Cmnd 2263. London: HMSO .
Royal Commission on Criminal Procedure ( 1981 ). Sir, C. Philips Cmnd 8092. London:
HMSO.
Walker , C. ( 2002 ). Blackstone ’ s Guide to the anti - terrorism legislation . Oxford : Oxford
University Press .
The Investigation of Terrorist Offences in the United Kingdom
89
Williamson , T. M. ( 1993 ). From interrogation to investigative interviewing. Strategic
trends in police questioning . Journal of Community and Applied Social Psychology ,
3 , 89 – 99 .
Cases
R v Argent [ 1997 ] 2 Cr App R 27
R v Farrell [ 2004 ] EWCA Crim 597
R (on the application of Gillan and another) v Metropolitan Police Commissioner and
another [ 2003 ] EWHC 2545
R v Noble [ 1997 ] CLR 346
R v Imran & Hussain [ 1997 ] Crim LR 754 CA
R v L [ 1994 ] Crim. L.R. 839 CA
Ward v Police Service of Northern Ireland ( 2007 )
Statutes
UK l egislation
Anti - Terrorism Crime and Security Act 2001
Criminal Justice and Public Order Act 1994
Police and Criminal Evidence Act 1984
Prevention of Terrorism Act 2005
Prevention of Terrorism [Temporary Provisions] Act 1974
The Terrorism Act 2000
The Terrorism Act 2006
US l egislation
Patriot Act 2001
Chapter Six
From Criminal Justice to
Control Process: Interrogation
in a Changing Context
David Dixon
Dean, Faculty of Law, University of New South Wales, Sydney
Introduction
The questioning of suspects takes place within a broader context of institu-
tional practices, priorities and values. This chapter will indicate that this context
is undergoing fundamental change in most Western democracies. What had
been generally accepted as fundamental principles of criminal justice are being
compromised, devalued and even abandoned in a shift towards what is better
understood as a control process with very different values and priorities. These
general trends will be illustrated by reference to examples of how some people
thought to be connected to terrorist activities have been interviewed by
Australian authorities, and the judicial consideration of the products of such
questioning. The role of prosecutors and of government will also be
considered.
Exponents of investigative interviewing need to be aware of these contextual
changes. It will be argued that the current focus on interrogation of major
suspects needs to be widened to take account of and make provision for the
more common questioning of those on the margins.
Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions
Edited by Ray Bull, Tim Valentine and Tom Williamson
© 2009 John Wiley & Sons, Ltd.
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Handbook of Psychology of Investigative Interviewing
From c riminal j ustice …
In the twentieth century, a paradigm of criminal justice matured in Anglophone
jurisdictions in which the questioning of suspects had a specifi c place (Dixon,
2008 ). Suspects should be interviewed in a closely regulated period between
being arrested and being charged with an offence. Such questioning should
normally take place at a police station where police supervisors are responsible
for ensuring access to various rights, notably of access to legal advice. The
length of investigative detention was restricted by time limits (e.g. in England
and Wales under the Police and Criminal Evidence Act 1984 , a maximum of
96 hours, although regulatory hurdles ensured that most suspects were charged
or released within six hours). After being charged, a suspect could not be
further interviewed about that offence. These were specifi c expressions of a
criminal justice paradigm with deep roots in liberal democratic conceptions of
relations between state and citizen.
For those of us who professionally grew up seeing these arrangements as
normal, it is important to appreciate their relatively recent origins. Until the
mid - nineteenth century, magistrates, not police, directed criminal investiga-
tions. Until the mid - twentieth century, the propriety of police questioning
suspects between arrest and charge was unclear. For a long period, such ques-
tioning attracted judicial criticism. Until legislative interventions in many
jurisdictions in the late twentieth century, the legality of investigative detention
was contested (Dixon, 1997 ).
This confi ned and contested conception of interviewing ’ s place was both
product and part of a broader criminal justice paradigm. Key characteristics of
this approach include:
• Individualism: the individual ’ s responsibility for action is pivotal.
• Localism: criminal justice is aligned with jurisdictional boundaries.
• Rights: the individual is protected by rights which may be expressed
in positive form and/or in a political understanding of the limits
on state intervention into the liberty (and onto the property) of the
individual.
• Process principles: to obtain a conviction, the prosecution must bear the
burden of proving beyond reasonable doubt that the accused voluntarily
and intentionally did (and often intended to cause the consequences of )
an act which was prohibited at the time (i.e., no retrospectivity).
