Essay
By Mr Ralph Norbert Remco van Os, CPO, RSE
Reference No. 13721
Module FA5
MSc in the Study of Security Management
Scarman Centre for the Study of Public Order
University of Leicester
1999-2001
Compare and contrast the powers of the public police officer with those of the security professional in preventing and detecting either commercial burglary or fraud.
Introduction
This essay will compare and contrast the powers of the public police officer with those of the security professional in preventing and detecting fraud. For a brief and clear discussion this essay will narrow this topic down into two parts. The workingarea and related backgrounds of the specific expertise of the public police officer, their existence and the concern and importance about prevention and detection. Scientifically known as the public domain name. And the working area and backgrounds of the specific expertise of the security professional categorised into the historical growth of this profession and the concern and importance about prevention and detection. Scientifically known as the private domain. This essay will describe the differences, placed and seen from the background angle of The Dutch law and jurisdiction, between the two specialisms, the private domain versus the public domain. This essay will show that there are several familiar similarities and ditto contradictions. Another part of this essay will highlight that there is a problem with defining fraud, fraud has many interpretations. Besides the earlier mentioned data this essay will give information about the existence of the specific Dutch laws on security business seen from the past into the situation nowadays.
Fraud
Fraud can be seen as an organisational problem, as well as a society problem. It is interesting to discover if this leads to differences in taking care of cases of fraud between the security professional and the public police officer. This essay will show that there are certain differences in taking care of cases of internal crime between the security professional and the public police officer. It is interesting to look at an organisational problem as fraud, to see what the differences are. Before focussing on fraud it is necessary to understand and to know what fraud is. The Longman Dictionary of Contemporary English defines fraud as:
- A method of illegally getting money from someone, often by using clever and
complicated methods: financial losses due to theft.
Tax/share/bankruptcy etc fraud (=fraud in a particular financial area) - Someone who deceives people to gain money, friendship etc: She realised later
that the insurance salesman had been a fraud.
(Longman Dictionary, 1995: 561)
In The Netherlands one of the definitions of fraud is given by the NIVRE, The Dutch equivalent of the English Chartered Institute of Loss Adjusters. Their definition of fraud translated from The Dutch language is:
The intention to mislead an assurer in order to receive a payment with restriction to
the insurance policy without having a lawful right.
(NIVRE, 1997: 2)
Another definition from the side of science, can be found by the Dutch criminologist Niemeijer, who's background is originally juridical, by using the definition of the Dutch sociologist Ruimschotel (translated):
Fraud has to do with: deceitful acting, giving inaccurate or incomplete information
to persons, companies or government which causes financial or otherwise injure
those and prejudiced the person who did this.
(Ruimschotel, 1993)
Interesting in the context of this essay is the research and the related report and recommendations of The Dutch Foundation for Society, Safety and Police (SMVP) about the co-operation between the private- and the public domain in fraud fighting. The results of their investigation together with the recommendations pointed out that co-operation can be of great help and that there is a reason why that certain parts of society are governmental; to protect others and us all against private interests!
It is clear that there are in The Netherlands more legal descriptions and definitions of fraud. It is regulated in a combination of social and penal laws, which makes the acting and things related to that, punishable. It can be stated that there are several different definitions of fraud, all seen from their own background; law, organisational, scientifically, et cetera. It is clear that they all have one thing in common, the element of deceitful acting, to gain a benefit by lying to someone else!
Besides the scientifical definition the Van Traa Committee formulated a political and social definition which they used in their parliamentary inquiry (translated):
Fraud can be seen as the misuse of confidence with the intention to illegal benefit yourself or others.
(Van Traa, 1996: 57)
This definition incorporates those common elements. This essay will therefore focus and use the working definition of Van Traa.
The public police officer
The key-issue of the work of a public police officer is protecting the society against threats and to control if the people in society obey the rules and regulations of the national laws. Protection is based on providing people's feelings of safety and not on prevention in the first place. Protection happens in many ways.
For a good understanding of the work and related processes of a public police officer it is necessary to know the historical background angles and grown relations between the public domain and the private domain.
