Private investigators in court over corporate spy scandal

Private investigation firm Thompson & Clark Investigations Ltd (TCIL) appeared before the Registrar of Private Investigators and Security Guards in the Christchurch District Court on Wednesday 20th and Thursday 21st February.

TCIL faced allegations that they had breached the Private Investigators and Security Guards Act (The Act) which governs their conduct. The allegations refer to the engagement of Ryan Paterson-Rouse to infiltrate the Save Happy Valley Coalition (SHVC) and of Somali Young to infiltrate the Wellington Animal Rights Network (WARN) and Peace Action Wellington (PAW). Also in question was the legality of the placement of a spy camera on the road near the entrance to the Happy Valley occupation site in 2006, by TCIL.

SHVC, WARN and PAW complained to the registrar in June 2007, after Paterson-Rouse and Young were exposed as spies paid by TCIL to infiltrate activist groups and gather information. TCIL then passed that information on to companies that had hired it, including Solid Energy, and likely the NZ biotech industry and NZ Defence Industry Association.

Despite being served with a subpoena and having flights from Wellington paid for, Somali Young did not appear in Court, and may be fined by the Registrar. On the stand, Gavin Clark declined to answer any questions relating to Somali, including whether he had ever met her. Despite objections from Frances Mountier (for SHVC) and Valerie Morse (for PAW), the Registrar refused to compel Clark to answer the questions. Clark claimed immunity from having to answer the questions due to the public interest, although Mountier and Morse both questioned whether this in fact had any basis in law whatsoever.

Spy Camera

In his submission to the Court, Clark acknowledged for the first time that the camera was in fact placed by TCIL. The act states that:

Every person, who, in the course of or in connection with the business of a private investigator, -

(a) Takes or causes to be taken, or uses or accepts for use, any photograph, cinematographic picture, or videotape recording of another person; or

(b) By any mechanical device records or causes to be recorded the voice or speech of another person, - without the prior consent in writing of that other person, commits and offence [against this act]

Clark claimed that the camera was placed in TCIL's role as a security contractor to Solid Energy rather than as private investigators. In response, Mountier pointed out that it would defeat the purpose of the protections that The Act purports to afford if private investigators were able to break their governing legislation by claiming they were acting outside of their licensed role.

The Spies

The allegations concerning Paterson-Rouse and Young were that they had acted as private investigators without holding a valid license, which is an offence against The Act for both them and for TCIL, the private investigation firm that paid them. Gavin Clark claimed that Paterson-Rouse was never an employee of TCIL, but rather an informant paid as per the quality of information provided rather than any set rate.

In his evidence, Clark stated that he had been given a list of names and information of people in Christchurch, and of those names, he chose Paterson-Rouse as he felt he would be most likely to fit in with the other SHVC activists. He then contacted Paterson-Rouse and had a meal with him to further assess whether or not he would be able to carry out the infiltration of SHVC. Upon deciding that he would, Clark advised Paterson-Rouse to join, and the infiltration began. When asked if he still stood by his judgement that Paterson-Rouse was a good choice to infiltrate SHVC, Clark stated "Well, Ryan Paterson-Rouse's behaviour is why I'm here talking about him today…"

Over the next 7 months, Paterson-Rouse was given a cellphone and paid over $3700 by TCIL for providing information. Clark stated that information sought included personal information such as where people lived and who they were in relationships with, in addition to people's roles in SHVC and any special skills they might have, such as tree-climbing. At times, Paterson-Rouse's pay was worked out at an hourly rate (or a daily rate during his three trips into the Happy Valley occupation).

One of the aspects of Paterson-Rouse's information gathering was the automatic forwarding of all emails sent to him to Gavin Clark. Clark admitted to deleting all emails from Paterson-Rouse's email account after the spying was exposed.

Clark also discussed the "monthly updates" which TCIL sends out to its clients, which were mentioned in a response to an Official Information Act request by Massey University, one of the recipients. Clark claimed the updates contained only information from "open sources", which he defined as the internet and news media. This information would include news about protests and upcoming events organised by political activist groups, both in New Zealand and overseas.

Clark also acknowledged that he knew that the SHVC blockade of a coal train on April 29, 2007, was going to occur, and that he had travelled to Christchurch for it. He said he "may have" informed the police it was to occur, but did not confirm or deny when asked if he attended a police briefing on the protest at 8am, several hours before it began. The briefing had been revealed during the hearings of those convicted for the protest.

The bulk of what was in dispute between Morse and Mountier and TCIL in regard to Paterson-Rouse and Young was whether or not their work constituted employment by TCIL. In this, TCIL called private investigator and ex-Police officer Trevor Morley, who related his experience with both undercover agents and informants in both the Police and the private sector. They also submitted some case law from the Employment Court as to the difference between an employee and an independent contractor. Morse and Mountier argued that as both Paterson-Rouse and Young had been approached and offered regular payment to infiltrate and report information on specific political activist groups, had recieved instructions on what types of information to seek and had seemingly been paid hourly or daily rates, that the relationship between them and TCIL was indeed one of an employer and employee. They also made note that The Act makes no provision whatsoever for any difference between undercover agents and informants.

Decision reserved

After a day and a half in court, the Registrar reserved his decision. Morse and Mountier asked for the maximum penalty, which is the cancellation of TCIL's private investigation licence.

An SHVC activist's sketch of Gavin Clark, drawn during court.

Related

http://www.savehappyvalley.org.nz

http://www.peacewellington.org