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Praise for Investigative Ethics: Ethics for Police Detectives and Criminal Investigators

“Liberally illustrated with challenging cases, this volume marshals and discusses the many ethical problems encountered by police investigators. In an area that tends to be governed by pragmatic considerations, it provides an important check on the desire and pressure for results.”

John Kleinig, John Jay College of Criminal Justice

“Rarely has the publication of a work exploring modern crime investigation shown such a thorough grasp of the myriad challenges, many of them ethical, facing tenacious investigators.”

Sir Dan Crompton, Former UK Police Chief and HM Inspector of Police

Investigative Ethics is applied philosophy of the best sort. Its thoughtful analysis of foundational issues in police ethics—at once sophisticated and accessible—will provide a valuable resource for philosophers, legal academics, and police practitioners.”

Stuart Green, Rutgers Law School

Investigative Ethics makes a valuable contribution to the growing body of critical and informed literature on criminal investigative practice. While aimed at police detectives and criminal investigators, it has much to offer professional administrative investigators. Highly recommended.”

Nigel Savidge, Lead Integrity Specialist, Asian Development Bank

Title page

In memory of John Blackler APM (1933–2010) a former police officer in the New South Wales Police

Acknowledgments

We wish to thank Andrew Alexandra, Dan Crompton, Michael Davis, Clive Harfield, and John Kleinig for comments on earlier versions of chapters in this book.

Earlier versions of some of the material in this book appeared in the following publications authored or co-authored by Seumas Miller:

The Moral Foundations of Social Institutions: A Philosophical Study, New York: Cambridge University Press, 2010; Terrorism and Counter-terrorism: Ethics and Liberal Democracy, Oxford: Blackwell Publishing, 2009; Police Ethics (2nd edn), Sydney: Allen and Unwin, 2006; Winchester: Waterside Press, 2006 (co-authored with John Blackler and Andrew Alexandra); Ethical Issues in Policing, Aldershot: Ashgate, 2005 (co-authored with John Blackler); Police Ethics: Case Studies (vols. 1–3), Wagga Wagga: Charles Sturt University and NSW Police, 2000 (co-authored with John Blacker); Police Ethics, Keon Press, 1995 (co-authored with John Blackler); Issues in Police Ethics, Keon Press, 1996; Privacy and the internet, Australian Computer Journal, 29, 1997; Authority, discretion and accountability: The case of policing, in C. Sampford, N. Preston and C. Bois (eds), Public Sector Ethics: Finding and Implementing Values, London: Routledge, 1998; Corruption and anti-corruption in the profession of policing, Professional Ethics, 6.3/4, 1998; Corruption, in Edward N. Zalta (ed.), Stanford Encyclopaedia of Philosophy, Fall 2005 Edition; Torture, in Edward N. Zalta (ed.), Stanford Encyclopaedia of Philosophy, Spring 2006 Edition; Integrity systems and professional reporting in police organisations, Criminal Justice Ethics, 29, 2010; The fatal police shooting of Jean Charles de Menezes: Is anyone responsible? (co-authored with Ian Gordon), in Simon Bronitt, Miriam Gani, and Saskia Hufnagel (eds), Shooting to Kill: Socio-legal Perspectives on the Use of Lethal Force, Oxford: Hart Publishing, 2012; Police detectives, criminal investigations and collective responsibility, Criminal Justice Ethics, 33, 2014.

Introduction
Ethics and the Role of the Investigator

This book is an applied philosophical study of some of the main ethical issues that arise in the context of investigations of crime by police detectives. As such, it is not a general guide to best practice in police investigations, so it will not provide novice investigators with technical expertise.1 Nor is it a contribution to ethical theory per se – although it does offer philosophical theories of various aspects of criminal investigations, for example, knowledge as the defining occupational end of detectives, and the collective moral responsibility of detectives, prosecutors, jurors, and others for the outcomes of trials in the context of what we refer to as the “chain of moral responsibility.” It will not, therefore, enable novice philosophers to become advanced ethical theorists either.2 Rather it occupies the conceptual space where ethics or morality and police investigations intersect, and it attempts to shed intellectual light on some of the practical ethical problems in that space. Accordingly, if the book succeeds, it will assist police investigators to have a greater understanding of the ethical underpinnings of their work, and to reflect more profitably on the ethical issues that arise in the course of it. Moreover, it might coax more philosophers to seriously engage with criminal investigators and the complex and important ethical and philosophical problems that their work gives rise to.

