhere near tough enough, and it is a disappointment to me that last year your Committee in its recommendation regretted that the 2006 Information Commissioner’s report-What Price Privacy?-had not been better attended to, despite your recommendation. I have no evidence of any will in Government to get on and commence section 77 and 78 of the Criminal Justice and Immigration Act and introduce those more effective penalties. The excuse now being given is that this is all a matter for Lord Justice Leveson, when the whole burden of my song is that there is precious little evidence that this has much to do with the press these days.
Chair: That is very helpful and certainly we will bear that in mind when we come to our recommendations. We do review previous recommendations, and if they are not acted on we write to the Home Secretary about it, so thank you for that.
Q29 Mark Reckless: For a section 55 offence, what type of criminal sanctions should be available in your view?
Christopher Graham: Sections 77 and 78 recommended the availability of a custodial sentence, and again I think from memory it was up to six months in the Magistrates Court and up to two years in the Crown Court. I cannot imagine that many people are going to go to prison, but if it simply says "fine only" in the legislation, then it does not open up all the other potential deterrent sentences that could apply to the smaller fry.
If you do not think that people’s private information matters very much and that the worst you are going to get is a few hundred pounds in the Magistrates Court if you are caught, it must be very tempting for low-paid workers in the health service or in mobile phone companies to do a bit of business. If there is some eager private investigator pressing them, then one can understand why things might go missing.
We look to Parliament to say, "We are now in the 21st century, an information society, and keeping information secure is really important. All the things that we want to do about open data, about data sharing, depend on people having confidence that the information that they give to the authorities will stay secure, so we are going to put our money where our mouth is and say that a range of penalties need to be available, not just a modest fine".
Q30 Mark Reckless: You look to Parliament. Would you welcome it if, firstly, we legislated to make at least community sentences available for the breach you describe, and secondly, took a greater oversight in the Sentencing Council in terms of the application of the level of the fine and community service, as it might be?
Christopher Graham: I think the Sentencing Council has been contacted by the Ministry of Justice, and Lord Justice Leveson happens to be the Chairman of the Sentencing Council. What he said, when I was giving evidence the other day, was, "Not much of an incentive for the Sentencing Council to express a view about these matters if the law may be about to change". I thought that was an invitation to Government to commence sections 77 and 78 and then the Sentencing Council would give appropriate advice to the courts. What is required is a ministerial order, and if this Committee wants to support the Justice Committee, who made that recommendation in their most recent report1 at the back end of last year, then that would be very welcome.
Q31 Alun Michael: You talked a bit there about higher penalties for those who disclose the information, and I understand that that is at the heart of your responsibilities. But can we look at those who put temptation in their way and who may act in a variety of different ways that have nothing to do just with data protection? Do you think that selfregulation has any place in regulating private investigators or do you think that is simply a non-starter?
Christopher Graham: I do not think it would be just self-regulation because if it is simply a coalition of the willing, if the trade association says to somebody, "You are not playing by the rules. You cannot be a member of our club anymore", does that have any impact if you can simply continue without being a member of that organisation? I accept that being a member of a reputable trade body probably helps bring in the business. I think that the best arrangement is an effective self-regulatory system sitting within the context of statutory regulation. The statutory regulator, who in this case would be the SIA, will be the longstop and the self-regulatory body would do a lot of the day-to-day work. That is a model that I have seen work elsewhere.
Alun Michael: Sorry, that is the SIA?
Christopher Graham: Yes, the Security Industry Authority.
Q32 Alun Michael: Yes. You are talking about the existing authority, as statute already allows, having its role extended?
Christopher Graham: This is not an area that I am greatly expert in and I am sure you will be taking evidence from the SIA, but my understanding was that the power is there to be exercised and it is just a question of getting round to it. We ought to bear in mind that the SIA itself was well on the bonfire of quangos at one stage, so it is not surprising if this has not got that far down this particular route.
As a regulator, I would say one is greatly aided if an industry organises itself so that it is delivering high standards within a regulatory framework. If you leave everything to the regulator, the chances are that the regulator will not prioritise a particular activity. When I was Director General of the Advertising Standards Authority, I used to get very frustrated with the Office of Fair Trading because they had longstop powers under the Control of Misleading Advertisements Regulations. The ASA would find against some low-cost airline. The lowcost airline would not be very interested in taking any notice of what we had to say. I would then refer it to the Office of Fair Trading. It took a lot of persuading of the OFT to get on and do something about that case. If it had just been left to the OFT, nothing would have happened.
Q33 Alun Michael: You are saying basically that there must be a statutory requirement, whether it is the existing body or a different body, for it to act in specific ways, otherwise it will not do it?
Christopher Graham: You have a statutory framework, an effective selfregulatory system that operates within that framework, but I am saying that if you simply leave it to statute the chances are that the day-to-day will not get done. If you simply leave it to selfregulation, the chances are that the bad boys will not take any notice. The combination of the two is very powerful.
Q34 Mark Reckless: Surely there is an in between. You say self-regulation or statutory regulation, but isn’t what is required for the regulator in this area, the OFT, to report to a Select Committee of Parliament, for its boss to be approved by that Committee and for its budget to be approved by that Committee? In that way, you put this sort of evidence in public and there is proper public oversight of these regulators.
Christopher Graham: I am not suggesting that the Office of Fair Trading were not doing their job. They had many responsibilities and these days, of course, resources are more and more constrained. If you work with the grain of an industry that wants to get things right, then a lot of the heavy lifting and the day-to-day can be done by the selfregulatory system. But you need to have that power in reserve, that big stick in the cupboard. I think it is called co-regulation. That is really quite a good way of delivering outcomes for consumers.
Q35 Michael Ellis: Mr Graham, I know you are a regulator. You seem to be calling for more regulation, which is perhaps not surprising, but what I want to ask you is this. I have noticed that you have referred to the fact that you feel if the sentences were increased people who breached these regulations would think twice before doing so. Is that your position?
Christopher Graham: Yes. That is the theory of deterrent penalties, isn’t it?
Q36 Michael Ellis: Is it your view that people will always consider the possible penalties before they commit an offence?
Christopher Graham: I see where you are heading. My feeling is that the seriousness of breaches of privacy and the mishandling of personal data need to be higher up everyone’s radar. One of the ways of getting that message across to everyone who has responsibility for personal information is, "Parliament takes this seriously, so should you". One of the ways in which you send that message is to say, "This is the sort of thing that can get you sent to prison". Then people sit up and take notice.
People still-in extremis, in difficult positions-will do silly things, and they will have to take the consequences for their actions. But at the moment it is just not taken seriously enough by staff, by managers, that personal information is not just a commodity to do what you like with. You must respect your customers and your consumers and citizens, and if you do not, the consequences are serious.
Chair: Thank you very much-very clear and most helpful.
Q37 Lorraine Fullbrook: Commissioner, I would like to ask you about the written evidence that you have given to the Committee, in which you say, "Even legitimate private investigators may find it hard to carry out their work lawfully, given the Data Protection Act’s general prohibition of the covert collection of personal information". Given that, do you think there is the correct balance in the Data Protection Act between protecting an individual and allowing legitimate data-gathering?
Christopher Graham: The whole framework of data protection law is up for debate at the moment because the European Commissioner, Mrs Reding, published her proposals for a new regulation very recently. There will be great debates about how this should go forward.
I feel there is a much greater threat from the illegitimate access to personal information at the moment than there is concern about lawful activities not going as well as they might because of the protection that the citizen has.
