Introduction
In the early spring of 1971, the Guardian newspaper sent Ian Withers—a 28-year-old former police officer—on a mission.Footnote 1 The newspaper had heard that, for a price, it was possible to obtain “confidential personal information.” Sensing a story, journalist Peter Harvey approached Withers, one of Britain’s most famous private investigators at the time.Footnote 2 Harvey told Withers he was working on an article about “invasions of privacy” and asked him to show if the claims about accessing information were true. With what the Guardian later described as “an element of bravado,” Withers took up the challenge, promising to find the bank account information, criminal records, and national insurance numbers of several of the newspaper’s employees.Footnote 3 He came back almost immediately with far more than he had been asked for: details of a military court-martial, an accusation of domestic violence, and Harvey’s own tax payments, as well as the salaries of another journalist and her husband.Footnote 4 The Guardian’s editor later concluded that the speed investigators could access such information was “frightening.”Footnote 5
The newspaper story inspired by Withers’s activities set out how—through a few short telephone calls—it was possible to obtain personal information from the Inland Revenue, Social Services Ministry, local government, and banks.Footnote 6 The exposé clearly touched a nerve.Footnote 7 On the very day it came out, Prime Minister Edward Heath stood up in the House of Commons and declared that the newspaper had done the country a great “public service” and that there would be a “top level enquiry.”Footnote 8 More specifically, Heath announced that the activities of private investigators would be examined by the newly formed Younger Committee on Privacy, originally established to address wider concerns about the use of “data banks” and new surveillance technologies, among other things. The Younger Committee would go on to be the largest public inquiry into privacy ever conducted in Britain. Running in parallel, the Metropolitan Police launched an investigation into Withers and several other private investigators, described by the Times as “one of the most painstaking” criminal inquiries ever carried out.Footnote 9
This article asks why, in the late 1960s and early 1970s, “invasions of privacy” by private investigators caused so much public concern, but the attempts to restrict their activities largely petered out. The answer lies in the wider uncertainties of the category of privacy, and particularly its unresolved relationship with the British state.
Privacy has been a notoriously contested and hard-to-define concept, overlapping and diverging over time from related categories like secrecy, confidentiality, and personal information.Footnote 10 For the philosopher Sissela Bok, for example, privacy and secrecy are related but distinct: privacy is a matter of controlling access to one’s personal life, and secrecy a question of broader intentional concealment, no matter the topic.Footnote 11 More specifically, historians have argued that in mid-twentieth-century Britain the cultural meanings of privacy were shifting away from keeping family secrets toward a form of personal freedom.Footnote 12 At the same time, though, the period was also a high point of a particular type of privacy—the ability to live one’s life outside the prying eyes of others—with people residing in nuclear families and driving their own cars at unprecedented levels.Footnote 13 In this situation, it is possible to overplay the demise of secrecy, as keeping personal information away from others could still matter deeply to many people, especially when it related to questions of sex and money. The meanings and significance of different forms of privacy and secrecy were therefore very much in flux. Private investigators found themselves in the middle of this churn, becoming a lightning rod for many of its unresolved tensions.
We can best understand the shifting importance of different types of privacy by taking a step back from debating the specific meaning of terms, and instead examining wider norms over what Nissenbaum has called “appropriate” access to information.Footnote 14 Rather than doing away with the word altogether, this means putting “privacy” alongside other categories that seek to determine how knowledge about other people should flow. A term like privacy, or secrecy, confidentiality, and personal information for that matter, is just one specific frame among many that seek to grapple, in their own ways, with broader questions around the distribution of revelation and concealment.Footnote 15 As they channel, block, or expose particular forms of information, such categories are, as Susan Gal has argued, “politically consequential”: they “disguise power relations,” evoke “characteristic anxieties,” and shape “political imaginations.”Footnote 16 One of the things that a focus on wider conflicts and norms around “appropriate” access to information does, therefore, is highlight how changes in the relative significance and meanings of privacy and its related terms are not simply about shifting cultural norms, but are also deeply political, and can, in particular, centrally involve questions around the powers of the state. Mark Neocleous writes, for example, that it is “integral to the state’s search for knowledge that it will infringe… privacy.”Footnote 17 Yet, at the same time, for Neocleous, the promotion of individual privacy as an antidote to state intrusion only serves to reproduce atomized political relationships, keeping the power of the state intact.Footnote 18 While Neocleous’s arguments risk reifying the state, they are useful in highlighting how, as states try to uncover hidden knowledge and set limits on the ability of others to do so, categories such as privacy shape the distribution of “appropriate” access to information, and in doing so help reproduce specific political relationships.
Investigation—defined as a process of “discovery that uses signs, traces, and marks” to reveal things that previously seemed hidden or were unknown—lies at the heart of conflicts over “appropriate” access to information.Footnote 19 It is as attempts are made to uncover information that conflicting norms and practices around who should know what and how come into view. Historians, criminologists, and anthropologists have long shown that states have never monopolized security or protection, and the same might also be said about investigation, although the implications are much less well understood.Footnote 20 If, for Neocleous, the state is an “intelligence gathering machine,” it is not the only one around.Footnote 21 Private investigators are part of a much wider set of investigatory practices, involving the police and journalists, but also corporations, the Post Office, and the Royal Society for the Prevention of Cruelty to Animals, among many others. However, private investigators have a particularly illuminating and significant presence—selling their expertise to anyone who will pay for it—providing a mirror to the state’s own seemingly public investigatory practices and generating their own intense unease.Footnote 22 As the sociologist John Walton has argued, private investigators are widely seen as uncovering things that should no longer be hidden, yet they can also be understood as prying “snoops” who invade our lives, operating on the borders of legality and ethics.Footnote 23 They have therefore long worked along the seams of controversies over who should be able to access information.
