1 Introduction
There are many examples to be found of criminal acts occurring inside organisations. The following are all cases in which internal norm violations have led to considerable damage to both the organisations involved and society: allegations of accounting manipulation by employees of payment processing company Wirecard in Singapore (Financial Times, 2019); a large-scale fraud in which the municipality of Rotterdam has been defrauded for millions of euros—the Waterfront-affaire (Gemeente Rotterdam, 2017); ING Bank’s involvement as a facilitator of the laundering of millions of euros (Vermeulen, 2018); a large-scale real estate fraud in which a pension fund and others have been defrauded for millions of euros—the Vastgoedfraude (van de Bunt et al., 2011); and the payment of multiple bribes and large-scale corruption in multiple countries by SBM Offshore (Functioneel Parket, 2014). Interestingly, the first line of investigation in these cases was not the criminal justice system—instead, internal investigations were done by corporate investigators. These are all examples of cases in which an official report has been made to the authorities. However, many cases that are investigated by corporate investigators never reach the criminal justice system (Williams, 2006a). Although traditional criminology is well aware of the issue of the dark number of crime—the fact that much criminal occurrences will not become known to the state (or to criminologists for that matter)—it is usually assumed that the crimes that remain unreported also remain un-investigated. As this book will show, this is not necessarily the case.
The prevention and repression of crime is traditionally seen as a task exclusively reserved for governments (Boutellier, van Steden, Bakker, Mein, & Roeleveld, 2011). As Max Weber (1946) noted, the monopoly over the legitimate use of force is the essential tool of governance of states. As a result, criminology has traditionally been mostly concerned with state activity in the reduction and management of crime. From a historical perspective, it has been argued by Garland (2001) and Wood and Shearing (2007: 7) that although ‘the governance of security has for some time been regarded as the primary responsibility, and indeed exclusive responsibility, of state governments [this] has not always been the case. From a historical perspective this way of doing is very new indeed – it constitutes no more than a hiccup in history’. The argument is that the prevention and reduction of crime has historically been a shared responsibility and that we are in recent years moving back towards that ‘normal’ situation. In their discussion of an emerging plethora of public-private arrangements, van de Bunt and van Swaaningen (2005) argue that in this process, market rationales have permeated the criminal justice system as well.
A long list of publications over the years shows that the focus has been broadened to (critically assess the contribution of) regulatory agencies (see, e.g., Mancini & van Erp, 2014), civilians (see, e.g., van Steden, 2009) and private security firms (see, e.g., Gurinskaya & Nalla, 2018; South, 1988; White, 2014). As Jones and Newburn (2006) put it, there is a growing academic recognition for the pluralisation of policing. It is now commonly recognised that police forces are not the only players in the security field. Multiple state actors outside the criminal justice system may play an important role in crime control: regulatory agencies, special investigative units within ministries and the input of local government are just some examples (van de Bunt & van Swaaningen, 2005).1 In addition to state-provided security services, there now is a substantial private security industry as well. In specific places, such as the Port of Rotterdam, public-private security-scapes emerge (Eski, 2016). Services provided by this private sector range from guarding and surveillance, to technical equipment services (van Steden & Huberts, 2006). These are the types of activities that usually come to mind when one refers to ‘private security’. A ‘very distinct sector within the security industry’ is formed by private investigators (ibid.: 21). This book is concerned with private investigators, or more accurately corporate investigators. On the one hand, this means that the book focuses on a smaller group: i.e. only those investigators whose clientele consists of (public sector and commercial) organisations, excluding the detectives working for private citizens. On the other, as will be explained below when the research is outlined, my understanding of corporate investigators is wider than in most studies (including a range of different actors, see below).
Most research on private security focuses on the sector more generally, including private investigators as just another form of private security (see, e.g., Shearing & Stenning, 1983). The rise of private forms of security provision is often seen as a (direct) result of increasing demands on public police in a time of neo-liberalisation of social policy (Jones & Newburn, 2006). Adding the growth of semi-public places, mass private property and risk awareness (Beck, 1992) to these trends, one should not wonder that private security is booming. ‘Despite talk of public monopolies and the like most jurisdictions have generally housed a variety of policing bodies’ (Jones & Newburn, 2006: 6). Public-private relationships in the field of security are often conceptualised along these lines. Theoretical concepts such as privatisation and responsibilisation are then used to indicate that either the state privatises some of its activities to private parties, or the state mobilises private actors for the fight against crime (Garland, 2001). In that broad tradition, public law and public law enforcement bodies and strategies—police , prosecutors and criminal courts, and/or administrative agencies—are taken as conceptual starting points (see, e.g., Fijnaut, Muller, Rosenthal, & Van der Torre, 2007; Janssen, 2011). Relations between the public sector and private security are then posed in terms of cooperation by the latter with the former (Cools, Davidovic, De Clerck, & De Raedt, 2010; Dorn & Levi, 2009; Hoogenboom, 2009; Hoogenboom & Muller, 2002). Whether or not this is the right way to conceptualise private security more generally is not a question to be answered in this book. However, it is argued that for corporate investigations specifically, these notions fail to provide a correct conceptualisation.
The book2 examines the rather under-researched field of corporate investigations (Walby & Lippert, 2014). Although interesting work has been done on different components of the corporate investigations sector (e.g. Gill & Hart, 1997; Hoogenboom, 1988; Nalla & Morash, 2002; van Wijk, Huisman, Feuth, & van de Bunt, 2002; Williams, 2005), there exists a rather limited body of work on the corporate investigations sector as a sub-sector of the private security sector (Meerts, 2016). The aim of this book is therefore twofold: first, to provide a comprehensive overview of the corporate investigations industry, mapping the sector and its legal frameworks (Chapter 2), its activities (Chapters 3 and 4) and its relationships with the criminal justice system (Chapter 5). All of this has implications for the theoretical conceptualisation of corporate investigations, which leads to the second aim of this book: providing an innovative theoretical framework which can be used to conceptualise the corporate investigations industry.
Research focused on corporate investigators and corporate justice is highly relevant to criminology in multiple ways. First, the corporate investigations sector, like criminology, is highly interdisciplinary. Professionals with different backgrounds work as corporate investigators, all bringing their specific expertise with them. This means that the research subject and the analysis of that subject benefit to a great extent from an interdisciplinary approach, combining social sciences with law. Second, although the attention for social control originating from other sources than the police is growing, little research has been done as yet on corporate investigators and corporate justice. It is, however, a booming sector which provides services that may affect both individuals and society. Creating a better understanding of this sector is therefore important. Third, the theoretical notions used for public-private relations may be in need of some adaptations with regard to their applicability to specific parts of the private security sector such as corporate investigations. It is argued that criminology, in trying to fit everything into a state-centric discourse, is overlooking some important characteristics of private security.
