In general terms un-named persons can be observed without authorisation but only for the purpose of establishing their relationship to the scope of an investigation. For example: You are observing a builders yard because the employer is believed to employ benefit claimants and paying them cash in hand. An un-named person arrives and begins work. You do not know if they are claiming benefit or not. You might follow the individual home only to discover their address and to check if they are claiming benefit. If they are not claiming you must cease any further observations of the individual, unless you discover further evidence that they are collaborating with the employer to encourage benefit claimants to work for the builder. If this is true, or that you discover that they are a benefit claimant then you should name them and get authorisation to continue observation.

In all cases of evidence gathering the power of the inspector should be used. Be that a benefit inspector, trading standards officer, police officer, customs officer or the auditor.

Auditors are not exempt from this law and neither are managers. Stop and search outside of agreed areas is prohibited. An auditor seeking to observe staff, for example the discovery of stealing cash from a till, would still need the correct authorisation. Stopping staff and checking bags would have to be written into an employment contract in order to have permissiveness.

Audit trails and controls within systems should be checked so as to ensure that they do not breech either unauthorised inception of communications or observations.

All investigators should consider the following. Is walking up a garden path and peering though the letterbox unauthorised observation? The answer is yes.

Investigation of electronic data protected by encryption etc.

If an investigation requires the access to computer systems or files which have been encrypted the suspect must give you the password or encryption key. Failure to do so if a criminal offence. This is an important extension to the power of an investigator. However, it should be noted that this does not empower a manager, it only empowers authorised investigators. In other words only those who have been appointed an inspector or an auditor.

Scrutiny of investigatory powers.

All investigation will be subject to an inspection. In the case of Benefit Fraud the scope of auditing compliance to HRA will fall on the Benefit Fraud Inspectorate.

This act is far reaching. The benefits agency and police have put into place procedures to comply with the act from April 2000. Local Authorities must do the same. Do not wait until guidance has been issued or October 2000 has come around. Remember this act comes with case law. The legal profession is currently testing the scope of the act with in the courts. Consider the message that it send to the public if you try to invoke you willregulatory power to prevent a criminal offence but you end up as the one in the dock. ACT NOW!