The focus of this article is on Britain in the period between 1965 and 1975, when the growth of “cultures of confession,” and the nascent beginnings of the “data revolution” through new sociotechnical systems, such as databanks, changed the types of things that people wanted to investigate, and the stakes in doing so.Footnote 24 The central argument of this article is that the category of privacy—whether understood as secrecy, autonomy, or anything else for that matter—failed to bite, as it sidelined questions about just who had access to information and, in particular, the role of the British state and its policing powers. In the context of changing relationships between the state, market, and ideas of the public, privacy protections did not meaningfully account for who was accessing information.
This article defines private investigators as any person or organization that claims specific expertise and provides services in investigation for hire.Footnote 25 It starts with a brief history of private investigations in Britain in the period before 1965. It then turns to the 1972 Younger Committee and its own investigations into the work of private investigators. The penultimate section examines attempts at the legal prosecution of private investigators in the late 1960s and early 1970s, including Ian Withers, for allegedly obtaining information illegally. The final part turns to some of the comparative implications of the story of British private investigators for ways of thinking about the pluralization of investigation and the conflicts it has produced. In particular, the contrasting stories of private investigators in the United States and the United Kingdom are explained by different histories of the state and privacy. In the U.S., decentralized policing and limited federal authority created favorable conditions for private investigators to expand their role. By contrast, British investigators worked within a system where the police sought to maintain exclusive authority over investigations.Footnote 26 In the U.S., privacy protections were mainly directed at limiting state power, while in the UK they focused more heavily on controlling private individuals and organizations. Consequently, British private investigators became strongly associated with threats to personal privacy. Meanwhile, American investigators operated with relatively fewer privacy concerns and were able to establish a stronger professional presence.
Researching private investigators provides methodological challenges, as much of their work remains confidential. There are, though, important parallels—and tensions—between the ways in which private investigators, anthropologists, and historians produce evidence about the world.Footnote 27 As Carlo Ginzburg has argued, private investigators and historians share an evidential paradigm that uses inductive interpretation, priding themselves on the ability to interpret clues to reveal hidden realities.Footnote 28 This article uses a range of necessarily partial and fragmented sources—focusing on the moments when private investigators enter public view in order to tell a wider story. These sources include the evidence submitted to the 1972 Younger Committee on Privacy, the papers of the Director of Public Prosecutions in cases involving the prosecution of private investigators, and the published memoirs of private investigators. Local and national newspapers were also invaluable sources for understanding how and when the work of private investigators entered wider public discussion.
A Short History of British Private Investigators
The origins of private investigators—in Britain and elsewhere—are linked to the forms of social distance and anonymity ushered in through the nineteenth century, creating shifts in the ways neighbors, business associates, and families knew one another.Footnote 29 In a “society of strangers,” private investigators provided a form of expertise about the apparently hidden parts of social relations, although precisely what was hidden changed over time.Footnote 30 The history of private investigation also cannot be separated from the history of policing.Footnote 31 As police forces with the power to investigate and prosecute crimes out of the range of public and private agencies involved in law enforcement in the mid-nineteenth century, private investigators operated in spaces not directly claimed by the state.
In the first decades of the nineteenth century, police forces in Britain—as in many places around the world—focused on providing protection rather than collecting evidence, which instead was left to the “energy and resources of the private citizen.”Footnote 32 When the Metropolitan Police was established in 1829, for example, it was primarily seen as a preventive rather than investigative force.Footnote 33 The Metropolitan Police force’s reluctance to expand its investigatory capacities initially left space for “thief takers” and the semi-freelance Bow Street Runners, who worked for the financial rewards available for solving some crimes.Footnote 34 At the same time, a widespread cultural “distaste” toward many methods of investigation meant that private investigators remained few in number through much of the late nineteenth and into the twentieth centuries. Plain-clothed detective work—whether carried out by the state or otherwise—was seen as reminiscent of continental European “political policing,” and in the words of one contemporary commentator, a “practice most abhorrent to the feelings of the People, and most alien to the spirit of the Constitution.”Footnote 35
Toward the second half of the nineteenth century, the police in Britain increasingly sought to claim a monopoly on wider aspects of policing, and, as a result, little political space was left for the private investigation of crime. Changes in family law, though, created new opportunities. The Matrimonial Causes Act of 1857 in England and Wales allowed divorce through a court petition, particularly if adultery could be shown. What were known as “private inquiry agents” became a key source of evidence.Footnote 36 The very term “inquiry agents” is instructive, as it implies the discreet gathering of information, rather than a covert and active type of investigation. Given that the number of divorces granted every year numbered only in the hundreds well into the early twentieth century, this work remained relatively limited, even as it had an outsized place in the public imagination. Divorce cases were widely reported in the press, and newspapers and the courts grew increasingly suspicious of the role of inquiry agents in allegedly manufacturing evidence. One well-reported practice involved hiring a woman, with the cooperation of the husband, to pretend to sleep in the same hotel room and then collect a witness statement from the chambermaid that the apparently adulterous couple had been seen together in the bedchamber.Footnote 37 The ways inquiry agents revealed information—false or otherwise—about the intimate life of bourgeois families meant that they were widely viewed as disreputable.