To achieve a better understanding of the corporate investigations sector, the following research questions are used as a guide for the research:
Central Research Question
What is the corporate investigations industry, how can its shifting relationships with law enforcement be conceptualised and what is its significance for the wider society?
- 1.
What are the raison d’être and methods of corporate investigators in providing corporate justice?
- 2.
How does this stay within—or breach—regulatory/legal frameworks?
- 3.
How wide, in practice, is the sphere of discretion for corporate investigators, either to act alone, without informing public law agencies, or to inform and possibly to task them?
- 4.
When, how and why does separate working change into case-sharing? How does this reflect the public and private interests at stake?
- 5.
What are the consequences of the flexible relationship that corporate investigators have with law enforcement actors?
The research questions as presented above, motivating the research, were defined in 2011 and have been subject to development during the research process. Therefore, the research questions are put into context in this first section. Research question 1 is used to explore the corporate investigations market and to determine the day-to-day business of corporate investigators. This question is answered in Chapter 2 (with regard to the professionals who are active in the corporate investigations market), Chapter 3 (with regard to the investigative process) and Chapter 4 (with regard to corporate settlement options). Research question 2 maps the legal frameworks that guide corporate investigators’ activities and the extent to which corporate investigators seem to abide by these rules and regulations. This research question is answered in Chapters 2–4 as well, Chapter 2 providing the more general legal frameworks and Chapters 3 and 4 relating the legal contexts of corporate investigations and corporate settlements more specifically.
Research question 3 reflects upon the question of autonomy of corporate investigators . The reasoning used in most literature, derived from the state-centric discourse (see below), is inversed here. Instead of analysing corporate investigators’ activities with regard to their usefulness to state objectives, corporate investigations are analysed in their own right. The question is whether there is any room for corporate investigators to work autonomously and if there is, how far this freedom may reach. In addition, research question 3 refers to the situation in which law enforcement agencies may be actively involved in corporate investigations by investigators and clients—either by informing them or using law enforcement agencies for their own (strategic) purposes. These questions are answered in Chapter 4 (when discussing the corporate settlement options and the reasons (not) to report to the authorities) and Chapter 5 (with regard to the public-private relations found in this research). The answer to this question is relevant to research question 4, which may be seen as a follow-up to research question 3. Central to the answers to research question 4 is the typology of public-private relations presented in Chapter 5. The reasons for establishing contact with law enforcement authorities are related in Chapters 4 and 5. Chapter 5 furthermore discusses formal and informal relationships between law enforcement and corporate investigators, presenting a typology for ad hoc contacts as well.
Research question 5, finally, turns to the consequences of both the existence of the market for corporate investigations and the relationships between it and the criminal justice system. This research question is answered throughout the book when themes such as investigator–client relations, the position of the involved person, the use of forum shopping and the relationships between corporate investigators and law enforcement agencies are discussed. The ‘consequences’ mentioned in research question 5 are both practical (what are the consequences for the individuals and organisations involved and for society) and conceptual (what are the consequences for the applicability of commonly used theoretical notions).
The main research question is an amalgamation of the various more specific research questions. As will be apparent from the above description, the research questions are answered in different sections of the book. Chapter 6, then, concludes the book by drawing everything together and formulating an answer to the various research questions and drawing conclusions with regard to the central research question.
This chapter continues with setting the stage for the research by defining some of its core concepts. Section 3 expands on this by discussing some of the more commonly used theoretical notions on private security and, most notably, the public-private relationship. These theoretical notions are critically assessed in the context of the research, and a different approach is suggested, which challenges the ‘privatisation ’ logic present in much contemporary security governance literature. Section 4 delineates the methods used in the Ph.D. research which is the basis for this book. Finally, a brief overview of the book is given to the reader.
2 Defining Core Concepts
This book explores the corporate investigations industry by focusing on private investigations into behaviour by organisations’ staff, management, subsidiaries and sub-contractors that is considered problematic by these organisations. Before this is possible, however, a clear understanding of the core concepts must be obtained. In this book, the terms ‘corporate investigations’ and ‘corporate investigators’ are used to emphasise the difference with the private security sector more generally (which contains a wide range of security services not discussed here—e.g. static guarding, surveillance or cash-in-transit transports) and with private investigators specifically. The corporate investigations industry consists of professionals, providing specialised and tailor-made ‘high-end’ security services to their clients. The terms ‘corporate security actors’ and ‘corporate investigators’ are both used here to signify these professionals. The term ‘corporate security’ is often reserved for in-house security departments of corporate entities (see, e.g., Nalla & Morash, 2002). By implication, a corporate investigator would then be someone who works as an investigator at an in-house security department. When used in this book, the term is used to signify a broader range of actors: those actors whose main professional activity consists of (person-oriented) investigations. Although corporate investigators may be involved in additional activities (such as pre-employment screenings and drafting and implementing integrity codes), this book focuses on investigative activities: mainly forensic accountancy (private) investigations more generally, IT investigations, asset tracing, and (assistance with) settlement and prevention tactics (Meerts, 2013; Williams, 2005).
A multitude of actors may be involved in the above activities. Important selection criteria for inclusion in the definition here are that the investigations should be (one of the) main professional activities of the investigator; that the investigations involve a person as a subject3; and that the investigations are done in a corporate setting (within an organisation).4 By implication, for example information bureaus gathering information in bulk without having a specific person in mind (Hoogenboom, 1994) and private investigators working for individuals (such as in the context of divorce cases) are excluded from the research. Clients of corporate investigators may be both commercial and (semi-)public organisations. Respondents indicate that most of their clients are medium- to large-scale companies, which they attribute to the costs of investigations. In this book, the term ‘client’ is used to indicate the consumers of corporate investigation services. In the case of an in-house corporate investigations department, the client is internal to the organisation (e.g. management). In this research, the following groups are considered to be part of the corporate investigations sector: private investigation firms , in-house security departments , forensic accountants and forensic (departments of) law firms. Chapter 2 focuses more specifically on the different professional groups of corporate investigators.
