International Developments in Investigative Interviewing

Tom Williamson, Becky Milne, Tom Williamson, Becky Milne, Stephen Savage, Tom Williamson, Becky Milne, Stephen Savage

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781134046348
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book examines international developments in investigative interviewing. It analyses the cases and other factors leading to the paradigm shift in a number of countries, it considers issues that are of current interest to practitioners and academics including the continuing calls for the use of torture, whether it is possible to detect deception and the contribution of investigative interviewing methods to concepts of therapeutic and restorative justice.

The book responds to the recognition that there are currently no international human rights instruments that relate specifically to custodial questioning, whilst also offering a critical analysis of the attempts to influence investigator and prosecutor behaviour by recourse to human rights. This book will be essential reading for practitioners designing and delivering investigative interviewing training programmes as well as academics and students studying international criminal justice.

Part 1

Investigative interviewing and interrogation around the world

Chapter 1

Investigative interviewing of suspects in Australia

Stephen Moston

A matter of opinion

In Australia the criminal justice system is largely the responsibility of the states (there are six) and territories (two), with each state and territory having its own police force, laws and justice system. The Commonwealth, in the form of the Australian Federal Police, which was established in 1979, only takes responsibility for a limited range of offences, including national and international operations, and peacekeeping (Fleming 2004).

Surprisingly little primary research has been conducted in this country on investigative interviews with suspects. Instead, research has tended to focus on perceptions of the investigative process, with studies exploring the views of judges, prosecutors, defence lawyers, police officers, the public and even defendants (e.g. Dixon 2006; Moston and Fisher 2006; Kebbell et al. 2006). The reasons for this particular focus are complex, but centre on a deep-seated distrust (in both directions) between academics and police officers. This chapter will explore what we currently objectively know about investigative interviewing practices in Australia, with data mainly coming from a series of thorough (but narrowly focused) audit commissions, and also how the various players in the criminal justice system see the legislation, technology and operational practice of interviewing. It focuses on the investigative interviewing of suspects in criminal investigations, and thus excludes some interesting and innovative work on the interviewing of children who have witnessed criminal activity (e.g. Wilson and Powell 2001; Powell et al. 2002; Powell and Thomson 2003).

A bad beginning

According to the latest public opinion survey by the Queensland Crime and Misconduct Commission (2006), about a quarter of respondents (26.7 per cent) stated that they believed that the ‘Police have a bad image in Queensland’. The percentage of respondents agreeing with this statement has shown a fairly steady decline since the survey was first conducted in 1991, when the majority (59.3 per cent) agreed with that same statement. This particular series of public opinion surveys were introduced after the public release of the final report in 1989 of the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (now commonly referred to as the ‘Fitzgerald Report’).

The Fitzgerald Report was a judicial inquiry into allegations of police corruption in Queensland that had initially been voiced in a series of newspaper articles, and later in a television documentary (for an investigative journalist’s perspective, see Dickie 1988). Initially expected to last about six weeks, the inquiry lasted for nearly two years, directly resulting in the fall of the state government and the conviction of the Police Commissioner on charges of corruption. According to the report (p. 200),

The Queensland Police Force is debilitated by misconduct, inefficiency, incompetence, and deficient leadership. The situation is compounded by poor organization and administration, inadequate resources, and insufficiently developed techniques and skills for the task of law enforcement in a modem complex society. Lack of discipline, cynicism, disinterest, frustration, anger and low esteem are the result. The culture which shares responsibility for and is supported by this grossly unsatisfactory situation includes contempt for the criminal justice system, disdain for the law and rejection of its application to police, disregard for the truth, and abuse of authority.

One of the most pervasive forms of police misconduct identified in the Fitzgerald Report was the process of ‘verballing’ (where a confession or other damaging statement is fabricated by the police), which was seen as arising from a sense of frustration and contempt for the criminal justice system. Verballing was used for two main reasons: to attack the enemies of the police force, and as a form of defence to protect officers who were the subject of charges. The practice of verballing has a long and curious history. Long, in that as early as 1893 (in the UK), Justice Cave, in R v. Thompson, had expressed doubts over the reliability of claims by police officers that suspects had spontaneously confessed and then subsequently changed their minds (Findlay et al. 2005). Curious, in that unless a verbal was absurd, or in contradiction of conclusive evidence, Australian courts appeared only too willing to give such evidence credence. Further, even when verbals were recognised as outright lies, police officers were rarely punished for attempting to fabricate such evidence.