Social changes across the twentieth century reduced the stigma associated with revealing family secrets, but that did not necessarily improve the reputation of private investigators.Footnote 38 Deborah Cohen has argued that by the late 1950s, family secrecy and privacy had become increasingly separated, as in the wake of “confessional cultures,” secrets became vilified as damaging and corrosive, and privacy was instead increasingly defined as a form of freedom.Footnote 39 The decline of moral censure for revealing the intimate goings-on of families, however, did not result in improved public opinions about private investigators. Divorce work remained the main source of income for the first half of the twentieth century, and in the 1930s one estimate claimed that 80 percent of private investigators’ work was matrimonial.Footnote 40 Change came in the late 1960s. The Divorce Law Reform Act of 1969 in England and Wales meant people could end a marriage by consent—with no need for evidence of infidelity—and therefore there was less need for private investigators. Looking for new sources of work, many private investigators took up insurance investigations, even if large contracts were relatively rare, with few corporations seemingly wanting to work with them directly.Footnote 41 The published memoirs of private investigators working in the late 1960s also show that a great deal of their activities involved being subcontracted to trace the debtors produced by the boom in hire purchase arrangements in the late mid-twentieth century, and this was the area, for example, where Ian Withers made a great deal of his money.Footnote 42
It is hard to estimate the number of private investigators over time, as they often overlapped with other jobs such as bailiffs, insurance investigators, or security companies. One estimate has it that in 1954 there were over 200 companies, another that there were over 2,400 individual private detectives spread across the country in the same year.Footnote 43 Firms could range from lone individuals to larger, more established companies, with dozens of employees and part-time consultants.Footnote 44
Whatever their work or size of organization, the public reputation of British private investigators was consistently low across the middle of the twentieth century. Even when divorce law reform in the 1960s ended much of their work looking into alleged infidelity and they found new opportunities in an economy increasingly reliant on credit, they were still widely stigmatized.Footnote 45 While newspapers might have focused on the more lurid and sensational aspects of the profession, and did not necessarily give an accurate picture of day-to-day work, they do reveal a great deal about public perceptions. One newspaper column from 1949 claimed that “there are at the moment a couple of hundred private detectives about the country. Personally, I would not care to recommend more than about half a dozen.”Footnote 46 The subsequent decades did not see much of an improvement in respectability. Across the late 1960s, stories appeared about private detectives being charged with blackmail, “installing a radio transmitter without a license,” using illegal firearms, resisting arrest, trespassing, assaulting a police officer, child kidnapping, forging stolen checks, slander, insurance fraud, and perverting the course of justice.Footnote 47 The press around private detectives was not all bad, and there were positive stories too, with private investigators themselves strongly arguing that they were providing a “social service” in situations of “wrong-doing.”Footnote 48 In the late 1960s, for example, newspaper stories showed private detectives preventing miscarriages of justice and revealing municipal and police corruption, as well as assisting in tracking down Labour MP and fraudster John Stonehouse after he went on the run.Footnote 49 Withers had himself risen to public prominence for his role in helping to track down and return children caught up in “tug of love” disputes.
Given their low public reputation, many private investigators sought to increase the legitimacy of a profession at risk of attracting “cranks and eccentrics,” and there was a long-standing campaign to promote a system of registration.Footnote 50 In 1913, a group of former police officers founded the British Detectives Association (BDA) with the hope of creating a state licensing requirement.Footnote 51 The term “inquiry agents” was already falling out of fashion within the profession, as it was thought to sound disreputable. A rival to the BDA, known as the Federation of British Detectives (FBD), was established shortly after the Second World War with the aim of making “an honourable profession,” but faced a setback when in 1950 its president, a former police officer, stood trial in the West Midlands for perjury.Footnote 52 The two associations soon merged to form the Association of British Detectives (ABD).Footnote 53 Having failed to persuade the government to create a licensing system, the ABD tried to institute its own system of regulation, creating a code of ethics and a screening system, claiming that 60 percent of applicants were turned down.Footnote 54 There were allegations, though, that the ABD was using the screening to operate as a “closed shop” and would only allow former police officers to join.Footnote 55 There was also repeated and considerable opposition to licensing from both the police and politicians on the grounds that it would give private investigators unwarranted legitimacy.Footnote 56 The Lord Chancellor’s Office, for example, declared it was “sympathetic with the aim of curbing overzealous and unscrupulous private investigator[s],” but did not consider that there was yet “a workable solution.”Footnote 57
British private investigators long struggled to reproduce a viable market for their services, both economically and morally. By the late 1960s, although the information collected by private investigators was increasingly financial rather than matrimonial, it still risked being marked as either a morally ambiguous invasion into people’s personal lives or as siding with loan sharks, predatory lenders, or simply unfeeling big business. There are important parallels here between concerns over the status of private investigators and private security. The private security industry in Britain long contained a lingering worry about its credibility, and in the late 1960s in particular there were claims that security guards were stealing the property they were guarding.Footnote 58 Thumala, Goold, and Loader (2014) have argued that at least part of the longer-term worry about the status of private security stems from the deeper question of whether security is the sort of thing that can or should be bought and sold.Footnote 59 Similarly, attempting to sell investigatory services on the market raises difficult questions about how to tell good from bad investigation, how to distinguish between investigations that are intrusive and those that are necessary. Ambivalence about investigation has been a challenge for the police too, but, in contrast, state-led investigations are, theoretically at least, conducted for established public purposes and subject to public discussion, even if these are contested and honored in the breach. The “private” in private investigation does not just imply discretion, but also private interest. A market for investigation introduces concerns that tip the balance between the emancipatory and the invasive in investigation: putting investigation up for sale means there is no arbiter of legitimate purpose for investigation—and indeed no transparency as to the purpose of investigation.Footnote 60 Private investigators were by no means the only people investigating for money, but whereas journalists, corporations (and later hackers and even human rights activists) might investigate very particular types of issues, private investigators investigate for whoever employs them, on whatever topic they need, and using whatever technique is deemed most effective. They were therefore at the forefront of the marketization of investigation and its associated misgivings.
