Interrogations-and-Confessions-Handbook

The English Law on Confessions 271
judgement about fitness for interview requires the consideration of the following
three factors.
1. The assessment of the person to be interviewed. Here the FME will need to
consider the physical and mental state of the detainee. The emphasis is
on the functional ability of the detainee rather than relying on a medical
diagnosis. Norfolk (2001) recommends that during the assessment process
the FME should consider the detainee’s personality as well as mental and
physical health. The three personality factors that Norfolk considers to be
central are suggestibility, compliance and acquiescence. I agree that personality
factors need to be considered, but the emphasis should be on abnormal
mental states rather than attempting to evaluate personality traits
such as suggestibility, compliance and acquiescence, which are difficult to
assess without formal testing (Gudjonsson, Hayes & Rowlands, 2000). Indeed,
even if a detainee is found to be abnormally suggestible or compliant,
this will not render him or her unfit for interview, nor will it necessarily
require the presence of an appropriate adult (Gudjonsson, 1997g).
2. The likely demand characteristics of the police interview. Long, intellectually
and emotionally demanding interviews require a greater physical and
mental capacity than short and straightforward interviews.
3. The impact of the physical or mental disorder on the interview process and
the reliability of any statements made. Here the FME will need to consider
all the relevant factors and circumstances in the case, including the nature
of the arrest, detention and police interview. The essential question relates
to how the physical or mental condition will affect the capacity of the detainee
to function in the police interview. The presence of mental illness
per se, even when severe, does not automatically render a detainee unfit for
interview. It is the effects of the mental illness on cognitive and emotional
processes that are relevant and important, not the illness per se. Conversely,
a detainee who is disorientated, has severe concentration problems, is very
fatigued or is intoxicated or withdrawing from illicit substances while in police
custody, but not mentally ill, is likely to be considered temporarily unfit
for interview. In this instance, the impaired physical and mental condition
may well be considered temporary and the FME will probably re-examine
the detainee after a certain period of time to ascertain whether he or she is
now fit for interview.
The Home Office Working Group advised that a detained person may be unfit
for interview: in the following cases.
1. If the interview could to a significant degree worsen the physical or mental
illness that is present.
2. When what the detainee says or does may be considered unreliable in subsequent
court proceedings, because of the impaired physical or mental
condition.
According to the Home Office Guidelines, the FME will need to quantify the
risk of such unreliability into one of four categories.