There is a way into information for dealing with crime, for example, but there is not that same protection for being able to deal with, for example, the recovery of civil debt. I can understand why there might be pressure for reputable private investigators to have greater access. I do not see how that greater access could be afforded without less protection for personal information where it really ought to be protected. I would have much greater confidence that one could go down the route of letting more people have access to more information if I felt that we were better organised to protect what really ought to be kept protected.
Q38 Lorraine Fullbrook: I take it that you believe that it is skewed against the individual, so what amendments to the Data Protection Act do you think-
Christopher Graham: It is skewed in favour of the individual.
Lorraine Fullbrook: Against the protection of the individual?
Christopher Graham: It does not help a private investigator working for a financial services company, trying to find out where somebody who has run off without paying their debts has gone, and I can quite see that people might express some frustration at that point. What I am saying is that we are not good enough at protecting personal information that should be protected, and until we are better at that I am not inclined to see any relaxation. There are lots of perfectly legitimate ways for investigators to get information without going down the dark alleyways of misbehaviour.
Q39 Lorraine Fullbrook: Do you think the Data Protection Act would need to be amended to give more protection to an individual’s information?
Christopher Graham: The Data Protection Act is going to be amended anyway in a few years’ time because the regulation is changing the framework. It may be that in the debates that will be taking place in the Council of Ministers, with members of the European Parliament and then ultimately back here at Westminster, the point that is put forward can be taken on board. It is not a priority for me at all.
Q40 Chair: You mentioned the dark alleyways that seem to be a feature of this area of work. Do you think that if there is proper regulation the dark alleyways will cease, this will cease to be a shadowy group of people doing all kinds of work and it will come out into the open?
Christopher Graham: Professional investigators should work in the light. The dark alleyways will always be dark; you do not always have to go down there. With a proper balance between a good system, a good framework of statutory regulation, effective selfregulation by an industry that wants to clean up its act and with the Information Commissioner having appropriate powers to deal with breaches of data protection law, we should be in a fairly good place.
Q41 Chair: Just remind the Committee, what did you fine the Midlothian Council for? What was the fine for? What did they do wrong?
Christopher Graham: The Midlothian Council was the latest in a run of problems involving, I think, the social work department and child protection. I do not remember the exact details of the case. People throw their hands up in horror and say, "This is terrible, you are taking money off local authorities". I should stress that-
Chair: Mr McCabe was just making the point that, at the end of the day, it was not the officers who paid, but the council tax payers.
Christopher Graham: Yes. The council tax payers would do well to get their local authorities to start paying attention.
Chair: Of course. Sorry, what did they do exactly? They used personal information inappropriately?
Christopher Graham: It is the usual business of emails being sent to the wrong people or faxes being sent to the wrong number or bits of a report being stuck in the wrong envelope. We do not issue civil monetary penalties just because there has been a mistake. It has to be that there is inadequate management; there is a pattern of behaviour; and the same thing has happened within a year of the last incident. I have five undertakings from local authorities this week. They do not involve civil monetary penalties, but they are breaches of the Data Protection Act.
Q42 Chair: In respect of the documents that you have and the announcement that you have made to this Committee this morning, how long do you think that process will take? Obviously, it depends on how many people email you. Given the publicity around phone hacking and these issues, you might get several hundred thousand people thinking that their personal information has been used in some way. Are you prepared for the deluge? I am sure every Member of this Committee will be sending you an email today; I certainly will.
Christopher Graham: Right, well, we will have a look and see. This is just one of the points that I was making before the Leveson inquiry-that regulators have to pick their battles and prioritise. I suppose I am reasonably confident that, although I will get a lot of emails, particularly from campaigners who are making a point, the access has been there all along. We have assisted those people who are concerned and we will do what we can. It may, of course, have an impact on other areas of our work.
Q43 Chair: Of course. I understand that the Culture, Media and Sport Committee has seen these documents. Is it possible for you to send, in a private and confidential manner, an extract to show the Committee exactly what you mean about the complication in this matter being dealt with quickly? We do not need actual names of people, but it would be good for the Committee-to inform us. We will not publish it.
Christopher Graham: I can send you the same illustration, which involved a lot of redaction, which I provided to the Culture, Media and Sport Committee. Mr Whittingdale paid a visit to Wilmslow to look at the books. Chairman, if you would like to do that, we would be delighted to facilitate that.
Mr Winnick: He would like to do that.
Chair: I will consider it, but if you could send us the redacted version first, that would be very helpful.
Christopher Graham: I will be delighted to.
Chair: A last quick point from Mr Reckless-very quick, please.
Q44 Mark Reckless: A very quick question on another matter, Mr Graham. Private CCTV systems. I have written to you about a number of constituency cases where a private system appears to be being used-several cameras-to intimidate a neighbour, focused entirely on a neighbouring property, filming them 24/7 in the most intrusive way. You quite rightly said that you do not have any powers in this area and it is a matter for Parliament, but just now you have given us recommendations on a lot of different areas as to what Parliament might like to do. Do you think this area of private CCTV systems is one where there is a need for greater oversight?
Christopher Graham: There is a lot of work going on under the Protection of Freedoms Bill with consideration for a more appropriate regime for CCTV. At the moment it is concerned with public CCTV, but there is going to be a CCTV commissioner appointed. I would certainly be very ready to discuss with that commissioner how we ought to act jointly to deal with closed circuit television, because the very business of recording images is processing personal information.
Chair: Commissioner, thank you so much for coming in. As always, you have been extremely helpful with the Committee. We may write to you on other issues because we are just starting today. You are our first star witness, so please be aware that we might come back to you.
Christopher Graham: Indeed.
Chair: Thank you very much.
Examination of Witnesses
Witnesses: Tony Imossi, President, Association of British Investigators, Ian Hopkins, Board Member and past President, Institute of Professional Investigators, and Ian Withers, Governing Council Member, World Association of Professional Investigators, gave evidence.
Q45 Chair: Mr Imossi, Mr Hopkins and Mr Withers, you have heard the evidence that has been given by the Commissioner. I thank you all for coming to the Committee today. The fact that you are all together appearing on one panel does not mean that the Committee believes that you agree with everything each other says on these issues. It is common practice in an inquiry of this kind to get different groups together and we will ask you questions. It is more difficult with a panel of three with independent views, but I would be grateful if you could keep your answers as succinct as possible. Hopefully, our questions will be equally succinct.
Between you all, you represent the Association of British Investigators, the Institute of Professional Investigators and the World Association of Professional Investigators. That is quite a big remit. Perhaps I should put this question to each one of you. What are your estimates as to the number of private investigators currently operating in the UK? Mr Withers?
Ian Withers: I believe that it is approximately 5,000. This is based on the estimate put out some 10 years ago now by the Security Industry Authority and the Home Office implementation team at the time.
Chair: Mr Hopkins?
Ian Hopkins: I would go slightly higher than that, Mr Chairman. I would say between 5,000 and 10,000. Sorry to interrupt, it depends whether you include in-house investigators.
Chair: If you include in-house investigators, what would it be?
Ian Hopkins: Nearer the 10,000.
Chair: Mr Imossi?
Tony Imossi: Yes, Mr Chairman, I would agree with Mr Hopkins that if you include inhouse it would be nearer the 10,000 mark. But I would emphasise that I did obtain the details from the Information Commissioner’s Office under the Freedom of Information Act, which revealed that there are, in fact, 2,000 data controllers registered under the Data Protection Act. It would be my submission that if somebody who practises investigation is not notified under the Information Commissioner’s powers, then really they would be irrelevant to the outcome of regulation.
