Do insurance companies and law firms use surveillance?
Surveillance can be defined as the careful watching of a place or person.
The place or person being monitored, is commonly known as the ‘subject’
Surveillance can either be conducted overtly or covertly. Simple examples of overt surveillance would be council or government security cameras monitoring a city’s streets or fixed security cameras placed outside of a building that are installed to increase building security. Covert surveillance on the other hand, is conducted unobtrusively and without the subject’s knowledge.
In Australia, covert surveillance can only be legally conducted by a licensed professional which is why licensed private investigators and private investigation companies perform this work.
Private investigation companies often work for legal firms whose private and corporate clients require evidence to support their cases which cannot be obtained by any other means.
Recorded covert surveillance offers an invaluable source of evidence which can be played during arbitration and court hearings. A witness statement or testimony can be cross examined and refuted if there is not enough supporting evidence.
Photographs or a video depicting an incident occurring in real time is much harder to refute, which is why it is an accepted form of documentary evidence.
Surveillance in the legal, insurance and financial sectors
Surveillance is often used within the legal, insurance and financial sectors to gather evidence to substantiate or disprove an incident or event. Surveillance is often a component of larger investigations that may involve witness locations (skip tracing), statement taking, asset verification and enhanced due diligence services.
Bankruptcy and insolvency
When someone files for bankruptcy, there can be creditors that are owed substantial amounts of money. Creditors could be concerned the bankrupt company may be hiding assets or its employees, director or CEO may still be using company assets for personal use instead of liquidating them to pay of the creditors.
In these matters, private investigators may be engaged to conduct factual investigations and surveillance to locate and verify a company’s assets and ensure the company is complying with its obligation of full asset disclosure.
Work Injury insurance claims (WorkCover)
To make a false insurance claim is an act of fraud which is a criminal offence that can result in penalties including fines and imprisonment.
One of the more common instances where a private investigation firm would be engaged to conduct surveillance is on a work injury claim. The aim of the private investigator is to determine if a WorkCover claim is legitimate or whether it has been fabricated or exaggerated.
Although it is more likely surveillance would be requested by the insurance company to confirm the claim is legitimate, legal firms acting for the plaintiff also benefit greatly from having covert surveillance conducted on their potential client.
There are many law firms who offer no win no pay legal services. Before taking on a client for anything where a substantial amount of time (equals money) may be required, a solicitor may want to conduct their own background checks and due diligence to ensure the case has merit and is deserved of their time. In which case, they will hire a private investigator to conduct a brief period of surveillance. This covert surveillance could reveal their prospective client is not as incapacitated as they allege, which could be disastrous when the insurance company conducting their own surveillance comes to the same conclusion.
Skip tracing and location services
Private investigators are often engaged by law firms and private clients to locate missing people. They may be witnesses to an offence or even the offender themselves. Private investigators have access to numerous databases that provide reasonably accurate up to date information on where a subject may be residing.
Depending on the circumstances, private investigators may be called upon to conduct a period of covert surveillance to confirm the subject resides at the location, to collect evidence on the physical assets in the possession of the subject (car, caravan, boat etc) and also to discover the identity of known associates who may be relevant to a case.
Counter espionage – counter surveillance
Australian law enforcement and intelligence agencies use surveillance as a tool to gather crucial evidence to protect the country and assist with prosecutions.
Private companies can also be subject to industrial espionage and individuals can be victims of stalking or harassment because of workplace incidents, bullying or domestic violence. It is common for individuals, companies, law firms, and financial institutions to engage private investigators to gather evidence to put a stop to this behaviour.
Covert surveillance in these instances is designed to gather evidence on the perpetrators which can later lead to prosecutions and/or at the very least, peace of mind.
Another form of counter surveillance is bug sweeping. Technical Surveillance Counter Measures (TSCM) is the service of electronic bug sweeping to locate and identify listening devices that may be secreted in a house, vehicle, office, or meeting room to gather intelligence illegally. It is illegal in most states of Australia to use an electhttps://www.aosg.com.au/security-services-sunshine-coastronic listening device to monitor and record a conversation you are not part of. The exception to this, is in Queensland.
It is legal to covertly record a conversation with another person only on the condition you are also part of the conversation. Those caught eavesdropping could be subject to strict penalties and fines.
Sometimes when a listening device is detected, it is best left in place (in situ). Some valid reasons for doing this could be to spread disinformation (counter espionage) to the listener of business services or intentions, to leave it in situ for police to witness and record or even just to try to determine its source (owner).
Listening devices require a power source, so if the device is not connected to the main power outlet someone will have to come back to either replace the battery or the device. Covert surveillance could be used to monitor the device and location to identify the culprit.
In Australia, phone spyware and vehicle tracking devices are illegal to install unless the device or vehicle they are to be installed in belongs to the individual or company requesting the install.
You cannot install any spyware or put a tracking device in your partner’s phone or vehicle without their express consent. To do so, would subject you to the same penalties and fines that relate to illegal electronic listening devices as mentioned above. Only law enforcement and intelligence agencies are able to do this and only after they have obtained a warrant from a court authorising them to do it.
Infidelity, family law and child custody
Infidelity, family law and child custody disputes are more often than not interrelated.
Private investigators are regularly employed to conduct covert surveillance to catch out the cheating party, so the other party can find peace of mind and make an informed decision on whether to stay in a relationship or not. If the parties are married then this could lead to separation, mediation, family court, divorce and child custody disputes.
Although infidelity is not a considering factor when it comes to family courts and the dissemination of property during a financial settlement, everyone by law must make full disclosure of their true asset pool.
Surveillance may still be necessary to determine what assets the other party has in their possession, because it has been known that not everyone abides by the court’s requirements for full disclosure.
Other searches that are commonly conducted by private investigators are national property title searches, company due diligence and credit reporting, forensic analysis on financial records and associates and employee profiling to ensure assets have not been secreted or transferred to other parties that can be later transferred back after the settlement is finalised.
Australia has very strict privacy laws and there is information a private investigator cannot obtain. These include a subject’s private credit history which will contain details of bankcards and financial institutions that the subject may have a financial credit interest in, as well as a subject’s personal bank account records.
By covertly following a subject, a private investigator might be able to locate bank branches where an account may be held. This information can be useful to a solicitor to cross reference against the disclosed bank accounts to ensure the subject is being honest with full disclosure.
Family lawyers in Australia may recommend the services of a private investigator to their clients to help support their case. Surveillance can also be beneficial for child custody disputes because it can help reveal the conditions the child is living in when they are with the subject parent, what social activities they are exposed to or engaged in and whether there is any obvious mistreatment of the child by the subject or their associates.
Surveillance is an exceptional fact-finding evidentiary tool that if conducted ethically and lawfully is almost irrefutable in court.