THE LEGAL WILDERNESS OF POLICE INTERROGATION.
By Andrew Sanders and Richard Young.
Andrew Sanders is the Deputy Director of the Centre for Criminological Research Oxford and a fellow of Pembroke College. Richard Young is senior lecturer in Law at the university of Birmingham. They are co-authors of "Criminal Justice" published by Butterworths in 1994
The Police and Criminal Evidence Act of 1984 helped reduce the number of miscarriage of justice cases by introducing the tape recorder into police interview rooms - a reform Tom Sargant had long urged. However, the Act is far from perfect, as Sanders and Young point out.
THE LEGAL WILDERNESS OF POLICE INTERROGATION.
When the Police and Criminal Evidence Act (PACE) was passed in 1984 it was hoped that, whatever the merits or otherwise of its changes to police powers and the rights of suspects, it would at least clarify the scope of these powers and rights. This would help the police to know how far they could go in investigating crimes and it would help defence lawyers having to give advice to their clients concerning their legal position. It is, after all, a basic tenet of the rule of law that particular rules of law be clear and ascertainable in advance, and that there be plain limits on the powers of State agencies.
Recent events have shown that PACE has not lived up to expectations, despite revisions to its attendant Codes of Practice and an avalanche of case law. In November 1993, George Heron was acquitted of murder after the trial judge ruled that his alleged confession was unreliable and obtained by oppressive interviewing contrary to section 76 of PACE. An internal police inquiry into the case, which reported in July 1994, found that the questioning techniques were "common police practice at the time", which had been thought proper "in an adversarial criminal justice system". Although the police needed to be trained in less oppressive techniques, the report concluded, the line between robust questioning and oppressive questioning was difficult to draw. And police tactics have been criticised (and defended) again following the acquittal of Colin Stagg, charged with the murder of Rachel Nickell, in September 1994.
The inquiry into the Heron case prompts a number of questions. First, just what are the police allowed to do to obtain confessions under PACE? Second, is interviewing contrary to PACE really "common police practice"? Third, does PACE actually facilitate, if not encourage, oppressive interrogation techniques? Finally, has PACE enhanced the rule of law or is there a need for further clarification?
The Lawfulness of Coercion
Section 37 of PACE provides that suspects may be held in custody without charge following arrest if there are reasonable grounds to believe that detention is necessary to obtain evidence by questioning. Suspects have - for the time being at any rate - a right of silence, and the police must inform them of this by administering the caution. Code of Practice C stipulates, however, that a declaration by a suspect of an intention to refuse to answer questions does not alter the entitlement of the police to continue to put questions throughout the period of detention. This will remain true following abolition of the right to silence, although the pressure to speak will then be greater since a failure to answer questions may lead to adverse inferences being drawn at any subsequent trial.
It is clearly lawful for the police to attempt to engineer a change of mind by the suspect who wishes not to answer questions (otherwise detention for questioning would be pointless), but how are the police supposed to do this? Remarkably, the law is virtually silent on this issue. PACE and the Codes of Practice merely indicate what the police may not do: the police may not use "inducements", such as the promise of bail or of non-prosecution; they may not act "unfairly", such as acting deceptively; and they may not act "oppressively", as they were found to have done in the notorious "Cardiff Three" case, where one defendant was subjected to 19 interrogations over 14 hours, his treatment being described by the Court of Appeal as "bullying" and "intimidating"
One could legitimately ask just how the police are supposed to secure answers from suspects who do not wish to answer questions if the unfairness of deception and the "stick" of bullying is banned. There are always "carrots", of course, but any carrot that amounts to an inducement - and it is difficult
to think of any that does not - is also banned. The police are left with their powers of reason, their ability to play on the ignorance and fears of suspects, and the sheer coercion provided by custodial detention itself.
This last point is of great importance. Research on suspects in custody has found that suspects fear being held for long periods, especially overnight, far more than they fear being assaulted or prosecuted. Since detention to obtain evidence by questioning is permissible, silence on the part of suspects is a lawful basis for continued detention, as are "unhelpful" answers from suspects claiming to know nothing about the crime in question (which was the situation in the George Heron case). The threat of extended detention in the cells can exert great pressure on many suspects to "confess"
Police Interrogation Practices
In the words of the American Supreme Court in the famous Miranda decision, all custodial interrogation necessarily "trades on the weaknesses of individuals." Skilful interrogation, then, attempts to locate the weaknesses of individual suspects. Research done for the Royal Commission on Criminal Procedure (Philips Commi ss ion ) and , more recently, for the Royal Commission on Criminal Justice (Runciman Commission), reveals a catalogue of "tactics" used by the police with this end in mind.
The use of custody is a tactic in itself. The police know how much people hate being held in the cells. And so it is usual to place suspects in the cells prior to interview to soften them up even if no delay is needed. Suspects who will not speak, or who are thought to be lying, are returned to the cells and then interviewed again - and again and again, if necessary. Heron, for instance, was interviewed five times after being arrested. Another tactic entails making it clear to suspects (and sometimes exaggerating) how much control they, the police, have over them while they are in custody: bail, the level and number of charges, the length of interrogation, when meals will be provided, which cell to use, and so on. While in custody, almost every aspect of the lives of suspects is, or appears to be, controlled by the police, which can be highly intimidating. Other tactics include the police selectively revealing (or claiming) knowledge of important facts or the law; the police leading suspects to believe that confession would be in their own interests; and pure accusation and abuse.
How do the police know what type of tactic will work with a particular individual? The answer is that they do not need to know since they have time enough to proceed by trial and error. People suspected of serious arrestable offences can be held without charge for up to four days and nights and even in non- serious arrestable offences suspects can be detained for 24 hours. If one tactic does not work the police can move onto another.