Q46 Chair: What is it about the industry that causes the Information Commissioner to use the phrase "going down dark alleyways"-the shadowy nature of private investigators? Mr Withers, what has gone wrong with your industry?
Ian Withers: I am not really sure that anything has gone wrong. The situation is that in 2001 the PSIA was brought into law. That is controlled in legislation. It was up to Government, through the SIA, to implement the part that affected private investigators. They have chosen not to do so, but the reality is that we have been clearly defined under the Act. The definition of what we do as licensable activities has been clearly specified. It is just a simple matter of creating a facility to start the regulation.
Q47 Chair: It is a matter of implementation. If the implementation was done, then the shadowy nature of private investigators would be lifted?
Ian Withers: Yes. From the public perspective, the biggest issue is who they go to if they feel that they have been wronged. If you have regulation, you have a regulator that you can file a complaint with and have it dealt with.
Chair: Mr Hopkins?
Ian Hopkins: I believe that the Act should have been implemented a lot earlier than it was, and I believe the problem was that there were more public concerns about people like wheel clampers, door bouncers and door supervisors. I do not perceive that there was a problem with investigators prior to the phone hacking scandal that has hit us over the last few months. Some 99.9% of investigators that I have worked with and know-I have been doing it for a long time-are quite genuine people who, if they need information, go the legal way to obtain it.
Chair: Mr Imossi, do you agree with Mr Hopkins and Mr Withers? Should this have been implemented?
Tony Imossi: Yes, I do, sir, but I do not agree that there was nothing wrong. Very much something has been wrong with the industry-always has been-and until statutory regulation is implemented, it will not even begin to start to address the problems. But it is-
Q48 Chair: What is wrong with the industry? This is your own industry that you are talking about?
Tony Imossi: The private investigation industry-well, the matters that have come to the surface over the past nine months are an exposé of exactly what has been wrong with the industry. I am a bit surprised to hear my friends here trying to convince you otherwise. It is very clear, I would submit, that statutory regulation will not go far enough to cure the problem. It does require that framework with an additional policing and regulatory facility in selfregulation.
This is a very unfortunate state of affairs that we are in because the Act did pass over 10 years ago and it should have been implemented. What is going to happen now, I think, is inevitable, and it is the SIA’s plan to introduce licensing of businesses with a registration scheme for the individuals. The SIA have given the assurance that there is not going to be any watering down of the fit and proper criteria or the competency criteria but, of course, the licensing of the businesses will introduce far greater financial probity and accountability to those that really matter, i.e. those that-
Q49 Chair: We will come to that in further questions. That is very helpful. One final question from me is about the number of retired police officers who work as private investigators-indeed, there are examples of serving police officers who also work with authority as private investigators, and those who work without people knowing that they are private investigators. Mr Withers, is this a big issue?
Ian Withers: I do not believe it is at all.
Q50 Chair: What percentage of the industry are former police officers?
Ian Withers: I would say probably 50%-plus are former police officers and have retired quite properly and gone into the private sector.
Q51 Chair: You have no examples of police officers acting as private investigators while they are still serving?
Ian Withers: No, absolutely not. I have never come across anyone.
Q52 Chair: You know of no cases where police officers have been paid in order to act for private investigators?
Ian Withers: Absolutely not.
Q53 Chair: None. Mr Hopkins, you are a retired police officer.
Ian Hopkins: I am.
Chair: Having served for many years at the Met?
Ian Hopkins: I am.
Chair: You are an example of what appears to be a seamless-
Ian Hopkins: It was seamless. I had a particular expertise. I worked in the City of London Metropolitan Fraud Squad in the Met, and I just carried on doing what I was doing, but in the private sector. It was very seamless.
Q54 Chair: Would you agree with the percentage of about 50%?
Ian Hopkins: I would say slightly higher than 50%, yes.
Chair: What would you put it at?
Ian Hopkins: Probably 60% or 65% are retired police officers.
Q55 Chair: Do you think it would give police officers an unfair advantage because obviously they still would have mates in the force?
Ian Hopkins: Obviously, we still have mates in the force, but no, it does not give us an unfair advantage because they would be absolutely stupid to be supplying us with any information that was covered by the Data Protection Act.
Q56 Chair: You know of no examples where this has happened?
Ian Hopkins: None whatever, Mr Chairman.
Q57 Chair: Mr Imossi, you are not a former police officer?
Tony Imossi: No, I am not, sir, but we have undertaken research within our own organisation now. We are an organisation of circa 500 members and our research reveals that 40% of our members are former police officers.
Q58 Chair: You see no problem with this? You do not think it gives anyone an unfair advantage?
Tony Imossi: Not at all, sir. However, you could look at other areas-for example, former Works and Pensions officers who suddenly move into the private sector as investigators. If that individual working as a private investigator requires access to data in a legitimate scenario and he presents his former colleagues within that Government body a properly addressed request for data, quoting the exemptions under the Data Protection Act, two buddies might look more favourably towards each other’s correspondence. My experience, whenever I present a request for access to information quoting the exemptions, is that it falls on deaf ears.
Chair: Very interesting. My colleagues are going to put questions to you. Please feel free, each one of you, to comment, but because we are time limited I would be grateful for brief answers.
Q59 Michael Ellis: Gentlemen, how representative of the industry are your organisations? Together, what percentage would you say you represent of private investigators?
Chair: Mr Imossi, do you want to start?
Tony Imossi: Yes. There is no reliable information that indicates exactly how many people there are out there practising as investigators. There is no requirement to register. The only requirement there is is to be notified under the Data Protection Act with the Information Commissioner and, as you have heard, the number is around 2,000 agencies. If the estimates are correct it could be 10,000, it could be 20,000; we simply do not know.
Q60 Michael Ellis: So the unscrupulous ones are unlikely to register with any of your organisations?
Tony Imossi: No, they-
Q61 Michael Ellis: They do not have to?
Tony Imossi: They do not have to. By necessity, they will not belong to a professional body, because they do not want to be accountable.
Q62 Michael Ellis: You have been asked about police officers working within your organisations or within the organisations that you represent. What about the other end of the extreme-what about people with criminal convictions? Do you think it is right and proper that people with previous criminal convictions should be working as private investigators or do you think that is something that could be regulated?
Ian Hopkins: It could be, Mr Ellis, but in the Institute of Professional Investigators, when someone applies for membership, we do a CRB check on them. If they have a criminal conviction, then they will not be allowed.
Q63 Michael Ellis: You do not allow them?
Tony Imossi: We don’t allow them. We implemented the requirement to produce a criminal conviction certificate, which is basic disclosure, which is in fact all we are entitled to ask because we are not an exempt occupation. So we are not permitted to seek CRB standard disclosure, as Mr Hopkins suggests, but certainly it is part of our entry or procedure that we have a criminal certificate conviction submitted. It is not a zero tolerance. We follow the guidelines set by the Security Industry Authority in assessing the relevancy of anything that it should show.
Q64 Michael Ellis: I noticed that the Information Commissioner said on a couple of occasions that there are perfectly lawful means by which private investigators can obtain information without having to resort to the dark alleys and the like. Would you agree with that, or would you say that there are areas where you are finding it very difficult to legitimately inquire after insurance fraudsters or benefit fraudsters, or whatever else the investigators may be looking into? Do they reach brick walls, because they cannot legitimately pursue an investigation?
Q65 Chair: Before you answer that, Mr Withers, could you answer Mr Ellis’ last question about your organisation and criminal convictions?