In addition, the focus of the book is on (investigations into and settlements of) internal norm violations. The norm violation must occur in the context of an employee–employer relationship.5 External threats, such as large-scale DDoS [Distributed Denial of Services] attacks by organised crime networks, are therefore excluded (unless they are executed by someone within the organisation). It is important to note that corporate investigators have a distinct ‘downwards gaze’: most corporate investigations are focused on (lower level) management and employees, while the organisation itself, as a ‘legal person’, is often neglected (Williams, 2014).6 ‘Norm violations’ is a broad-scope concept, which may be used for all types of employee behaviour that is deemed problematic by an organisation. As will be discussed below, one of the unique selling points of the corporate investigations sector is that investigations are not limited to criminal acts (Williams, 2005). The greater part of ‘norm violations’ (consisting of economic loss, misappropriation of assets, reputational issues and the like) occurring within organisations never reaches the criminal justice system (Dorn & Meerts, 2009). These norm violations may concern (alleged) criminal behaviour such as fraud, but they may just as well be about behaviour that is considered undesirable rather than criminal, for example behaviour that is non-compliant to internal regulations. All kinds of undesirable behaviour may be investigated by corporate investigators; however, most norm violations have an economic background (theft, fraud, favouritism in the granting of contracts, etc.). Many of the norm violations investigated by corporate investigators may be defined as white-collar crime in the sense of Sutherland as they often ‘consist principally of violation of delegated or implied trust’ (1940: 3)—regardless of the question whether this violation is punishable by criminal law or not.
Corporate investigations are often followed by one of several corporate settlement options, discussed in Chapter 4. Corporate settlements are solutions to norm violations, which may be derived from public law (criminal law), private law (contract law, tort or labour regulations) or internal regulations (of specific organisations). A key feature of corporate settlements is that they are a result of corporate decision-making within the context of organisations (as a reaction to internal norm violations) (as opposed to a decision taken by a state official such as a public prosecutor). The different corporate settlements may be argued to constitute a system of corporate justice. Within this system of corporate justice, corporate investigators and clients may be flexible, forum shopping in a way to get to the solution which is considered best suited in a certain case.
On the other side of the public-private divide, we find ‘law enforcement’. Strictly speaking, this term only applies to police agencies. However, the term is used here to include police, prosecution and special investigative agencies such as the investigative agency of the Dutch tax authority (the FIOD). The reason for this is that although they certainly have different roles to play and different tasks to fulfil, these actors all contribute to the criminal investigations and the prosecution (or out-of-court settlements) of crimes. All of these actors are charged with the investigation of criminal offences according to the Dutch Code of Criminal Procedure (article 141 and 142 Wetboek van Strafvordering, hereafter WvSv). When specific public actors are meant in this book, they are mentioned by name. Regulatory agencies such as the Authority for Consumers & Markets (ACM), the Authority for the Financial Markets (AFM) and the Data Protection Authority (AP) are excluded from the term law enforcement as their primary focus is not on criminal prosecution but on administrative control and administering administrative measures.
‘Public’ and ‘private’ may be conceptualised in multiple ways. First of all, ‘public’ and ‘private’ may be used to signify the level of openness of, for example, investigations and solutions. The terms are used in this sense when the activities of corporate investigators within the private legal sphere are discussed. In addition, a ‘sectoral approach’ is used in this book, dividing the security sector along the lines of a governmental and a market sector (Jones & Newburn, 1993). This approach should be taken as an analytical tool—social reality, however, is much messier. As will become apparent in this book, public elements are introduced in the private sector and vice versa. It is important to note here that there is a high level of diversity within both the public and private sectors. Many different opinions, interests and connections make for conflicts within the sectors as well as between them (Yar, 2011).
Below, arguments of a blurring together of public and private are discussed, as they are presented in literature. However, a public-private dichotomy may still be identified in terms of mode of service provision, the source and mode of financing (governmental funding or funding by a [private] organisation) and the status of investigators (whether they have powers of investigation) (Jones & Newburn, 1993). As such, it is important to examine the activities of the corporate investigations sector both autonomously and in relation to the public security sector. Below, sector 2 starts with an overview of commonly used theoretical approaches.
3 Some Theoretical Notions on Private Security, Corporate Investigations and Private-Public Relations
The use of concepts such as ‘privatisation ’, ‘responsibilisation ’ and ‘security networks’ implies a shift from the state as a main actor in the provision of security to a more diffused situation, in which both public and private actors have a central role. Although many scholars place the emphasis on the private side of crime control (see, e.g., Shearing & Stenning, 1981), the implicit starting point remains the state. Arguments such as a hollowing out of the state, creating a control deficit in the face of growing demand for security, imply that it was originally the state who was the key actor. Historically, the state has had a limited task in the control of crime (Garland, 2001; Kerkmeester, 2005). Indeed, when it comes to white-collar crime, it is a well-researched fact that state intervention has traditionally been very limited (Sutherland, 1940). Only in recent years (2003), the Dutch government has instated the Functioneel Parket (FP), a special branch of the public prosecution office which focuses (for a large part) on fraud (for more on this, see Beckers, 2017). The issues of the state with regard to the dealing with white-collar crime do not constitute the main focus of this book; however, they are relevant to understand the popularity of the corporate investigations sector.
In this book, the key argument put forward by much of the literature—that the state is no longer able to provide society (here: organisations) with the security services it needs (here: a swift and efficient reaction to internal norm violations)—is put into question. As will be argued, investigations and prosecutions executed by public law enforcement agencies do (for the most part) not align with the needs of organisations. The private sector solutions provided by the corporate investigations industry are better suited for this. This is not necessarily a historical shift, nor can it be put in terms of privatisation or responsibilisation : the historical absence of the state in the control over these matters makes such arguments untenable. Because of their importance with regard to the context in which this research has been done, some of the best-known theories about the relationships between private security and the state are discussed below. As will be apparent in the remainder of this book, these theories provide an uneasy fit with the realities of the corporate investigations market.
Theories explaining the growth of private security may be categorised in multiple ways. Here, I choose to make a classification in terms of theories that claim that an inability of the state to meet demands for security services has led to private actors filling the gap (Sect. 3.1) and those that link the growth of private security to the growth of mass private property (Sect. 3.2) (Button, 2004). These different approaches may be called by different names by different authors; however, most theories about public-private relationships fall within these broad categories. Section 3.3 reflects on the presented theory, followed by Sect. 3.4, which provides some alternative views.
3.1 The Over-Burdened State—Privatisation, Responsibilisation and Junior Partner Theory
Many theories on private security focus on a failure by the state to meet the growing demand for security. Different authors have termed this the ‘fiscal constraint theories’ (see, e.g., Jones & Newburn, 1993). This term is used because the argument is that the public police organisation is subject to a restriction in its funding, leading to a situation in which the police are no longer able to cope with the demand for security. Concepts such as privatisation of security and responsibilisation of private actors are central here. By privatising some of its functions, the state tries to relieve some of the pressure. A shift from public to private is made in the provision of security (Williams, 2005). Responsibilisation is the process in which the state activates other actors to share responsibility for, in this case, crime control. In this way, the state may actually extend its reach instead of ceding it to the private sector.
