Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions
Page 20
information from an individual, either willing or unwilling, by the use of psy-
chological attack only ’ . Thus, interrogation is essentially an intellectual process
not a physical one. No physical or mental pain or severe suffering is involved.
The subject is convinced to cooperate by reasoning and by overcoming their will
to resist. ( 2007 : 161)
Some may argue that the line between torture and interrogation is not as
clear - cut as James suggests. However, this is not my concern here. Rather, my
focus is on the acceptability of this form of interrogation in a criminal justice
model. Any evidence lawyer ’ s ears would have pricked up at this account of
interrogation: unwilling extraction of information, psychological attack and
overcoming of the will to resist provide ready ammunition for an argument
that a confession was involuntary, so failing to get past the fi rst requirement
of evidential admissibility.
The problem is clarifi ed when James goes further: ‘ measures or conditions
of discomfort or annoyance designed to encourage cooperation are not unrea-
sonable
… With obvious safeguards such conditioning may, for example,
legally include the strictly controlled and temporary use of measures such as
isolation, sensory deprivation or sleep deprivation ’ ( ibid. : 162). While it may
be the case that such treatment does not amount to a criminal offence, it
certainly would render any confession thereby produced inadmissible under
the current law of evidence in many countries.
James is concerned with more serious and diffi cult cases. My primary interest
is rather different. An interrogation to discover a ‘ ticking bomb ’ will happen
very rarely, if ever, despite the enormous attention this scenario has attracted.
Stepping down the scale of seriousness, few interrogators will be called on to
deal with the kind of suspect for whom even techniques such as sleep depriva-
tion could be considered as appropriate. Just as has often been the case in
policing more generally, there is an unfortunate concentration on everything
From Criminal Justice to Control Process
97
except everyday and ‘ normal ’ practice. The vast majority of terrorism - related
interrogations will continue to involve low - level people on the fringes. For
them, length of detention will be the critical variable.
A now standard part of critiques of torture and related techniques is that
other methods are more effective, even in questioning those allegedly involved
in terrorism. In particular, it is argued that interviewers with appropriate lan-
guage skills, cultural knowledge and training can build rapport with suspects
and thereby produce results (Gelles, McFadden, Borum, R. & Vossekuil, B.,
2006 ; Pearse, 2006 ). The problem is that such rapport is most unlikely to be
established in the short periods allowed under standard criminal justice regimes.
As Gelles et al. suggest, ‘ A rapport - building (or relationship - based) approach
will yield the best results in an interview/interrogation that occurs over days/
weeks/months ’ ( 2006 : 31). James confi rms that the time available is crucial
( ibid. : 161). In these approaches, it is taken for granted that the subject of
interrogation must be detained for an extended period in order for interroga-
tion to be successful. Yet this runs counter to one of the basic principles of
criminal justice regimes such as PACE, which were constructed on an under-
standing that extended detention in itself could make confessions unreliable
because people would say anything (even at long - term cost) to win a short -
term reprieve from investigative detention.
If interrogation is intended to produce confessions and admissions which
are acceptable to a criminal justice paradigm, lengthy pre - charge detention is
unacceptable because it undermines the voluntariness which is a precondition
of evidential admissibility. If interrogation is primarily intended to produce
information and actionable intelligence rather than admissible evidence, then
the concerns of criminal justice will not be paramount. In addition, problems
for the authorities arise when the lengthy interrogation for intelligence is over.
Are the subjects of interrogation to be detained indefi nitely (or until the ‘ war
on terror ’ is over, if there is a difference)? Are they simply to be released and
placed under administrative control orders which limit their movements and
contacts? Or should an attempt be made to create an ersatz criminal justice,
dressing up a militaristic control process with some trappings of legality? These
are, of course, the questions which the USA has been grappling with over the
detainees at Guantanamo Bay.
Interrogating t errorism: t hree c ase s tudies
Much of the extensive post - 9/11 literature on liberty vs. security and related
changes in criminal justice has been general and abstract. This section seeks
to provide a closer focus through brief analysis of three Australian cases involv-
ing alleged terrorist offences in which controversial interrogations have played
crucial roles.
98
Handbook of Psychology of Investigative Interviewing
J ack T homas
In 2003, Jack Thomas, an Australian citizen, was arrested and detained for
fi ve months in Pakistan. During this period, he was ‘ interrogated numerous
times by Pakistani, American and Australian offi cials, often whilst blindfolded,
hooded and shackled ’ (Lynch, 2006 : 313). According to his account, which
was accepted as truthful by an Australian court, he was assaulted, threatened
with torture and with the rape of his wife, and offered inducements of favour-
able treatment in return for his cooperation.
