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Everything you need to know about surveillance and surveillance

shadowing surveillance private detective procap detective
PROCAP DETECTIVE - Everything you need to know about surveillance and shadowing

Surveillance and shadowing are investigation techniques regularly used by private detectives; they even constitute essential components of their profession and require solid legal knowledge and real professional know-how.

In this post, PROCAP DETECTIVE intends to present, through questions and answers (FAQ), the specificities of these two techniques, their usefulness/purpose, their specific characteristics, but also their legal limits.

Surveillance and shadowing: what is it? What's the point?

Surveillance and shadowing are so-called discreet investigation techniques, regularly used by private detectives, particularly in the context of civil, criminal and also commercial cases. Regulated by law, surveillance and surveillance are one of the investigative tools recognized within the framework of the right to the administration of evidence with a view to ensuring the defense or safeguarding of the legitimate interests of litigants. These techniques aim to collect information or evidence in the form of "findings", and are used to document or expand on ongoing investigations.

Concretely, surveillance and shadowing consist of legally and discreetly following an individual, against whom there are legitimate suspicions, and result in the establishment of direct visual findings relating to their actions. They are usually used in the context of civil (divorce, child custody, etc.), commercial (unfair competition, violation of non-competition clauses, etc.), criminal (theft, fraud, etc.), industrial matters. men (fraudulent sick leave, hidden work, etc.), and more generally all the times where the case in question requires support through direct observations.

At the end of an investigation, the detective reports to the applicant on the elements observed, and usually draws up a “Report” including a summary of the results obtained, a detailed and circumstantial account of the events which he personally witnessed, as well as the facts and/or or the relationship of facts that he has directly and visually observed in direct connection with the object and legal framework of the mission entrusted to him. Observations resulting from surveillance and surveillance are intended to be produced in court.

In the context of a legal procedure, the findings and information resulting from surveillance and surveillance serve as evidence in support of a request, and are intended to materialize or characterize given facts or situations and thus allow magistrates to assess the facts or base a decision. They are generally used in debates to support a legal argument, to support in fact claims or to confirm presumptions on which the resolution of a dispute may depend. When legal and material conditions permit, the findings are accompanied by photographs or videographies which are intended to illustrate the facts observed.

The results of surveillance and surveillance measures can also be used as preparatory elements for an intervention by a justice commissioner (bailiff), or as information to support a preliminary ruling request on the basis of article 145 of the Code of Civil Procedure. On the criminal level and with a view to filing a complaint for example, surveillance and surveillance can constitute a powerful lever allowing the support of a personal action and providing it with all the weight necessary to forcefully and diligently lead to the action. public.

Surveillance and shadowing can also constitute powerful support for personal or professional decision-making, allowing in particular the removal of doubt, the consolidation of an argument or reflection, the identification of latent risks, but also the anticipation or prevention of critical situations.

Surveillance and shadowing: what are the differences?

The terms “surveillance” and “shadowing” are often used in different ways. In reality, the differences are less important than the semantic distinction and the resulting common usage would suggest. In fact, what differentiates surveillance from shadowing is nothing more than the way in which these two techniques are implemented: in reality, shadowing is nothing other than a dynamic variation (in motion). of surveillance itself. In professional jargon, these techniques are called “dynamic surveillance” for shadowing, and “static surveillance” for surveillance that does not require any movement or physical tracking. Surveillance and shadowing are therefore two sides of the same coin or two operational variations of the same investigation technique.

Can a private detective follow anyone and anywhere?

Surveillance and shadowing are highly regulated investigation techniques, meeting strict legal requirements. A private detective cannot follow just anyone, anywhere. To be justified, surveillance or shadowing must necessarily be based on a proven and duly identified legal interest. It is the legal framework and the evidentiary need inherent to the case which will authorize or not the detective to use this type of procedure.

