Investigative Interviewing

Tom Williamson

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781134039623
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

The objective of this book is to review the position of investigative interviewing in a variety of different countries, with different types of criminal justice systems, and consists of chapters written by leading authorities in the field, both academics and practitioners. A wide range of often controversial questions are addressed, including issues raised by the treatment of detainees at Guantanamo Bay, The Reid model for interviewing and miscarriages of justice, the role of legislation in preventing bad practice, the effectiveness of ethical interviewing, investigative interviewing and human rights, responses to miscarriages of justice, and the likely future of investigative interviewing. The book also makes comparisons between British and American approaches to detention without trial, and the role of confession evidence within adversarial legal systems. It also develops a set of proposals to minimise the risks of miscarriages of justice, irrespective of jurisdiction.

Part I

Developments in Rights

Chapter 1

Investigative interviewing and human rights in the war on terrorism

Tom Williamson

Introduction

The growing post-war consensus around the principle of respect for human rights is breaking down. Old threats are diminishing and new threats such as international terrorism have arrived resulting in the so-called ‘war on terror’. One characteristic of this has been a deliberate undermining of human rights and a legitimizing of deviance through government-sanctioned and intentional abuses with dreadful consequences, particularly for those who have been detained and questioned as terrorist suspects. The erosion of human rights has been exacerbated by the process of militarization of criminal justice as a response to terrorism.

A natural experiment has been occurring in the UK which has over 30 years of experience of dealing with terrorism, including the use of military interrogation techniques. It is acknowledged that there are considerable difficulties in balancing the needs of the state for achieving security for its people and simultaneously respecting human rights. The responses of the UK and US governments will be considered together with the limited influence that judges have over the constitutional arrangements for regulating the questioning of suspects in terrorist cases. Ultimately parliaments must choose the legal frameworks that they consider to be appropriate to the threat, but their choice will determine whether their country develops into a security state with restrictions on freedoms and rights or retains the freedoms normally associated with a democracy. It is a choice for parliaments, not just governments. The difference is constitutionally important, if sustaining democracy is a primary concern. The ability of military, intelligence and police agencies to develop effective investigative interviewing and elicitation procedures and skills for the war on terror is central to the question of which should be the preferred option.

It is argued that democracies can balance the security needs of the state with respect for human rights and that there is no need for them to develop the apparatus of a security state with the erosion of personal freedoms that would inevitably occur. Two models for dealing with terrorism are in contention, one based on traditional criminal investigation and the justice process and the other based on new intelligence-led approaches which do not consider successful prosecution a necessary outcome. Both models rely heavily on investigative interviewing skills to furnish reliable information. Ironically at a time when there is renewed interest in human, as opposed to electronic, sources of information, military, intelligence and police organizations are currently suffering from a lack of skilled practitioners and investment in formal training which provides a sound understanding of the psychology of custody and skills in humane methods of interviewing.

Human rights, globalization and risk

The postmodern world is changing dramatically and in complex ways that have raised concerns about custodial questioning to unprecedented levels. The questioning of victims, witnesses and suspects lies at the heart of any information-gathering exercise, investigation and criminal justice system. Two arguments against the abuse of human rights are made in this chapter: first, the moral argument that interviewers should demonstrate respect for individual human rights as this is morally superior to the abuse of rights; and, secondly, the empirical claim that the most effective way of eliciting reliable information is through humane techniques (see Chapters 5–7, this volume). Until recently this would have been considered an irrefutable proposition in most democracies. That perception appears to be changing. States’ reactions to the threat of terrorism can result in the militarization of criminal justice processes with the intentional abuse or erosion of human rights. When states are faced with a terrorist threat it is not unusual for them to respond by suspending or significantly altering existing systems of justice. Primacy for dealing with the terrorist threat is passed from the civil police to the military. Suspects are interrogated by the military in ways that would never be accepted by the ordinary courts with criminal suspects. Denial of access to legal representation, detention without trial and trial by special tribunal form part of the process of the militarization of justice. This trend should be resisted because respect for rights provides a basis for trust and reciprocity between governments; their military, intelligence and police agencies; and the population being policed. Ultimately, the solutions to the causes of terrorism are political not military. The metaphor ‘war on terror’ is, therefore, misleading as there can never be a purely military solution. The militarization of justice processes is inimical to the goal of democracy. The systematic abuse of human rights over the long term breeds more terrorists not fewer. It is questionable whether any instrumental short-term gains believed to come from coercive interrogation methods are worth the long-term damage to the prospects for peace and democracy.

