Planning, Implementing and co-ordinating a successful Covert or Undercover Operation and/or Sting Investigation is a specialised undertaking unto it’s own. This is largely due to the unique difficulties and the myriad of complexities and untold difficulties involved in initiating, co-ordinating..and successfully concluding a covert operation:-
The covert or undercover operative is, by neccessity, a special type of person. He or She needs to be a superlative actor, must have exeptional self confidence and the mental fortitude to perform under the extreme stress of an undercover investigation and the permanent danger of the threat of exposure. One small slip up can cause untold damage to the integrity of the operation and/or physical threat towards the undercover operator or agent.
Conducting a thorough Risk Assessment and a comprehesive Threat Analysis identifying the possible source of the leak or theft, as well as attempting to anticipate and block all potential pit falls and thereby eliminating all potential dangers to the operator/mole/agent, are imperative to the security of the operation and the prime requirements to a successful Sting or Undercover Operation .
Planning a Covert or Sting Operation..involves the following:-
- Setting Time Frames and Targets.
- Calculating Number of Operatives required.
- Determining Type/Personality of Operative/s required.
- Identifying Equipment needed and sourcing same. eg..Covert Video and Audio Recorders, Cameras, Cellular Phones, Tracking devices etc..
- Conducting Background Criminal and Financial checks.
- Locating and Training a suitable ‘Mole’ for the particular position.
- Putting the Covert Operative into play smoothly, effectively and with minimal disturbance to the Organisation.
- Creating an easy and reliable reporting structure for the operative.
- Setting up Contingency or Back-up plans.
- Debriefing Operatives.
- Collating, evaluating and documenting all evidence.
- Initiating Criminal Procedures/Opening Case Dockets.
- Giving Evidence in Criminal Court.
- Compiling and presenting the Final Report.
On the conclusion of the Covert Operation and on request of the Client, We will be available for ongoing Security Consulting and ensuring that all possible loopholes are closed.
Intrepid Security Consulting will then perform a thorough Threat Assessment and Risk Analysis on the Organisation and format an effective and flexible Risk Control Plan and where needed, assist with the seamless implementation thereof.
A matter of entrapment
I often get asked this question of whether or not an employer can install hidden surveillance equipment, such as video recording cameras, or hidden audio recording equipment, in order to monitor the behaviour of employees.
There are several different schools of thought on this matter.
From one aspect, there is nothing illegal about a trap in itself. The question is whether or not the evidence of the trap would be admissible.
This might all sound a little complicated, but what it means basically is that if you are conducting an investigation into a known crime - such as the employer is experiencing heavy stock losses, which leads the employer to quite fairly conclude that somebody is stealing his stock - he just does not know who, when or how - then he would be entitled to install hidden surveillance cameras, for example, in order to "catch a thief."
However, if no known crime is taking place - let's say the employer is not experiencing any stock losses or disappearance of other assets - but he installs hidden surveillance cameras merely "in the hope of catching somebody if they should attempt theft" - then that would be considered to be entrapment, and the evidence, in all probability, would not be admissible.
In Mbuli / Spartan Wiremakers CC, the respondent was experiencing any stock losses - he set a trap in the form of asking one employee to approach the suspect the employee to conclude a deal for the supply of netting wire "via the back door."
A deal was concluded, the deal went through, and the suspect employee subsequently charged and dismissed.
In this instance, the applicant employer had taken several other measures to try and control the disappearance of stock, such as introducing regular morning security patrols outside of the perimeter fence to look for company product that had been thrown over the fence during the night shift for later collection, and offered rewards to staff for information.
After the deal in the trap had been concluded, it was reported by the assisting employee that there were two employees involved in this type of theft, and a "sting" operation was set up, whereby the suspect employee agreed to sell three rolls of netting wire to the "trapper", and they arranged to meet at a place the next day, at a location outside of company premises, where the stolen wire would be handed over and payment made.
This transaction was observed by the respondent's dispatch manager, who witnessed the entire transaction taking place.
All of this, remember, was done covertly, without the knowledge of the suspect employees, and with the express intention of "trapping" then in their illegal shenanigans.
A disciplinary hearing was held, followed by a verdict of guilty and a subsequent dismissal.
