Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions
Page 16
were more likely to be convicted than those who chose to deny the offence
during the interview. In general terms, something like three - quarters of all
suspects answered police questions, with the remainder failing to answer any
question or being selective in relation to what they have to say. Such fi ndings
effectively extinguished one of the most enduring of police interviewing myths;
that all suspects say nothing on the advice of their lawyer.
More recently, legislative changes introduced under sections 34
– 37 of
the Criminal Justice and Public Order Act 1994 allow a judge and/or jury
to draw adverse inferences from a suspect ’ s silence during police question-
ing. Initial research concerning this additional power is in many respects
equivocal. For example, nearly 40% of suspects exercising their RoS were
given this ‘ special warning ’ , yet relatively few gave a satisfactory account in
response. On the other hand, the percentage of suspects refusing to answer
some or all police questions fell from 23% to 16% and the proportion that
gave a complete ‘ no comment ’ response fell from 10% to 6% (Bucke, Street
& Brown, 2000 ).
The original intention behind this additional power was twofold: to dis-
courage a suspect from fabricating a defence later and to encourage a sus-
pect to disclose a genuine defence as early as possible in the process. More
recently, the Home Offi ce has been examining allegations that the opportunity
to draw adverse inferences against a suspect
’ s silence has effectively been
undermined by the growing popularity amongst defence representatives to
submit a prepared statement that allows their client to continue with a ‘ no
comment ’ regime (internal correspondence between Home Offi ce, Police,
CPS and other agencies). In other words, where it is alleged that a suspect
carried out a crime, the defence lawyer will collaborate with their client to
create an often short and meaningless statement that simply refutes the
allegation.
An important adjunct to the use of adverse inferences lies in the amount of
pre - interview disclosure material supplied by the police. The Court of Appeal
has held that if little or nothing of the case against a suspect is disclosed, so
that a legal adviser cannot properly advise their client, this may be a good
reason to advise the suspect to remain silent (see R v Argent [1997] ; R v
Imran & Hussain [1997] ; R v Noble [1997] CLR 346). The onus is, there-
fore, on the investigating offi cer to disclose suffi cient information to ensure
that the suspect understands the nature and circumstances of their arrest.
There is, however, no requirement for the police to present a prima facie case
74
Handbook of Psychology of Investigative Interviewing
before questioning ( R v Imran & Hussein ; R v Farrell [2004] ; and the House
of Lords judgment in
Ward v Police Service of Northern Ireland [2007] ,
reported in The Times , 22 November 2007).
The second contextual factor – the strength of the evidence and, impor-
tantly, the suspect ’ s perception of this state of affairs
– was a very crucial
determinant of behaviour. In the Moston, Stephenson & Williamson (1992)
study when the evidence was weak, confessions occurred in less than 10% of
cases and denials in 77%. Conversely, when the evidence was strong, the fi gures
effectively reversed, with 67% confessions and 16% denials. In terms of the
facilitative factors infl uencing a suspect what was important was when
the suspect believed that there was no point in denying the offence because
the police have suffi cient evidence to eventually prove it. Such personal percep-
tions are exactly what a number of interrogation manuals recommend should
be targeted and manipulated by interviewing offi cers. Such tactics stimulate a
number of legal and ethical issues (for a comprehensive review see Gudjonsson,
2003 ; for detail of the specifi c tactics, see Inbau, Reid, Buckley & Jayne,
2001 ).
The third important contextual factor relates to the type and nature of
tactics employed by the police. This overlaps with the internal facilitative factor
of external pressure, which accommodates not only persuasive police tactics
but also concern regarding police behaviour and fear of confi nement. Research
has identifi ed a clear distinction between the type of tactics employed in
general, run - of - the - mill cases and more serious cases (Pearse & Gudjonsson,
1999 ). In the former it would appear that the suspect has already made up his
or her mind to confess or deny and is able to stick to that position regardless
of external factors. Indeed, in such circumstances confessions are often made
despite the tactics used, rather than because of them. In serious cases, such as
murder, robbery, blackmail and rape, we are more likely to fi nd coercive,
manipulative and forceful tactics applied with more intensity and often over a
much longer period of incarceration ( ibid. ; Pearse, 1997 ).
In 1997 the author examined a unique dataset of 20 very serious criminal
cases where the suspects (both male and female) had been persuaded, on audio
tape, to shift their position from denial to admission, despite the onerous
consequences attached to an admission to such serious offences Pearse, 1997 ).
However, fi nding examples of someone shifting their position from denial to
admission during interview proved very diffi cult, as it is a quite rare occurrence.
