Is it really a load of old rubbish?

For as long as investigators have been investigating, the practice of emptying peoples’ dustbins has been rife. A great deal of information about an individual can be obtained from what they throw away. Just check your own waste paper bin now and see what juicy nuggets of information have been placed ‘in the round file’ (to coin popular office terminology of the modern era).

There is a character – aptly named Benjy The Binman – who has made a career out of rifling through peoples’ dustbins and selling on the information he has obtained. One of the leading credit agencies recently conducted a survey of the contents of a local Borough’s dustbins. They were quite astonished by the amount of information that they found out about given individuals.

We are constantly being advised that identity theft is the fastest-growing type of fraud, and yet (unwittingly) so many of us are aiding its growth by throwing away bank statements, credit card and telephone bills and the like.

When conducting litigation on behalf of their clients, some of the more aggressive lawyers turn a blind eye to the dumpster-diving methods employed by their investigators. Some of those lawyers, in tandem with leading fraud investigators, have even suggested that this method of obtaining information is not unlawful. A message repeated in an edition of The Evening Standard (August 2004), where one of the newspaper’s articles discussed methods of intelligence gathering that had been used in the attempted takeover of Marks & Spencer by retail billionaire Philip Green.

Dumpster-diving is a practice that has been in operation for as long as I have been involved in investigation work, and one doesn’t suppose that this article will change that status quo one iota. However, I do hope what follows will make you stop and think the argument through, because I do not believe that the lawyers who advocate this practice – and some experienced fraud investigators – have done so.

The Arguments

The first argument normally trotted out is that stealing documents from bins is not theft. It is suggested that when an individual places his or her rubbish in the black sack and dumps it in the street to be collected, they are in fact abandoning it.

Should anyone be considering a rummage through my rubbish, let me point out that I am not abandoning it. I am leaving it there such that the technical refuse operatives (as binmen have come to be known these days) can pick it up and transport it to a local authority refuse tip where it will be dealt with in the usual fashion.

For my part, I regard this as a contractual arrangement with my local Borough Council. I pay my rates and taxes for certain services, one of which is the collection and disposal of my rubbish in a proper manner.

You, on the other hand, might not care. You may well be abandoning your rubbish and, if anyone comes along and rifles through it, from your perspective they’re not stealing it.

Perhaps the answer here is for us all to stick on a label as to whether we are disposing of our rubbish as part of a contractual arrangement with the local authority or merely abandoning it. That way, any dumpster-diver can ease his or her conscience, and satisfy the argument that they are not stealing.

Many years ago, there was a case involving binmen working for a local authority who were successfully prosecuted for snatching items from peoples’ bins. It was considered to be theft because the local authority felt the argument I have expressed (namely that the rubbish was not being abandoned, but was forming part of a contract of refuse disposal) was the right one.

On more than one occasion, the Information Commissioner’s Office has expressed its grave concern at people rifling through dustbins in order to obtain information about individuals (in other words, the ‘data subjects’). Again, on more than one occasion they have expressed the view that they would consider this to be a breach of the first principle of the Data Protection laws (“Fairly and lawfully processing personal data”)

A further argument I have heard expressed on a number of occasions is that if you return the rubbish to the place you took it from then this is not counted as theft.

What constitutes theft?

At this stage, it is probably useful to remind all security professionals of the correct definition of theft – “To dishonestly appropriate property belonging to another with the intention of permanently depriving”. All four criteria must be satisfied before a theft takes place.

It has been suggested that when you lift a bag of rubbish from a suspect’s home or business premises, you log the time that you took it and from where. You then take the rubbish away, carefully examine it, make copies of any valuable information, repack the rubbish bag and then return it. You then log that returning of the rubbish.

The inference here is that therein lies the evidence you had no intention of permanently depriving, and neither were you dishonest. How, then, can this represent theft?

Undoubtedly an interesting argument, and one of which burglars should take note. The burglar logs the house, factory or office they entered, what they appropriated, when they did so and then – ever so slightly – delays the return of their ‘gains’ on the off-chance that the police will not catch up with them. Should the police twig who it is, the burglar can show them their log and state that it was their intention all along to return their haul to its rightful owner. I for one would be very interested to see if such an argument would convince a Jury.

