( ibid. ), Haneef ’ s lawyers again released the full transcript. Its anodyne contents
defl ated the government ’ s attempts to justify Haneef ’ s treatment. As in other
contexts, a comprehensive record of interview (i.e., not just a recording of a
rehashed confession) can provide suspect as well as police with valuable
resources (Dixon, 2007 ).
I zhar U l - H aque
In early 2003, Izhar Ul - Haque, an Australian citizen, spent three weeks at
a camp in Pakistan run by Lashkar - e - Taiba, which would subsequently be
proscribed under Australian law as a terrorist organization. Six months after
his return, Ul
- Haque was interrogated by Australian Security Intelligence
Organization (ASIO) offi cers and subsequently was charged with an offence
of training with a terrorist organization. The circumstances of Ul - Haque ’ s
interrogation emerged at his trial. In his ruling on a voir dire concerning the
results of this interrogation, the trial judge was scathing about ASIO ’ s conduct:
not only refusing to admit the interview records into evidence, he concluded
that the investigating offi cers had committed signifi cant criminal and civil
offences in their treatment of Ul - Haque. His judgment provides a vivid picture
of the contrast between criminal justice and control process.
As noted above, in the criminal justice paradigm, interrogation is designed
to produce information and, if appropriate, admissible evidence about an
offence committed by an individual. In Ul - Haque ’ s case, the function of the
alleged offence was as a lever with which to put pressure on Ul - Haque to
collect and provide information about a person suspected of more serious
offences: the trial judge commented: ‘ It seems almost certain that the action
taken against the accused by the authorities was instigated by his being con-
nected with one Fadeen Lodhi.
’ (Lodhi was later convicted of terrorism
102
Handbook of Psychology of Investigative Interviewing
offences.) Ul
- Haque had a family connection with Lodhi: communication
between the two following Ul - Haque ’ s return from Pakistan was what ‘ excited
the authorities and instigated the actions of the authorities that led to inter-
views here in question and his ultimately being charged
’ (
R v Ul - Haque
[2007] at para. 13). According to Ul - Haque, the offi cers told him that they
did not wish to speak to him about his training in Pakistan: ‘ They said, “ No,
we know about that. We ’ re not concerned with that ” ’ ( ibid. , para. 21). An
offi cer told the court that his colleagues questioned Ul - Haque because ‘ we
had an investigation underway and we had information which indicated (he)
had information which could assist us in that investigation ’ ( ibid. , para. 30).
Ul - Haque claimed that an offi cer told him, ‘ we see you as a helper, as an
informant and as a witness … I don ’ t think you have done anything wrong ’
( ibid. , para. 78).
In November 2003, ASIO offi cers intercepted Ul
- Haque at a railway
station on his way home from university, where he was studying medicine.
He was not formally arrested. The offi cers ’ and Ul - Haque ’ s accounts of the
initial confrontation differed somewhat, but the differences were not signifi -
cant. It is clear that what occurred was a very familiar example of an order
lightly camoufl aged as a request: as Ul - Haque commented, ‘ the thought of
choice never really occurred because I was under extreme pressure and stress ’
( ibid. , para. 21. On the relationship of ‘ consent ’ to the exercise of police
powers, see Dixon, 1997 : ch. 4). As the judge concluded, ‘ Although it is
described as a request … his being told to accompany them to a nearby park
was an instruction and was intended to be taken as such ’ ( R v Ul - Haque ,
para. 27).
Sitting between two offi cers in the back of a car, he was taken to a public
park and questioned about his knowledge of Lodhi. An ASIO offi cer told him
that ‘ he was in substantial trouble and that his full cooperation with ASIO …
would be required
’ (
ibid. , para. 25). On the offi cers ’ own account, this
included ‘ robust discussion and considerable prompting from the interviewing
offi cers ’ (
ibid. , para. 23). The interrogation was not contemporaneously
recorded, and again the two sides ’ accounts differed in tone. They agreed that
he was given a choice of cooperation or facing the consequences of failing to
do so: in the offi cers ’ account, this meant continued investigation, while in
Ul - Haque ’ s it meant action against him unless he collected and provided
information about Lodhi ( ibid. , paras 20 – 1). To a young Muslim man aware
of contemporary developments in the ‘ war on terror ’ , the possible implications
of the threat were very serious:
when he said … ‘ we can do this the easy way or the hard way ’ , I believed that
unless I kept … answering their questions that they will use the hard way [which]
to me meant … for example that I could either be deported, I could be arrested,
I could be taken to a secret location for interrogation … and my family … would
be taken into custody. ( ibid. , para. 71)
From Criminal Justice to Control Process
103
The judge accepted Ul - Haque ’ s account of his fears: ‘ the accused was given
to understand that it was in his interests to co - operate, and there was an
implicit threat that if he did not do so some adverse consequences might
follow ’ ( ibid. , para. 67).