A detailed examination of what actually took place to achieve this shift revealed
that the interviewing offi cers engaged in a combination of coercive and pro-
longed tactics that concentrated on exploiting many of the contextual factors
and manipulating the internal factors identifi ed above. Obvious differences
with minor cases include duration (in minor cases average interview was
22 mins, range 2 – 109 mins, in serious cases 2 hrs 16 mins, range 24 mins – 12 hrs
42 mins), as well as the overbearing nature of ‘ clusters of tactics ’ . Eight cases
(40%) were ruled inadmissible at court although a legal adviser was present in
fi ve of those eight cases (63%) (Pearse, 1997 ).
The Investigation of Terrorist Offences in the United Kingdom
75
In summary, whilst a number of factors were concerned with the decision -
making process of suspects in relation to making a confession or denial, the
main conclusion that can be drawn from the research ‘ is that the most frequent
and important reason why suspects confess is the strength of their belief in the
evidence against them ’ (Gudjonsson, 2003 : 153).
Recent decades have also seen a growth in the availability of research con-
ducted into the individual characteristics of persons detained by police who
may be vulnerable to providing misleading information or who may be unable
to appreciate the signifi cance of their answers or the consequences attached to
their predicament. The fi rst empirical research in this area was for the 1993
Royal Commission. A number of relevant miscarriages of justice have been
identifi ed that suggest that the root c
auses will rarely be found in one place;
rather it will be a combination of events and issues that together bring about
such fl awed prosecutions. Thus a suspect ’ s psychological vulnerability (sug-
gestibility, compliance and learning disability) may not be recognized or acted
upon, their pre - existing mental illness or depression may not be acknowledged,
and they could be subjected to lengthy periods of incarceration and extensive
interviewing sessions by police. Environmental factors may also play a part
brought about by continued isolation from peers, the alien and debilitating
impact of detention, and sleep and food deprivation (Gudjonsson, Rutter,
Clare & Pearse, 1993 ; see also Gudjonsson, 2003 ). In the terrorist arena a
contemporaneous example has been created by the circumstances to be found
at the Guantanamo Bay Detention Centre and Abu Ghraib Prison regime in
Iraq (Pearse, 2006 ).
Legal p erspective
Acts of terrorism are perceived as extreme examples of violence, perpetrated
against often innocent individuals and special measures have to be introduced
in order to combat this threat. The readiness of Parliament to bring forward
new legislation supports such a contention. The same may also be said of the
judiciary in the UK. Some legal authorities are of the view that
there is a case for saying that terrorism, and legislation for the prevention of
terrorism, should be regarded in a special way: the interference with a right or
freedom may be more readily justifi ed in the case of terrorism. (Rowe, 2000 :
527 – 542)
Arguments in support of this stance can be found in the powers and duties
of states to protect their citizens of the (European Convention on Human
Rights, Article 2
– safeguarding the right to life), on moral grounds that
condemn terrorism as an illegitimate form of violent expression, and fi nally
that such acts are best understood as special forms of crime requiring a par-
ticular response to overcome the diffi culties faced by the investigation and
76
Handbook of Psychology of Investigative Interviewing
prosecution process. It has been argued ‘ That there is no greater challenge for
a democracy than the response it makes to terrorism ’ (Home Offi ce, 2004 ).
Evidence of legal recognition for the need to treat terrorist issues as special
cases can be found in current terrorist legislation and legal judgments (Walker,
2002 , who described TACT as ‘ the most extensive counter - terrorist code in
western Europe ’ ). For example, in the UK police powers to stop and search
have been extended by section 44 of TACT. In March 2003, Brooke LJ and
Mr Justice Maurice Kay said the use of the random stop and search powers
and any resulting violation of human rights were justifi ed because ‘ a threat
greater than any that this country in general and its capital city in particular,
have ever faced except in time of war ’ (2003 EWHC 2545) – a fi nding upheld
by the House of Lords in March 2006. Terrorist suspects can, under some
circumstances, be detained without access to a legal adviser for up to 48 hours
and in other circumstances, a suspect may only consult a solicitor in the sight
and hearing of a ‘ qualifi ed ’ police offi cer (Schedule 8 (part I) of TACT paras
8 and 9 respectively).