The end of the twentieth century was marked by the growth of the phenomenon of globalization, a term which sociologists use to describe those processes which are intensifying worldwide social relations and interdependence. The rapid connections between the local and the global are quite new in human history and driven by ever quicker advances in communications technology and transportation (Giddens 1999, 2002: 48–76). The impact of globalization has been reflected in the rise of individualism and the gradual spread of democracy, dramatically illustrated in the fall of communism. These developments have also provided new opportunities for criminal networks and cross-border crime flows which are putting strains on organizational structures designed in the nineteenth century (Loader and Sparks 2002: 97–8; Williamson 2004).

Even prior to the events of 9/11, criminologists were arguing that we inhabit what has been characterized as the ‘risk society’, which Beck considers to be a way of dealing with hazards and insecurities brought about by the process of modernization and globalization (1992: 21, see also Giddens 2002: 65–8). These processes identify ‘which risks are selected for particular attention, which categories of person and which places come to be regarded as bearers or containers of intolerable risk’ (Loader and Sparks 2002: 95). That we all live in a risk society can be conveyed by our sharing of an ambient sense of risk, including the risk of victimization. When is my car going to be stolen, my house broken into, or am I to get assaulted, robbed or raped? This ambient sense of risk is amplified by the risk stories that form the staple diet of the news media.

The elevation of perceptions of risk has led to heated debates about crime and punishment and the state’s capacity to deliver levels of security that may once have been taken for granted. Fear of the risk or threat is coupled with fear that the state will fail to respond effectively and this is driving a demand for greater accountability. Law enforcement agencies, as agents of the state, operating in this environment find themselves facing greater pressures for accountability and transparency. The global communications revolution has created a mass-mediated society in which blame is instantly attributed whenever the media identify a particular risk. In this environment, according to Loader and Sparks (2002), ‘every failure of propriety or competence in risk management is potentially a scandal’. In policing this can be seen through the steady growth of independent civilian oversight bodies for policing the police, such as Independent Police Complaints Commission in England and Wales and the Ombudsman for the Police Service of Northern Ireland. Such bodies vary enormously in their effectiveness, resources and powers at their disposal but that they exist at all is evidence of the demand for accountability for individual officers and police organizations.

Key challenges for organizations operating in democratic states in the twenth-first century risk society are:

• risk identification, assessment and management;

• managing propriety or ethical values;

• developing professional competence; and

• managing public perceptions.

The undermining of human rights law and legitimizing of deviance

These new challenges arise at a time when there is increasing public pressure on states to react in more penal ways to the perception of threats from terrorism or rising crime than was the case for democracies in the post-war period (Young 1999). This growing penality is in conflict with other efforts aimed at extending respect for individual human rights.

The concept of rights has been slowly developing over the last 300 years from the philosophical debates occurring during the Enlightenment. Countries that rejected monarchies, such as France and the USA, incorporated the concept of rights into their constitutions. The Constitution of the USA speaks of certain ‘inalienable rights’. More recently, following the Second World War the countries of the world came together under the newly constituted United Nations and one of their first actions was to endorse at their meeting on 10 December 1948 in San Francisco the Universal Declaration of Human Rights. The first 50 years has been spent in gaining international acceptance of the principle of human rights and if that process continued unhindered the next 50 years would have to be spent achieving in every member state of the United Nations compliance with the practice of human rights. There is much to commend this approach, rights form a basis for the relationship of trust and reciprocity between the state and state’s parties, including intelligence and law enforcement agencies and the individual. Respect for citizens’ rights are a solid basis for reciprocity in policing (Wright 2002: 44–6). Investigations and interviews conducted in ways that respect these rights will strengthen reciprocity, accountability and democracy.

History and academic research show that all too frequently military and police investigations have been associated with a deviant culture where the ends have been thought to justify the means (Klockars 1980; Williamson 1990; see also Chapter 15, this volume). For example, in an interview training course conducted in a newly democratized European country a detective explained that torture was not a problem in his country because they only tortured ‘guilty’ people. He decided whether or not a person was guilty or innocent, and if they were guilty and don’t confess he tortures them to get their confession (Crawshaw, pers. comm. 2003). In countries where torture is not practised, there can be a temptation to abuse the psychological process inherent in custodial questioning in a similar ‘ends justifies the means’ way in order to obtain confession evidence (Kassin and Wrightsman 1985; Ofshe and Leo 1997; Kassin 1998; Gudjonsson 2003; Rose 2004). Both approaches involve an abuse of human rights. States can be complicit and culpable in condoning physical and psychological abuse and have a responsibility to provide a regulatory framework that encourages public confidence that people questioned in custody will be treated professionally. There was a steady but growing acknowledgement of these issues, and torture was both condemned and becoming, in many countries, an increasingly rare event. This changed after the events of 11 September 2001.