According to Dixon (2006), the widespread practice of verballing reflects a legal system which placed a heavy dependence on confession evidence. For example, according to archival research by Stevenson (1980), a staggering 96.6 per cent of cases seen in Australian criminal courts included confession evidence.

Even though the courts are notionally relied on to control police malpractice through the exclusion of evidence, such controls are rarely ever observed. In fact, the limited amount of control on interviews with suspects was reflected in the fact that until 1997 Australian police officers did not have any statutory power to detain a suspect for investigative purposes between arrest and charging (Dixon 2006).

The dialogue of the deaf

In their review of the relationship between police research and practice, Perez and Shtull (2002: 169) wrote, ‘The historical reluctance of the police in America to analyze, to accept, and to apply research findings to their daily tasks has been slowly exiting the stage for a quarter of a century now.’ That very same sentiment might equally be applied to Australia, with senior policing figures, such as Victoria Police Research Fellow David Bradley (2005), acknowledging some progress, but lamenting the lack of improvement in linking research, evaluation and policy in policing.

To put matters in perspective, in the UK in the last 25 years, there have been several large-scale studies of police interviewing procedures and suspect behaviour (e.g. Moston et al. 1992; Baldwin 1993; Moston and Stephenson 1993b; Bucke and Brown 1997; Phillips and Brown 1998). In addition, there have also been several smaller- scale studies focusing on specific populations (e.g. juveniles, by Evans 1993) or specific research issues (e.g. the impact of psychological vulnerabilities on confessions, by Pearse et al. 1998).

During this same period, there has only been a single study of police interrogation in Australia (Dixon and Travis 2004, 2007). For many years Stevenson’s (1980) study of criminal cases in the NSW District Court stood as the only published study on confessions. Stevenson (p. 106) had hoped that her study would ‘inject some empirical data into a debate characterized by speculation and pontification’ and also that the tentative conclusions should be reviewed in subsequent research. Regrettably, no such study was undertaken. A possible reason for this may be that it is difficult even to discuss measures that could be interpreted, or even misinterpreted, as favouring suspects (Dixon 2006).

When studies have been undertaken, they have tended to focus on objectively verifiable concerns rather than more subjective or harder to quantify measures such as interviewing competency. For example, in audit studies in Queensland by the Criminal Justice Commission (1999) and the Crime and Misconduct Commission (2004), researchers analysed taped records of interviews (n = 136 and n = 125 randomly sampled cases respectively) to determine (among other objectives) the percentage of suspects who were advised of the right to silence (95.6 and 93.6 per cent respectively). While these were important data, since all suspects should be advised of their right to silence, neither study reported how many suspects actually exercised this right. While such data were beyond the parameters set for these studies, an opportunity was clearly missed.

In part, this reflects a long-standing antagonism between the police and academic researchers (mainly criminologists). Two key problems exist, the first of which has been a general disdain for research, a situation which is only slowly being resolved. For example, Commissioner Mick Keelty, of the Australian Federal Police, was interviewed as part of a series of interviews with senior police officers, published in the journal Police Practice and Research (Fleming 2004). Commissioner Keelty stated (p. 322), ‘We recognise the value of theory in our work and have begun to work closely with academics in recent years… It’s a strong policing organisation that can expose itself to research and to academics, to look at what it’s doing, to measure what its doing, and to critically analyse its efforts.’

Chief Commissioner Christine Nixon (Victoria Police), who was also interviewed as part of the Police Practice and Research special issue (Prenzler 2004), expressed similar sentiments, saying, ‘For me, academic studies have affected my view of policing. Access to research has underpinned the way I try to think about what we’re going to do in policing and overcome the opinion-based, “this is what I feel,” stuff.’

