Investigative interviewing: the literature - New Zealand Police

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Investigative Interviewing: viewing: THE LITERATURE According to Shepherd (1991), abiding by these principles will ensure the quality of investigative interviews and in turn “lead to a greater degree of success in crime prevention, detection and conviction of guilty criminals” (p55). Gudjonsson (1992) suggests that this view is somewhat naïve: “Shepherd’s ‘social skills’ approach to interviewing is an appealing one on humanitarian grounds, but I remain unconvinced that we can, in effective outcome terms, entirely do without persuasive questioning” (p323). Yet research suggests that interviewing in a quiet, reasonable and impartial way is much more likely to produce a fruitful response than using a more aggressive approach (Kennedy, 1989). For example, in a groundbreaking study of murderers’ and sexual offenders’ experiences of police interviews and their inclination to admit or deny crimes, the authors (Holmberg & Christianson, 2002) found that interviews marked by dominance on the part of the police interviewer (displaying impatience and a brusque and obstinate condemning approach) are most likely to be associated with denials. In contrast, interviews marked by humanity (displaying respect and a positive attitude towards the suspect as a human being) are most likely to be associated with admissions. The most recent guidelines from the Association of Chief Officers in England and Wales (NCPE, 2005, p20) state: “If [offenders] believe they have been treated ethically during an investigation they are less likely to form and communicate a negative view of police to others. They are also more likely to cooperate with investigations in the future, whether as a victim, witness or suspect” Despite Gudjonsson’s (1992) view on the limitations of the ‘social skills’ approach, he does concede that the use of oppressive tactics to obtain confessions from suspects can have devastating effects. Even in places without the death penalty, ‘unethical interviewing’ can lead to miscarriages of justice whereby innocent people spend long periods in prison (Maguire, 2003). MISCARRIAGES OF JUSTICE Sir Ludovic Kennedy (1989) describes graphically how Gerrard Conlon, one of the ‘Guildford Four’, says he came to sign his confession. After relating how the police had spent some time calling him “an effing, murdering Irish bastard”, squeezing his testicles, hitting him in the kidneys and slapping his face, Conlon wrote: “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). Asked his view, the late secretary of the pressure group Justice, estimated that at any one time between 200 and 300 of the prison population had been wrongly convicted (Kennedy, 1989). According to Kennedy (1989): “On the whole, as any prison governor will tell you, guilty men come to accept their conviction and sentence. They do not have the motivation, the evidence or indeed the acting skills necessary to assert their innocence and go on asserting it year after year after year. Yet this is what innocent men do. They never let up, always searching for fresh evidence, always writing to those who they think might help them, always seeking to have their cases reviewed. I have no hesitation at all in saying that those cases which year after year, decade after decade, go on demanding to be reassessed, cases like those of Timothy Evans, James Hanratty, Patrick Meehan, the Confait case, the Luton case, the cases of the Guildford Four, the Maguire Seven, and the Birmingham Six, are all cases about innocent people. For in the end truth will out.” The literature on miscarriages of justice (see, for example, Kassin & Gudjonsson, 2004; and Walker, 1999), highlights the role of coercion in obtaining confessions and the problem with convictions based solely or mainly on confessions. Using unfair means to secure a conviction is sometimes known as noble cause corruption (Maguire, 2003). 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. 22
REVIEW OF INVESTIGATIVE INTERVIEWING During the 1970s there were a number of high profile convictions in the English courts which were later found to have involved considerable police malpractice. These included • Maxwell Confait (1972) in which 3 boys were convicted of the murder and incineration of Maxwell Confait, a gay prostitute. The case was overturned on appeal in 1975 after new evidence had shown that Confait had died well before the fire. All the boys had low mental ages and the evidence was based solely on confessions. Also at issue was whether the evidence of time of death had in fact been altered. • Judith War ard (1974) convicted for planting a bomb on behalf of IRA on an army coach which killed 12 people. She spent 18 years in jail before her conviction was quashed in 1992 when it became clear that, according to the court of appeal the trial jury should have been told of her history of mental illness which made her allegedly susceptible to confession under the conditions of police interrogation. • Guildford d Four (1975) jailed for life for bombing pubs in Guildford. The attacks left five people dead and over 100 injured. The four men spent 15 years in jail 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. • Birmingham Six (1974) convicted for an IRA bombing in Birmingham in which 21 people were killed and more than 160 injured. They were released in 1991 after 16 years in jail following a new police inquiry which used new forensic tests to show statements made by the Birmingham Six were altered at a later date. Scientists also 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. • Maguire e Seven (1976) when Annie Maguire, five members of her family, and a family friend were imprisoned in London for handling explosives, based on scientific evidence which was later entirely discredited. In the wake of findings on earlier cases, a report by former appeals judge John May persuaded home secretary David Waddington that there had been a similar miscarriage of justice in the Maguire case. In July 1990 the home secretary referred it back to the Court of Appeal and all seven of the convictions were overturned in June 1991. IMPROVEMENTS 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 (Lea, 2004). How effective the legislation and measures have been 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’. In other words, the tape recording of interviews had not altered the power relations in the whole interview process, particularly 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). In contrast, Ede and Shepherd (2000, p109) seem in no doubt about the effect of tape-recorded suspect interviews: “The courts reacted strongly to transparent evidence of the unethical persuasive questioning techniques … [and] 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”. Milne and Bull (2003) report the same view expressed by experienced police officers: 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). In addition, Heaton-Armstrong and Wolchover (1999) acknowledge that “It is the momentous legacy of the Police and Criminal Evidence Act 1984 that the questioning of suspects is now hedged about with a wealth of protective formalities” (p222). Their view of the efficacy of the Act relates to the record-making process which allows inspection and endorsement of the written record and subsequent validation of the taped interview. 23
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