While the book is serviceable as a text both for graduate and advanced undergraduate students and for police detectives, non-police crime and corruption investigators, and other criminal justice practitioners, it does offer an array of novel arguments, ethical analyses, and philosophical perspectives. This was inevitable given the paucity of scholarly work in investigative ethics and given, also, the intellectual complexity of many of the issues. We leave it to others to judge whether or not the content of the book is sometimes illuminating rather than merely novel.

Investigation

Combating crime and corruption and enforcing the criminal law involves conducting criminal investigations. The categories of crime in question include crimes against the person such as homicide, rape, and assault (Chapter 5), and property crimes such as theft, burglary, and fraud (Chapter 6). Terrorism (Chapter 7) is a crime that is typically a crime against the person (detonating a bomb in a crowded train and thereby murdering innocent passengers), a property crime (destruction of the train carriage) and a political crime (committed with the intent of undermining the authority of the state). “Corruption” (Chapter 8), on the other hand, is a generic term that covers a wide range of moral offenses that are not always crimes, that is, legal offenses. (For the distinction and relation between the law and morality, see Chapter 1.) These offenses include bribery, nepotism, cheating, and abuse of authority. Our discussion in Chapter 8 focuses on police corruption.

In contemporary settings, the investigative capacity typically resides with the police service and, for major crimes, criminal investigation units within the police service. However, large public and private sector organizations often have their own investigative units, for example, fraud units, and in many jurisdictions bodies with the specific responsibility to deal with corruption have been established, for example, independent commissions against corruption.

Criminal investigators require knowledge (e.g., of the law), skills (e.g., how to conduct interviews), and experience (e.g., of efficiently and effectively conducting a successful investigation leading to prosecution). They also have to have legal powers, such as the power to question witnesses and suspects.

The various specialist areas within criminal investigation, like homicide, drugs, and terrorism, all require the exercise of generic investigative skills that are transferable from one area to another. However, each of these areas also requires a degree of specialized knowledge – for example, knowledge, on the part of drug investigators, of specific drugs and their means of production and distribution. Moreover, with the advent of computers, the growth of transnational organized crime, and so on, there is a greater need for specialized knowledge. Increasingly, therefore, investigators are required to undertake formal training and education programs.

The ethical issues that arise for criminal investigators are manifold. They include: investigative independence (Chapter 4); the use of criminals as informants (Chapter 9); deception and the infringement of privacy rights in surveillance operations (Chapter 10), profiling (Chapter 5), undercover operations (Chapter 11) and the use of traps or “sting” operations (Chapter 11); and the use of deception and/or coercion in interviewing (Chapter 12).

Prior to the nineteenth century, law enforcement agencies had no detectives as such. Indeed, in the United Kingdom, the United States, and elsewhere people were deeply suspicious of the notion of a detective, or at least of those people who undertook some of the kinds of work associated with the modern detective. These early forerunners of the detective were, for the most part, entrepreneurs working for themselves, and they undertook a variety of forms of investigative work. They functioned as informants for the public police service, thief takers (a kind of bounty hunter), and agents provocateurs (who infiltrated and trapped suspects, including underground political groups).

The public, the government, and the ordinary police were understandably unhappy with these private entrepreneurs who often used dubious methods for private, or even political, interests. At the same time it was acknowledged that they played an important investigative role or roles.

Accordingly, in the second half of the nineteenth century in England – partly at the instigation of Richard Mayne, who was (jointly with Charles Rowan) the first commissioner of the Metropolitan Police,3 a new vocational role was carved out, namely, the role of the detective. Moreover, it was a role destined to attract an enormous amount of attention from writers and film-makers. The image of the modern detective, far from that of his or her contemptible forerunners, is one of glamour and mystique. Indeed, even in reality detectives have often come to see themselves as an elite group within police services. Investigative agencies, such as the Federal Bureau of Investigation (FBI) in the United States, are known worldwide and have been the subject of numerous films, TV series, and the like.4

Here it is important to resist stereotypes and self-serving images, and focus on what the role of detectives ought to be, both within the police organization and within the wider criminal justice system. Note also that we are distinguishing between the de facto role and the role as it ought to be. (On these matters of occupational role see Chapters 1 and 2.)