The amendment of the laws and regulations concerning the private security and private investigation business does not only involve the private security and private investigation branch. It concerns also (ex) police investigators, (ex) police officials, criminal investigation departments, governmental tracing and search departments and all other employees who are working for the government as police- or criminal and related investigators (Hoogenboom, 1994). Before amendment of the law it was possible for police officers to get a job in the field of private investigation and private security. The government decided that this was not desirable. As a matter of fact the independence of the police, concerning confidential information, the protection of the civilian, et cetera, was under fire. How could civilians see and understand the difference between a police investigator asking questions in his duty or in his own free time working for an insurance company? This is a clear example of how things, related to work, can lead to a clash of interests. This change of lawfulness is therefor understandable. Unfortunately this ratification has some lacks. One of these lacks lies in the part of law concerning the legal requirements about education and training. The regulations mention that before someone joins the work as a private security guard or private investigator, they first have to follow a special educational- and training program and graduate for the special security branch related and legal required diploma like: private investigator, private security guard and store house detective. As mentioned before it is not desirable for police and related officials to work in security. This is extra given body by law, with the text that says (Ministry of Justice, 1997: 8): after his work as a policeman he/she may not join a security and security related branch within a period of five years! When we look to the part about the legal requirements, we see that owners of the Police Diploma get many exemptions. In one particular case it is possible on this grounds to receive, without doing an examination, the Private Investigator Diploma. The only thing that the owner of a Police Diploma has to do, is send in a formal request to the foundation depending the private investigation and security branch (SVPB).
There are many kinds of public police officers. Because the limitations of the scope of this essay the common public police officer will be used, narrowed down to the specific fraud investigating tasks of this public police officer.
A good example of how public police officers take care of fraud fighting can be found in the report of The Dutch Foundation for Society, Safety and Police (SMVP: 2000a and 2000b). This report describes that the Dutch Government formatted a special taskforce The steering committee financial investigation. The Home Office mentions that there are momentary 160 public police fraud-experts full-time busy with the war against fraud (Ministry of Home Affairs: 2001). It could be stated that The Dutch government takes the war against fraud seriously. Having concluded this, the focus of this essay is now on how and when the public police officer detects fraud.
The definition of detecting, for the public police officer, is given by the Van Traa Committee as (translated):
The gathering, registration and processing of data and information based on either a
reasonable suspicion of penal offences to be committed, which -in view of their nature
or the organised connection in which they will be committed- seriously infringe the legal
order, or on the grounds of at least clear indications of committed penal offences for the
purpose of coming to a penal sanction.
(Van Traa, 1996: 455)
This definition has led to an amendment of the Criminal Procedures Act and forms since April 1st 2000, the base of the detection powers of the public
police . In combination with the 1st paragraph of this Act: "Criminal Procedures may only take place in the way as regulated by this Act" it is clear that the boundaries of the public police task in detecting can not be exceeded. The detecting tasks of public police officers are based on seeking for the truth, no matter what the outcome will be , for the interest of criminal law and society. These definitions outline as mentioned earlier in this essay the differences between the public police officer and the security professional. The security professional has to serve his organisation i.e. his client where the public police officer has to serve the legal rights of the law(s) and the rights of society! When the public police officer focuses on a crime like fraud, his procedure will end with the arrest of the suspect and making an official report in order to take care of a fair trail!
Par. 146 of the Criminal Procedures Act limits the detection of crime to the Kingdom of the Netherlands for Public police officers. In cases of fraud within a multinational this can limit their possibilities. The security professional does not have this limitation and can perform his duty freely in the different divisions of his company .
As mentioned further on in this essay prevention is normally not an issue for the public police
officer. The public police officer his main tasks lies in detecting a crime that has already been committed or that is in progress (Van Traa, 1996). The detecting of such a crime in an early stage can be seen as prevention. The limitation in commercial way of the public police officer compared with the security professional lies in the fact that the former has to make a report and follow legal procedures when he detects a crime. His private college can, and mostly will, act otherwise. The organisation can be helped often better by further informal investigation and reporting the crime in a later stadium.
This essay part gives an insight in how the public police officer act in preventing and detecting fraud. The remaining question is how his colleague the security professional dealt with the preventing and detecting of fraud.
The security professional
For a brief and clear understanding of how things work in the private domain of security business (the security professional) and the part of the public domain about security (the public police officer) in The Netherlands, it is important to know the history of security in all her facets. In the period 1919, the Dutch government was concerned about the rise and existence of the national-socialistic movement. The Dutch government saw these movements as a threat because they undermined the public safety including the feelings of safety. These feelings of insecurity where caused by the fact that the members of those movements marched around in groups dressed in brown dark army coloured trousers and shirts, armed with truncheon's and truncheon related weapons. The government realised that there had to be taken action immediately to get (back) into control again. These movements had to be stopped getting a grip on public law and safety matters. The Dutch government introduced in 1919 a law called 'Wet op de Weerkorpsen ' which gave the government the legal power to control and when necessary to stop the foundation of a defence (security) corps. (Leidse Onderwijs Instellingen, 1987) A lot of legal revisions followed, the first one after the 11th of September 1936, over a period of fifty-one year, was the amendment of this law at the 7th of November 1991!
One of the main results of this amendment process was that the profession of a security professional was no longer something everybody could practice (Ministry of Justice, 1997). For a clear overview about what is meant by professional security and related to that the security professional including his tasks, this essay will use the definition of Group 4:
....that part of risk management which seeks to reduce the chance by preventing,
detecting, or dealing with fire, crime, accident and waste (often called 'loss prevention').