Ul - Haque was then interviewed further in the car on the way to his parents ’
house, which was being searched by some 25 ASIO and police offi cers, and
again on the way back to the railway station where Ul - Haque ’ s car had been
left. He then returned, accompanied by an agent, to his parents ’ house, where
he was interviewed for a further 2 hours and 46 minutes, ending at 3.45 am.
Later that day, and then again fi ve days later, he was subjected to further
questioning, on these occasions at a police station by Federal Police agents.
Two weeks later (after numerous telephone contacts), the agents returned to
Ul - Haque ’ s house. The AFP ’ s account was that they requested Ul - Haque to
‘ further assist the Federal Police by undertaking covert enquiries or acting as
a witness ’ . Ul - Haque ’ s account was that they threatened to prevent him from
continuing to study medicine and ‘ make life diffi cult ’ for his family ( ibid. , para.
110).
Many people will not be surprised at how ASIO treated Ul - Haque: this is
how an intelligence agency may be expected to behave. The problem arose
when an attempt was made to shift from control process to criminal justice by
charging him. (The real motivation appears to have been to punish him for
non - cooperation with ASIO rather than for his brief involvement with Lashkar -
e - Taiba.) What might have been conventional security agency practice came
under intense, critical scrutiny in a criminal court. The
judge was merciless in
his dissection of ASIO practice from a criminal justice perspective. The ‘ request ’
to go to the park was an unlawful arrest. Ul - Haque should have been informed
of his rights, taken to a police station, detained according to regulations and
had his interview recorded. The failure to specify his alleged offence and to
tell him instead that ‘ he knew what he had done wrong ’ was ‘ reminiscent of
Kafka ’ ( ibid. , para. 31), while ‘ to conduct an extensive interview with the
accused, keeping him incommunicado, under colour of the [search] warrant,
was a gross breach of the powers given to the offi cers under the warrant ’ ( ibid. ,
para. 44). The interviewers ’ ‘ prompting ’ of Ul - Haque was condemned as bad
practice: according to the judge,
‘ the ASIO offi cers told him when they
thought he was not telling the truth and told him, or suggested, what the
truth was ’ , which was a method not used by police because it is ‘ calculated to
obtain what the suspect believes the interrogator wants to hear … It is inevi-
table that the truth of what is said is likely – if not certainly – to be adversely
affected ’ (paras. 46 and 102).
According to the judge, the ASIO offi cers ’ conduct did not merely affect
the admissibility of evidence from the interviews with Ul - Haque: it included
a string of criminal offences
– false imprisonment, kidnapping and assault
which were intentionally committed ( ibid. , paras 59 and 61). These assess-
ments were fi rmly located in a context of constitutional principle – the require-
104
Handbook of Psychology of Investigative Interviewing
ment of legal authorization for the executive to interfere with an individual ’ s
liberty ( ibid. , para. 60). The conduct of the ASIO offi cers was
grossly improper and constituted an unjustifi ed and unlawful interference with
the personal liberty of the accused (and) was a gross interference by the agents
of the state with the accused ’ s legal rights as a citizen, rights which he has
whether he be suspected of criminal conduct or not and whether he is a Muslim
or not. Furthermore, the conduct was deliberately engaged in for the purpose
of overbearing the accused in the hope that he would co - operate. ( ibid. , paras.
62 and 95)
It was made clear that ASIO was responsible for the individual offi cers ’ mis-
conduct:
‘ The impropriety
… was grave. There is no suggestion that the
offi cers acted contrary to ASIO protocols and good reason for thinking that
they did not ’ ( ibid. , para. 105).
As in Haneef ’ s case, electronic recording assisted the defence. While the
ASIO interrogations in the park, house and car were not contemporaneously
recorded, that by the AFP at the police station was audio - visually recorded,
allowing the judge to make an assessment of Ul - Haque ’ s demeanour and
manner of answering questions: ‘ The overwhelming impression that I got from
watching the interview is that the accused was cowed ’ ( ibid. , para. 73). This
contributed to his assessment that the negative answers which Ul - Haque gave
to the routine questions about threats, promises or inducements at the inter-
view ’ s close were made because ‘ he just decided he was going to be compliant
and wanted the interview to end ’ ( ibid. , para. 75). He regarded the questions
designed to expose any threats, promises or inducements as ‘ an empty formal-
ity ’ ( ibid. , para. 92). The judge recognized the strangeness of the legal fi ction
that any suspect whose will has been overwhelmed by threats, promises or
inducements during an interview will be able to slough off their effects and to
answer the concluding questions genuinely.
