Interviewing suspects and witnesses is a basic operation of policing all over the world. In England and Wales, pre PACE, historically there was no formal interview training for police officers and officers learnt how to interview through observation of other police officers. Thus, the best evidence of guilt was confessions and theoretically good interviewers were those who could convince suspects to confess to crimes. Police interviews prior 1984 were governed by Judges’ Rules, these were just guidelines for the officers who they were allowed to execute interviews unrecorded and then to write a report of the interview from memory. Afterwards, officers’ memory of the interview was presented in court from the handwriting report. The dangers of this are self-evident – officers can pick up bad practises or miss valuable information. Eventually investigations can be damaged, disrupted or even destroyed. The secrecy of the police interview room led to widespread concern about the tactics used to extract confessions – things like intimidation, oppression, deception, and even physical violence (Leo, 1992). It has been shown that these tactics can lead to false confessions, in which case a double miscarriage of justice occurs – not only is an innocent person convicted but the true offender remains free (Gudjonsson, 1992). The aim of this chapter is to discuss the old investigative interviewing which led to miscarriages of justice. Also, what was happening to police interviewing, why false confessions were frequent phenomenon and what types of false confessions exist. An important theme is public perception about police interviewing at this historical time. Finally the primary improvements that have been done, such as PACE and Circulars 7 and 22.
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Miscarriages of Justice
When the term ‘miscarriages of justice’ is used, it usually refers to what are called questionable convictions or wrongful convictions. Walker (1999: 52-5) summarises the causes of questionable convictions which are: fabrication of evidence, unreliable identification of an offender by the police or witnesses, unreliable expert evidence, unreliable confessions resulting from police pressure or the vulnerability of suspects, non disclosure of evidence by the police or prosecution, the conduct of the trial and problems associated with appeals procedures. However, the term miscarriages of justice as relating to questionable convictions is itself partly adequate (Adler and Gray, 2010). Consequently, the term can also occur when there is no action, inaction or questionable actions, whereby an offence has taken place but no action or insufficient action or interference has followed. Questionable actions include police unprofessional conduct and lack of ability (e.g, failures to investigate effectively, poor treatment of victims and their family), insufficient prosecution processes (poor communication with police, ‘risk avoidance ‘), and problematic trial practices (hostile cross examination of witness, weak presentation of the prosecution case). Therefore, questionable actions represent police failure to identify suspects and to press charges, the lack of success of the prosecution to mount a case, the collapse of the prosecution case during the trial and as a result, agencies ineffectiveness to inform or support victims and their families (Newburn, Williamson and Wright, 2007).
Traditionally, the primary aim of police investigators has been to obtain a confession from the primary suspect, the confession being seen by officers to be the key of a successful investigation and the predominant means by which a conviction can be secured. To understand why a confession was so pivotal concern it is essential to consider the operation of various systems of justice. In an adversarial system, the judge is considered to be neutral during the trial process and should leave the presentation of the case to the prosecution and defence who prepare their case, call and examine witnesses. According to Zander (1994), the adversarial system is not a search for the truth. The inquisitorial system aim to be a search for the truth, in this system the judge is not neutral but will play critical role in the presentation of the evidence at the trial. The Judge calls and examines the defendant and the witness. While the trial is in progress lawyers for the prosecution and defence can merely ask complementary questions. The Royal Commission stated that ‘It is important not to overstate the differences between the two systems because all adversarial systems contain inquisitorial elements and vice versa’ (Runciman, 1993). The court was not interested in the truth; it just had to decide whether punishment has been applied beyond all rational doubt. Therefore, it is not surprising that confession evidence had priority and investigators relied on a confession within the investigation process. Certainly, investigators focused on a confession and to attain a confession used coercive methods, allowing the investigation team to move on to the next case. False confessions lead to false convictions, thus police officers reproduced miscarriages of justice within their behaviour and interviewing tactics (Newburn, Williamson and Wright, 2007).