There are a host of questions about the optimal forms of organization for police services. This has led to various institutional design initiatives. Thus there has been, and there continues to be, restructuring of criminal investigations departments/bureaux for purposes of specialization (e.g., into organized crime units), decentralization, a strengthening of the investigative capacity of patrol police (e.g., team policing) and (at times) a reinforcement of accountability (e.g., breaking up perceived powerful and/or corrupt detective groups). The desirability or undesirability of particular organizational changes is not our concern here. Suffice it to state the obvious. The best organizational structures and mechanisms of cooperation are those that facilitate the purposes of, in this case, criminal investigations. Restructuring ought not to be simply the vehicle of some internal or external factional or political interest.

Particular organizational structures and cultures can either facilitate or impede police work, including criminal investigations work. For example, an “us–them” mentality can set police management against operational police, patrol police against detectives, and so on, thereby obstructing effective policing.

Again, the need for, and the dangers of, police discretion are things that organizational structures and mechanisms must accommodate. Curtailing discretion can simply disempower police. On the other hand, wide discretionary powers, especially in a context in which there is a lack of accountability in respect of their use, can be a recipe for disaster in high-risk areas, for example, corruption in drug investigations work.

In addition to the utility of particular forms of organization for criminal investigations within the police service, there is the question of the role and organization of criminal investigations in the larger context of the criminal justice system.

Principles of justice are inevitably imperfectly embodied in specific criminal justice systems and in the actual practices of criminal investigators. Arguably, the current criminal justice systems in the United States, United Kingdom, Australia, and elsewhere are in need of significant redesign in a number of respects. For one thing, certain kinds of crime, including in the drug and fraud area, are not being adequately combated. For another, incarceration rates over the past few decades appear to have risen inexorably in, for example, the United States, and yet the prisons in question do not seem to be having the required level of rehabilitative effect on offenders. Public concern in relation to the efficacy of contemporary criminal justice systems is manifest in the more focused criticism often directed at the adversarial character of criminal justice systems in the English-speaking world in particular.

Lustgarten gives this characterization of the adversarial system as it operates in the United Kingdom.5

The English police operate in the context of an adversarial not an inquisitorial system. … In practical terms, this means a system in which the trial is of much greater importance. …The trial is governed by rules erecting relatively high evidentiary barriers to conviction: in the adversary system, ‘there is a greater divergence between what the police actually know and what can be introduced as evidence at trial.’6 Moreover, the verdict of that trial is reached by persons without legal training who, unlike mixed continental tribunals, need not give reasons for their decision. Thus the English police take an avowedly partisan stance in a system in which partisan contest is supposed to produce truth. And the evidentiary barriers reinforce bureaucratic and resource imperatives of avoiding trials in the vast majority of cases by producing guilty pleas. … This gives the English police substantially greater incentive to seek a confession from the suspect; more generally and ominously, it would seem to be a constant pressure leading them to overstep their powers against those they ‘know’ are guilty.

This adversarial system impacts on investigative attitudes and practices. Specifically, it may well be that there is – and many have claimed that this is, in fact, the case7 – a tendency to forego even-handed, objective inquiry into the truth in favor of simply gathering evidence to establish guilt within the rules of the system. Even-handed, evidence-based testing for truth is a matter for the court, it is held. By contrast, the detective's job is, on this view, to “win” by ensuring the prosecutor has a sufficiently strong case to guarantee a conviction. Whether or not this tendency exists is in the end an empirical matter and needs to be settled on the basis of empirical evidence, rather than a priori judgments.8

In the United States, in particular, the picture is somewhat complicated by the large proportion of cases that are settled by plea bargaining: “winning” might now consist quite often in ensuring a conviction for a lesser charge or for only some of the offenses a suspect has been charged with.

The more general point to be made here is that investigation, including criminal investigation, takes place in particular institutional contexts, and those contexts shape and influence investigative attitudes and practices and, indeed, the likelihood or even possibility of successful investigations. The former point has already been made in relation to institutional structures within a jurisdiction, for example, the adversarial system in the United Kingdom. The latter point is obvious in relation to institutional resources; other things being equal, an under-resourced fraud squad, for example, is unlikely to have the same degree of success as a well-resourced one. But the point is also relevant to investigation units operating in transjurisdictional, and especially transnational, settings. If the tax avoidance, bribery, fraud, drug production/selling and so on in question is transnational, and conducted on a massive financial scale by powerful corporations or criminal organizations in cahoots with corrupt governments, then the best efforts of even well-motivated, relatively well-resourced, highly competent, state-based investigators may well be doomed from the start (Chapter 6).