In a fi nal session in Pakistan, Thomas was interviewed by Australian Federal
Police (AFP) agents. This took place in the same room as previous interviews
with security and police offi cials, and the AFP interviewers had both attended
some of the previous sessions. The purpose of this interview was ‘ to gather
evidence in a form and by a process that would be admissible in an Australian
court ’ (
ibid. : 314). It was, in other words, an attempt to bridge the gap
between control process and criminal justice, between a series of interviews
conducted in a security facility in a foreign country and the proceedings of an
Australian court. In this interview, the AFP agents attempted to meet criminal
process requirements, explaining the right to remain silent and emphasizing
that participation in the interview was voluntary. The relevant Australian law
requires a suspect to be provided with access to legal advice: the AFP tried to
arrange this, but Pakistani Inter - Service Intelligence offi cials refused ( ibid. :
315). The Victorian Court of Appeal commented that the interview was ‘ con-
ducted in what can be reasonably described as a conventional fashion ’ ( R v
Thomas [2006] at para. 51). Statements made by Thomas in this interview
were subsequently presented as part of the case against him when (more than
year later) he was arrested and charged in Australia with the offences of receiv-
/> ing funds from and providing support to a terrorist organization.
The crucial issue for the Australian courts was whether the fi nal interview
could be distinguished from what had preceded it so that the evidence pro-
duced could meet criminal justice standards – notably, the base requirement
that a confession or admission must be made voluntarily. In a voir dire , the
trial judge ruled that the admissions had been made voluntarily and Thomas
was convicted and sentenced to fi ve years ’ imprisonment. Narrow legalism,
sympathy to police and prosecutors, and a narrow view of reality have often
been characteristics of Australian criminal trial judges. The trial judge con-
cluded that Thomas had a choice to answer questions or not, and exercised
that choice. The pressure to answer came not from the interviewers ‘ either
expressly or implicitly ’ , but from Thomas ’ s own assessment of the ‘ risk of
indefi nite detention in Pakistan or of removal to the United States or Cuba ’
( DPP v Thomas [2006] at para. 42). The judge found that this interview could
be distinguished from the earlier interviews and the inducements offered in
them: ‘ There was a clear bifurcation in purpose, function and form between
the ASIO interviews and the AFP interview. Mr Thomas fully understood it ’
( ibid. , at para. 50).
From Criminal Justice to Control Process
99
The Victorian Court of Appeal rejected this artifi ciality and restated the
accepted common law principle that an earlier inducement (which may be a
threat or promise – in lawyers ’ terminology, ‘ fear of prejudice or hope of
advantage ’ ) – offered by a person in authority (such as the security interviewers)
can continue to affect the suspect ’ s voluntariness. The Court of Appeal ’ s con-
clusion was the same as any common - sense understanding of the situation –
the fi nal interview could not be divorced from those preceding it ( ‘ same place,
same AFP personnel, same topics ’ [2006 VSCA 165, at para. 84]).
Obviously, the fact and circumstances of his detention, the various inducements
held out and threats made to him, the prospect that he would remain detained
indefi nitely, can be seen to have operated upon the mind of the applicant when
he decided to participate in the (fi nal AFP) interview. Whist nothing occurred
in the interview itself that could be seen to overbear the will of the applicant,
there can be little doubt that he was, at that time, subject to externally - imposed
pressure of a kind calculated to overbear his will and thereby restrict, in a practi-
cal sense, his available choices and the manner of their exercise. ( ibid ., para. 92)
The AFP ’ s attempt to lay a patina of criminal justice over a structure of control
process was rejected. Notably, the failure to provide access to legal advice
could not be excused simply because the refusal was by the local Pakistani
authorities, not the Australian investigators. Their refusal meant that an inter-
view conforming with Australian law could not be conducted in Pakistan ( ibid. ,
para. 111).
For the future in a case like Thomas ’ s, the alternatives for the authorities are
clear. Either there must be a much greater distinction in time, place and person-
nel between interrogations carried out for different purposes, or prosecutions
must be based on evidence other than confessions or admissions, or an alter-
native to criminal justice must be deployed. As we shall see, the Australian
authorities are exploring all options. From this perspective, the trial judge ’ s
convolutions in Thomas ’ s case are understandable: however fl awed, they repre-
sented an attempt to maintain the relevance of a criminal justice paradigm.
M ohammed H aneef
Mohammed Haneef, an Indian doctor practising in Queensland, was detained
following the London and Glasgow car bomb incidents in June 2007. These
marked a signifi cant shift in concern about terrorism. The previously accepted
wisdom was that the threat of terrorism was associated with alienation and
anomie in ethnic minorities, yet those allegedly associated with the London
and Glasgow incidents were not unemployed inner - city youth, but doctors.