The international legal regulatory framework

The events of 11 September 2001 mark a watershed in international governance, disturbing extant legal cultures that once appeared to vouchsafe international human rights law, and this is creating confusion about how states should respond to the threat of terrorism. According to a British academic lawyer:

International law has been revealed as feeble, constitutional law as insecure, while human rights law has become negotiable. Law’s apparent stable edifice has been exposed as being as fragile as our world order. International legal doctrines, treaties and constitutional texts seem superseded by the political expediency of alleged international and national security concerns in the face of terrorist threats … The actions of Al Qa’ida and the responses to them challenge the carefully crafted system of international relations in the second half of the last century (Strawson 2002: xi, xix).

Farer, an American lawyer, argues that, once this international frame of order is broken and states slip out of the normative restraints on their tools for safeguarding their security: ‘we can reasonably anticipate increasingly norm-less violence, pitiless blows followed by monstrous retaliation in a descending spiral of hardly imaginable depths’ (2002: 354). What is unfolding has been described as the degradation of international law:

International law is no longer accepted as a legitimate curb on the use of force by Western powers, while coercive intervention by Western powers against other States is increasingly legitimised through the framework of ‘international justice’. The gap between ‘justice’ and what is ‘legal’ has led to the degradation of international law rather than to its development (Chandler 2002: 158).

The issue at stake is respect for the sovereignty, equality and legal parity of nation-states, regardless of their wealth or power, in order to establish the rule of ‘right’ over ‘might’ in regulating interstate affairs (Chandler 2000: 55).

One result is that investigators in many countries find themselves caught between the narratives of crime and war (Hayward and Morrison 2002: 140–57), with military, security and police organizations operating in the same areas. The rules of engagement may be unclear but are likely to have changed, resulting in extension of police powers, the sudden arrival of military and intelligence personnel, and the militarization of criminal justice structures in what previously would have been considered the bailiwick of criminal investigators. After all, terrorism is a crime. This raises a fundamental question as to whether we are fighting a war or investigating a crime. International humanitarian law covers both: if it is a war, the Geneva Convention applies, and if it is a crime, human rights treaties and domestic law apply. Both forms of engagement also rely heavily on human sources of information. If, as will subsequently be demonstrated, investigators were not getting interviewing right before 11 September (see Chapter 8, this volume) it is even more likely that they and their military and intelligence colleagues were likely to repeat these mistakes when acting under legislation and policies that provide an extension of powers and suspension of internationally guaranteed human rights obligations, thereby legitimizing deviance.

The erosion of human rights through the militarization of justice: the UK experience

Some lessons can be learnt from a natural experiment that has been taking place in Britain which has a recent history of dealing with terrorism. One of the first responses to terrorism is for the state to bring in the military. Between 1966 and 1999 there were 3,636 deaths in Northern Ireland from political violence, in a population of 1.5 million. By 1971 the scale of the violence grew beyond the capabilities of the para-military police force, the Royal Ulster Constabulary, and the army became the prime security force and legislation was passed permitting internment without trial. These emergency powers also led to the ill-treatment of detainees and lethal confrontations between the army and civilian population which directly contributed to the continuation of terrorist activity.

Legislation was often event driven in response to the latest terrorist attack. In a review of the legislation in 1996 four principles were set out against which terrorism legislation should be judged:

1. Legislation against terrorism should approximate as closely as possible to the ordinary criminal law and procedure.

2. Additional statutory offences and powers may be justified, but only if they are necessary to meet the anticipated threat. They must then strike the right balance between the needs of security and the rights and liberties of the individual.

3. The need for additional safeguards should be considered alongside additional powers.

4. The law should comply with the UK’s obligations in international law (Lloyd 1996).

Emergency powers to deal with terrorism often fail to meet these principles. The human rights problems associated with the militarization of criminal justice through abusive interrogations and indeterminate detention were eventually recognized and resulted in the police regaining primacy for security in 1975. The Lloyd Review to consider the legal procedures to deal with terrorist activiti...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Contents
• Foreword by the Honourable Justice Peter Cory
• Acknowledgements
• Introduction
• Notes on contributors
• List of figures and tables
• Part I: Developments in Rights
• Part II: Developments in Research
• Part III: Developments in Regulation
• Index