(Group 4, 1992: 13)
Besides these changes into private policing and their related laws, the branch itself changed. A good example can be found into the growth and professionality of the private investigator. The traditional private investigator was known as the private eye, mostly known from the movies with actors like Humphrey Bogart, who wear long dark coats and groove hats, playing detectives like Sam Spade. This thought is not realistic anymore. The occupation of a private investigator is a true profession. It is a true profession because of: the educational and training programs; the position in society and the recognition of the branch by the government.
For a clear overview I will highlight some of these changes. We can subdivide the several levels of detective profession into (Hoogenboom, 1994, Haelterman, 2000): The (good old) classic detective. This detective usually did not have much of an education, mostly primary school, and deals with cases like for instance adultery and (sometimes - related) divorces. The house store detective. This detective operates in the working area of a shopping mall. His level of education is specialistic and he is more trained than the classic detective, mentioned above. The company detective. This detective operates in the working area of an enterprise. The company detective is highly trained and educated, university background at the bachelor degree level or higher. His aims are to prevent the organisation from theft, fraud, et cetera. The forensic detective. This detective is highly qualified, mostly owner of an university degree at the master level or higher. This forensic expert operates in several fields, like for instance the investigation process for getting legal evidence, et cetera.
An almost identical kind of growth has taken place within the security management field. From practitioners level until the possibility to get an academic master degree or even higher, a PhD. Degree.
With the given information and gathered knowledge about the history and the growth of the working- and trainingfield of the security professional, it is time to look at the specific aims of this profession. This essay will use the definition, based on the working experience of the author, about security management :
Security management is about how to manage security and security related topics.
Preventing a company to get victimised. Taking care of several security risks, like for
instance burglary or fraud. To protect a company and their employers.
This definition point out what the security professional has to do. The security professional has two specific tasks. Prevention: to protect an organisation from threats like fraud and repression: when detecting a threat like fraud, to end it as soon as possible.
The basic work of a security professional has many sides. Because of the limitations of this essay however, it is not possible to mention them all. This essay will therefore focus on how the security professional deals with preventing from and detecting of fraud. The concern and wishes of a security professional is related to the company concerns. It is all about how a company can and will survive threats from any kind, of course within certain ways concerning and together with the rules and regulations given in society. The security professional, however bound by the limits of the Law, is not kept to the same legal procedures as the public police officer. The public police officer is limited through the Law. The public police officer can not look in private organisational information without having a warrant. The security professional has always, anytime, without limitation access to the private organisational information.
The key-issue of the work of a security professional is prevention and after that protection, to protect his company and the employers against threats as pointed out by Post and Kingsbury in their book Security Administration (1991):
Taken in its broad context, security, at any level, attempts to accomplish two things:
it must provide protection against hazards both manmade and environmental: and
it must prevent all events, which have been defined as unlawful by society, from
occurring to nations, states, municipalities, and individuals. Security's primary
objective is thus to provide protection against all types and kinds of losses.
(Module One, 1997: 10)
As shown above prevention and preventing are important and the basic tasks for the security professional. It is necessary to understand what is meant by prevention and preventing. This essay will therefore use the definition of prevention en preventing based on the working experience of the author:
Prevention is all about the undertaking of measures in relation to security risks.
As mentioned earlier in this essay, managing preventional risks concerning fraud is based on rules and regulations like for instance the national and international laws. Where the public police officers relay on the law, his authority is based on these laws. The security professional doesn't have this legal authority. As a matter of fact, the public police officer can or may use legal means of coercion , the security professional in The Netherlands can and may not use any means of coercion. The security professional's span of control is limited to the same possibilities that every other citizen has. But this does not mean that the security professional his hands are tied. There is one exception to the rights that every citizen had; security professionals are extra trained in the law procedures detecting a crime directly when it takes place. These law procedures are mostly known as the citizen arrest. The security professional can use this citizen arrest in a civil- or internal private justice case without reporting the crime to the Public Prosecutor.
Another exception can be found in the rules and regulations of a company . These rules concern the rights and duties employees have in the organisation they work for and vica versa. These regulations may not be deviate or clashing with or against the national laws! A clear example of how these rules can be used is given further body in visitation requests. An employee or visitor who leaves the company area can be asked for his co-operation, requested by a security guard, to open the trunk of his car for examination. This is usually a standard procedure; one of every hundred cars will or can be visitated. Visitation is a useful preventional tool, preventing theft and sometimes partly fraud. Other useful prevention methods within an organisation are: (extra) control of the bookkeeping; looking insight computer data. These possibilities are for the security professional easy assessable especially when we compare this accessibility in relation to the public police officer. When the public police officer wants access to the above-mentioned organisational information there has to be a warrant given by the Prosecutor. Without this warrant it is not possible, in a legal way, for the public police officer to get access or related information.