False confessions lead to false convictions
In the UK and other countries, a number of miscarriages of justice have established that false confessions occur and a large number of these are due to factors which exist within the interview context. Kassin and McNall (1991) analysed the tactics described by Inbau, Reid and Buckley (1986) which lead to false confessions; and found two categories: maximisation, where interviewers use scare tactics to intimidate a suspect believe to be guilty and minimisation, where interviewers underrate the offence seriousness and charges. Three categories of false confessions were identified by Gudjonsson and MacKeith (1988) and expanded by Shepherd (1996). These categories are as follows:
Voluntary false confession
Voluntary false confessions occur when the interviewee falsely confesses for personal reason without pressure. Possible reasons that suspect give false confession are: to exempt feelings of guilt about a real or imagined crime or situation in the past (this is most possible to happen for people with depression, Gudjonsson, 1992). To pre-empt further investigation of a more serious offence; to cover up the real culprit; to gain notoriety- a wish to become infamous and to enhance one’s self esteem; an inability to distinguish reality from imagination(people with schizophrenia); to take a revenge on another and to hide other non criminal actions.
Coerced-compliant false confession
Coerced-compliant false confessions arise when the interviewee agrees to make a confession in order to make some kind of gain. This category of false confession occur from social influence factor; compliance. Compliance is a change in one’s behaviour for contributory purposes, it is first found in Asch’s (1956) primary studies of conformity and Milgram’s (1974) research on obedience to authority. Interviewee sees the short term advantages of confessing (being released) outweighing the long term costs (such as prosecution and imprisonment). People, who are passable to compliance such as people with learning disabilities, may be especially vulnerable to this type of false confession.
Coerced-internalised false confession
The last category is a coerced-internalised false confession in such cases suspects come to believe that they are guilty because they no longer trust their own memory of certain details. This type of false confession derives from a cognitive effect and refers to the internal acceptance of beliefs held by others. An interviewee who is anxious, tired and confused actually comes to believe he or she committed the crime. The suspect’s memory may be altered in interviewing process. This can be linked to the false memory syndrome.
The memory distrust syndrome concerns interviewees who distrust their own memory and consequently depend on external guide for information (in this particular situation -interviewer, Wolchover & Heaton-Amstrong, 1996). This syndrome can be explained in two ways. The first relates to amnesia or memory damage. The interviewee has no clear memory and does not remember if he committed the crime or not. Also he or she does not remember what exactly happened the time of the crime. This may be due to amnesia or alcohol induced memory problems. The second way occurs when the interviewee is aware that he or she did not commit the crime and when the interviewer makes cases, manipulates the interviewee with suggestions. The suspect mistrusts his or her self and start thinking if he or she committed the crime. Ofshe (1989), stated that three common personality characteristics are situated on people who give this type of false confessions. They trust in people of authority, lack of self confidence and heightened suggestibility. Gudjonsson (1997) also argued, ” the false belief and false memories in cases of coerced- internalised false confession are most commonly developed as a result of manipulative interviewing techniques.” Gudjonsson and Clark (1986) also introduced the theory of suggestibility which is a theoretical model of interrogative suggestibility and arises from a social cognitive viewpoint. It is argued, that most people would be susceptible to suggestions if the necessary conditions of uncertainty, interpersonal trust and heightened expectations are present. Implicit in such a model is the assumption that interrogative suggestibility is a distinct type of suggestibility. Gudjonsson also points out that; suggestibility is, to a certain extent, influenced by situational factors and experience. IS is defined as ” the extent to which, within a closed social interaction, people come to accept messages communicated during formal questioning, as a result of which their subsequent behavioural response is affected” (Gudjonsson and Clark, 1986). The IS is comprise two separate susceptibilities: to yield to leading questions, where yielding regards to the reliability of testimony and closely reflects memory processes; and to shift the primary answer in response to negative feedback, where shifting is related to coping process which are mainly affected by personality traits and experience (convicted in past, Gudjonsson, 1992).