For now, let’s return to the taking of rubbish. Some years ago, in the Regina versus Reilly case, a private investigator removed four bags of rubbish from outside the home of the (then) managing editor of The Sunday Times. Allegedly, this was all part of the much-publicised Virgin Atlantic versus British Airways ‘dirty tricks’ case. That case proceeded to Richmond Magistrates Court, whereupon Reilly pleaded Not Guilty. The case then ended up in Isleworth Crown Court, much to the annoyance of the presiding Judge.

The Judge in question spent a great deal of time prior to swearing in the Jury explaining to the barristers present the cost of a day’s session in the Crown Court, and that he could not see the sense in such expenditure for the theft of four bags of rubbish. The Judge concluded his opening remarks minus the Jury with a very emphatic statement to both barristers that, as far as he was concerned, having read the evidence served to the Court this was indeed a case of theft. However, all he would allow the barristers to address the Jury with was the question of dishonesty.

The case proceeded, and Reilly was duly found guilty of theft, with the Jury believing that all requirements of theft were in place (in particular dishonesty).

It’s interesting to note here that the prosecution spent a great deal of time explaining how, on two separate occasions, Reilly “furtively” and “stealthily” managed to “sidle up” the driveway to the house in question. He suggested to the Jury – and they appeared to believe him – that this was not the action of a person with honest intent.

Logging the dumpster-diving

When law enforcement agents remove the content of a dustbin, they require a warrant to do so. They also need to be authorised in accordance with the Regulation of Investigatory Powers Act (RIPA), as this would be considered ‘targeted surveillance’ by the relevant authorities

Let us now return to this argument of actually logging the dumpster-diving. One assumes you are not going to tell the victim that you have stolen their rubbish. It would appear, therefore, that the log is purely to demonstrate your innocence if you are actually caught. If you are indeed caught, one assumes someone has witnessed you taking the bags of rubbish and removing them from the scene.

In the case of Reilly, it was a neighbour across the road who reported this to the victim the next day, together with the registration number of Reilly’s van.

The police arrive on scene and find the evidence in your possession – as they did with Reilly – before you have had the chance to return it. You immediately protest your innocence and state that you were not stealing it. You were just about to return it. You would have yet another chance to put forward this defence to the magistrates or the Jury when your case came to Court.

Now, your barrister may well have remarkable advocacy skills, and be able to convince the Jury that this was indeed your intention. I do think he or she would have to be quite a skilled advocate to convince the Jury that you were going to return the rubbish if you’d had to drive all the way to Canterbury to ‘borrow’ this bag of unwanted items, take it back to your office in west London and then, when you had finished with it, transport it all the way back to deepest Kent!

In accordance with RIPA

When law enforcement agents remove the contents of a dustbin, they require a warrant to do so. They also need to be authorised in accordance with the Regulation of Investigatory Powers Act (RIPA), as this would be considered ‘targeted surveillance’ by the relevant authorities.

However, there are a number of examples of instances where corporate investigators – when giving evidence in Court – have been asked by the opposing barrister and/or the Judge whether or not this investigation was conducted in accordance with the RIPA.

Personally speaking, I have no evidence as to whether this has influenced a given Judge’s deliberations, but one assumes that it held some gravity otherwise the question would not have been raised in the first place.

In any type of investigation, we cannot break free of the Data Protection Act. The very first principle of Data Protection states that: “Information will be processed fairly and lawfully”. On more than one occasion, the Information Commissioner’s Office has expressed its grave concern at people rifling through dustbins in order to obtain information about individuals (in other words, the ‘data subjects’). Again, on more than one occasion they have expressed the view that they would consider this to be a breach of the first principle of the Data Protection laws (“Fairly and lawfully processing personal data”).

Several times, I have laid the above arguments before fraud investigators and the more aggressive litigation lawyers, all of whom have given them short shrift.

Further, I once addressed this issue – under some concern – with the (then) Information Commissioner Elizabeth France and her deputies. All of them looked somewhat aghast at my suggestion that they would consider it not to be a breach of Data Protection laws.