Ian Withers: Yes, indeed. There are two angles to the question. The first one is that the Act itself-the PSIA-has already determined and set into law the fact that criminality is subject to recency and relevancy as to whether or not a licence would be granted to an applicant had they brought it into play. As far as our organisation is concerned, we do not at this stage conduct a CRB or require it, because when we started as an organisation it was assumed that the SIA would bring in licensing and they would therefore determine who was going to get a licence or not. Our requirement was that they had to have a licence once the SIA started to operate.
Chair: Thank you.
Ian Withers: Thank you, Chairman.
Q66 Michael Ellis: What about the other point that I was asking about, gentlemen-the dark alleys and whether you think there are areas down which private investigators cannot go?
Ian Hopkins: You have a split here, Mr Ellis, between criminal and civil procedure. Under the criminal law, yes, there are alleyways that you can go down, under section 28 of the Criminal Justice Act, to obtain information. The difficulty comes on the civil side, where you can apply for a Freedom of Information Act or, unless you get a High Court order, you are struggling, because a lot of people will not respond to your requests.
Q67 Michael Ellis: Just to conclude my questions, do either of you two wish to answer that point in your own ways?
Tony Imossi: Yes. In October 2010, I submitted evidence to the Ministry of Justice call for evidence on the current data protection legislation framework and I gave several examples of where this problem lies. I gave real life case studies where requests for information held by data controllers were made, submitted quite legitimately-but again, it just hit a blank wall. What I was demonstrating there was the temptation for a client to go to the less scrupulous agency that offers these services and adopt some of these dark-alleyway tactics that the Information Commissioner refers to.
Michael Ellis: Thank you. Mr Withers, briefly?
Ian Withers: I think there are great difficulties in terms of conducting lawful investigations where you are proscribed from accessing information legally, and you literally have to provide a negative report to your clients, which can to a large extent frustrate due process.
Q68 Chair: In answer to my question, none of you said that you knew of any cases of leaked information being passed from the police to private investigators. Have all of you read the document What Price Privacy? You have. You did not see in there any reference to private investigators paying police officers?
Ian Withers: Yes, I did, Mr Chairman. From our perspective, it should be quite clear that those people that have accessed and obtained information are generally referred to within the industry as "information brokers". They are not regarded the same way as private investigators, although it may well have been that private investigators would use an information broker to obtain information.
Q69 Chair:What is the difference between an information broker and a private investigator?
Ian Withers: The information broker is a person who obtains information, legally or illegally, for sale.
Q70 Lorraine Fullbrook: Does that mean you get somebody else to do your dirty work?
Ian Withers: It does not mean that at all. What it means to say is that those sorts of people are available out there and become more underground and will be available to those people that do choose to go that route.
Q71 Lorraine Fullbrook: But you would use their information?
Ian Withers: No, as a company we certainly would not. I merely pointed out that these people exist-
Chair: They exist.
Ian Withers: -and to distinguish between the private investigator and those people who obtain information such as the Chairman has referred to.
Q72 Chair:Mr Imossi, do you know about these information brokers? Do they have their own little organisation representing them or are they lone wolves?
Tony Imossi: The evidence that we saw in Leveson, What Price Privacy, indicates that it was an industry designed by and for the media. They are not people who have the methodology skills to investigate, per se. They simply steal information and sell it on. They may as well call them burglars.
Chair: Mr Hopkins?
Ian Hopkins: The one point I would make, Mr Chairman, is that if you are doing a serious investigation, there is no point in obtaining illegal information, because you cannot use it in evidence. It would be discarded and it would be a total and utter waste of time.
Q73 Mark Reckless: You say you cannot use illegal information, but we are hearing just now about this general prohibition on covert information gathering. What impact does that have on your business from the information-
Ian Hopkins: Covert cameras, are you talking about?
Q74 Mark Reckless: I am talking about the reference we had from the Information Commissioner just now to there being a general prohibition on covert information gathering.
Ian Hopkins: Information is gathered covertly, but not necessarily illegally.
Chair: Mr Imossi, do you agree with that?
Tony Imossi: I think the Information Commissioner was talking about another area, another problem. I do not think he was specifically intending to refer to legitimate investigations.
Q75 Mark Reckless: If, as he says, there is a general prohibition on covert information gathering, surely that handicaps your business-or was he wrong on that?
Tony Imossi: No. He is not wrong in saying that, making reference to it, but there is no crossover to what professional investigators do. That is not what we are about.
Chair: Mr Withers, anything to add?
Ian Withers: No, sir. I think it has been well covered.
Chair: You all agree on something.
Q76 Mark Reckless: Could you describe to the Committee where is the resistance coming from to a regulatory regime for private investigators?
Ian Withers: The Government.
Mark Reckless: The Government?
Ian Withers: Absolutely.
Q77 Mark Reckless: Not from private investigators themselves?
Tony Imossi: No, sir. The SIA have explained that the reason why it never came about before the change of politics was that they did not have the confidence that the training structure was in place to enable the operatives to reach the qualification. I do not necessarily agree with that view, but that was the view that was taken; secondly, that more consultation was required.
Now they have stepped back from that. In the aftermath of the change, the politics and the economics of everything, they have put forward this two-tier regulatory plan of licensing the businesses and registering the individuals. The proposal put forward by the Association of British Investigators is for there to be a twin-track system, where we have statutory regulation with an overridingly more professional, more policing, self-regulatory body. We have proposed a chartered institute of investigators, if we manage to achieve the collective application for a chartered status.
Q78 Mark Reckless: Are you telling us that all private investigators would positively welcome regulation?
Tony Imossi: It depends how you define "private investigators". Professional investigators-the type of people who my members certainly are-all welcome some form of regulatory control; it would be a nonsense not to. But there are people out there who have been grouped within the wider perception of what private investigators do or who they are, who I am sure would run a mile away from any form of scrutiny that regulation would bring.
Chair: Thank you, Mr Imossi.
Q79 Mr Winnick: Mr Withers, I wonder if I could ask you about your organisation. You describe it as "The World Association of Professional Investigators"; it rather gives the impression of the United Nations. I mean, "World"-how many countries?
Ian Withers: Our members would cover probably around 40 countries-predominantly Europe, the far eastern states and a few in Australia.
Q80 Mr Winnick: So it is an ongoing bona fide organisation?
Ian Withers: Yes, absolutely. The members, where there is licensing, are all licensed. Contrary to perhaps common belief, the investigation business has become exceedingly international. It has become very European for the last number of years, and there is a considerable amount of work backwards and forwards between other countries and the UK and the UK and other countries.
Q81 Mr Winnick: In your memo, Mr Withers, you were perfectly frank about your past and you told us of convictions that occurred.
Ian Withers: Yes.
Q82 Mr Winnick: As I say, you have been perfectly frank and I have read this with interest. Presumably, you do not-otherwise you would not be involved-feel that what occurred should disqualify you from the work that you undertake?
Ian Withers: I do not believe so, sir. The convictions that you refer to unfortunately were obtained during the course of me doing perhaps more than I should for clients. That was indeed the case.
Mr Winnick: You describe it as, "A combination of youthful determination to provide successful results".
Ian Withers: Indeed, indeed. This was in my twenties and 50 years ago. This is my 52nd year as a practising private investigator. In the 1960s, we did not have data protection, we did not have human rights, we did not have lots of legislation and restrictions that are now accepted as the norm. When a client came along, if the job seemed genuine, the client was genuine, we did our very best to achieve a result. Perhaps over-exuberance led to what we see.