The Younger Committee on Privacy
The Younger Committee on Privacy quickly turned its gaze on private investigators, declaring that their work was “of exceptional concern…because invasion of privacy is the essence of it.”Footnote 61 Prior to this moment, although invasion of “privacy” was certainly used to describe the activities of private investigators, it was just one of the many words, alongside fraud, perjury, dishonesty, duplicity, and snooping. The Younger Committee saw private investigators become a focus of ever more politicized concerns about what was increasingly being described as “personal information.” In a situation where the profession already attracted a great deal of public interest and suspicion, the Committee would carry out one of the most extensive examinations of the work of private investigators in British history. The inquiry had been created after Labour MP Brian Walden’s unsuccessful private members bill to establish a right to privacy had been debated in Parliament in January 1970, but had met with considerable hostility from newspapers, including the Press Council, arguing that the law would restrict their freedom to investigate in the public interest.Footnote 62 Prior to this period, the courts usually dealt with questions of privacy as a “breach of confidence,” which focused on the nature of the relationships between parties rather than the content of the information, leaving considerable scope for the revealing of secrets.Footnote 63 The government argued against establishing a specific right to privacy on the basis that the concept was too vague, but agreed to set up the Committee, chaired by veteran Labour politician, former military intelligence officer, and Chair of the Howard League for Penal Reform, Kenneth Younger.Footnote 64 Importantly, at the direction of the government, the Committee did not look into invasions of privacy carried out by public bodies. State investigations were off-limits, with the work of non-state bodies implicitly seen as the greater cause for concern.Footnote 65
There was no shortage of people who wanted to talk to the Younger Committee about privacy, and the threats seemingly represented by private investigators. Police officers in particular—continuing their longstanding hostility—provided a large amount of often highly critical evidence. Assistant Commissioner Peter Brodie, in charge of criminal investigation in the Metropolitan Police, told the Committee, for example, that the “regular force” viewed private investigators with a “great deal of dislike” and denied that police officers passed on information, including criminal records.Footnote 66 He admitted that it was possible, if a private investigator had adequate knowledge of the systems, to hoodwink the Criminal Records Office, but declared that this was highly unlikely, reporting that the Metropolitan Police had set up a “bogus” private investigation agency and tried unsuccessfully to access criminal records in this way.Footnote 67 Other senior police officers recognized that many private investigators were former police officers, but that the “police kept their distance from private detectives” and that media claims of collusion were greatly exaggerated.Footnote 68 The police were also firmly against the idea that private investigators should be regulated, as it would give them a stamp of legitimacy. W. J. Richards, Chief Constable of Manchester and Salford Police, for example, told the inquiry that senior police officers opposed any type of licensing, as it “would put the seal of respectability on activities that were far from respectable.”Footnote 69
Private investigators tried to defend themselves, sometimes in very colorful language, arguing that they provided a public service. H. Hazlewood, a Birmingham-based private detective and the General Secretary of the previously largely unknown Association of British Private Detectives (ABPD), was concerned that the Committee was designed to restrict the work of private investigators and that “agitators, and their truly disproportionate dissensions” should not be used to justify a crackdown. Hazlewood argued that private investigators provided an essential service, and that “wherever you find a group of characters who hate and oppose Private Detectives you will find among them some of those who have been thwarted by the Private Detective’s defeat of their evil.” Hazlewood claimed that if restrictions were put on their work, it would lead to “countless human disasters.”
The Association of British Detectives had been renamed the Association of British Investigators (ABI) by the time of the Younger Committee.Footnote 70 The ABI claimed to have 340 members by the early 1970s and was represented before the Committee by its Vice President Peter Heims, a Surrey-based private investigator who had once briefly worked with Withers and had expertise in countering industrial espionage.Footnote 71 For Heims, the reputation of private investigators was a problem of a few bad apples, as “only 3 suspect firms” were giving the industry a bad name. Withers had himself apparently been refused membership in the ABI.Footnote 72 A few other organizations also came to the defense of private investigators. The British Securities Association insisted that it was in the “interests of justice” to use private investigators to provide evidence in civil proceedings.Footnote 73 The Hire Purchase Trade Association wrote that there was a “social value” in tracking down debtors.Footnote 74
The Younger Committee was particularly interested in the use of what it called new “technological developments,” including computers and surveillance technologies involved in “surreptitious intrusion.”Footnote 75 This was part of a broader concern from the media and some MPs in the late 1960s over the use of “bugs” by private investigators.Footnote 76 It had become clear that tapping telephones, as long as it did not involve entry into a house or damage to property, was not inherently seen by the courts as a criminal invasion of privacy. As a result, in 1967 there had been an unsuccessful attempt to introduce a private members bill in the House of Commons outlawing “unauthorised telephone monitoring,” with opposition coming on the grounds that it risked outlawing legitimate and necessary forms of interception from the police and journalists.Footnote 77 The Younger Committee was also worried about the use of “new style” hidden microphones, including some reportedly as small as a “tie pin” and photographic lenses of “exceptionally high magnification.”Footnote 78 Withers himself had a well-publicized sideline in developing new “bugging” technologies, appearing in a 1968 Daily Mail story boasting about his skills, and defending his actions by saying that he was only trying to provide evidence about misdeeds and lawbreaking.Footnote 79 However, the Younger Committee later reported that it had actually only heard evidence of five cases involving “technical devices for surreptitious intrusion,” including a “lady from Bradford who complains her neighbour snoops on her continuously,” and a case involving Ian Withers and his brother.Footnote 80 Concerns about “bugging” and other forms of surveillance technology were seemingly higher than the use of such technology warranted.