Another key activity of the security professional is repression, by detecting and ending a crime like fraud, part. Repression is based on several definitions. This essay will use the definition based on the working experience of the author:
Repression can be seen as ending a threat, not necessarily a crime, in several ways.
The importance of this part of his work is mainly to end the threat. By ending a threat, the security professional reduces further damage to the company. There is a problem with detection. The detection of an internal crime like fraud happens mostly late or too late. The damage did take place, and it is up to the security professional to keep the damage low or even to (re)create an acceptable phase as before this threat started. Detection in the private domain, through the security professional, is a complex case. The security professional has to relay on others, for instance accountants. Specialists are important, they are his extra eyes and ears. Other things that the security professional does in detecting fraud, besides the earlier mentioned tools, is the use of methods like focussing on administrational and internal processes and procedures. To scan them on strange variations, rise in rates, et cetera.
Detection of an internal crime like fraud in the public domain, through the security professional is on other parts different from detection through a public police officer. The security professional does not have to make an official report, like the public police officer. The public police officer doesn't have a choice detecting a crime like fraud, he has to report crimes at all times. The security professional can, and mostly will, based on the interest of the company, decide to take care of this crime internal, with a kind of internal private justice.
As shown above there are nowadays several forms of specialisms in the workingfield of a security professional. Where it was in the earlier days a profession for older police officers, it is now a real profession with academic training courses. Besides these changes and the influence on the branch, this has also an influence for the public domain, the area of the public police officer.
There are not only differences. The security professional and his colleague the public police officer do have some things in common. Compare their daily jobs for instance. They both perform investigations, despite of their input. They both try to do what is best, in their own interest. Also is the manner of investigation mostly the same. It could be stated that the public police officer does it with legal governmental tools, his authority is based on laws. His private colleague, the security professional, doesn't have this legal authority; the security professional uses organisational tools. It is a fact nowadays that the both through the public police officer and the security professional used methods like forensic expertise and science are the same!
Summary
Are there any differences in preventing and detecting cases like for instance theft and fraud, seen from the perspective of the security professional and the public police officer? The answer to this question is not easy to give. Every professional has his own possibilities to prevent and detect a crime. One of the differences is that the security professional can not use means of coercion. On the other hand the security professional does not have the obligation to report the crime of fraud. The security professional can act otherwise detecting a crime like fraud. This way of taking care of a crime can be based on organisational, instead of legal, reasons. It could be stated that the Law limits the security professional Law. However the security professional has extra possibilities and tools because he doesn't have the obligation to serve the law in the first place. The security professional has an obligation to serve the organisation or his client. The security professional can use this for building his prevention policy based on these requirements. The public police officer however seems to have the best cards, he has as a servant of the law, all possibilities to do so. With these tools the public police officer will create his preventional and detectional policy for the sake of society.
The key-issue of the work of a security professional is prevention and after that protection, to protect his company and the employers against threats, without in the first place, like the public police officer does, concerning about the legal sides of it. The security professional can act otherwise by detecting a crime like fraud. The security professional will use then a kind of private justice.
The key-issue of the work of a public police officer is protection (not prevention in the first place), protect the society against threats and to look if the society, the people in society, obey the rules and regulations of the national laws. The public police officer has to write an official report by detecting crimes and in specific cases the public police officer needs to inform directly the Public Prosecutor.
Co-operation can be of great help. Each profession seems to have a specific benefit. A combination of the best of both worlds seems to be the best there is. But there is always the danger of intertwining of interests. Despite of the several risks there are argues for and argues against co-operation. Argues for the use of co-operation can be: the sharing of knowledge and the networking effects and the lower price of work/costs. There are many other arguments for co-operation thinkable, but is this how things are meant to be? Why is it that private and public (governmental) are divorced? Let us therefor look at arguments against the use of co-operation. The negative part of co-operation lies into: the possible intertwining of interest; the editors problem, who is in lead, the company, or the government, integrity and last but not least liability. Co-operation can lead to great outcomes and ditto results. But as mentioned by The Dutch Foundation for Society, Safety and Police (SMVP: 2000a and 2000b): there is a reason why that certain parts of society are governmental; to protect others and us all against private interests!
This essay has given an insight view in the world of the security professional and the public police officer. Each professional has his own specific benefits. Together they seem to have the best of both worlds. When we look back in historical sequence, for instance at the remarkable work of the Dutch 'Committee van Traa'. We see that after parliamentarian hearings, academic, criminological and scientifically research, it is quite clear nowadays which methods are being used by private and public investigators i.e. the public police officers and the security professionals. The remaining question is if this kind of used methods and contacts are desirable and legal. The government has partly answered this question as far as the public police is concerned and maybe it will be given further shape in (specific) law(s) together with the parliamentary or independent control on the use of this.
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