Q83 Mr Winnick: You would say that you learnt the lesson?
Ian Withers: Oh, I certainly learnt the lesson, sir, believe me.
Chair: Can we move on?
Q84 Mr Winnick: I wonder if I can move on. Reference has been made to dark alleys; I think sometimes the expression is "the dark arts". That is familiar to the three of you, is it-"the dark arts"?
Ian Withers: I have heard it in respect of the media, but certainly not in response to our own industry.
Q85 Mr Winnick: Yes. Do you think there are dark arts, which-
Tony Imossi: Sir, I think there is a lot of confusion, and I think using expressions like "dark arts" is possibly bordering on recklessness because there is no definition of what the dark arts are. I raised this issue last week before Lord Justice Leveson, because the confusion stemmed over into some discussion groups-not, I hasten to add, within my organisation-and a slant was being put on what dark arts were and how far it could be extended.
I have exchanged correspondence with the Information Commissioner, who has now given some clarity and set the matter straight, and this month my organisation will be publishing an extract of correspondence. But I do not think that, in a cleansing environment such as this, using expressions like "dark arts" without some definition and clarity is going to be particularly helpful.
Chair: Mr Hopkins?
Ian Hopkins: I agree with what Mr Imossi says.
Chair: Mr Withers?
Ian Withers: I would agree entirely, sir.
Chair: Something else you all agree on.
Ian Withers: Absolutely.
Q86 Mr Winnick: No doubt as a result, Chair, of our inquiries, the dark arts will be less dark at the end of them.
One final question. There have been various fictional accounts of private investigators, American films, but are you familiar with the character, the investigator, in The End of the Affair? Does it ring a bell at all?
Ian Hopkins: No.
Mr Winnick: Not at all?
Ian Withers: No, sir.
Mr Winnick: In which case, there is no use pursuing the question. Thank you.
Chair: You know Sherlock Holmes, of course.
Q87 Alun Michael: Should we have compulsory licensing? In other words, should it be illegal for people to undertake the investigative activities without being licensed or registered?
Ian Withers: Absolutely so, and I think that that should include the so-called in-house investigators that are the primary cause of the ongoing media inquiry.
Q88 Alun Michael: So you would say that it is for individuals and for organisations, then?
Ian Withers: The Act as it is now relates to individuals and what they do, so it is going to take a new Act of Parliament to change that. Effectively speaking, individuals should be licensed and the licensable activities are a very good, simple and acceptable way of doing so.
Q89 Alun Michael: Would you agree that the organisation whose employees undertake activity also ought to be registered?
Tony Imossi: Yes. Not only that-if I could just add on-one of the key possible cures is also to make it an offence to actively engage someone who is unregulated.
Q90 Alun Michael: Understood. That is very helpful. At an earlier point, one of you said that there should be a body to which people can go if they want to complain about any activities. Would you also accept that people should not have to complain-they should know that they can depend on the behaviour of those within a specific industry such as yours?
Ian Withers: Absolutely. It is an unfortunate fact that there are those people out there who will take money from people and not perform the task. These are the people that we would hope regulation will weed out and should those issues ever occur there is a pathway for them to take their issue or complaint.
Q91 Alun Michael: There are two aspects. Obviously, one is the propriety of the activity that is undertaken-what is appropriate, what is right, what is within the law-but the other issue is that of competency. Would you agree that competency also ought to be a part of the licensing arrangement, and, if so, how should competency be assessed?
Tony Imossi: Sir, there is already an established qualification. In fact, there are two qualifications now that have been approved and recognised by the Security Industry Authority as meeting the national occupational standards and requirements. All we need to bring about is the training for it, and that is already-
Q92 Alun Michael: So that should be a part of the licensing requirement?
Tony Imossi: It should very much be part and parcel. Sir, if I can just go a little bit further. If you have looked at my written submission, you will have seen what the criteria are and how we self-regulate our members. That criteria gave confidence to certain sectors professionally, particularly the Law Society of England and Wales and the Law Society of Scotland, who now see and advise their members of the reputational risk in engaging any professional investigator who is not a member of the Association of British Investigators. So it is a system that works.
Q93 Alun Michael: In some other fields, we have come across difficulties in terms of accreditation of qualifications, where there are several; sometimes people move from one to another to get the easier <?oasys [pc10p0] ?>requirement. Would you accept that setting the level of standards within the system of accreditation ought to be a very clear part of the statutory arrangements?
Tony Imossi: It is already, sir. The national-
Alun Michael: No, but the statutory arrangements.
Tony Imossi: Yes, it will be because the qualifying body will have to meet the national occupational standards and be approved by the SIA, so that is already in place.
Q94 Steve McCabe: Gentlemen, I want to follow on from Mr Michael’s point and make sure I have understood you correctly. All three of you are telling this Committee that anyone who works as a private investigator, in the broadest definition of that term, should be licensed to do that work and that the company they work for should be further regulated and it should be a regulatory offence if the company employs an individual who is not licensed. That is your position?
Tony Imossi: That is the recommendation from the Security Industry Authority.
Q95 Steve McCabe: So it should not be difficult to bring that forward if there is a will to do so.
The popular image, the fictional image, of private investigators is very much at odds with the picture that you present today. They are often presented as lovable rogues who have a slightly cavalier attitude to the rules and bureaucracy that binds other formal investigatory bodies. Is that a completely unrealistic image?
Ian Hopkins: It is, sir, but you will not get away from it while you have fiction writers coming up with these detective stories, a lot of which are as you describe them. It is totally against and it is totally abhorrent to what we actually do.
Tony Imossi: I consider myself lovable, but not a rogue. It is completely fictional.
Steve McCabe: The same?
Ian Withers: I quite agree. I think it is a misconception enjoyed by the public, but not the way real life actually works.
Q96 Steve McCabe: I was struck by this question, Mr Withers, particularly in view of the evidence that you gave about your own past. Is there any reason why someone who has a previous conviction, and discloses it, should be prevented from working as a private investigator, or does it depend on the nature of that conviction? If so, where would you draw the line?
Tony Imossi: There is a matrix drawn up by the Security Industry Authority as to what will be taken into consideration and what will be excluded. It seems very fair. It takes into account the Human Rights Act, the individual, and I am sure it works for the other sectors of the industry. The only line I would draw is-and here is where I cannot agree with Mr Withers-when you are in a representative capacity, engaging in a process of cleansing the industry, it is not right that you come with dirty hands. You have to <?oasys [pc10p0] ?>be transparent and clean in order to put across your view that would not be tainted by the antecedents that you bear. This does not mean-
Q97 Chair: If you want to be a professional organisation that is respected?
Tony Imossi: Absolutely, sir. You cannot start having the poacher-turned-gamekeeper scenario. It just simply-
Q98 Chair: Even though they are former police officers, 60% of them?
Tony Imossi: That might speak volumes, sir, but I would not like to comment on that.
Q99 Chair: Okay. Steve Whittamore was at the centre of the Motorman Inquiry. Was he a member of any of your organisations?
Ian Withers: Certainly not our organisation.
Q100 Chair: You have heard of him, presumably? So none of you dealt with his company, JJ Services?
Ian Hopkins: No.
Q101 Chair: So how was he able to proceed to do his work without being a member of any of your organisations?
Tony Imossi: He had the captured market of the media. That was his market.
Q102 Chair: So he was known to be the private investigator who would deal with the media?
Tony Imossi: Known to the media.
Ian Withers: Or an information broker, certainly.
