Acerca del Comité de Posgrados del Área Curricular de Ingeniería de Sistemas e

Private persons are allowed to investigate behaviour that is harmful to them – or to ask other private persons to do so – as long as they do not violate any laws. Legal persons are considered private persons in this sense and when they act as a client to corporate investigators, corporate investigators may use the investigative possibilities of their client. As an employer, an organisation has the right to control certain behaviours of its employees and many organisations have made provisions in the labour contract for the use of this information for investigative purposes (Schaap, 2008). Corporate investigators thus often have access to a considerable amount of information provided by the client. Chapter 2 discussed the different legal frameworks that apply to different investigators. Some investigators’ activities are regulated by law or self-regulation (e.g. private investigation firms and forensic accountants), while others rely on

disciplinary rules (in the case of lawyers, these rules are not specifically applicable to investigatory activities) or internal regulation (in-house corporate security). It is argued in the previous chapter that this situation leaves room for forum shopping by clients, and may lead to situations in which clients acquire the services of the investigator who is least regulated. However, the Dutch law safeguarding the protection of personal privacy (WBP) guides all corporate investigations and general prohibitions, such as breaking the (criminal) law, apply to all investigators. Chapter 2 has furthermore shown that corporate investigators indicate that they are guided by general principles of law and that they tend to commit to the guidelines codified in the Privacy code of conduct for private investigation firms (NVb, 2015) and the guidelines for person-oriented investigations for accountants (NIVRA/NOvAA, 2010). Because respondents indicate they largely follow the Privacy code of conduct, this chapter alludes to these more specific rules when applicable.47

The large diversity in professional backgrounds in the field of corporate investigations also creates a wide variety of skills and expertise, going well beyond those used in police investigations (Gill & Hart, 1997). These skills are applied to provide clients with swift results that can be used to prevent future incidents and, possibly, restore at least some of the damage done. The diversity in backgrounds and accompanying expertise make the corporate security field of interest to prospective clients. In his work on forensic accounting and corporate investigations, James Williams (2005) has pointed out certain characteristics of corporate investigations which are highly valued by clients. Not bound to the definitions of behaviour given by criminal law or by the (often slow and bureaucratic) structures of criminal procedure, corporate investigators may offer a high level of flexibility in investigative methods and solutions to clients. Secondly, the orientation in corporate investigations is on the client and the private troubles the client may have, rather than on criminal acts (which are defined in the Dutch criminal justice system as being against society). This means that whatever norm violation is deemed harmful by an organisation may be investigated by corporate investigators (and the assignment may also be limited to that specific norm violation). Thirdly, corporate investigations provide an organisation with a high level of discretion and a certain measure of control over the process and information flow. While following chapters show that there is consideration for common good considerations through non-contractual moral agency by corporate investigators (Loader & White, 2017), the main focus in corporate investigations is therefore on the client. Investigations are directed towards answering the questions that have been formulated in the assignment by the client. In addition, the internal information and systems that are available partly

47 See the previous chapter (2) for a general overview of legal frameworks applicable to the different professional groups of investigators.

determine the path the investigations will take. “At the start you will consult with the client about indicators, what is it we can do for you and what is it that we need to do to get there, what is the planning and of course what are the costs” [Respondent 5 – corporate investigator]. Thus, the services that are provided are tailor-made to meet the needs of the client. For example, when investigating a suspicion of fraud, corporate security investigators can be very cautious in their investigations, so as to not create unrest within the organisation. The interests of the client are prioritised in the investigations and this may mean that the investigations need to take a more subtle road than the police would take. Police investigations might be damaging to the operational practices of an organisation, especially since it is difficult for an outsider to understand the workings of internal systems (Gill, 2013). “[The police] do not understand our systems. We are the experts of our own systems and we have the necessary access” [Respondent 16 – corporate investigator].

Ok so the police come in, take the administration. Do you have any idea what that does to an organisation? People go home sick, totally lost. And with us, things go more quietly. They don’t even notice. They do when we start interviewing and that will produce unrest of course but that’s at the end of the investigations. What we do is more subtle, we do custom made work. [Respondent 1 – corporate investigator]

The client-centeredness of corporate investigations may mean that corporate investigators go about the investigations more cautiously and more efficiently, but also that they focus on different information than law enforcement investigators would. An organisation is often in need of information fast so action can be taken. This information may not be the same as the information produced in the criminal justice process (as not the interests of the organisation are taken as a point of departure, but public interests).

A corporation wants to know what happened. I just finished an investigation for a large Dutch company that suspected it had some issues abroad with one of the directors. That has to be cleared up within three, four weeks otherwise they can’t act. No way that you go to the police first because that’s not going to help you. They have their own responsibilities. They are not going to ask the organisation, what is it you need and I will look into it. It doesn’t work like that. [Respondent 26 – corporate investigator]