Fiscal constraint theories may be divided into two categories. On the one hand, there are the radical perspectives, posing that ‘the growth of private policing is an inevitable consequence of the capitalist crisis, where the state draws in the private sector to strengthen its legitimacy’ (Button, 2002: 28). This is basically responsibilisation as discussed above. On the other hand, there are the liberal democratic perspectives, which state that the growth of private policing is an inevitable consequence of the increasing demands on the public police, which cannot be satisfied (Button, 2002: 29). This fits well with the idea of privatisation . The most established theory in this tradition is the junior partner theory , first introduced by Kakalik and Wildhorn (1971). In short, this theory looks at private security actors as being junior partners to the state. Public actors may use private security actors to advance the goals of the state (Hoogenboom, 1988). The void that has been left by the police, because of an inability to meet security demands, is filled by private actors. For this to be feasible, private actors must thus be considered to be complementary to public actors: a division of labour may be discerned in which private security focuses on prevention and the police focus on repression. Private security is seen to deliver services that can be considered a preparation for the tasks held by the police and the prosecution office. For example, a security guard may detain a shoplifter who has been caught red-handed until the police arrive. The police may then continue with criminal investigations (ideally) leading to criminal prosecution. In such a scenario, the work of private security ends where police tasks start.
3.2 The Growth of Mass Private Property—Multilateralisation, Nodal Theory, Anchored Pluralism and Loss Prevention Theory
In contrast to the ideas of (conscious) privatisation or responsibilisation policies , scholars such as Shearing and Stenning (e.g. 1981) see the development of private security as a result of a growth of mass private property. Because many (semi-)public spaces can now be found on private property, such as shopping malls and amusement parks, the domain of private security is growing along with it, simultaneously diminishing the domain of public police (Jones & Newburn, 1993). The main point is that power gets fragmented and divided among public and private actors alike. The growth of mass private property has in this view provided private and commercial actors with a sphere of independence, able to compete with that of the state. According to this strain of thought, complex networks combine to provide security. Bayley and Shearing (2001) refer to this process in which public and private blur together as ‘multilateralisation ’. The idea behind multilateralisation is that the distinction between what is public and what is private has become problematic. The security landscape is seen to have become diffused and pluralistic, rather than privatised.
One of the theories which may be seen to fit in the tradition of pluralistic models of security is the loss prevention theory which Hoogenboom (1990) termed the ‘economic theory’. The theory derives its name from its emphasis on loss reduction instead of crime reduction. The economic relationships between private security and its clients are taken as a central point of departure. This theory furthermore suggests that the activities of law enforcement and private security are similar, contrasting with the views of junior partner theory about complementarity (Hoogenboom, 1990). Public and private security providers are seen as competitors in a market of security and as (partly) interchangeable (depending on the needs of the person or organisation affected) (Williams, 2005).
The ideas of nodal theorists such as Shearing, Stenning and Wood may also be viewed in this light. In short, nodal theory suggests that security is provided by a range of different providers, from which security consumers may choose. The state is seen as one of these providers but not as the primary one (Shearing, 1992). Although there is consideration for the issues connected to this type of ‘governing through crime’ (Wood & Shearing, 2007: 5), security nodes are seen as more effective than state-provided security because they are able to utilise localised knowledge. In the words of Shearing and Stenning (1983), a new feudalism emerges. In addition to the nodal perspective on security, another pluralistic perspective is that of anchored pluralism (Loader & Walker, 2006). This perspective similarly holds that the security market is characterised by fragmentation and pluralism, but contrary to the nodal standpoint, it does prioritise the state over other venues of security. The anchored pluralism stance is that the state still has a vital role to play as the main provider of justice and as the legal ‘anchor’ of security provided by private actors. The reason for this is that security is seen as a social good, which ‘severely precludes it being traded as a commodity and bought and sold freely on the market’ (Loader, 1997: 386). Loader goes on to argue that this does not imply that security ought only to be provided by the state (as this is not realistic); however, some democratic deliberation should be involved in one way or another.
Both the nodal and the anchored pluralism perspective assume that the field of security is highly fragmented, caused by the growth of mass private property, and that the state is no longer the only player when it comes to the provision of security. Additionally, though, the debate between nodal governance and anchored pluralism is partly a normative one—highly simplified it is about the role the state should have in the provision of security and the question whether or not security may be traded as a commodity.
3.3 An Assessment of Traditional Private Security Theories
The above theories all (implicitly or explicitly) use the state as the theoretical point of departure. Whether it is a matter of privatisation and responsibilisation (conscious acts by the state) or a matter of (unintentional) growth of mass private property, the assumption remains that the state was present in a dominant way and that this presence is diminishing. As will be apparent from the following chapters, the role of the state is better conceptualised by its absence, when it comes to internal norm violations within organisations. It must be noted here that the presented theories do not focus specifically on private investigations but are created for the private security sector more generally. It might therefore very well be that they work better for other police duties such as foot patrol.7 As noted above, the involvement of the state in the control of white-collar crime has historically been limited (Gill & Hart, 1997). In this sense, the investigation and settlement of internal norm violations can hardly be described as being privatised: for the most part, this has been a private matter anyway (Williams, 2005). A similar argument may be made with respect to responsibilisation (Garland, 2001). Junior partner theory lays emphasis on the role of private security as a subsidiary of the state, advancing state objectives in terms of governance. However, previous work has indicated that such an interpretation does not have much merit for corporate investigations (Meerts & Dorn, 2009; Williams, 2005). More may be expected from the pluralistic perspectives set out above; however, even though the reason for the retreat of the state may be sought elsewhere, there is still an implicit argument that private security’s field of activity was once occupied by the state. In addition, the ‘competition-argument’ presented in the loss prevention theory must also be assessed critically (see Chapter 5).
While the presented theories all allow for the existence of private forms of crime control, private crime control is usually seen to occur in either public spaces (such as a street) or public spaces within private property (such as shopping areas). They are thus located in specific geographical places which may be entered by the general public to one degree or another. The subject of this research does not fit this description in two important ways. First, corporate investigations and corporate justice are not limited to a specific location. Rather, the defining characteristic is the fact that there is a labour relation, providing the organisation authority over the person as an employee rather than over a specific location. Second, corporate investigations and corporate justice are not limited to crimes. This necessarily means that corporate investigators and the police are not interchangeable in general (although there may still be overlap between corporate investigations and police activities). It follows, thus, that although the above-mentioned theoretical notions have some value, their application to the corporate investigations industry is problematic.
3.4 Juridification—The Exploitation of the Dark Number of Economic Crime
A rare example of theorising which is specifically focused on corporate investigators may be found in the work of Williams (inter alia 2005). Williams (2005) claims that the growth of the market for corporate investigations is not rooted in either a failure of the state or an expansion of mass private property. Instead, the success of the corporate investigations industry is a result of an ‘exploitation of the dark number of economic crime’ (ibid.: 331). Crucially, Williams states that the traditional absence of the state in this area has led to the emergence and professionalisation of the corporate investigations market (see also Meerts, 2016). Through the marketing of a professional service which is directly responsive to clients’ needs, instances of internal norm violations are commodified within the market for corporate investigations. For reasons to be discussed in Chapter 3, many internal norm violations within organisations would not have ended up in the criminal justice system, regardless of the existence of a corporate investigations market (Williams, 2005). Thus, what corporate investigators do is the commodification and exploitation of a dark number of norm violations.