In its final report, the Younger Committee concluded that there should also be no stand-alone right to privacy—at least in part because it could not come up with a definition—but focused instead on particular activities and people who were seen as a threat to “personal information.”Footnote 81 Younger had been warned off looking at state intrusions right from the start. In this context, private investigators were singled out for attention, not necessarily for what they sought to find out, but for who they were. The Committee recommended that there should be a system of licensing, enabling those who were known to be “unsuitable” to be excluded or to face criminal penalties. The police continued to strongly object, seeing the problem not as one of inadequate regulation, but of the very illegitimacy of private companies investigating people’s lives.Footnote 82
Despite all the furor over the activities of private investigators and protecting the right to privacy, there would be no significant movement in this area for decades to come. It would prove difficult to outlaw specific methods, particularly if these were methods that other investigators, including police and the press, wanted to use. An initial promise to outlaw “bugs” was shelved, with newspapers pointing out that the technology had also been used by journalists to uncover corruption and miscarriages of justice.Footnote 83 If privacy laws were tightened to curb the activities of private investigators, they would infringe on the activities of the police and journalists. It was not simply a matter of what was being investigated, but of who was doing it.
The perception of private investigators as a particular threat to privacy can be understood in the context of the uncertainties associated with wider social changes. The late 1960s and early 1970s were a time of significant shifts in the ways in which privacy was culturally understood in Britain. As Sarah Igo has argued in relation to the U.S.—but in terms that apply to the UK too—during this period privacy became seen as a central social, political, and ethical problem.Footnote 84 There were increasing fears about the flip side of the “white heat of technology” and the ways in which new and not entirely understood forms of technological change, such as computers and electronic communication devices, might alter the ways in which other people could know things about you. The Younger Committee was later described as a turning point in the social and cultural history of privacy, with the final report seeing privacy as “leading your life as you want to lead it.”Footnote 85 But this is only part of the picture. Families might have been changing, but there was still widespread interest in keeping things hidden from others. Privacy was therefore increasingly being understood as rooted in changing ideas around “personal information,” which was becoming a commodifiable form of knowledge that could be separated from the person it seemed to refer to. It was the idea that “personal information” was embedded in bureaucratic systems from which it could then be extracted, or bought, sold, and exchanged through new technology, that caused a great deal of anxiety, and private investigators came to embody these concerns. However, as the criminal prosecutions examined in the next section would show, the law had not yet caught up.
Criminal Prosecutions of Private Investigators
Police hostility toward private investigators was not limited to the Younger Committee. Following the Guardian story about Withers, Police Superintendent John “Ginger” Hensley was put in charge of a team of thirty detectives looking into private investigators all over the country.Footnote 86 Hensley, a bow-tie-wearing veteran of the force with a reputation for having “unrivalled” knowledge of underworld gangs, had previously made headlines for rescuing a kidnapped newborn baby (later named after him), and arresting “police killer” John Duddy.Footnote 87 Although the Guardian handed over its dossier on private investigators, the newspaper refused to divulge the name of the agency they had used, later claiming that its journalists were followed by the police in order to reveal their source. The investigators of the investigators were being investigated.
Ian Withers, his brother Stuart, as well as Phyllis Withers (Ian’s wife) and Helen Gearing (who would later become Stuart’s wife) were charged with “conspiring to effect a public mischief” by unlawfully obtaining information from banks, government departments, and local councils. The case against the Withers brothers and their wives was heard at the Old Bailey in June 1972. For Hensley, it appeared to be personal. In his report to the prosecutor, he described Withers as a “person with…an ego that stands out like a diamond on a sack of coal.”Footnote 88 Over 103 people gave evidence to the police, with the focus on the brothers’ role in checking credit and chasing up debt for hire purchase agencies, although there were also accusations that they had been asked to keep track of foreign nationals by the Embassies of South Africa, Mexico, and Brazil, among other things.Footnote 89 The prosecution argued that the brothers had openly advertised their services and were able to take advantage of the fact that “ordinary life was carried out at high speed,” meaning that people often did not have time to check the appropriateness of their request.Footnote 90 So-called “blagging” or “pretexts” were a key part of the private investigator’s methods at the time, and Withers had perfected the art, becoming expert at extracting information by pretending to be an inspector, local government official, or even a police officer.Footnote 91 Ian and Stuart had apparently “learned the jargon” of banks, police, and government departments, and would pretend to be calling from the same organization when asking for information. Throughout the trial, the prosecution, though, was keen to stress that there was no collusion with government officials.Footnote 92
