The admissibility of investigation reports

Through the definition given in article L621-1 of the Code on Internal Security, the legislator acknowledges the right to investigate for people exercising the activity of detective-private research agent.

It therefore confirms the admissibility of the detective’s report before the courts and puts an end to the controversy between detectives supporting the report and those for the affidavit given to the client under article 202 NCPC (New Code of Civil Procedure) relating to the affidavit.

The detective-private investigator is a professional in the production of evidence

It is in fact inconceivable that an investigation carried out by a person subject to a regulated profession could be concluded by mere testimony, even if this can be produced in court.
The Court of Cassation confirmed for the first time that a detective report was admissible in court in the landmark ruling of 7 November 1962 (2nd civil section, no. 1020, Brunet vs. Garnier), in a case where an appeal decision had been made solely on the basis of the evidence submitted by a detective.

It should be noted that, in relation to case law, the Turin ruling of 7 November 1962 established that the  detective’s investigation report may be taken into consideration as a judicial document. This ruling has never been called into question and it should be noted that even if tribunals or courts of appeal had previously rejected the detective’s report for various reasons, the Court of Cassation generally reintegrated this report into the procedure by reversing the decision to reject it (as taken by the previous court), to the extent that this report was admissible.

Since this ruling, the Court of Cassation has constantly upheld its case law, relying on the same principle:
“The private surveillance report is admissible and cannot be rejected solely on the grounds that the detective was paid” (Cass. 2nd civ. 12 October 1977).

The ruling by the Caen Court of Appeal, Civil Chamber, 2002-04-04, 01/01952 states that:
“The evidence gathered through the findings of a private investigator is admissible in the courts in the same way and under the same conditions applying to any other type of evidence”

The detective-private investigator is a professional in the production of evidence

The report may nonetheless be declared inadmissible if the information contained in it has been obtained unlawfully or unfairly (ploys, ruses, violence, outlawed procedures, fraudulent introduction of items into computer files, breach of privacy, etc.)

It should be noted, however, that in the area of ​​family law, case law considers that, in a divorce case, the mere fact of communicating a report on the surveillance of a spouse to the other spouse is not a breach of the privacy of the person under surveillance, the said report being communicated only to the spouse involved, as well as to lawyers and judges who are bound by professional secrecy. Furthermore, the discussions in relation to divorce are not public.

Moreover, in criminal cases, case law considers that no evidence can be excluded solely on the grounds that it was obtained by illegal methods:
“No legal provision allows criminal court judges to exclude evidence produced by the parties solely on the ground that it was obtained unlawfully; it is for them only to assess their probative value” (Cass. crim. 6 April 1994).
The rule in relation to evidential value is that the legal value of the report is subject to the judge’s discretionary powers, following the principle of personal conviction (article 427 of the Code of Criminal Procedure):
“It in fact falls under the sovereign powers of the trial judges to assess a private police report in its value and its scope”(Cass. 2nd civ. 13 November 1974).

Photographs can be attached to the detective’s report. To the extent that the people photographed are present in public places, the photographs do not constitute an invasion of privacy. They can therefore be presented and have a certain “visual” impact likely to make an impression on the judge. But it should be remembered that they have no legal value.

Confidential nature of the Report

To guarantee the privacy of the persons being investigated or the third parties, the reports are provided in confidence, from the moment that they include personal information on individuals.
They can be delivered, under the seal of secrecy, directly to the applicant’s lawyer if the information contained includes elements on third parties necessary for legal proceedings, but intended exclusively for the Magistrates. Photographs are transmitted directly to the client’s counsel in order to comply with the image rights protected by the Law.

Indeed, the communication of documents, under the seal of the secrecy, to a lawyer to be produced exclusively in court is authorised under Jurisprudence and does not constitute a breach of privacy (T.G.I. Dijon, 26.02.1993 – C.A Paris, 29 September1989).

It should also be noted that the word “Confidential” on a report indicates its author’s intention not to have it distributed(Cassation CIV. 11 November 1997).