The assignment of the legal framework is a legal and ethical obligation for the detective, who incurs sanctions in the event of an absence of legal basis for his action. Article R631-30 of the Code of Ethics for Private Security Activities states: "Natural or legal persons carrying out private research activities ensure that company contracts or written mandates define the assigned mission and the legal framework in which she registers for." The obligation to assign a legal framework was also recalled by the Defender of Rights in a landmark decision: "It is up to the investigator (detective) to define the exact legal framework of his intervention, in order to measure the "extent of its prerogatives and the fairness of the evidence provided" (Decision of the Defender of Rights n°2017-094 of June 19, 2017).

The legal framework consists of the elements of law, facts and procedure inherent in a case. It is established with a view, on the one hand, to ensuring the legal eligibility of requests for investigation, and on the other hand, to justify the merits of the investigations carried out and the implementation of investigative means.

In addition to the legal framework, the private detective must ensure, before initiating surveillance or shadowing, that the use of these techniques is not only proportionate to the objective pursued, but that it is also useful to the manifestation of the truth and necessary for the defense of the legal interests of the applicant. The requirement of proportionality also extends to the time allocated to surveillance or shadowing; these must be duly limited in time and circumscribed to the object of proof sought. An obvious link must appear between the means implemented (surveillance and tracking) and the desired objective. Surveillance that lasts for months, or extends to areas outside the subject of the investigation, is therefore strictly illegal. Thus, for example, monitoring an employee during their personal (family) time when the purpose is to demonstrate professional misconduct is strictly prohibited. In this case, surveillance of the employee's personal time is a measure disproportionate to the aim sought: in this case the search for professional misconduct.

Finally, no surveillance or shadowing can take place in a private place. The inviolability of the private place is absolute and prohibits any surveillance, under penalty of criminal sanctions for invasion of privacy. Thus, a private detective will refrain from any harmful intrusion into a private place, and must limit himself to observations taking place exclusively on or from public roads or in places open to the public.

To summarize, a private detective cannot follow anyone and anywhere. He must scrupulously ensure that the legal conditions are duly met and that the surveillance/shadowing is carried out for a limited time, in all proportion with regard to the aim sought, and carried out exclusively in a public place or open to the public.

Can I conduct a surveillance without being a licensed detective? What do I risk if I follow or monitor someone without their knowledge?

Discreetly following a person in their movements or monitoring them without their knowledge is strictly prohibited. In France, in the field of private law (civil and commercial), only approved private detectives are authorized, subject to the legal reservations set out above, to carry out surveillance and shadowing in a discreet manner. Ordinary citizens cannot do so, under penalty of very heavy criminal penalties. A parent can, in fact, monitor their minor child, just as an employer can monitor the activity of their employee, or even a store manager can set up a surveillance camera system. However, under the law, these types of surveillance are not so-called “discreet” (clandestine) surveillance or carried out without the knowledge of the interested parties. There is no invasion of privacy when a parent supervises their minor child, since it is their responsibility. Likewise, the employer is required to inform the employee and the same goes for the store manager vis-à-vis his customers. Surveillance or shadowing by the detective is called “discreet”, that is to say carried out without requiring the consent of the suspected person . As such, detectives are the only ones authorized, once again subject to compliance with the legal conditions set out above and only if the legal framework justifies it, to carry out discreet surveillance and shadowing.

Illegal surveillance and tracking can be subject to several criminal offenses:

- For harassment (art. 222-33-2-2 of the Penal Code)

- For invasion of privacy (art. 226-1 to 226-7 of the Penal Code)

- For illegal exercise of investigative activity (art. L622-1 of the Internal Security Code)

- For threats, violence or intimidation (art. 222-17, 435-5 of the Penal Code)

In addition to the legal prohibition, surveillance and surveillance may contain dangers for oneself or others that the non-professional cannot, due to lack of knowledge or know-how, neither anticipate nor tame. Indeed, spinning is a dangerous exercise, even perilous in certain contexts, as the exercise requires real know-how.

Can I ask my bailiff or my lawyer to carry out surveillance and surveillance themselves?