The literature on miscarriages of justice highlights the role of coercion in obtaining confessions and the problem with convictions based only or mainly on confessions. Using unfair means and tactics to secure a conviction is sometimes known as noble cause corruption. That is to say, so strong is the desire to achieve a ‘correct’ conviction that any means to that end are justified. The adversarial process combined with the pressure for a quick result creates noble cause corruption. Resounding examples are Guildford Four and Birmingham Six, which have been described in newspapers as the worst miscarriages of justice in England in the last century. The Guildford four took palce on 5 October 1974, in which members of the Irish Republican Army planted bombs in two public houses in Guildford, Surrey: the Horse Groom and the Seven Stars. The attacks left five people killed and over 100 injured. Kennedy (1989) describes how Conlon, came to sign his confession and what previously happened. Police officers were violent and immoral. As Conlon stated “I was crying and frightened. Simmons said if I didn’t make a statement, he would ring Belfast first thing in the morning and I would never see my mother or sister again. The last of my resistance shattered when he said this. I was crying and shaking uncontrollably. I said my family hadn’t done anything. I fell apart. Simmons said what happened to my family was up to me. I said I would make a statement like they wanted, but it wouldn’t be true as I really didn’t do it” (Kennedy, 1989). The four men spent 15 years in prison before the case was overturned in 1989 after a new police investigation had found serious flaws in the way Surrey police noted the confessions of the four: that the notes taken were not written up immediately and officers may have colluded in the wording of the statements (Gudjonsson, 2003). Another event happened as it was called ”The Birmingham Six”, after one month when Guildford four took place, namely on 21 November 1974. Two public houses In Birmingham were bombed by the IRA in which 21 people were killed and more than 160 were injured. Six men were convicted for this crime and they were released after 16 years (in 1991) Scientists admitted in court that forensic tests which were originally said to confirm two of the six had been handling explosives could have produced the same results from handling cigarettes (Gudjonsson,2003). In Guildford four, the confessions that had been central of their conviction in 1975 were shown to be unreliable and in, sometimes fabricated. In the second case, Birmingham Six, the confession was discredited. Thomas Heron, who was on trial for the murder of a young girl, was acquitted when the interviews, which led to his confession, were dismissed by the trial judge as oppressive. In this case interviews were recorded in compare of Guildford Four and Birmingham Six in which the interviews were not recorded.
The Police Studies Institute Report found (1983) that the most widespread opinion about police interviewing and the most popular police misconduct is that police officers threatening and the use of unfair pressure. Around fifty percent of the respondents believed that police use threats and pressure at least sometimes but the more important is twenty five percent thought that it often happens and this was a usual behaviour of police officers. A de facto percentage of Londoners believed that other kinds of misconduct happened at least once in a while. Around ten percent of Londoners thought police officers fabricate evidence and use inexcusable violence on people were detained at police stations. The findings of this research showed the public perception which was negative and critical against police. . The majority of Londoners had serious doubt about police conduct. People did not trust police interviewing, it showed that there was a complete lack of confidence and reliability (Smith 1983: 325). One third of young white people thought the police often used threats or unreasonable pressure during custodial questioning while 62 per cent of young people of West Indian descent believed that they did so. Therefore, people were critical of police where they had a high degree of conduct with the police or they were subject to a high level of victimisation (Jones et al, 1986). The successful appeals of Guildford Four and Birmingham Six and the acquittal of Heron received widespread publicity and brought heavy criticism of the police and affected public opinion. A general public survey found that 73 per cent of the participants believed that the police broke the rules to obtain convictions (Williamson, 1991). By 1993 police interviews were described as a grave concern (Shepherd 1993). These surveys provide a rich picture of the nature and quality of the relationship between the citizen and the police in the past (Williamson, 2005).