The shift from risk to precaution (Zedner, 2005b; 2007 ) is illustrated by this.
If members of a professional elite were engaged in terrorism, the attempt to
identify auditable risk factors seems doomed: instead, the authorities respond
as if risk is everywhere and that precautionary action is necessary.
100
Handbook of Psychology of Investigative Interviewing
Dr Haneef ’ s alleged connection to the British incidents was that he was
second cousin to a man who died from burns suffered in the Glasgow incident
and a telephone SIM card purchased by Haneef had been found with the
alleged car bombers ’ possessions. Suspicion was increased by his attempt to
board a fl ight from Australia to India. With at least tacit encouragement from
a government facing a general election which had previously exploited security
scares for political advantage, sections of the media treated Haneef as a prize
capture. It was alleged, for example, that he was planning to blow up an apart-
ment block on Queensland ’ s Gold Coast, a tourist area.
The ‘ case ’ against Haneef then spectacularly fell apart: his fl ight to India
was to see his newborn child; the apartment bomb story was based on no more
than a photograph of Haneef and his wife on a Gold Coast beach; the SIM
card was found not, as initially reported, in the vehicle driven into Glasgow
airport, but in Liverpool. (Haneef had passed it on when he left England so
that the remaining credit would not be wasted.) As in Thomas ’ s case, we see
the courts applying the criminal justice principles; but these rub hard against
exigencies of the new control process. When a magistrate took the brave and
unusual step of ordering Haneef ’ s release on bail, the Australian government
intervened by withdrawing his immigration visa and converting investigative
detention into pre - deportation detention. The ‘ orthodox process ’ of law was
overtaken by administrative discretion (Lynch, 2007 : 228). This was done in
a way (citing the national interest) which sought (ultimately unsuccessfully)
to prevent judicial scrutiny of the decision. Exposure of the weakness of the
prosecution case and widespread public criticism of the police followed. While
the Australian government continued to mutter darkly about Haneef ’ s con-
nections with terrorism, the Commonwealth Director of Public Prosecutions
eventually dropped the charges against him. He was released and left for India
to see his daughter for the fi rst time ( ibid. : 226 – 227). In a fi nal humiliation
for the government, the Federal Court, in a decision that was scathing about
the Immigration Minister
’ s behaviour, ruled that the visa cancellation was
unlawful. At the time of writing, Haneef was considering returning to Australia
to resume his medical career.
Interrogations conducted by Australia Federal Police agents with Haneef
played a vital part in this reversal. Haneef was interviewed over several day
s.
‘ He was the fi rst person to be detained under new anti - terrorism powers which
enable Australian police to hold a suspect without charge for an extended
period of time during which questioning up to a maximum of 24 hours may
occur ’ ( ibid. : 225). The interviews were lengthy but were carried out in accor-
dance with criminal justice values and standards. The relevant legislation
follows the standard practice of specifying a maximum period for active inves-
tigation to which is added ‘ time - outs ’ in which the detention clock is stopped
while other investigations take place, and the suspects is allowed to rest and
eat. The indeterminate length of detention under a ‘ time - out ’ system has been
criticized. However, the problem of lengthy detention had rarely been so
clearly demonstrated as in Haneef ’ s case: he was detained for 12 days before
From Criminal Justice to Control Process
101
being charged with providing ‘ support or resources ’ to an organization involved
in terrorist activity ( ibid. : 225 – 226). This was a much longer period than those
responsible for drafting the legislation had thought would occur ( ibid. : 228).
The interviewers were polite and respectful, if not very well prepared. We
know this because Haneef ’ s barrister, Stephen Keim, responded to the govern-
ment, police and media misrepresentation of his client by releasing the tran-
script of the fi rst of the recorded interviews to the press (see The Hindu ’ s
website, www.hindu.com/nic/0058/haneef.htm ). Apart from demonstrating
Haneef ’ s apparently full cooperation, the transcripts revealed that aspects of
the prosecution case against Haneef were unfounded: he had, for example, a
good reason for his supposedly suspicious attempted departure from Australia.
It emerged that some of his actions were apparently inconsistent with guilt
– for example, far from fl eeing from investigators, he had made several attempts
to contact the UK police (Lynch, 2007 : 227). When the Immigration Minister
proceeded to selectively release passages from the second interview in an
attempt to justify his stance, while claiming that he was unable to release the
full record on the basis that it might prejudice ongoing police investigations