Q103 Chair: Or an information broker. Which was he? Was he a private investigator? Everyone thinks he was a private investigator but, Mr Withers, you think he was an information broker?
Ian Withers: The media called him a private investigator, but in reality he was an information broker and those were the services that he provided.
Q104 Chair: Now that he no longer provides these services, who has taken his job as the main information broker to the media?
Tony Imossi: There was evidence before Leveson two weeks ago, I understand-I did not see it-that in fact he is back in business, and I think the Express Group was mentioned, but I have not seen any evidence of it.
Q105 Chair: Is he a member of any of your organisations now?
Tony Imossi: No, sir. No.
Q106 Chair: Does he operate under any particular companies? It is still JJ Services?
Ian Withers: Not aware.
Chair: So he has gone back into business?
Tony Imossi: So I understand.
Chair: Mr Withers, Mr Hopkins, Mr Imossi, thank you very much for giving evidence to us today. We might write to you again because this is only the first session. If there are any examples that you think will be helpful to this Committee-
Mr Winnick: Dark arts.
Chair: -I think Mr Winnick might want a seminar on the dark arts, I am not sure-please write to us and let us know. Thank you very much for coming.
Examination of Witnesses
Witnesses: Commander Peter Spindler, Metropolitan Police, and Roy Clark QPM, retired Deputy Assistant Commissioner, Metropolitan Police, gave evidence.
Q107 Chair:Mr Clark, welcome back. I know that you retired from the Met and thank you for coming to give evidence to this Committee on these matters. Commander Spindler, thank you also for coming here. You have heard all the evidence, I think, that has been given. We might make reference to what the Information Commissioner or representatives of the industry said.
I am particularly concerned about the role of police officers. Were you surprised, Commander Spindler, at the percentages that were just given to this Committee-that between 50% to 60% of private investigators are former police officers?
Commander Spindler: Mr Chairman, firstly, thank you for the opportunity to address the Committee this afternoon. Thankfully, I was reassured by those numbers because one of the points I did want to make for the Committee is that this is not just an issue for the Police Service; this is about all law enforcement agencies and, indeed, the military. There are significant examples, if you take the wider definition of private investigators, where you broach into private security, technical surveillance that is undertaken by companies and training services provided in this new and emerging market, it is a far greater issue than just the Police Service.
Q108 Chair: Yes, of course, we will concentrate specifically on the Police Service for the purposes of today. Mr Clark, do you think that serving police officers should declare any contact that they have with private investigators?
Roy Clark: I do, Chairman, yes. I know from my long experience, which is why I am here, that in the past that has not been so and it is probably not so now. There are two elements here and, with great respect, I think part of the challenge facing the Committee-and we have heard various analogies to dark alleyways and dark arts-is that it is an iceberg we are talking about here, really. There is that section that is visible and above water, but I do not think that even regulation will change the fact that there will still be a covert-I think you would call it-unscrupulous element. I think you have also concentrated very much on information, but the dark arts go beyond purely information.
Q109 Chair:What do they go on to, Mr Clark, the dark arts?
Roy Clark: I emphasise that I am not here to speak from either the Police Service or my former place of work at Revenue and Customs, but I can think of one case that is well documented and went before the court. A private investigator was approached by a man because he wanted their advice on how to obtain custody of his child in a child custody case. The information he received from the private investigator was that it would be good if a conviction could be contrived against his partner. They went beyond giving that advice; they went as far as to obtain some drugs, ensure that they were placed into the car of the wife and ensure that the information got into the Police Service and that the wife’s car would be searched and she would be arrested.
I emphasise that the police officers who undertook the search were entirely unaware of the circumstances and in the end, because it was the subject of police surveillance at the time, right was done. The perpetrators were arrested, charged and convicted and the lady was exonerated entirely.
Chair: But you sound deeply concerned that this is-
Roy Clark: I am, because, with great respect, I think it is not purely an information issue. It does go beyond that. There are people who masquerade as private investigators-people who never like to have that title attributed to them, but are there and known to organisations and to the criminal world and who will undertake certain activities that may or may not be aligned to mainline private investigation. They probably would not want to be called that, but they can use various knowledge, skills and awareness to do more than just obtain information.
Q110 Chair: Should we really stop former police officers from becoming private investigators, bearing in mind that they have a lot of contacts still in the force? Should we have a limit or even a period of purdah from when they cease to be police officers to when they become private investigators?
Commander Spindler: Before I answer that, may I just go back to the issue of associations of private investigators? That will lead on to a more detailed answer to your main question.
Commander Spindler: We have introduced in most forces in recent years what we call "declarable associations policies". In my own force, the Metropolitan Police Service, we have a policy that is owned by my directorate, the Department of Professional Standards, and there are six categories. Category 6 is persons, including former police officers, who are working in related fields of employment, i.e. private investigation and the security sector. So we are asking all our employees who have connections into that industry to declare those so that we can better understand the relationships and then risk-manage those.
The second issue is we have a register of business interests. This is governed by the Police Regulations 2003 and leads on to the point that I was going to make in answer to future employment. It is very much held in accordance with the Human Rights Act, and article 8 in particular, where we judge what business interests are compatible or not. We have 14 categories of incompatible interests, and one of those is working as a private investigator.
Q111 Chair:So you would be surprised to note that one force has authorised three officers secondary employment as a private investigator? Would that surprise you?
Commander Spindler: It would surprise me. I have checked our own database for London, and while we do have a small number of officers who are involved in private security, and that is often training-
Chair: While serving as police officers?
Commander Spindler: Yes, but that could be as training, some of it could be providing services that are aligned to security, but we do not have any as private investigators.
Q112 Chair: You would disapprove of someone who is serving as a police officer also being a private investigator?
Commander Spindler: We would not authorise that in London.
Chair:The Met would not authorise it.
Commander Spindler: It is dealt with on a case-by-case basis, and it will be up to the individual Chief Constables as to whether they authorise it or not.
Q113 Chair:Mr Clark, we have received written evidence that police officers have accepted payments for information, and hopefully we will be calling some of the people who have written to us and spoken to us to give evidence to this Committee. You have been involved at the very highest levels on a number of issues. Have you seen evidence in your career of police officers accepting money for information?
Roy Clark: In my police service, there was evidence of that, and there was certainly great intelligence of it gathered in the late 1990s when there was a covert operation to scope police criminality. There was certain good intelligence and some evidence of payment received.
Commander Spindler: If I could draw the Committee’s attention to the Serious and Organised Crime Agency’s Threat to UK Law Enforcement from Corruption, in their key findings, they defined "corrupters" into four categories, and one of those categories is private investigators. This was a document produced in 2010 for our ACPO Anti-corruption Advisory Group that is chaired by Deputy Chief Constable Bernard Lawson from Merseyside.
Chair: Yes. That is very helpful, but have you seen evidence of police officers receiving payments for information?
Commander Spindler: I have not, in my experience.
Chair: But you know about it.
Commander Spindler: But it would not surprise me. What I was going to say was that the private investigators are described as an increasing threat to law enforcement in their activities as corrupters.
Q114 Chair: By SOCA?
Commander Spindler: By SOCA, yes.
Q115 Chair: You agree with that?
Commander Spindler: Yes, I do.
Chair: Corrupters of the police?
Commander Spindler: Yes.
Q116 Chair: So you know it is going on?
Commander Spindler: We believe it. We have intelligence, but proving it is a different matter. From a professional standards perspective, we have been investigating private investigation companies since the late 1990s.