Three strategic resources are essential for this popularity of corporate investigative services: ‘(1) the framing of economic crime ; (2) secrecy, discretion and control ; and (3) legal flexibility and responsiveness to client needs’ (Williams, 2005: 326). As mentioned, corporate investigations are not limited to criminal acts. This means that the category of behaviour that may be investigated is broader, also including, for example, non-criminal breaches of internal regulations. On the other hand, it also means that the focus of corporate investigators can be more narrowly defined: a corporate investigation may be limited to the behaviour the client would like to have investigated (e.g. focusing on a specific breach of contract but not on the role played by the organisation in this event). The fact that corporate investigators may work discretely, producing a report as a final product on the basis of which the client may decide on further action, is also highly valued. In this way, the organisation retains a measure of control over the process and the information flow. Finally, because corporate investigators do not work within the limits of the criminal justice system, they are flexible in the solutions they may provide, taking the interests of clients into account. A criminal prosecution may not serve the private interests of the client for reasons presented in Chapter 4. In these cases, another legal venue may be used (e.g. labour law).
3.5 Recapitulation and Beyond: A Public-Private Continuum
- i.
Separation. Corporate investigators have a high degree of autonomy from public authorities: they act as an aspect of firms’ management, keeping internal order within firms, by framing economic crime in terms of secrecy, discretion, control and legal flexibility (Williams, 2005). Here, corporate investigators are working separately from law enforcement. Typically, cases are investigated internally and handled through a corporate settlement; additionally, the threat of criminal law may be deployed as an incentive to corporate settlement; however in most cases, the public agencies are not actually brought in.
- ii.
Ad hoc coexistence. As a result of strategic or normative considerations, corporate investigators may call upon law enforcement to assist, transferring the evidence from the investigations to the police (Klerks & Eysink Smeets, 2005). The level of cooperation may differ widely, ranging from mere information transfer to coordination (see Chapter 5).
- iii.Obligatory tasks. Corporate investigators may be a servant to law enforcement: for example in compliance functions, such as implementation of anti-money laundering regulations (see, e.g., van Erp, Huisman, van de Bunt, & Ponsaers, 2008) (Fig. 1).
Fig. 1Schematic representation of ideal types in public-private relationships
Situation iii (obligatory tasks) is about compliance functions within organisations. The context of public-private relations is different in matters of compliance, as it is about ‘the organisation as a potential suspect I would say. We as corporate security focus on the organisation as potential victim’ (Respondent 39—corporate investigator). As explained in Sect. 2 of this chapter, the research focuses on corporate investigative services, which excludes situation iii from the scope of the research. This does not mean that corporate investigators are never involved in compliance matters or in investigations as a result of obligatory tasks.
Situations i and ii, then, are central to this research. Much of corporate investigators’ activities remains in the private legal sphere, in which a large measure of autonomy from law enforcement authorities may be claimed by corporate investigators. Much of what is discussed in Chapters 3 and 4 is based on separation, rather than cooperation, and may be conceptualised as situation i (separation) above. However, this separation is not absolute. As a result of pragmatic and normative considerations, corporate investigators or clients may initiate law enforcement involvement (or, alternatively law enforcement may be involved through criminal justice investigations regardless of any conscious decision by corporate investigators or clients). It is argued in this book that ‘cooperation ’ may be a misleading term for such relations, and ‘coexistence’ is used instead to signify public-private relations in situation ii. The words ‘ad hoc ’ are used to indicate that public-private relations generally are a result of a specific case, rather than any form of long-term cooperation efforts. Chapter 5 further breaks down the concept of ad hoc coexistence , by presenting a typology ranging from (private to public) information transfer, through (minor) mutual information sharing , to coordination.
4 Methodology
The fieldwork data gathered for this research have been collected through triangulation of qualitative research methods (Noaks & Wincup, 2004). The research questions described in the introduction to this chapter are mainly descriptive and exploratory. Qualitative methods are best suited to get the rich information necessary to answer these types of research questions (Mortelmans, 2016). In addition to the main research methods, to be discussed below, supplementary information was gathered in multiple ways. Previous research has been used in the form of literature, and the relevant legal frameworks and other legal information were assessed. During the course of the research, multiple academic and practitioner seminars and workshops, as well as networking events, have been attended. The observations made and informal conversations held at these different events proved useful as background information and, in addition, were very helpful with regard to entrance into the field.9
4.1 Interviews
The central research method is the semi-structured open interview. This type of interviewing is often used in qualitative research and is particularly helpful for exploratory research. In a semi-structured open interview, a topic list is used to ensure relevant subjects are discussed (Beyens, Kennes, & Tournel, 2016). Although the topic list contains a logical ordering, a key feature of an open interview is the flexibility of the interviewer and the interview process. As long as all relevant topics are discussed, many variations may occur in the order of subjects. In addition, topics may be added or deleted during the interview, according to the knowledge of the respondent (Baarda, De Goede, & van der Meer-Middelburg, 1996). In this research, three different respondent groups were interviewed and three topic lists were used for these groups. Depending on the type of respondent, some questions were asked in a different way, and some topics were added and others deleted. The topics included in the topic lists served as conversation starters and reminders. In response to the information provided by the respondent, further probing was executed (Beyens et al., 2016).
The type of interview used for this research may be defined as an expert interview (Baarda et al., 1996). This type of interview poses its own unique issues, in addition to some benefits over a ‘normal’ interview. Expert interviews tend not to be emotionally difficult for a respondent. The subject matter of interviews was such that it might be sensitive for the reputation of organisations, however, respondents were not personally emotionally involved. Another advantage of an expert interview is that respondents are generally well-informed, which means that much information may be gathered and the interview may be more efficient. On the other hand, experts, and especially those in management and higher positions, are often pressed for time and hard to reach because they are shielded by administrative staff. Most respondents indeed indicated that they only had a limited timeframe available for the interview—however, as may be deduced from the average duration of interviews, most interviews were nevertheless of considerable length. Through the use of gatekeepers, access was granted quite easily (see below). Only one request was denied (the reason being that the respondent did not want to participate in any academic research) and one potential respondent failed to reply to repeated requests to reschedule a previously cancelled interview. Expert interviews call for a different approach than other interviews because respondents are so well-informed. Repetition of questions and questions to which the answer seems obvious are not appreciated by respondents.