No. Bailiffs (commissioners of justice since 2022) and lawyers are not authorized to carry out surveillance or shadowing with a view to collecting evidence. The same qualifications previously cited could be criticized in the event of surveillance of people, but the main incrimination would undoubtedly be the illegal exercise of the investigative activity . As a reminder, detectives act within the framework of article L621-1 of the internal security code which authorizes them to “collect, even without stating (their) capacity or revealing the object of (their) mission, information or information intended for third parties, with a view to defending their interests.” They are the only ones authorized to secretly collect information or intelligence on third parties by means of surveillance and shadowing with a view to producing it in court.

When making findings, a bailiff acts within the framework of Ordinance No. 2016-728 of June 2, 2016 relating to the status of commissioner of justice, in particular in its article 1-II-2°. As a public and ministerial officer, the bailiff does not have the right to act in a discreet, clandestine or secret manner; he must necessarily state his capacity and the purpose of his office. An obligation to which a detective is not bound, and this is where the essential added value of his profession lies: the right to investigate in complete discretion. In addition, a bailiff must limit himself to material findings in situ, without carrying out or implementing dynamic monitoring, such as shadowing, without a person's knowledge. As for the lawyer, his role, consisting essentially of advice, assistance and legal representation, is exclusive of an effective investigation approach of the surveillance or shadowing type: not only is such an approach contrary to the ethics of the profession of lawyer, but it is also incompatible with the evidentiary independence inherent to this profession.

Although they cannot themselves initiate, or even carry out, surveillance or surveillance, bailiffs can nevertheless play a significant role in providing additional added value to the evidence collected by the detective. Indeed, the greater probative force attached by the law to the bailiff's report provides additional probative evidence of which it would be a shame to deprive oneself of it. In fact, it is not uncommon for detective surveillance to be completed or result in the establishment of a bailiff's report, which means that these two professions are in reality very complementary. Consistent case law also recognizes the legality, as a means of proof, of the bailiff's report initiated by the shadowing of a private detective. This complementarity often appears in cases of divorce, unfair competition or disputes inherent to labor law.

Detective, bailiff and lawyer exercise professions which, although compartmentalized, are in fact very complementary, and even constitute a strong asset in the success of a case. It is not uncommon for these three professionals to collaborate in complete synergy: the first, the lawyer, like a conductor, developing the evidentiary strategy and defining the needs of the case; the second, the detective, deploying the means of investigation and gathering the evidence; and finally, the last, the bailiff, crowning the elements of findings with the seal of probative force.

Can a private detective install a GPS tracker on a third party's vehicle without their knowledge?

No. A private detective cannot install a geolocation tracker on a vehicle to follow a person without their knowledge.

As a reminder, the installation and use of a GPS tracker, otherwise called a beacon, tracker or spy tracker, with a view to locating a person or following their movements in real time, is strictly prohibited by law and constitutes an offense criminal law provided for and punished by the Penal Code (art. 226-1 of the Penal Code). The author faces a sentence of one year's imprisonment and 45,000 euros in fines.

To be nuanced, however, it is less the tracer itself that poses a problem than the intrusive use that is made of it. Indeed, if he is authorized to place a tracker on his own personal or professional vehicle, for example for accounting or mileage monitoring of his own movements or even with a view to preventing theft, it is however strictly prohibited to do so. use without the knowledge of third parties, without their consent, and a fortiori for clandestine, intrusive or malicious purposes (jealousy, espionage, harassment, etc.).

Finally, it should be noted that tracers cannot meet the requirements and evidentiary expectations of human surveillance, nor can they replace them. Indeed, the purpose of surveillance/shadowing is to collect information and establish facts; a GPS tracker, while it certainly makes it possible to locate a person, does not in any way allow us to know what they are doing, and even less does it allow a report showing simple geolocated movements to be produced in court.