Q117 Chair: Did you follow the evidence of DAC Akers at the Leveson inquiry yesterday? I suppose you did not.
Commander Spindler: I am afraid I did not.
Q118 Chair: She will, of course, be updating this Committee on her inquiry. Is there anything that you have seen that is new that you can tell the Committee about, in respect of Elveden or any of the other investigations?
Commander Spindler: My directorate is very much on the periphery of that, as DAC Akers is leading her own covert investigation and we support and assist, although I am sighted on some of it. What I will say is that we have more investigations and more evidence about inappropriate relationships with journalists than we do with private investigators. So there is more intelligence about leaks to the media than information leakage to private investigators.
Q119 Chair: You are telling this Committee that you share SOCA’s concern about the activities of private investigators in respect of their relationship with the police?
Commander Spindler: I have no reason to doubt their strategic assessment that it is an increasing threat to law enforcement. For the Committee’s information, the other three categories are partners and family friends, criminals themselves and, surprisingly enough, journalists and commercial interests.
Chair: That is very helpful, thank you.
Q120 Lorraine Fullbrook: Commander Spindler, you have said that a serving police officer cannot act as a private investigator, but can a serving police officer have a business interest as long as it was declarable?
Commander Spindler: Not as a private investigator.
Q121 Lorraine Fullbrook: So he could not have a business interest in a private investigating firm, even if it was declarable or not?
Commander Spindler: No, we would not authorise that.
Lorraine Fullbrook: Okay-interesting.
Q122 Chair: You mean the Met, but other forces may?
Commander Spindler: As I say, it is governed by police regulations. Each force will draw up their own criteria, and it is case by case but it is highly unlikely, if it is such an incompatible interest, that it would be authorised.
Q123 Lorraine Fullbrook: There is no national standard for that then?
Commander Spindler: Unfortunately, most of these things are dealt with on a case-by-case basis in accordance with the regulations and the Human Rights Act.
Lorraine Fullbrook: So somebody could not have shares in a private investigating company and declare it and it be acceptable?
Commander Spindler: That is my understanding, yes.
Q124 Chair: In answer to Mrs Fullbrook, do you think there ought to be a code that will standardise the situation all over the country so that the Met is not doing one thing and Gloucestershire or Leicestershire doing something else? Would it be helpful to have such a code?
Commander Spindler: The British Police Service tries to co-ordinate and ensure consistency across the country, through either Her Majesty’s Inspectorate of Constabulary or the ACPO portfolios. This is a subject area where I believe the business interests are under the human resources portfolio. So these issues will be discussed.
Q125 Chair: Of ACPO?
Commander Spindler: Yes.
Q126 Chair: Who is the lead?
Commander Spindler: Peter Fahy, from Greater Manchester.
Chair: From Manchester.
Commander Spindler: The declarable associations one is under the professional standards portfolio.
Chair: Very helpful.
Q127 Mr Winnick: Commander, Mr Clark, or both-when a serving police officer of any rank has contact with private investigators, is that on record?
Chair: Mr Clark?
Roy Clark: That is a detail I cannot give you because my police experience is very dated, so I really-
Commander Spindler: We do not have a system to record that.
Q128 Mr Winnick: That is unfortunate. It may well be legitimate in certain investigations, inquiries of any kind, for private investigators to be asked and the rest of it. Should the police officer not put that on record-that he has been in contact with X, Y or Z?
Commander Spindler: If it was part of a legitimate investigation, I would expect it to be recorded within the crime report. We have a crime report investigation system where an officer would detail the lines of inquiry they have undertaken, so if they have had contact in that context-
Q129 Mr Winnick: Is it compulsory?
Commander Spindler: It is not compulsory, but it would be good practice.
Q130 Mr Winnick: You say "legitimate", but what about illegitimate?
Commander Spindler: Unfortunately, if the activity was illegitimate, they are not going to record it-
Commander Spindler: -or bring it to notice.
Q131 Mr Winnick: As far as contacts-coming to some earlier questions-clearly, they do exist?
Commander Spindler: We believe it exists, as we heard earlier-that there are a significant number of officers who in retirement will work in private security, in the private investigation industry. Their serving colleagues will be looking for future employment and, towards the end of their service, may well increase their contact as they look at what their future opportunities are.
Mr Winnick: Some may say, Commander, that that is not ethical.
Commander Spindler: It depends on the nature of the contact. The private security and private investigator industry has a legitimate purpose in our society. They take a lot of work away from the Police Service, working for the corporate sector in due diligence and fraud investigations. These are all matters that will greatly assist the Police Service if they are dealt with by companies, so-
Mr Winnick: Some would say it would greatly assist serving officers near retirement looking for another job when they leave.
Commander Spindler: Sorry, could you just repeat that?
Mr Winnick: Some would say that would greatly advance the interests of those officers near retirement who are looking for another job when they leave the police.
Commander Spindler: Yes, it will, and they are going to use the skills that they have learnt while they have been employed in law enforcement.
Q132 Michael Ellis: Do I take it that you would both be in favour then of regulation of the private investigation industry?
Roy Clark: I certainly think it would be a step, but it would not be a panacea. It would not be an answer to everything.
Q133 Michael Ellis: What about self-regulation, as opposed to regulation by an external body?
Roy Clark: Part of the issue there would be what sanctions were available. It would also be that-I think we alluded to it just a moment ago-those that indulge in unscrupulous behaviour are likely to make that very covert. These are resourceful people. If I can use the word "cunning" in its fullest sense, these are cunning people and it is likely that if they are going to be registered, and involved in unscrupulous behaviour, it is not going to be easily detected.
Q134 Michael Ellis: That is what concerns me because, as you very rightly say, there are the unscrupulous, there are those who masquerade as private investigators-but of course they are not members of the bodies from whom we have heard evidence already this morning and they misconduct themselves, they commit criminal acts, examples of which you have given today. Therefore, what would concern me is that historically Government has a tendency to regulate the law-abiding; meanwhile, those who are prepared to ignore the law ride roughshod over the regulations that can stifle the law-abiding.
Roy Clark: I agree entirely. We have heard reference to information brokers. I do not know where that definition came from, but they are doing exactly the same as private investigators except they choose to give themselves another name, or somebody has given them another name. There are a whole group of people out there who would not want to go anywhere near being called a private investigator. But they indulge in just the sort of behaviours that private investigators do, although, for their own reasons, they want to be covert.
Michael Ellis: Commander?
Commander Spindler: We do not have an ACPO position on regulation. I have consulted with colleagues from the Professional Standards Committee, which I am a member of, and it is not an issue that we have discussed in any great detail. From a personal perspective, I always found it very beneficial to deal with bodies who do have codes of conduct values, an ethical framework within which to work, so if we have an issue with a solicitor then we will refer to the matter to the Law Society.
Q135 Michael Ellis: I think it was the editor of the Daily Mail who called for proper press passes-a review of press passes for the journalism industry. Is that right? I think that is right. I wonder whether you think that might be a way forward in terms of the private investigators’ industry. It might possibly be a way forward in terms of self-regulation.
Commander Spindler: Again, if I go from a personal perspective, I have the ACPO lead for technical surveillance and we are looking very much at issues of accreditation-accrediting units and licensing of operatives-and this is all part of professionalising the service that we provide. While we can do that within policing, I would look very much to those who are providing similar sorts of services to the public to operate in the same sort of way.
Roy Clark: I was just thinking that tactically for the Police Service it would be a good thing, in as much as if you had a registered group of people who were engaged in private investigation and you had a group of people that were doing it but not registered, from an intelligence point of view and from a focus point of view, that would be a very interesting prospect.
