New Potential for Criminal Liability when using Private Investigators
Organisations that make use of private investigators need to apply increased diligence to their arrangements following the enactment of the Private Security Services Act, 2004. Since 1 November 2015, it has been an offence for a private investigator to offer private investigation services without a licence. It is also an offence to employ an unlicensed private investigator.
“Private investigator” is defined very broadly as:
“a person who in the course of a business, trade or profession, conducts investigations into matters on behalf of a client and includes a person who—
(a) obtains or furnishes information in relation to the personal character, actions or occupation of a person or to the character or kind of business in which a person is engaged, or
(b) searches for missing persons.”
Penalties
A corporate entity or individual who employs an unlicensed private investigator is liable on summary conviction to a maximum fine of €3,000 or imprisonment for a term not exceeding 12 months or both; or on indictment, to a fine or imprisonment not exceeding 5 years or both. It is a defence to prove that the private investigator produced his or her identity card or licence, so it is essential to obtain the investigator’s credentials prior to their commencing work.
Register of Licence Holders
The Private Security Authority (the “PSA”) maintains a register of both contractor and individual licence holders on its website, which will assist businesses in ensuring that their security provider is licensed.
The Authority has the ability to provide temporary licences to contractors for a period not exceeding 6 months if an application for a licence is pending, in circumstances where the PSA deems it appropriate and if the application complies with the requirements of the Private Security Services Act and the relevant regulations pertaining to the contractor. The relevant regulations for private investigators are contained in the Private Security (Licensing and Standards) (Private Investigator) Regulations 2015.
Comments
The introduction of licensing rules and regulations for private investigators is an important legal development in light of a number of successful and on-going prosecutions of private investigators for breaches of the Data Protection Acts. To avoid the risk of prosecution under the Act, organisations seeking to employ private investigation services should identify the licence status of a private investigator by checking the register of licence holders on the Authority’s website. The organisation should also enter into clear terms of reference with the investigator in order to ensure that any steps taken are appropriate and lawful, having regard to an increased regulatory focus on the activities of investigators and the evidential difficulties arising from being in possession of material obtained in an unlawful manner.
Companies relying on investigators operating from other jurisdictions will need to ensure that their activities comply fully with the legislative requirements.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
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