• Judicial independence: an individual is entitled to a fair hearing according
to law before an unbiased judge and jury.
• Prosecutorial integrity: prosecutors have professional responsibility to act
fairly and to be independent of government.
• Reactivity: completed actions and their results are the concerns of the
criminal justice process.
• Desert: individuals are punished for what they have done.
From Criminal Justice to Control Process
93
… to c ontrol p rocess
In the last decade, a new paradigm has taken shape which I call a ‘ control
process ’ , emphasizing that its concerns are neither exclusively about what is
‘ criminal ’ nor ‘ justice ’ in the senses commonly understood in the paradigm of
criminal justice. The key characteristics of this paradigm are in stark contrast
to those of criminal justice:
• Communalism and security of the group, rather than the rights of the
individual, are paramount.
• Globalism: individuals may be penalized for acts committed and investi-
gated in other jurisdictions.
• Proactivity and pre - emption: where possible, risks must be identifi ed and
preventive action taken against them. Going further, precaution requires
action to be taken before risks even materialize.
• Incapacitation and prevention: punishment comes too late, so people must
be stopped, including by incapacitative means such as custodial detention.
• Administrative action: alternatives to judicial processes are preferred.
(See Garland,
2001 ; Zedner,
2007; 2009
; for a more positive view, see
Dershowitz 2006 .)
The central concepts of liberal democratic cri
minal justice are devalued in
the new control process. The key concern is now the minimization of risk and
the security of the group. The individual is no longer the focus of attention,
and so there is less emphasis on the individual ’ s rights and the need to prove
the individual ’ s guilt beyond reasonable doubt through a system of due process.
Flexibility of process replaces certainty of rules and procedures as a virtue.
‘ Pre - emption ’ , compliance and effi ciency are more important than individual
punishment or due process: preventive detention for potential sex offenders
and others, anti
- social behaviour orders, behaviour management contracts,
non - association and space restriction order, and the use of bail conditions as
a proactive crime control measure are just the more prominent examples.
There is less interest in understanding crime ’ s causation than in accepting
crime as normal, a choice to be controlled and insured against, in which
‘ attempts to cure or punish appear less logical than do moves to manage crime
and minimize its costs ’ (Zedner, 2005a : 284). The state ’ s responsibility for
crime control is ‘ contracted out to private providers wielding state franchises,
delegated to individuals and communities, or completely over taken by the
growing private security industry ’ ( ibid. ). Policing intervenes proactively, pre-
venting and pre - empting problems rather than retrospectively solving them.
Simply to say that all this goes against basic principles is rather like com-
plaining that a game of chess isn ’ t being played according to the rules of
draughts. The game has changed, allowing those in government to dismiss the
standard civil libertarian response to new police powers as anachronistic and
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Handbook of Psychology of Investigative Interviewing
irrelevant. The contrast between criminal justice and control process is exag-
gerated here in order to clarify the difference. It has become trite to respond
by pointing out that criminal justice has always included substantial preventive
elements. The modern English policing tradition has a strong preventive com-
mitment in the Peelite tradition. Preventive detention has been possible for
those refused bail, the mentally ill, habitual offenders, those suffering from
certain infectious diseases, illegal migrants, refugees, sex offenders and others.
Similarly, deterrence is by nature forward - looking, but its activation depends
on a crime having been committed. This illustrates the essential point that
while criminal justice includes preventive and deterrent elements, these do not
change the ideological core commitment to a reactive, individualistic process.
While these developments have been under way for some time, they acceler-
ated quickly after 9/11. Parliaments are now in a constant cycle of extending
anti - terrorism legislation in ways that routinely deviate from liberal democratic
principles in the name of necessity. It must be acknowledged that the shift
from criminal justice to control process did not happen suddenly on 9/11 any
more than Islamic terrorism arrived on the world stage on that day. Rather,
the response to terrorism must be seen as hastening changes which were
already under way, notably in the other ‘ war ’ of our times, that on illegal
drugs. The law enforcement response to illegal drugs, and the organized crime
associated with their distribution, has entailed a long series of compromises
and exceptions to basic principle, reducing and shifting the burden of proof
from prosecution to defence and deploying incapacitative civil and criminal
penalties. In addition, much of the groundwork for the new paradigm
’ s
emphasis on preventative intervention and detention was laid in responses to
perceived threats from sexual predators and other dangerous risks.