The Withers family were not the only private investigators who found themselves in the dock in the late 1960s and early 1970s, with over eleven others charged as part of the same inquiry.Footnote 93 Other investigators who attracted the attention of the police included a former employer of Withers called Barrie Quartermain. Quartermain was a six-foot-five Rolls-Royce driver and, like Withers, something of a minor celebrity, willing to appear on TV or give interviews to the press about how easily he could uncover people’s secrets. When police raided the headquarters of his network of seventeen companies, they found bugging devices, tape recorders, housebreaking tools, and Post Office uniforms.Footnote 94 Investigation was not all Quartermain did. His firm was notorious for its involvement in the late 1960s in a series of violent evictions in East London.Footnote 95 Petrol bombs, bricks, and glass bottles were thrown, and pitched battles erupted between Quartermain’s men—wearing white steel helmets and armed with dustbin lids—on one side and squatters on the other. In 1973, on hearing he was being investigated by Superintendent Hemsley’s team, Quartermain went on the run to South Africa, obtaining false passports for himself and his girlfriend, leaving his wife and children behind in the UK. After being deported back to England the following year, the prosecution set out how, among other things, he had plotted to pervert the course of justice by using a version of a ruse for which private investigators had been infamous since the nineteenth century: planting red nylon underwear in his girlfriend’s husband’s bedroom as false evidence to be used in her divorce case.Footnote 96 After describing Quartermain as “evil,” the judge sentenced him to three years in prison and a fine of £500, ruling that he had “stooped to every sort of dirty and dishonest trick.”Footnote 97
At their own trial, Ian Withers and his three family members were all found guilty, the two men sentenced to twelve and nine months in prison respectively, and the two women receiving six-month suspended sentences.Footnote 98 Ian and Stuart had already pled guilty to trespass and using unlicensed radio equipment in a divorce case, but they appealed the conspiracy charges and were released on bail.Footnote 99 Ian was immediately rearrested on charges of child abduction in Ireland, although these charges were soon dropped.Footnote 100
Initially upheld at the Court of Appeal, the conspiracy case eventually made it all the way to the House of Lords. It was here that the legal charges ran into difficulty. In and of itself, apparent invasions of privacy, such as those involving Withers and associates, were not self-evidently breaking the law. Although English social norms around keeping family secrets were strong throughout the nineteenth and twentieth centuries, the law did not include a standalone right to privacy or a specific criminal charge. Obtaining personal information without permission was not in itself a crime, although under the right circumstances it could be the civil offense of a “breach of confidence.” The prosecutors of Withers and other private investigators had instead sought to bring their activities under a common law charge of “conspiracy to effect a public mischief.” After admitting that there was not a legal definition of “confidential information,” the prosecution’s case rested on the argument that the information had been collected “deceitfully.”Footnote 101 It was not so much what Withers and Co. had found out, but how they had done it. The claim of “public mischief” was based on the argument that “wilfully deceitful acts would cause extreme injury to the general well-being of the community as a whole.”Footnote 102 Deceit was being made into a crime by making it a conspiracy that harmed the public. The case was always on unstable ground. The Lords eventually ruled that there was “no such generalised offense” as “conspiracy to effect a public mischief,” and the courts could not criminalize activities that were not, in themselves, unlawful.Footnote 103 The judgment stated that “…there is no offense of stealing information…telling lies…in order to obtain information is not a criminal offense. Information is quite different from something in which a person has a property right.”Footnote 104 Despite the widespread moral and cultural disquiet, getting personal information through duplicity was not in and of itself a crime at the time. It would be several decades before the law treated such information as analogous to personal property and therefore obtaining it illegally a form of theft.
Despite—or even because of his acquittal—Withers was hardly out of the news in the years that followed. In 1974 he starred in an award-winning documentary from Southern Television, as he tracked down a three-year-old girl taken to Majorca by her father in a “tug of love” case, resulting in an appearance on the prime-time David Frost Show. Footnote 105 The case would end in tragedy after the girl’s father came to Britain to try to recover his child, shot his former father-in-law, and injured his ex-wife with a homemade bomb, before being arrested and convicted of attempted murder. In another case, in 1975, Withers was arrested and fined in Hong Kong while trying to gather evidence on the activities of a lawyer.Footnote 106 Back in the UK, his run-ins with the police continued. In his memoir, he would claim that the Metropolitan Police warned him to leave London and he was also placed on a police list of “unreliable informants.”Footnote 107 In 1976, he was convicted of “child stealing” after getting involved in another child custody case.Footnote 108
Private Investigation in Comparison
Investigation—as the deliberate uncovering of things previously hidden or unknown for specific purposes—has a long genealogy, central to the entwined histories of the state, criminal justice, and science, among other things.Footnote 109 For Mariana Valverde, what she calls “inquiry” is a “mode of gathering and certifying knowledge,” which “state authorities [do] not monopolize….”Footnote 110 The dispersal of the ability to investigate therefore leads to important questions about who should be able to investigate whom, about what, for which reasons, and in which ways. With the exception of large-scale forms of corporate surveillance and an increasing body of work on “hackers” and various forms of so-called “open-source” intelligence, the ethical and social implications of the range of people and organizations involved in investigation are little understood.Footnote 111 In exploring the diversity of groups involved in investigation, important lessons can be learned from work on both private security and surveillance, which has shown how the state works alongside—sometimes in tandem, sometimes in tension—with multiple organizations in the making and unmaking of law and order.Footnote 112 As such research has shown, the dispersal of both security and surveillance across a plurality of actors and organizations has important social and ethical implications, as notions of “private” interest exist in tension with wider public welfare or public justice.Footnote 113 Insights from private security cannot be directly mapped onto investigation, though, as they involve different objectives and forms of knowledge, with the former often concerned with the distribution of risks across populations, rather than finding out things about specific people or relationships. The ethical and political tensions of private investigation are very different from security.