A total of 59 expert interviews form the basis of this research.10 The duration of interviews was on average one hour and eleven minutes, with outliers of twenty-three minutes (the shortest interview) and two hours and fifteen minutes (the longest interview). Most interviews (50) were audiotaped and transcribed, although some respondents (9) preferred not to be audiotaped. In these instances, extensive notes were made and typed up directly after the interview was concluded. The sensitivity of the subject matter was the reason given by the respondents who did not want to be audiotaped. Some respondents requested a transcript of the interview, and this was provided to them. All interviews were done face-to-face, and most were done individually (51). For practical reasons, four interviews were duo interviews. Most respondents were male (49), while ten respondents were female. Most respondents fall into the age group 40–60 years old. The Randstad was the central location of most professional activities of most respondents, which consists of the four biggest cities of the Netherlands (Amsterdam, Rotterdam, The Hague and Utrecht) and their surrounding areas; however, respondents can be found all over the Netherlands. The average education level of respondents was high (academic education), although police respondents generally had a lower education level (being trained within the police organisation itself).
The three groups of respondents consisted of corporate investigators (33), law enforcement professionals (16) and clients (10). Among the corporate investigator-respondents, a differentiation can be made in respondents working for private investigation firms (10), in-house security departments (18), forensic accounting departments (5) and forensic (departments of) legal firms (3). In this last group (forensic legal investigators), respondents had a double role as respondents could be both investigators in some cases and act as a client in other cases.11 Law enforcement professionals consisted of professionals working for the police (8), prosecution (5) and FIOD (3). Respondents falling within the category of clients were HR personnel (labour) lawyers, or general management. As may be gathered from these numbers, not all respondent groups are represented to the same extent in this research (for an overview, see Table 1 in Appendix A). Because the research questions are for an important part focused on the activities of corporate investigators, and because of the wide variety of backgrounds within this group, the decision was made to focus on corporate investigators, which explains why this respondent group is relatively over-represented.
4.2 Observations
In addition to the interviews, observations produced valuable data. Above, mention has been made of casual observation as part of participation in seminars and practitioner events. A more structured approach was taken in two observation periods with two different companies. Observations are often used in criminological research and have the advantage over other methods of data collection that they can reveal information that is hard to obtain when, for example, directly asked (Bijleveld, 2009). The observations in this research are used to get more insight into the daily activities of corporate investigators and the (often subtle) relationships with (and frustrations about) the criminal justice system. The mere fact that the researcher ‘is there’ may provide valuable information (Zaitch, Mortelmans, & Decorte, 2016). Meaning may be derived from situations, which cannot be asked through interviews. In this way, the observations were very useful. Because of the setting in which the observations took place, they can be defined as ‘institutional ethnography’: in this type of observation, the focus is on the institutional reality of the setting (ibid.). It must be noted that observation material is (maybe to a greater extent than information gathered through other methods) liable to interpretation bias, as the role of the researcher is larger in an observation setting. By entering the observation setting, the researcher necessarily influences the setting (Zaitch et al., 2016). To mitigate interpretation bias, the observations were structured with the help of an observation plan, an observation schedule and a daily record sheet in which interpretations and reflections on the observations were made explicit.
Observation as a research method, however, is a flexible technique (Zaitch et al., 2016). The observation schedule was therefore used to ensure focus, without using it as a rigid structure for the observations. Some parts of the observations were participant; however, my main role was that of observant, not participant. The observations were executed in two separate observation periods. During the observation periods, a full-time position was obtained and full access to the systems of both observation companies was granted. Both observation companies granted me an access card or key to allow me to enter the premises independently, an employee account and an email address to access the digital environment. During the observations, I have been present full-time during working hours, participated in meetings and have had multiple informal conversations. In addition, during both observations, I have been able to witness an investigative interview by investigators. In both observations, I have selected reports and other information relating to finalised corporate investigations. These were analysed using a topic list. Other internal documents, such as codes of conducts, yearly reports and information published on the intranet were also used for analysis.
Observation 1 was executed at the very beginning of the research (mid-October to November 2012) and lasted seven weeks. The Observation Company (1) was a private investigation firm, with at the time five people involved in the investigations (including the two directors) and one secretary. The backgrounds of the investigators were diverse, ranging from legal, and criminological to an accounting background. Two of the five investigators had previously worked as law enforcement professional. The clientele of this corporate investigations company was diverse, but assignments mostly originated from medium-sized businesses, (semi) public organisations and law firms. With some clients, framework agreements had been made, which ensured prospects to future assignments to a certain extent. This company is referred to in the remainder of this book as Observation Company 1.
Observation 2 took place near the end of the fieldwork period (beginning of February to March 2015) and lasted six weeks. The Observation Company (2) was a large Dutch company, and the setting of the observations was the in-house security department of said company. The security department was at the time of observation headed by a manager and divided into three parts (compliance, internal investigations and external investigations). All three sub-departments were headed by their own manager. The observations were done within the internal investigations department, which consisted at the time of observation of eleven employees (in addition to one manager and two secretaries). The internal process was structured in such a way that the department had three full-time investigators (all with a police background), three analysts (focusing on desk research) and five ‘intake-employees’ (forming a helpdesk where incidents might be reported by employees). This company is referred to in the remainder of this book as Observation Company 2.
4.3 Case Studies
An additional purpose of the observations was to gather material for case studies, consisting of corporate investigations reports and additional information on these investigations. A case study may be defined as a detailed, rigorous study focusing on a certain case or object. As is common in case studies, multiple ways to gather information about the case were used (Leys, Zaitch, & Decorte, 2016). In total, twenty-one reports were selected, ten of which were investigated by Observation Company 1 and eleven of which were investigated by Observation Company 2. Cases were only selected when they provided enough information (an investigation report or other substantive information needs to be present), and there was a labour relation between the investigated person and the organisation in which the norm violation occurred (internal norm violation). In addition, the cases which were selected can be divided into those where no report to the authorities was made (14) and those that did involve a report to the authorities (7). Cases were analysed using a topic list.
The selected cases were all (but one) person-oriented and the number of involved persons ranged from one to entire organisational departments (consisting of a large multitude of employees). There was a variety of norm violations (both criminal and non-criminal) but in general the norm violations had a financial component (mostly embezzlement). The norm violations that were investigated in the cases ranged from small (petty theft or minor information leaks) to substantial (millions of euros in fraud). A broad-scope exploration of all the cases at file at both observation companies revealed a large variety of norm violations, ranging from financial issues such as fraud, theft and corruption to more general integrity issues such as breach of privacy, breach of trust, sexual harassment and unauthorised ancillary activities. Although the presentational style differed between Observation Company 1 and Observation Company 2, the same components could be found in both the investigative process and the way of reporting about the investigations. Cases were not selected at random but purposively, so as to ensure enough information about each case would be available.