By the 1970s and 1980s in England and Wales it was clear that the legitimacy of the criminal justice system was at stake. Something had to be done. This became the focus of policy making. Such were the concerns that the Royal Commission on Criminal Procedure (1981) was set up, in turn leading to the passing in 1984 of the Police and Criminal Evidence Act (PACE) a key piece of legislation to monitor, amongst other things, the integrity of evidence production (Maguire, 2003) Through PACE (enacted 1986), police interviews with suspects were to be tape-recorded. This, it was hoped, meant the old regime of police investigations would be brought to an end and police interviews should be open to scrutiny (Lea, 2004). PACE suggested that investigation should separate from prosecution and should have an independent investigation service. Scientists with educational background should work in these laboratories and help the police to investigations and police officers had to be trained. All police manuals are based on experience rather than objective and scientific data. Experience is invaluable to police work and its usefulness is illustrated by the effectiveness of the techniques recommended. However, relying solely upon experience in determining procedure may create serious pitfalls and fail to bring to light important facts about human behaviour, such as the susceptibility of some suspects to give erroneous information when placed under interviewing pressure. What is needed is more research into the effectiveness and pitfalls of different interviewing techniques. Also they argued that forensic laboratories should be independent from police.
Home Office Circular 22/1992 provides the following seven principles of investigative interviewing: 1. The role of investigative interviewing is to obtain accurate and reliable information from suspects, witnesses or victims in order to discover the truth about matters under police investigation.
2. Investigative interviewing should be approached with an open mind. Information obtained from the person who is being interviewed should always be tested against what the interviewing officer already knows or what can reasonably be established.
3. When questioning anyone a police officer must act fairly in the circumstances of each individual case.
4. The police interviewer is not bound to accept the first answer given. Questioning is not unfair merely because it is persistent.
5. Even when the right to silence is exercised by a suspect the police still have a right to put questions.
6. When conducting an interview, police officers are free to ask questions in order to establish the truth; except for interviews with child victims of sexual or violent abuse which are to be used in criminal proceedings, they are not constrained by the rules applied to lawyers in court.
7. Vulnerable people, whether victims, witnesses or suspects, must be treated with particular consideration at all times.
Questioning also may be considered “oppressive” if the officer asks:
multiple questions (i.e. several questions rolled into one);
ambiguous questions (i.e. where the potential answers have more than one meaning);
irrelevant questions (i.e. questions which have no logical connection with the police enquiry);
questions concerning other offences;
questions based on dubious or non-existent evidence;
questions concerning a co-suspect.
(Home Office Circular 22/1992)
The effectiveness of Pace is debatable, on the one hand McConville and colleagues suggested in 1991 that little of police interviews had changed especially in relation to ‘interrogative suggestibility’. Namely, the tape recording of interviews had not changed the power relations in the whole interview process, principally the fact that “Interrogation takes place in an environment which increases the vulnerability of the suspect and maximises the authority and control of the police” (1991, p78). On the other hand, Ede and Shepherd (2000, p109) stated that ”tape recording of PACE interviews led to a sharp decline in forceful interviewing and revealed the widespread ineptitude of police officers in the interviewing role” In the same concept Milne and Bull (2003) report experience officers views. ”Since the 1986 introduction of PACE regarding audio-taping interviews with suspects, police interviews have become better planned, more structured, and the use of trickery and deceit has all but vanished” (p121) .
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PACE appears to have markedly reduced the number of manipulative and persuasive techniques that police officers use when interrogating suspects, except perhaps in the most serious cases (Milne and Bull, 1999). Interestingly, there appears to have been no overall effects on the confession rate of suspects. The reason that police interviewing was still poor (Baldwin, 1992) was because of police role in the investigation of offences was still one of persuading suspects to confess rather than engaging in a process of inquiry, which was a search for the truth. The persistence on confession evidence also meant that witness and victims were often ignored, not seen as an important part of the investigation process, consequently were not interviewed methodically and so were not capable to present all the information they were competent of giving as evidence (Adler and Grey, 2010). Obviously, there was a need for a change of investigative interviewing to meet the ideals of the new legislation and to prevent challenges to the evidence achieved through questioning. This constituted in the establishment of a national committee on investigative interviewing that involved police officers, lawyers and psychologists. That result was the beginning of the PEACE interviewing model (Milne et al, 2007).
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