A recent specific exemplification of this problem is that involving Prime Minister Tony Blair's interference with the UK Serious Fraud Office's criminal investigation into the British aerospace (BAE Systems) arms bribery scandal (Chapter 4).9 More generally, consider the ‘dirty money’ that continues to flow from the exploitation of mineral resources in impoverished African states notwithstanding the enactment of various counteractive international agreements, for example, in relation to “conflict diamonds”; or the international money-laundering activities of drug cartels, such as the Mexican-based cartels. The latter evidently used the multinational bank HSBC for this purpose over a 10-year period resulting in a US$1.9 billion fine for HSBC for failing to have in place effective anti-money-laundering measures and for failing to conduct due diligence on some of its account holders. However, the drug cartels continue to launder their money and, as for HSBC, it retained its license to operate having in effect been deemed “too big to fail.”10

Outside police organizations investigators operate within both the private and public spheres. In the public sphere they are attached mainly to government bureaus such as welfare agencies, but also to tax offices, finance departments, defense departments, and so on. In the private sector investigators are attached to such industries as insurance, banking, law, debt collection, security, stockbroking, and many more. Indeed, we might say that investigators are required in any situation where an individual is in a position to engage in unlawful conduct or to unjustly gain some advantage over someone else. Of course, typically this will involve gaining some material advantage over another, as is the case where a person defrauds or blackmails another person or organization. However, investigators may also be needed where the issue is not material gain, such as illicit monetary gain, or not just that kind of gain. There are cases, for example, of sexual harassment or of bullying in the work place that come under this heading.

Investigators must tailor their activities to the needs of the institution that they serve, for example, a police organization or (more broadly) the criminal justice system. However, these institutions are quite diverse. Obviously an investigator within a large corporation will not only be motivated by his or her specific occupational function within the institution – to see to it that it functions properly in this regard, that its employees, for example, comply with the law – but the investigator will also probably recognize the reputational interests of that corporation. Or in the government sphere an investigator in, say, the social welfare area will recognize not just the needs of a disadvantaged citizen but also the need to insulate public funds from unscrupulous “welfare” claimants.

A further point to be made here is that, in the context of the Global Financial Crisis (GFC) and its aftermath of large government debt, the financial constraints on police organizations and other public agencies responsible for investigating criminal conduct are severe, and the process already underway in many jurisdictions in the United States, the United Kingdom and elsewhere of subcontracting elements of this function out to the private sector is likely to accelerate. This may well exacerbate the problem mentioned above of tensions between investigative ends and organizational goals.11

Ideally, members of occupations such as investigators should internalize the fundamental ends that define, or at least ought to define, their particular ongoing task. In the case of criminal investigators, as will be argued in Chapter 2, the fundamental defining end is the truth – or at least knowledge in the sense of justified, true, stated belief. Moreover, the knowledge in question – the who, what, when, where, how, and why of a crime – is not simply the defining end of investigative activity, it is the regulative ideal,12 indeed the morally desirable end, that investigators morally ought

Practitioners are defined, in part, not only by the end at which their efforts ought to be directed, but also by the characteristic activities that members of their occupation engage in, or ought to engage in.13 When members of an occupation habitually engage in these desirable activities in the service of the proper ends of that occupation, they are said to possess the virtues of that occupation. Accordingly, investigators need to have the virtues of a commitment to truth, capacity for systematic reasoning, suspiciousness, a capacity to win the trust of people from different walks of life, and so on.

On the one hand, investigators can be in a difficult position by virtue of being, for example, under-resourced agencies confronting well-resourced corporate organizations. Moreover, in the case of investigators employed by some large corporations, in particular, there can be issues of investigative independence. To what extent is investigative independence compromised, for example, when the subject of their investigation is a very senior person within the organization that employs them? Nor is the issue of investigative independence restricted to commercial organizations; political interference in publically funded police organizations is a very real and ongoing concern in many jurisdictions (see Chapter 4).

Chapters 310Chapter 3

As with most occupations, success or failure can impact positively or negatively on the dispositions and behavior of investigators, and these dispositions and behaviors can in turn impact on the likelihood of investigations succeeding or failing. Other things being equal, a well-trained and experienced investigator who is supported by his or her community (e.g., through the provision of information), employing organization and superiors (e.g., through the provision of adequate resources), is more likely to succeed and, therefore, less likely to develop dispositions or behaviors that are inimical to success. That said, notoriously in the history of policing there have been elite detective units that have bent or broken the rules, seen themselves as above the law, and ultimately engaged in serious and ongoing corruption (Chapter 8).

Chapter 3Chapter 10