To summarize, the use of a tracker by anyone (including a detective) to follow a person without their knowledge is prohibited. If a detective suggests installing a GPS beacon to follow a person without their knowledge, flee immediately. Not only does the professional face criminal sanctions, but you should also be aware that you may also be held liable for complicity in a violation of privacy.

How are surveillance and surveillance carried out?

Depending on the purpose and legal context of the mission, but also the operational environment, the location of the investigation and the habits of the person being monitored, surveillance can be carried out statically (observation point, underwater vehicle) or dynamically (shadowing on foot, by car, by motorbike or any other means of transport, including sea, rail or air). They can also mobilize one or more agents, and last from a few minutes to several days. Most of the time, the private detective is equipped with one or more cameras (or cameras) in order to crystallize the facts, as well as a dictaphone in order to verbally transcribe the chronology of the events observed. Whatever the situation, discretion is required.

During surveillance or shadowing and in order to ensure the most total discretion, the detective may be required to mobilize a whole repertoire of techniques and strategies borrowed from the world of intelligence, which he will have learned during his training and experienced during of its missions, such as changing appearance (de-silhouette) , role playing (legend, or scenario), use of street furniture, repositioning, tactical mobility, concealment, use of vehicle -buffer, blind spots and window reflections, environmental scanning, synchronous or staggered movement, etc. The overriding motto in surveillance is to “see without being seen”.

As a general rule, prior to a surveillance or shadowing mission, a private detective carries out what is called "reconnaissance for the purposes of action" : this is a preliminary study of the mission context, including a study personality of the respondent as well as a topographical analysis of the premises, with the aim of preparing the mission as best as possible and in a projective manner, while remaining prepared for any unforeseen event.

What are the reports from surveillance and surveillance worth? Can I produce them in court?

The question relating to the admissibility of private detective investigation reports before a court is no longer debated today. Consistent case law from the Court of Cassation since 1962 confirms the sui generis admissibility of investigation reports, provided however that they present the guarantees of proportionality, impartiality, objectivity , and that the information mentioned or the facts observed are detailed, devoid of offensive nature and obtained in a legal and fair manner (absence of fraud or invasion of privacy). These conditions met, the investigation reports produced by an approved detective are admissible and can be debated in the same way as any documents legally produced in support of a legal request. Nowadays and since the major reform of the profession (2003), private detective reports play an increasingly significant role in French justice.

Surveillance or shadowing: is it really difficult?

Surveillance and shadowing are an extremely delicate, even difficult, exercise. You might think that following a person could be child's play, so you just need to be a good driver, have the right reflexes, fearlessness, etc. The media or cinematographic presentation of this exercise also gives a somewhat truncated image, revealing only the tip of the iceberg. However, the reality is quite different. Shadowing does not consist of simply following a person, it must still be done with the most absolute discretion, and at the same time , in strict compliance with legal conditions in order to guarantee a convincing result and that it can be used during legal proceedings. A private detective only monitors a person's actions with a view to obtaining evidence that is not only legal, but intended to be used in court to assert a right or defend an interest. Sometimes, the resolution of a dispute is based almost exclusively on the investigative elements produced by the detective. This shows the colossal stakes underlying this type of operation!

Surveillance and tracking require technical and legal know-how, as well as human skills and professional qualities which, far from it, are not within the reach of everyone. They are also the subject of full-scale practical teaching during regulatory training to become a private detective, supplemented by internships in firms. They allow applicants to acquire the fundamentals of the profession and the basics of surveillance and shadowing techniques. Indeed, there are numerous components to take into consideration, both at an intellectual and technical level, tending to make this exercise highly delicate in its execution and requiring rigorous prior learning. Between the permanent maintenance of discretion, the constant adaptation to the vagaries of human reality (unforeseen events, changing environment, traffic, etc.), the laborious patience imposed by endless hours of waiting, the rigor and precision of observations , all this in strict compliance with the legal environment, certainly make the exercise highly stimulating, but oh so difficult and beyond the reach of the uninitiated.


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