Legal Certainty and Excellence
Excellence is the quality of being exceptionally good or outstanding at something. It is directly related to the quality of service a professional provides to their clients. Excellence is not leadership, nor does it imply a contest of one against the rest. All professionals can, and should, be excellent in their work.
Training and experience are requirements of excellence. But they are not the only ones.
Professional excellence in private investigation depends directly on the existence of legal certainty, understood as the certainty and predictability in the application of the law. This certainty allows citizens and companies to know their rights and obligations, and provides professionals with a common regulatory framework within which to carry out their work. In regulated professions, such as that of the Private Detective, the absence of legal certainty turns excellence into an unattainable goal or, at best, into a matter of chance. It is not possible for two professionals to be excellent in their work if they operate under different regulatory frameworks.
Unfortunately, legal certainty in the provision of Private Investigation services is insufficient.
We have a Law that, despite all possible criticism, is a good Law. It defines what Private Investigation is. In my view, rightly so. It defines the only professional authorised to carry it out: the Private Detective. It establishes the basis for how the service must be provided, both formally (through Private Detective Agencies) and substantively (on behalf of and in favour of those who hold a legitimate interest, in defence of our client's rights, but respecting those of the person under investigation, and, very importantly, in a proportionate manner). It also regulates the contracting requirements (the requirement of a contract) and the content of our reports.
But the Private Security Law is not enough to provide a common framework within which we all practise our profession uniformly. How is our clients' legitimate interest defined and given concrete form? When is it proportionate to carry out surveillance? And to take a photograph or a recording? And to use a geolocation device? How far must (can) Private Security officers go in their ex officio inspection activities?
Faced with this insufficiency, it is necessary to resort to complementary instruments that reinforce legal certainty and make it possible to achieve professional excellence. For the purposes that concern us here, there are 4 possibilities.
Instruments of legal certainty
The first would be a Regulation implementing the Law, as the Law itself required of the Administration within a period of one year. It does not seem that we are heading down this path and, more importantly, I do not believe that, today, a Regulation implementing Ley 5/2014 would be desirable. Too many things have changed, for the better, since 2014. The draft circulated by the Administration in 2018 is clear proof of this. Moreover, the problem with any legal rule (including Regulations) is its limited resistance to obsolescence and the proven delay in its adaptation to new realities.
The second instrument is the actions of the Administration itself. In the field of Private Investigation, these do not appear to have brought tangible benefits. Rather the opposite. In their annual inspections, the Provincial and Central Private Security units apply criteria that are not homogeneous, either territorially or over time. If the Law is the same for everyone, it does not seem reasonable that the criteria for compliance should be different in Guadalajara than in Zaragoza. And, if the Law has not changed — and it has not —, it is not reasonable that, from one year to the next, different criteria are applied and non-conformities are flagged that were not non-conformities the previous year.
The third is the decisions of the courts, tribunals and other bodies with oversight functions, when they analyse the work carried out by a specific Private Detective in a specific case. To date, this instrument has been the one that has provided the most legal certainty in the field of the activity of Private Detectives. Thanks to rulings by our courts, including the Constitutional Court, and by the Spanish Data Protection Agency, our professional practice is much more secure in such substantial aspects as the scope of privacy of those we investigate, the investigation of offences in general, the confidentiality of our reports or the inspection powers of the Private Security units, to name just a few examples.
The drawback of case law as an instrument of legal certainty is its delay over time and its specificity to the particular case being judged. Case law helps, a great deal, but it cannot be the main solution.
The fourth instrument is soft-law rules or codes of good practice.
Codes of good practice
Codes of good practice are regulations that, although lacking the binding force of a Law, a Regulation or a court ruling, are accepted as valid by all the parties involved. That general acceptance makes them valid instruments, not only for understanding how a Law should be interpreted, but also for defining the practical implementation of that interpretation.
Compared with the rigidity of a Regulation and the specificity and delay of case law, codes of good practice provide regulation in the abstract and constant adaptation. Moreover, they do not require the scope of a Regulation: they can begin by regulating specific aspects and gradually expand to others, until they form a complete regulatory body.
The professional practice of Private Investigation is a field well suited to the development of these instruments.
Without claiming to be exhaustive, this would be the process for developing a code of good practice:
• A proposal from the sector.
Every code of good practice starts from a proposal by the sector itself, based on participation and consensus. Only those who practise a profession are able, with due respect for the regulating Law, to express their vision of how things should be done.
• Analysis by an independent third party.
The main drawback of a proposal from the sector is the possible lack of objectivity. For this reason, the proposal must be validated by an independent professional, in order to certify its conformity with the Law and its adequacy. This professional may be an expert in standardisation or, quite simply, a lawyer with experience in the specific subject matter.
• Review and submissions by the Administration.
In the field of Private Investigation, the Law grants the Administration powers of inspection and control. For this reason, the third step is to submit the text to the competent authorities of the Administration. In our case, this may be the Central Private Security Unit itself or the Technical General Secretariat of the Ministry of the Interior (in Catalonia and the Basque Country, the regional administration). After studying the text, this body may express its objections to it and propose amendments, provided they are properly substantiated. Finally, a resolution by the body would be desirable, stating that the code reflects a valid interpretation of the Law.
From a practical standpoint, the development of a Code requires initiative and financial resources.
As examples, the British association of detectives, the ABI, recently published a Code of Good Practice on the Processing of Personal Data in investigations. Another: the then leading German association of detectives developed a training programme in which each topic was a code of good practice.
A proposal of subject areas?
In light of the above, it would remain to decide which subject to start with. In my opinion, and based on the main discussions in inspections of agencies, I believe the most appropriate course would be to begin with the contracting of private investigation services. This code should regulate matters such as the determination and concrete expression of the client's legitimate interest, the subject of the contract, the appropriate legal disclosures, the form of the document itself, its retention over time … but also extend to matters such as ongoing contracting (framework contracts and individual request sheets), the reopening of investigations, the broadening of the scope of an investigation or contracting between detective agencies. I anticipate that it would be a fairly extensive code, which will serve as a basis for the subsequent ones:
• Investigation reports.
• Inspections of agencies.
• Opening of agencies, amendments, additions and removals of employees, and closure of agencies.
It is also possible (and advisable) to develop a code or codes on matters of professional practice:
• Identification of persons under investigation.
• Acquisition and reproduction of images and sounds.
• Use of GPS devices in surveillance.
• …
What are we waiting for?