However, the fundamental difference between criminal justice and control
process is real and marked, and there is a shift from the former to the latter.
These differences can be illustrated through analysis of the different role of
interrogation in the two paradigms. In the criminal justice paradigm, police
question a suspect between arrest and charge in order to obtain evidence about
specifi c offences allegedly committed by the suspect which may subsequently
be admissible in court. In the control process paradigm, the purpose of inter-
rogation may be much broader: the focus is not the suspect ’ s past actions but
on what he or she knows about future actions by others. In response to 9/11,
‘ the interest of investigators has shifted from obtaining viable evidence for
prosecution to obtaining credible information for preventing future acts of
terrorism ’ (Strauss, 2003 : 206). In this context, what counts as success may
be much less than obtaining a confession:
Interrogators fi nd tiny bits of the truth, fragments of information, slivers of data.
We enter a vast desert, hundreds of miles across, in which a few thousand puzzle
pieces have been scattered. We spend weeks on a single prisoner, to extract only
a single piece – if that. We collect, and then we pass the pieces on, hoping that
someone above us can assemble them. (Mackey, 2004 : xxv)
From Criminal Justice to Control Process
95
Controls on interrogation which are designed around the potential sanction
of evidence being excluded as inadmissible are of limited value when producing
admissible evidence is not the main objective. Criminal justice and control
process are paradigms. They are neither clearly distinct nor sequential, with
one simply replacing the other. Rather, it is exactly the discordant overlap
which will emerge as a signifi cant problem in some of the specifi c cases to be
discussed below.
Torture and i nterrogation
Perhaps to the disappointment of some and the relief of others, this chapter
is not primarily concerned with torture. While only a few years ago, torture
was widely (although wrongly) regarded as an historical relic, its modern use
has spawned a vast literature. The disclosure of (some of) what happened in
Abu Ghraib and the global prison network of the USA ’ s affi liates has been an
extraordinary achievement by investigative journalists and human rights orga-
nizations. It provided the spur for many in the West to question and challenge
the post - 9/11 policies and actions of the USA and its allies. However, this
concentration of attention appears problematic from two perspectives. First,
some academic discussion of torture seems to share elements of the dark,
obsessional, almost pornographic, interest displayed in some contemporary
fi lms and TV series. Secondly, and more relevant to this chapter ’ s concerns,
the focus on the negative means that we have been concerned with what must
not be done rather than what can and should be done in questioning suspects.
My own interest is in what should be permissible in the routine, everyday
questioning of those thought to be on the fringes (or connected to the fringes)
of the activities under investigation. For every high - profi le suspect, there are
hundreds of people whom the authorities de
tain and question in the process
of accumulating the vast banks of information on which counter - terrorism
depends.
The issue of torture – its morality, legality and effectiveness – has dominated
debates about interrogation related to terrorism. This is inevitable: the fact
that at the time of writing (2008) there continues to be serious talk about
whether simulated drowning (known as water - boarding) should be regarded
as torture is an indication of how far the compass has shifted in recent years.
In 2008 President Bush vetoed a Bill which would have prohibited the CIA
from using such interrogation methods such as water - boarding (New York
Times, 2008 ). Meanwhile, Khalid Sheik Mohammed has been charged with
murdering the 9/11 victims on the basis, inter alia , of confessions obtained
by water - boarding. While it may have been necessary, the debate on torture
and what should not be done in interrogation distracted attention from the
practical question of what should be done. The answer to this question depends
in part on the moral dilemmas founding the torture debate. But it also depends
on what the interrogation is for . If it is part of a process which will or may
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lead to criminal law prosecution, the answer will be very different from if the
interrogation is part of an intelligence - gathering exercise. Of course, in reality,
this distinction is very diffi cult to maintain. As we shall see in the discussion
of Australian cases, the overlap between criminal justice and control process
has proved to be very problematic.
A good example of the problems is provided by a contribution to a confer-
ence on ‘ Law and Liberty in the War on Terror ’ by Neil James, who has
operational, supervisory and training experience in interrogation. His paper
provides a familiar critique of torture, focusing on instrumental issues of effec-
tiveness and practicality. He seeks to distinguish torture from legitimate inter-
rogation. Quoting from the Australian Defence Force ’ s Interrogators ’ Handbook
(of which he was the original author), James states:
Among professional interrogators in countries abiding by the rule of law the
common working defi nition of interrogation is
‘ the systematic extraction of
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