The applicant (amazingly) alleged at the arbitration that his dismissal was substantively unfair because he did not breach any rules of the workplace. He denied reaching agreement with the other employee to provide him with three rolls of netting wire, he denied removing three roles of such wire from the company premises, and denied meeting the employee at the previously agreed rendezvous, where the transaction was witnessed by the respondent's dispatch manager.
The applicant stated that he was working day shift on that day, and would not have had permission to leave the premises to go and meet at the agreed rendezvous point. However, the respondent produced proof that the applicant was in fact working night shift on that day, and not day shift, and the applicant then conceded that this was true.
The applicant stated further that his dismissal was procedurally unfair because he did not understand the notification of the disciplinary inquiry, and he did not have enough time to prepare for the inquiry. He stated that he was illiterate and could neither read nor write English.
A little later during the arbitration, the applicant was requested to read into the record the written notes that he had taken in English during his disciplinary inquiry, and he did so quite competently.
After various other lies, which were promptly uncovered, the arbitrator failed to agree with the applicant on any of these allegations of procedural unfairness, the arbitrator considered (and this is the crux of this article) whether the way in which the evidence of theft (entrapment) was obtained should make any difference to the fairness of the dismissal.
The Arbitrator asked the question of whether the entrapment of the applicant was fair.
The Arbitrator noted that there is a distinction between the realm of criminal law and a very different jurisdiction afforded to Bargaining Councils, the CCMA and the Labour Court in terms of the LRA, namely that obviously criminal proceedings are governed by criminal law and civil proceedings by civil law.
Nonetheless, the arbitrator noted that the approach to entrapment in criminal law is instructive as a guideline in these matters.
The Criminal Procedure Act provides guidance for the courts to decide on the admissibility of entrapment as evidence - rather than reference to entrapment as a defence.
Some of the factors to be considered are the following :
- The nature of the offense - taking into account the prevalence of the offense and the seriousness of the offense (in other words, a "known crime" - an "existing unlawful activity”, rather than trying to induce somebody into committing a crime)
- The availability of other techniques for the detection, investigation or uncovering of the commission of the offense, or the prevention thereof;
- The degree of persistence and number of attempts made before the accused succumbed and committed the offense;
- The type of inducement used, including the degree of deceit, trickery, misrepresentation or reward;
- The timing of the conduct - whether the trapper instigated the offense or became involved in an existing unlawful activity;
- Whether the conduct involved the exploitation of human characteristics such as the motions, sympathy or friendship, or an exploitation of the accused is personal, professional or economic circumstances;
- Whether the trapper or agent has exploited a particular vulnerability of the accused such as a mental handicap or a substance addiction;
- Any threat implied or expressed against the accused;
- Whether, before the trap was set, there existed any suspicion based upon reasonable grounds that the accused had committed a similar offense.
Thus it can be seen that all of the above involve the basic principle of “ investigation of a known crime", or "investigation of an existing unlawful activity."
In a further case involving Cape Town City Council v SAMWU & others, the Judge stated that "law enforcement and the pursuit of justice would be impeded if evidence obtained in a trapping situation were excluded, provided the use of entrapment is properly scrutinised and constrained."
This view was agreed with by Arbitrator G. Loveday, who stated "in the current environment of massive losses incurred by business due to staff theft of company product, an employer should be entitled to use whatever lawful mechanisms are available to curb such theft. In exceptional cases, these mechanisms may indeed include entrapment, provided proper constraints are applied.
The Arbitrator went on to state that, in this particular case, the applicant was specifically targeted because of an existing suspicion raised by an anonymous informant that the applicant and his co-accused were involved in stealing company property and selling it.
There was no evidence that the applicant was unduly induced, coerced or tricked into committing the theft. Rather, the applicant was a willing participant and did not need to be cajoled into the commission of the offense.
The applicant was not an innocent person who has been led astray by unfair in inducement. The person conducting the trap did no more than provide the opportunity for the applicant and his accomplice to commit the offense, and no unfair in inducement, besides financial reward, was used or was, indeed necessary.
It was therefore found that the evidence acquired in the entrapment is admissible and did not detract from the fairness of the applicant's dismissal.
“Excerpt taken from ‘The South African Labour Guide Website”
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