In addition to the investigative reports, which were the basis of the analysis of cases, other documents such as the (investigative) interview reports, the investigative journal, court rulings and media coverage were analysed. Furthermore, the investigators who had worked on the case were asked to answer certain questions and were involved in multiple informal conversations about the cases.
The information collected through the case studies was processed in Microsoft Word and coded and analysed with the aid of Atlas.ti, together with the interview and observation data. In addition, the collected information was contrasted with literature. This was an ongoing process during which codes and topics were subject to improvement (Decorte, 2016).
4.4 Some Methodological Reflections
As with any type of research, there are some specific methodological challenges which warrant some attention. First, the more general issues of validity and reliability are discussed. Following this, some more specific issues are highlighted. This section is concluded by a reflection on my role as a researcher.
4.4.1 Internal and External Validity
The term internal validity refers to the ‘credibility of claims’: Can the information produced in the research be said to be ‘true’ (Maesschalck, 2016)? In interview settings, there always is the risk of socially desirable response tendencies (Beyens et al., 2016). One measure taken against this was not to react to questions from respondents about my opinion (see below). Although social desirability cannot be eliminated with certainty, the risk of social desirability in this research is limited for several reasons. First and foremost, the subject matter of this research is not sensitive to the respondents personally (although it might be to their organisation). Secondly, respondents were experts on the subjects at hand (and many were also experts on investigative interviewing).12 Respondents readily assumed the role of expert, there to provide me as a researcher with insight into their social reality. Thirdly, respondents generally expressed well-formulated and strong opinions, which might be an indication that these were in fact their opinions. Some subjects such as public-private relations appeared to reproduce a ‘mantra’ which is prevalent in the research field—i.e. that cooperation is desirable. However, further probing revealed that some respondents indeed held this opinion, while others produced a more nuanced view upon reflection. I have endeavoured to remain keenly aware of the possibility of social desirability or other answering tendencies and I have used further probing to check the validity and reliability of respondents’ answers. Another measure taken to avoid reproducing possible socially desirable answers as ‘facts’ is the use of triangulation. Qualitative research methods produce rich data. The methods used here—interviews, observations and case studies—produce data with a high measure of internal validity because they give the researcher the opportunity to check the data (Zaitch et al., 2016). The fact that multiple research methods have been used, producing data from different sources and gathered in different ways (triangulation), also benefits the internal validity (Maesschalck, 2016).
When it comes to external validity, or the measure in which the results of this research may be generalised to the whole field of corporate investigations, more caution is warranted. In the strictest sense of the word, external validity may only be achieved when a sufficiently large sample has been used and the sample has been produced in a correct way (preferably at random). This is generally only the case in quantitative studies. Qualitative research data are richer in content than quantitative data, but the collection and analysis of qualitative data also takes more time. This makes it very difficult to get a sample which is large enough to be representative of all relevant actors within the research setting. In addition, as Chapter 2 shows, there is no clear overview of the number of corporate investigators in the Netherlands. Finally, the covert nature of many of corporate investigators’ activities makes access challenging (see below). Choosing respondents at random would most likely not produce much useful respondents within the respondent groups of clients and law enforcement professionals (even if a complete list of all possible respondents could be obtained)—and even if useful respondents would be found, access without a gatekeeper would be very challenging. Although efforts have been made to gather information about the four groups of corporate investigators identified here, not all groups were interviewed to the same extent, with in-house investigators being best represented within the respondent group. The same goes for clients and law enforcement professionals. This approach was purposively used to gather data in the most efficient way.
However, in a more general sense, some measure of generalisation may be possible in qualitative research as well. First, saturation of data was reached at the end of the fieldwork: the general patterns identified here may therefore be considered to be a good representation of the views of respondents. Second, the use of thick description in this qualitative research makes case-to-case transfer possible: it allows the reader to assess whether the results presented in the specific context of the research may be generalisable to other contexts. Finally, theoretical generalisation, generalising not to other populations but to theoretical concepts, is also possible in qualitative research. In the case of this research, empirical data and emerging theoretical concepts were used in a cyclical manner, along the lines of a grounded theory-type approach. Such a cyclical approach of sampling, data collection and data analysis allows the data to be generalised to theoretical concepts (Maesschalck, 2016).
4.4.2 Internal and External Reliability
Internal reliability refers to the reproducibility of the research by other researchers (Maesschalck, 2016). This may be realised by providing other researchers access to the data. However, in doing so, the confidentiality of the data may be compromised and respondents would no longer be anonymous. This situation is highly undesirable. Instead, internal reliability is attained by making the manner in which information has been gathered and the mode in which this information is used in this research, transparent. In the light of the discoveries of scientific fraud in social sciences in the Netherlands and beyond, transparency seems to be more warranted than ever (van de Bunt, 2015). The use of quotes serves a double purpose in this sense: quotes may highlight and emphasise a certain finding by using an example given by respondents themselves. In addition, quotes may serve as an indication that data in fact has been gathered.
External reliability of a research is achieved when new research produces the same results (Maesschalck, 2016). Again, this is possible in an experimental setting but very hard to achieve in qualitative research.13 The best a qualitative researcher can do is to be transparent about his or her own role in the research and in the collection of information. Section 4.4.4 focuses on the role of the researcher in more detail. First, the next section discusses the matter of establishing trust within the research setting.
4.4.3 Trust—Access and Confidentiality
Trust is hard to establish within an interview setting because an interview has a short time span . It is therefore imperative that respondents trust that the information they share is treated as confidential. In this light, informed consent is essential. No parts of this research were covert, and it has been clear to all respondents and other participants what my role was. Informed consent has been attained at every step (Vander Laenen & O’Gorman, 2016). For all methods used in this research (except open source data), confidentiality was guaranteed from the start. No information is presented in this book or in other publications based on this research, which may lead to the identity of respondents, specific organisations or specific cases. There is, of course, a downside to this, as it makes the data-gathering process less transparent and harder to duplicate. Protection of respondents is prioritised over transparency in this research. Anonymity is ensured for multiple reasons. First, the information gathered is sensitive information. Corporate investigators and law enforcement professionals deal with much sensitive information, and it would be detrimental to the persons involved if this information would be openly discussed in detail in this book. Ensuring anonymity therefore has, secondly, the additional benefit that access to information is granted more readily. Third, much of the specifics which would be detrimental to anonymity is not relevant to the questions posed in this research. In this way, the content of the research is not affected by this choice.