The t hree c ases
These are very different cases: Thomas had, on his own account, been signifi -
cantly involved with terrorist organizations and was a legitimate subject of
investigation; Haneef ’ s distant family connection appears to have been enough
to excite Australian politicians making political capital out of a ‘ terrorist ’ drama
and security agencies eager to show their worth; in the case of Ul - Haque, it
appears that the investigation was conducted primarily to get Ul
- Haque ’ s
cooperation in collecting and providing information about others and, when
this cooperation was refused, punishing him by prosecution. What connects
them for present purposes is their illustration of the uncomfortable relationship
between criminal justice and control process paradigms and the central, con-
troversial role played by interrogation.
From Criminal Justice to Control Process
105
The r esources and l imits of l aw
The criminal justice paradigm is not dead when there are responsible, inde-
pendent professionals who take its principles and values seriously. Thomas ’ s,
Ul - Haque ’ s and Haneef ’ s lawyers provide an excellent example of the long
tradition of lawyers who, refusing to be intimidated, rely on the basic principles
of the rule of law and natural justice. Haneef
’ s lawyers deserve particular
comment: refusing to be swept along in the political and media hysteria about
their client, they insisted on due process and took the fi ght to the authorities
by releasing the interview records. The legal principles which provide the
motivation for lawyers such as these are not complicated: a fair hearing accord-
ing to law before an independent judge applying, in a criminal case, the prin-
ciples of criminal justice outlined above.
As this statement indicates, judicial offi cers play a pivotal role. The justices
of the Victorian Court of Appeal who heard Thomas ’ s appeal, the Queensland
magistrate who granted Haneef bail and the New South Wales judge in Ul -
Haque ’ s case can proudly take their places as members of a group identifi ed
by Dyzenhaus
& Thwaites:
‘ [t]here seems to be something like a judicial
‘ coalition of the willing ’ forming – judges prepared to uphold the rule of law
in the face of executive claims about national security ’ ( 2007 : 10). There is
certainly evidence in the judgments quoted above of judges who are uneasy
about current trends and who are prepared to challenge governments over
aspects of them.
Some governments have expressed concern about the limitation or exclu-
sion of legality from responses to terrorism. This frequently fi nds expression
in calls for the rhetoric of war to be abandoned, and for countering terrorism
to be seen as a task for law enforcement (Wilson, 2005 ). What ‘ law enforce-
ment ’ means in this context is unsettled, with police and security overlapping,
cooperating and occasionally squabbling.
However, law has familiar limits as a restraint on power. Court cases are
expensive and slow. Lawyers acting for the prosecution too often resemble
government agents rather than independent professionals. Too many of the
heroic judicial affi rmations of freedom have come from judges in dissenting
judgments. Even if such judges carry the majo
rity, courts can rarely have the
fi nal say: governments and parliaments can respond to judicial decisions which
they do not like by undermining them by legislative action or by turning to
administrative rather than judicial means of control. They are particularly able
to do so in a jurisdiction like Australia ’ s which has very limited constitutional
protections of individual rights. For example, Thomas may not have been con-
victed, but he was made subject to an administrative control order (which the
High Court found to be legal in
Thomas v Mowbray [2007] HCA 33).
Ironically, reliance on law may serve to push state action outside the reach of
legal principle, as what was previously unacceptable is legalized. As Lynch con-
cludes pessimistically, legal systems around the world are ‘ undergoing a rapid
re - adjustment in order to respond to the post 9/11 world ’ (2007: 231 – 232).
106
Handbook of Psychology of Investigative Interviewing
Courts are increasingly attacked if they give any indication of being ‘ soft on
terror ’ (Lynch, 2006 ). The judgments in the cases considered here attracted
considerable criticism from popular media, although some of the quality press
supported them. Of more concern is the offi cial response: to date, there has
been no recognition by the Australian government of the judicial critiques, far
less any prosecution or disciplining of offi cers for demonstrated misconduct.
Security authorities do not see acknowledgement of legality as an appropriate
response to these court rulings. Finding ways around them seems more appeal-
ing: the Australian Federal Police Commissioner declared that ‘ Both in the
UK and Australia we are testing the courts. We make no apologies for that …
it ’ s part of the work police do … and will help prevent a [terrorist] attack here ’
(The Australian, 2007 ). Action has been threatened against lawyers who chal-
lenge the authorities. For example, Stephen Keim, Haneef ’ s barrister, had to
defend himself against allegations that he had broken professional conduct
rules in the way he released interview tapes to the media. The offi cial response
to the judge ’ s criticisms in the Ul - Haque case was not to take action against
the police and ASIO offi cers, but to launch an offi cial complaint against the
judge.
Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions Page 21