Thinking comparatively can help pull out some of the specificities of private investigation, concerns about privacy, and their relationship with the state and the public. The U.S. provides a particularly illuminating counterpart, partly because the U.S. has dominated the historiography of private investigation.Footnote 114 Not only did American private detectives find it far easier to create a legitimate place for themselves in a market of investigative services, but U.S. concerns about invasions of privacy were much more heavily focused on the state. In the U.S., as in the UK, police departments focused on protection and security rather than criminal investigation well into the late nineteenth century. In the U.S., though, in contrast to the UK, American private investigators were given much more space to operate. Large firms of private investigators, such as Pinkerton or Burns, were well established by the last decades of the nineteenth century, predominantly working for corporate clients and focusing on strikebreaking and industrial espionage.Footnote 115 Local police forces and government agencies also often cooperated with private investigators, with high levels of movement of personnel between private investigation firms and other forms of policing.Footnote 116
The work of private investigators in the U.S. was not without controversy. The involvement of the Pinkerton company in the killing of striking steelworkers in Pennsylvania in 1882 resulted in legal regulation, and new federal laws banned government agencies hiring Pinkerton agents.Footnote 117 In the 1930s, the involvement of private investigators in the violent suppression of strikes led to the Senate setting up a subcommittee to examine their work, with the La Follette Committee concluding that “there was a grave danger of the responsible functions of public officials being usurped.”Footnote 118 Many states responded to these controversies by setting up licensing systems, although the precise requirements varied.Footnote 119 Notably, the threat presented by private investigators was largely understood in terms of illegitimate use of violence rather than invasions of privacy.
The differing ability of U.S. and UK private investigators to establish a market for themselves as providers of investigation can be linked to the differing history of the state in both countries, and anxieties about state power. In the U.S., a fragmented policing infrastructure, a relatively weak federal government, and the increasing unionization of labor created a situation where private investigators could flourish.Footnote 120 In contrast, British private investigators have operated in a context where the police force has sought to claim what the legal historian Jacqueline Ross has called “sovereign prerogatives” to investigate.Footnote 121 Writing in the context of nineteenth-century France, Ross argues that a “well-developed and centralized state bureaucracy defended a monopoly of legitimate stealth to which the American state could not aspire.”Footnote 122 Related arguments about the state can be made about the UK. The British state’s claim in general, and the police’s claim in particular, over the “sovereign power to investigate” was not widely questioned in the UK. At the same time, a culture of secrecy has historically been deeply embedded in the British state.Footnote 123 The default presumption toward state secrecy, even on the most seemingly innocuous issues, has led the political historian Peter Hennessy, for example, to claim that secrecy “goes with the grain of our society.”Footnote 124 The British state has therefore consistently claimed the right to uncover people’s secrets while maintaining its own.
Popular culture around private investigators ran in parallel to the differing trajectories of American and British private investigators. If novels and films about private investigators have been heavily influenced by the American example, it is not a coincidence that British crime fiction was largely dominated, by the middle of the twentieth century, by the police procedural.Footnote 125 American private investigators might be portrayed as slightly seedy, but they also have an edge of glamour and a perceived ability to cut through the injustices of the formal legal system.Footnote 126 Although the figure of Sherlock Holmes, intellectual and insightful, looms large in the British public imagination, it was police detectives who dominated by the 1960s. There was much less popular legitimacy for taking the law into your own hands in the UK than in the U.S., and in British crime fiction the police were naturalized as the people who should investigate.
Above all, the distinct paths taken in the U.S. and UK by private investigators can be understood through the different histories of the right to privacy. In his influential comparative analysis of privacy in the U.S. and continental Europe, James Whitman has argued that American privacy is “oriented toward values of liberty, and especially liberty against the state.”Footnote 127 In contrast, for Whitman, “Continental privacy protections are, at their core, a form of protection of a right to respect and personal dignity…the right to informational self-determination—the right to control the sorts of information disclosed about oneself.”Footnote 128 British privacy laws have been somewhat in the middle, but also much more inchoate. An emerging right to privacy would not be enshrined in law until the end of the twentieth century under the influence of European human rights and data protection laws, heavily influenced by the tradition of informational self-determination—or “personal information” as a form of property.Footnote 129
Although the right to privacy was well enshrined in U.S. law, this did not result in significantly tighter controls on many of the activities of private investigators. In general, even despite the introduction of licensing, there were relatively few restrictions on private investigation into people’s personal lives in the U.S., with privacy laws requiring the publication of embarrassing information for there to be a breach.Footnote 130 In contrast to the UK, U.S. driver’s license information, court records, and convictions, for example, were all publicly available. A 1971 report from the RAND Corporation, commissioned by the U.S. Department of Justice, concluded that “regulation of the techniques of private investigators is virtually non-existent.”Footnote 131 As Jeffreys-Jones has argued in his comparative history of surveillance in the U.S. and the UK, America has tended to focus on restricting the powers of the state, whereas the UK has emphasized restricting the powers of private actors.Footnote 132 This is not to say that invasions of privacy issues were not raised around American private investigators, but that they were given relatively less weight than in the UK. In 1970, for example, Ralph Nader, the consumer protection activist, brought a case against General Motors in a New York court, alleging that the company had hired a private investigator who had invaded his privacy by interviewing friends and acquaintances about his views, keeping him under surveillance, and tapping his telephone. The judge ruled that interviewing his friends and the “mere” observation of Nader in a public place did not amount to an invasion of his privacy, but that there might be a case to answer for the intentional infliction of mental distress.Footnote 133 The case was eventually settled out of court.