To readers outside Australia, such statements may seem somewhat obvious. Of course, research and practice should go hand-in-hand. The fact that they clearly do not reflects the second key problem, namely a history of animosity between police and criminologists, described by Chief Commissioner Christine Nixon as follows:

There’s a famous publication in the NSW Police called ‘The Dialogue of the Deaf,’ on relations between police and criminologists and how they come from different perspectives. One says, ‘Why is it they only ever want to publish things we’ve done wrong?’ The other says, ‘Why do they always want to cover up what they’ve done wrong?’ (Prenzler 2004: 310)

Notwithstanding the fact that the paper referred to was actually describing the relationship between the police and criminologists in the UK (the original paper was prepared for the Police Foundation of England and Wales in 1987 by Barry MacDonald), it is evident that the situation in Australia is an ongoing cause for concern. Chief Commissioner Nixon commented on the police-bashing industry among criminologists, suggesting, ‘That hasn’t done a lot of good. Some make a reasonably good living out of it. But policing is just as responsible for not having opened up to research. Although, it would be good to see criminologists take a more positive perspective on researching policing’ (Fleming 2004: 310).

It is not only in the policing area that such antagonism exists. Many forensic research issues in Australia are effectively off-limits, as organisations retreat behind ever increasingly rigorous ethics restrictions. For example, in order to conduct primary research on police interviewing practices, such as analysing videotaped records of interviews, the records of interviews must first be de-identified. This process means that a videotaped record must first have the image of the suspect removed (thereby negating the value of analysing the video rather than the audio record), and any identifying details of the suspect and offence must be similarly removed from the soundtrack. This is not to say that primary research is impossible, but it is often extremely difficult. In some criminal justice organisations, research ethics boards have come to see their role as stifling independent research, often imposing tight quotas on the number of studies that can be approved each year. Consequently, much of what we know about police practice in investigative interviewing comes directly from the police services themselves, as well as the many investigatory bodies that oversee police conduct. These studies typically seek to investigate compliance with legislation, such as those reviewed in the following section,

Legislation and the practice of investigative interviewing

ERISP

The Electronic Recording of Interviews with Suspected Persons (ERISP) was first introduced in New South Wales in 1991, although it was not until 1995 that the law of evidence was changed (for example, in New South Wales, Tasmania and South Australia) to make electronic recording of interviews a prerequisite for the admissibility of confessional evidence (Dixon 2006), albeit only in serious cases. Nevertheless, police routinely use ERISP (noting that the terminology differs from state to state) to record all formal interviews. The reason for the widespread adoption of video-recording appears to have been an attempt by the police to dispel accusations of verballing, as opposed to it being a control on police questioning practices.

Under the 1995 laws, evidence of a confession or admission by the accused ‘in the course of normal questioning’ is not admissible unless ‘there is available to the court a videotape of an interview with the accused person in the course of which the confession or admission was made’ (s8 of the Tasmania Criminal Law (Detention and Interrogation) Act 1995), or there is a reasonable explanation as to why a videotape could not be made and the accused explains on videotape the circumstances of their earlier (non-recorded) admission.

When a suspect makes a ‘confession, admission or statement’ in non-ERISP interviews, the police officer is required to record the interview in full in a notebook. The suspect should be asked to sign the notebook. In any subsequent ERISP, the notebook entries should be read to the suspect who should be asked to comment on them (see NSW Police 2005, Code of Practice for Custody, Rights, Investigation, Management and Evidence, p. 26). This particular practice may be seen as condoning the use of preparatory interviewing, that is, informal interviews conducted away from recording equipment. In fact, data from a survey of police officers by Dixon (2006) suggest that the majority of officers (63 per cent) reported having questioned their most recent suspect before the beginning of ERISP. Similarly, a survey involving 1,005 defendants appearing before magistrates’ courts in Queensland by the Criminal Justice Commission (2000) found that 49 per cent of defendants claimed that they had been interviewed at the point of first contact with police, and also that 33 per cent had been questioned informally at the police ...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of abbreviations
• Figures and tables
• Notes on contributors
• Foreword
• Introduction
• Part 1 Investigative interviewing and interrogation around the world
• Part 2 Current issues in interrogation and investigative interviewing
• Index