The way in which respondents are approached is also relevant in the context of trust. Respondents were contacted through email or telephone contact, based on contact information received through gatekeepers and other respondents. Through contacts established in previous research in the field (Dorn & Meerts 2009; Meerts 2013; Meerts & Dorn 2009), gatekeepers were approached. Gatekeepers are key contacts who are in a position to make introductions and grant access (Noaks & Wincup, 2004). This mode of entry is especially useful for difficult-to-reach groups, such as experts (Baarda et al., 1996). For this research, gatekeepers proved essential in gaining access. Experts are generally hard to access, which is even more the case for professionals within the corporate investigations market, which is largely reliant on discretion. Adding to that the fragmentation of the field, the small amount of cases that are reported to the authorities and the fact that clients tend to avoid publication of the information that they have ordered internal investigations, getting access without a gatekeeper would have been very difficult.
Three separate gatekeepers were used in this research. Once interviews were conducted, each respondent was asked to suggest new respondents. In this way, every respondent acted as an additional gatekeeper as well. This method of gaining access is called snowballing. Through snowballing, one may reach valuable respondents in an efficient manner (Mortelmans, 2016). Especially in the case of clients (who are difficult to identify because many corporate investigations are not publicised in the media) and law enforcement professionals with experience with corporate investigators (who are difficult to identify because many corporate investigations are not reported to the authorities), the snowball method proved effective. However, a sample achieved through gatekeepers and snowballing is also a selective one, as it depends on the network of previous respondents. To mitigate this, multiple gatekeepers were used. In addition, at a certain point in the research, saturation of respondents occurred: the same names (who had already been interviewed) kept reoccurring, independently of the gatekeeper through which the respondent had been approached (ibid.). The observation companies were approached after contact had already been established through interviews.
4.4.4 Getting Captivated—A Reflection on the Role of the Researcher
A reflection on the role of the researcher is essential to any type of research: researcher bias may occur because of the methods used, the choices made and the interpretations the researcher produces. As mentioned, observations (and to a lesser extent interviews and case studies) are liable to this as well. To mitigate the risk of researcher bias, leading questions and subjective interpretations were avoided. In some circumstances, it was necessary to show some basic knowledge on the subject to convince the respondent to participate in the research. This was limited to factual information, the expression of which did not present any risk of influencing the respondent. The expression of my own opinions was avoided during the interviews; however in some instances, it proved useful to present some opinions after the interview had been finalised and informal conversation ensued. Assuming either ignorance or knowledge had the added benefit of respondents opening up more. Respondents were experts on the subjects at hand, and it was important to acknowledge this in the interviews (Beyens et al., 2016).
During the observations, most people reacted in a positive and curious manner, although it took some time to establish trust (Zaitch et al., 2016). After trust was established, more information became available and employees of the observation companies displayed much effort to share information with me and explain certain mechanisms. This is a good example of the changing role of the researcher over time (Roks, 2016). As the relationship with the research setting changes, so does the measure of access. The immersion in the field was not of such nature that capture was a real danger. Capture (also known as ‘going native’ or ‘over-rapport’) refers to the situation in which a researcher identifies with his or her research field in too great a measure, leading to a situation in which the researcher might miss information and results, and in which interpretation of information could be affected (Zaitch et al., 2016). My relationship to my field of research and my research subject is not to be defined in the sense of capture, but it can be aptly described as captivation. Captivation in this context has a more positive meaning than capture: being captivated by the research subject may facilitate a more in-depth investigation and discussion. My captivation with (or fascination for) the corporate investigations market has promoted a critical stance towards existing private security theories, the fieldwork of this research and the conclusions arising from the fieldwork (as opposed to being captured, which may promote tunnel vision).
5 Book Structure
In the following chapters, the research questions presented in the introduction to this chapter are answered, using the data collected in this research. The legal context within which corporate investigations and settlements occur is first discussed in Chapter 2. This chapter also identifies the four groups of corporate investigators which are central to this research and discusses some notable differences between them. An important conclusion of Chapter 2 is that the corporate investigations sector is fragmented in multiple ways. The four main professional groups of corporate investigators—private investigation firms , in-house security departments , forensic accountants and forensic legal firms—all have their own specific selling points and, importantly, their own legal frameworks. This leaves room for clients to actively search for the investigator who is best suited to investigate the norm violation the client is faced with (forum shopping ). While legal frameworks may differ widely among different corporate investigators, activities are largely similar (partly as a result of diversification of the field). Because many corporate investigators follow similar norms (such as an emphasis on due process), corporate investigators of different backgrounds tend to adhere to similar rules in practice.
Chapter 3 goes on to describe the investigative process and the methods that may be used to gather information in the context of corporate investigations. The process is discussed from the assignment confirmation to the report that follows from the investigations. Corporate investigators are not charged with the investigation of criminal offences according to the Dutch Code of Criminal Procedure and as such do not have formal powers of investigation . In addition, corporate investigators tend to avoid terminology used in criminal justice proceedings. This sets them apart (symbolically) from law enforcement agencies . However, they have extensive access to information through the rights the organisation has as an employer. As such, corporate investigators have extensive possibilities of investigation within the limits of what they are allowed to do.
Chapter 4 follows the investigative process further, by describing what happens next: the settlements which may follow corporate investigations. Four categories of solutions are presented, originating from different legal venues: criminal law, the Civil Code (including private contract regulations and labour law) and internal regulations of organisations. Corporate justice achieved through corporate settlements is a good example of forum shopping : the solution which is most beneficial to the client is chosen. Chapter 4 also discusses reasons organisations may have to either avoid a report to law enforcement authorities or to actively involve the authorities through a report. In general terms, these may be divided into strategic and normative considerations.
Chapters 3 and 4 largely represent situation i (separation) presented in Fig. 1. In Chapter 5, the focus shifts to situation ii (ad hoc coexistence ). Public-private relations in the field of corporate investigations are explored, focusing on a typology ranging from (private to public) information transfer (A), to (minor) mutual information sharing (B), to coordination (C). Some formalised attempts to cooperation, aimed at establishing a longer-term relationship, are discussed but these are yet to prove successful. Public-private relationships seem likely to remain based on ad hoc occurrences because of the nature of corporate investigations, corporate justice and the types of norm violations that are usually the object of corporate investigation processes. Strategic use of different legal venues and forum shopping makes relationships fluid and ad hoc. In this chapter, material derived from the case studies is explicitly used to clarify public-private relationships in the context of coexistence.
Chapter 6, finally, concludes the book by providing an answer to the research questions and by discussing the major concepts arising from the research: the concepts of forum shopping , the autonomy of corporate investigators within the private legal sphere, coexistence and non-contractual moral agency are used to discuss the unique nature of the corporate investigations market within the field of (crime) control. The role of private and public interests is furthermore discussed, and attention is paid to the issue of the governance of the corporate investigations industry. Some suggestions are given with respect to the regulation of and control over the corporate investigations market. Chapter 6 furthermore provides a discussion and reflection on the research, placing emphasis on the book’s relationship to inter alia the privatisation debate. It concludes this book by looking ahead to future research.