The British association between private investigators and threats to privacy in the late 1960s and early 1970s was therefore a product of a very specific confluence of concerns about “personal information” and the downplaying of the threat from the state, which, as a result, produced a lot of noise but little concrete action. In contrast, in the U.S., the combination of a decentralized state, popular culture, and laws around privacy that emphasized freedom from the state meant that American private investigators were much more able to establish a space for themselves, attracting relatively few concerns about invasions of privacy.
Conclusion
The German sociologist Georg Simmel suggested long ago that government is the ability to determine which secrets can be kept and by whom.Footnote 134 This formulation can be turned on its head to ask: who has the power to investigate and how? From this perspective, governance can be understood as centrally concerned with the management of different types of revelation and concealment.Footnote 135 As such, privacy, as well as secrecy, confidentiality, and personal information, are not neutral categories, but fundamentally shape who can access what information and help reproduce wider social and political relationships.
In late-sixties and early-seventies Britain, privacy brought together a host of concerns about changing social norms and new technologies, but also sidelined questions about just who was accessing information, and, in particular, the role of the British state and its policing powers. As private investigators became the focus of concerns about “appropriate” access to information, their work consistently raised to the surface the tensions and ambiguities of trying to justify uncovering otherwise hidden forms of knowledge about people’s relationships. Private investigators were on the edge, liminal and not entirely legitimate. This is classic “dirty work,” useful—to some—but also stigmatized.Footnote 136 Private investigators have long walked the boundaries of what it is thought appropriate to reveal.
Private investigators have been far from alone in delving into people’s secrets, even if they have attracted the most attention. There are interesting parallels here between private investigators and twenty-first-century phenomena such as hackers, and groups like Anonymous—which from the early 2000s were known for cyberattacks on states, corporations, and churches. As Gabriella Coleman has argued, such people are either lionized as technological geniuses and whistleblowers able to cut through lies, deceits, and obfuscation, or as obsessive and sinister criminals who are addicted to the internet.Footnote 137 Part of the public fascination with hackers comes from their apparent mastery of new technology as well as their apparently ambiguous political commitments. Private investigators, in contrast, speak to broader concerns about access to information, irrespective of the technology or the political motivations. Journalists, too, have long worked in some of the same space as private investigators, raising related questions about just when collecting information is intrusive and when it is freeing.Footnote 138 It was perhaps for this reason that the press has often been hostile toward private investigators, seeing them as walking just the wrong side of the line marking legitimate from inappropriate access to information—even if they have often relied on them for the material for their own stories. In the late 1960s and early 1970s, and since then too, newspapers were very keen to distinguish the sorts of “public interest” investigations they carry out from the “intrusions” of private investigators.
Above all, the British police were hostile to private investigators, seemingly keen to protect their own powers to investigate and perhaps anxious that the concerns about intrusion could rub off on them. Although many British private investigators have been former police officers, their relationship with the police has always been tense, the state jealously protecting its power to investigate. Importantly, the Younger Committee explicitly ruled out looking at state practices, including the police. Although there were widespread concerns about police corruption and behavior in the 1960s and 1970s, the potentially intrusive investigative methods of the police were attracting relatively little notice, and covert policing was almost entirely unacknowledged and unregulated at the time.Footnote 139 In the late 1960s, for example, the Metropolitan Police had established the undercover Special Operations Squad, largely to police mass demonstrations and anti-war activists.Footnote 140 Nearly five decades later, press reports and public inquiries revealed how the squad was involved in creating fake identities from deceased children, engaging in sexual relations with activists, giving false testimony in court, and participating in small-scale criminal activities.
Through the sixties and seventies, privacy proved an awkward category through which to determine who should have access to what information and did little to restrict the activities of private investigators. If it had been pushed too hard, it risked curbing the activities of not only journalists, but also the police, and therefore failed to gain much traction. Since the mid-1980s, though, British private investigators have operated in a very different legal environment: they remain unlicensed but have increasingly become caught up in wider and more restrictive regulations. In particular, the category of “personal information” has grown in salience and definition. As part of a wider European legal tradition of information property, the law—and the General Data Protection Regulation (GDPR) in particular—has focused on what information is being uncovered, rather than how and by whom.Footnote 141 Such laws have important blind spots—particularly in terms of individualizing wider questions of knowledge—but the focus has firmly moved away from issues of personal secrecy toward informational self-determination once and for all. Alongside data protection laws, in the 2010s, the surveillance and covert investigation powers of the police and other public bodies also began to be more formally regulated.Footnote 142 In 2013, there were high profile allegations involving Edward Snowden, the former U.S. intelligence contractor, that the UK government had been illegally and secretly collecting large volumes of private data.Footnote 143 The case made it all the way to the European Court of Human Rights, but rather than end such practices, the UK government attempted to legalize them. The 2016 Investigatory Powers Act (IPA) regulates digital surveillance and data-gathering powers of public bodies, including UK intelligence services and police, but also other public institutions, such as municipal authorities. Despite—or even because of the increasing regulation—private investigators continued to cause considerable anxiety about how they access information, showing that the line between “appropriate” and “inappropriate” access to information is far from settled. When concerns over the hacking by tabloid journalists of mobile phones owned by celebrities erupted in the mid-2000s, in the initial round of legal cases, ten private investigators were prosecuted for breaching data protection laws, but no journalists, who after all had initiated the activities.Footnote 144 Private investigators remained a target for unease about who should know what about whom, but this time around the law had caught up with them.
Open access