The possession of articles for terrorist purposes, under section 57 of TACT,
proved to be one of the fi ercest debating points in the UK during the passage
of the Act as it was interpreted as reversing the burden of proof from the
prosecution to the defence. In giving judgment on this issue in the House of
Lords, Lord Cooke was of the opinion that terrorism was to be treated as a
special case and that it was not disproportionate to put burdens on the defen-
dant in times of terrorism (Rowe, 2000 : 529; see also the reverse burden
provisions under section 18(2) of TACT). More recently Parliament has
extended the detention period that suspects can be held without charge from
14 days to up to 28 days. This increase was granted after a major political
debate in Parliament, which saw the government
’ s original proposal for a
period of 90 days ’ detention without charge defeated. The government con-
tinues to lay proposals before the House for additional periods of detention,
the latest set at 42 days. Additional offences of encouraging and preparing or
training for terrorism have been introduced (Terrorism Act 2006, sections 1,
5 and 6 respectively). Such an environment suggests that what takes place in
the police interview scenario with terrorist suspects may also be at the bound-
aries of criminal law and practice, especially when compared with typical
criminal cases.
In the UK, proposed changes to the terrorism legislation recently brought
about considerable parliamentary and public debate and some indication of
the logistics and scale of the tasks facing terrorist investigators was revealed
by New Scotland Yard (
http://www.homeoffi ce.gov.uk/Terrorism/
Terrorismandthelaw , letter from Assistant Commissioner Andy Hayman to the
Home Secretary, Rt. Hon. Charles Clarke, 6 October 2005). This suggests
that, unlike criminal cases, there is often a need to arrest terrorist suspects
prematurely in order to protect the public and save lives. Such precipitous
action may be based on sensitive intelligence and often before there has been
The Investigation of Terrorist Offences in the United Kingdom
77
time to gather suffi cient evidence against the terrorist suspects that would
allow the prosecution to consider there was a likelihood of conviction, unlike
criminal arrests where the whole ethos behind the introduction of PACE was
to provide police with suffi cient powers to gather evidence prior to arrest and
so reduce the period of detention.
Other obstacles encountered by the police included the extensive nature of
the many enquiries undertaken in terrorist cases (identity fraud, telephone and
other communication searches, hard drives and software to be interrogated
– sometimes encrypted – international liaison, fi nancial aspects) and the need
for exhaustive forensic searches, some taking up to weeks to conclude. These
were part of a number of the arguments put forward in order to extend the
detention of terrorist suspects from 14 days to 90 days.
Unfortunately, there has been very little comprehensive research into ter-
rorist cases in the UK and the exact dynamics within this particular interview
scenario are not well known. The author was recently granted access to analyse
a number of terrorist cases and to conduct face - to - face interviews with a broad
range of serving CT offi cers which in turn led to the distribution of a ques-
tionnaire to serving offi cers within the CTC at New Scotland Yard. In this
chapter, the main hypothesis under examination is that interviews with terrorist
suspects will be treated by police in the same manner as serious criminal
offences and that police offi cers will engage in a range of coercive and manipu-
lative interviewing tactics in order infl uence the decision - making process of
Methodological c onsiderations
This research was divided into three sections: an analysis of 30 CT cases; a
survey of the views of a range of offi cers from senior investigators and manag-
ers to detective inspectors, sergeants and constables by undertaking personal
interviews; and a customized questionnaire distributed randomly to investigat-
ing offi cers (detective sergeants and detective constables). There are restric-
tions on the amount of data that can be catered for within the confi nes of one
chapter and I shall limit this review to important distinctions between criminal
and terrorist cases, the impact of the
‘ special warning procedure
’ and the
nature and type of interview tactics adopted by police.
In order for cases to qualify for this study the researcher needed to have
access to the following items in each case:
• the audio - tapes of the terrorist interview;
• transcripts of all interviews;
• a copy of the suspect ’ s custody record;
• sight of the initial Crown Prosecution Service (CPS) report or outline
details of the case.
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Handbook of Psychology of Investigative Interviewing
The CPS report was necessary in order to achieve some understanding of
the nature of the allegations in each case, and access to the suspect ’ s individual
custody record provided an insight into any issues relevant to their detention,
treatment or welfare. This might include medical observations – the result of
examinations by doctors, information relating to his or her mental state and
any condition related to the custodial environment.
The presence of both the audio - tape and the transcript of the interview
provided the author with a contemporaneous insight into what actually took
place, as well as an accurate reference document to annotate. This detailed
methodology is far more extensive than many previous studies which relied
solely on observational data or only one medium (e.g. transcripts) (see Pearse,
1997 ). In previous studies access to the audio tapes has proved invaluable in
correcting a large number of sometimes very serious errors in the court tran-
scripts – for example, a rape case with the person denying the offence: the