Q136 Steve McCabe: Commander Spindler, I just wanted to ask, you said that ACPO did not have a position on regulation. I was slightly surprised about that, given that the whole business transformation that is taking place within police forces is likely to bring the police into much closer working relations with the private security sector. I would have thought that ACPO may have felt it necessary to give the Government some advice on how this will work. I am very surprised that you do not have a position on it as yet.
Commander Spindler: With the limited time that I have had to prepare, I have only spoken to a number of ACPO colleagues within my sphere of operation. We are very happy to take this back and come back to the Committee with a more considered position, but I would want to consult a bit more widely on that before I commit myself one way or the other.
Q137 Chair: There does seem to be an absence of leadership on this matter. The Met seems to have adopted a particular position as far as police standards are concerned, but there seems to be no national position-something that Mrs Fullbrook elucidated in a question to you. Should it be the responsibility of Sir Denis O’Connor to do this? Somebody needs to do something, do you not think?
Commander Spindler: It depends what it is you are looking for us to do.
Chair: Well some ethical standards, because, as Mr McCabe says, in the new landscape it is not clear where these things are going to go.
Commander Spindler: Partly because of the structure of policing in the UK, it is very much down to each individual Chief Constable to set the standards for their force within the police regulations. So we have the legislative framework and it is the interpretation of that. Adrian Lee, who is Chief Constable in Leicestershire, leads on-
Chair: Not Leicestershire. Leicestershire is Simon Cole, unless something happened yesterday.
Commander Spindler: No, he is somewhere in the Midlands, forgive me.
Chair: It is only the Midlands, because you are London-based, of course.
Commander Spindler: But Adrian Lee has-
Chair: So it is Northamptonshire.
Commander Spindler: It is Northamptonshire, yes.
Mr Winnick: It is all north of Watford.
Chair: Sorry, please conclude.
Commander Spindler: He has the lead on values and ethics and we work alongside him as a Professional Standards Committee, so on these ethical issues we do defer to his ACPO portfolio.
Chair: We will write to him. Mr Michael, waiting patiently.
Q138 Alun Michael: Not very patiently. I share the surprise that ACPO does not have a position and it would be very helpful if you were to consider this and to come back to us.
Can I put it to you that it would make for considerable clarity for the police, and for others, if there was a system of compulsory licensing, which made it very clear that those who are undertaking activities in the field of private investigation were only doing so legitimately if they were licensed and therefore regulated?
Commander Spindler: That is a distinct possibility, because the private industry are not governed by RIPA or the Police Act-which is the legislation that governs our activity as public authorities-unless they are in fact working for another public authority and have had work contracted out to them, in which case they will need to ensure that the Director of the Surveillance Authority is informed.
Q139 Alun Michael: You indicated some lack of clarity about definitions, in the sense that the data broker phrase, which we have heard this morning, is clearly one that is not recognised by you as a term of art.
Commander Spindler: No, it is not.
Q140 Alun Michael: The licensing system is essential so that we know what we are talking about even. Would you also agree-and this may be something that you want to come back to us on, if you are going to supplement your evidence-that there should be both an individual registration, so that individuals undertaking activities are registered and regulated, and a company registration so that those who employ private investigators are properly registered and regulated?
Commander Spindler: These are all possibilities. I would prefer not to commit myself as a police spokesperson at the moment until we have had a bit more time to consider that and-
Alun Michael: Could we ask you to come back to us with a considered view on those points?
Commander Spindler: We will.
Alun Michael: Thank you.
Q141 Chair: Mr Clark, you have no such restrictions. Do you want to give us some blue skies thinking?
Roy Clark: Chairman, I was just about to say that I am not constrained anymore by ACPO but, yes, if I think about the sense of that. I make the point-and I have checked this out with my former bosses in HMRC, where I spent the last five years conducting criminal investigations-that it is not just the police who are living with this problem, and the information sources there are tremendous, but it is something that occupies my former organisation of HMRC. It takes up a massive amount of time and worry, and anything that would make the picture clearer, rather than this slightly diffused view we have of this problem at the moment, must make the life of the regulator, the organisation and those charged to deal with the matters, better.
Q142 Alun Michael: Could I ask you one final thing, which is the question of criminal convictions? Where should the line be drawn? Should anybody with a criminal conviction be barred from working as a private investigator, or should it only be particular types of offences or serious offences? Do you have a view on where the line should be drawn?
Roy Clark: Having wrestled in the past with the sort of work that Peter does now, I am aware that several police officers have convictions and remain as police officers-that was in the media recently-and for some quite surprising offences. There was one particular offence, at which I should think you would probably throw your hands in the air and say, "How could that possibly happen?" that I am aware of the detail of. When it is explained, it is quite understandable why there is a police officer in the Police Service with a conviction for conspiracy to pervert the course of justice.
Q143 Alun Michael: Accepting that it has to be dealt with on a case-by-case basis for the interests of justice-
Roy Clark: Yes, exactly.
Alun Michael:-but, in general terms, where do you think the line should be drawn?
Roy Clark: I think it should be an exception that a private investigator should have a conviction, after a clear examination as to the relevance and probably the timeliness of that.
Commander Spindler: Mr Clark is quite right. There was a Freedom of Information Act request from the Press Association, which was published during the Christmas period, which talked about the numbers of officers that were serving with convictions. I do not think it is a question we had asked internally, and certainly in London we have a number that I am aware of. I think it will be very difficult to say that a private investigator can have no convictions when you have law enforcement officers who do have some. Hopefully, they are for relatively minor matters and many of them are traffic offences.
Q144 Alun Michael: To simplify it, would you think in general terms there ought to be a declaration and it ought to be considered by a regulatory body whether there was sufficient reason for debarring or not debarring somebody?
Commander Spindler: I would agree with you there. We certainly do need to set the line somewhere and state what offences would be incompatible and what convictions we would not expect a private investigator to have.
Q145 Mark Reckless: It is interesting to note that there is no ACPO policy in this area. I am not sure, Mr Clark, whether you rather let the cat out of the bag by saying you are no longer constrained by ACPO, because of course ACPO always tells us that their missives are merely advisory. I do wonder though in this area, given it is regulation of what senior police officers may be doing after retirement, whether it may be more appropriate for the elected Commissioners to take a lead on this once they are in place. I think Adrian Lee has agreed the protocol and it gives a very strong role for the Commissioners. As witnesses, do you think that it could be the elected Commissioners representing the public who perhaps should lay down the regulation in this area?
Commander Spindler: That would need a change of legislation. The Police and Crime Commissioners certainly would hear the appeals, if we are talking about the business interests side of things.
Mark Reckless: The general policy.
Commander Spindler: Yes, the Government’s objective was to make the Police Service more accountable, and if that is through the Police and Crime Commissioners then-and I can only speak personally-I would have no difficulties with them. It is going to be their full-time job doing this and representing the views of the electorate.
Mark Reckless: Mr Clark?
Roy Clark: I agree.
Chair: Commander Spindler and Mr Clark, thank you very much for coming to give evidence to us-especially Mr Clark, whom we brought out of retirement for this purpose. If either of you has any further thoughts that could help the Committee in our inquiry-we have only just started it today-we would be very happy to hear from you. I will be writing to Mr Fahy and Mr Lee about these matters as well. Thank you very much indeed.
 9th Report - Referral fees and the theft of personal data: evidence from the Information Commissioner , HC 1473 , Published 27 October 2011