The legality of most of these tactics is questionable, particularly when several are used in succession. Research for the Runciman Commission by Roger Evans suggested that "oppressive and persuasive" tactics of the kind we have discussed may be routine even in minor juvenile cases. As he noted, the problem remains as to what constitutes legitimate persuasion. As a head of CID commented following the release of George Heron, "It is a matter of interpretation as to what is oppressive ... It is rather difficult to establish the truth by pussyfooting about."
There are very few clear legal standards. And those that there are - bargains over bail are manifestly inducements, for example - do not address the sheer oppressiveness of custodial detention and questioning in itself. Significantly, the judge in Heron's case found that no specific provisions of the Codes of Practice were breached, despite the exclusion of the "confession" under section 76 of PACE. In practice, it is rare for interviews to be excluded if the Codes of Practice are not breached. Moreover, the courts have yet to develop a consistent stance on interviewing techniques and confusion reigns. For instance, a Crown Court decision in 1991 held that an interview in which the suspect was "hectored and bullied from first to last" was a breach of section 76, but a Court of Appeal decision of the same year decided that similar behaviour in another case was not. It follows that much of the unfair and oppressive treatment of suspects which the Northumbria inquiry implies is routine is not unlawful and nor does it usually provide sufficient grounds for exclusion.
The Effects of PACE
Custodial detention is inevitably coercive for all suspects who do not wish to readily confess. Evidence produced under such conditions is inherently suspect, and may lead to a miscarriage of justice. If coercion is to be reduced, it is necessary to detain fewer suspects, to do so for shorter lengths of time, and not to interview suspects in police stations if possible.
The report of the Philips Commission in 1981 recognised the coercion entailed by custodial interrogation. It therefore recommended that fewer suspects be arrested and detained, but that safeguards which we now see in PACE be introduced for those who are. No one foresaw that the regulation of interviewing would thwart Philips' objective of reducing custodial detention. This is because the main method by which the law protects suspects is to insist that they are only interviewed under controlled conditions within the police station. Theoretically, this allows procedural safeguards, such as supervision, record-keeping and the provision of legal advice, to be more effectively guaranteed. But the more significant consequence has been increased levels of coercive detention and questioning. The main features of the legal framework are as follows:
- under section 30 of PACE, arrests must now normally lead to detention. This makes arrest more coercive than it often used to be when it was not necessary to take suspects straight to the police station.
- restrictions on questioning outside the station (para.ll.l, Code of Practice C) prevent much investigation prior to detention and prevent interviewing in more congenial circumstances, such as at home.
- detention is only allowed when "necessary" (PACE, s.37), but restrictions on street questioning mean that formal interviewing is almost always necessary to secure further evidence, and this can only take place when the suspect is in detention.
- charge sergeants (the predecessors of custody officers) used to ask suspects if they had anything to say once they had been brought in. This could (though rarely did) lead to an immediate "refused charge" . This would now be classed as an unlawful "interview". Under the PACE regime, conversations at the custody officer's desk take place at the police's peril.
- formalities, such as the provision of information about the right to legal advice (ostensibly to the suspects's advantage), have lengthened detention at the less serious end of the criminal spectrum. The longer the period of detention the more agitated many suspects become and the more easily they can be pressured into saying whatever is needed to regain their freedom.
It is true that, as a result of PACE and the Codes of Practice, there are now more safeguards to protect suspects, such as access to free legal advice, tape recording of interviews, and so forth. But these are only needed because of the grim reality of custodial detention and interviewing in the first place. And in many cases (including Heron's) legal advice and assistance is so poor as to be counter-productive. In any case, these safeguards are all too easily evaded, as in many of the miscarriages of justice of the last few years.
PACE is generally regarded as improving the situation for suspects, and argument between commentators is usually about whether these improvements are great or small. We, to the contrary, argue that PACE has made matters worse. It has confirmed the power of the police to detain in order to interrogate, from which the suspect has no right to opt out. It has also created a situation where, if the police seek confession evidence, the police must detain and interrogate. If the suspect does not wish to confess, there is little that the police can do that is not coercive, yet they are left not knowing how far they can go. The frustration created sometimes leads the police into blatantly unlawful practices. More often, what goes on within police stations lies on the boundaries of a legal wilderness where judges apparently fear to tread.
The aspirations towards fairer or "ethical" interviewing embodied in the Northumbria and Runciman Commission reports and shared by some senior police officers are laudable, but are they realistic? Even were the police to abandon persuasive tactics during interviews in favour of putting straightforward information-seeking questions, the context within which the interview took place would remain a coercive one. A failure to provide the information sought would still be likely to lead to prolonged detention, for example.
There is, in our view, a choice to be made. One option is to accept the implications of the PACE regime and the oppressiveness, unfairness, and inducements which go with it. Parliament should then determine (we hope in accordance with internationally agreed human rights standards) how much oppression and unfairness it is prepared to countenance in the cause of crime control by setting out clear and enforceable limits on police interrogation powers. Accessible and workable remedies would be needed both for when the police overstepped the mark and for when lawful coercion resulted in suspects making false confessions. This would require a complete overhaul of the police complaints system and the introduction of a genuinely independent Review Authority. For the PACE regime produces miscarriages of justice as well as unfairness and the current system of remedies has proved itself inadequate to the task of quashing wrongful convictions in an effective and timely manner.
The other option is to give the police a new mandate under a due process-inspired set of laws. This would reserve custodial coercion for the worst cases, require that prosecution cases be constituted primarily by non-confession evidence, and would truly recognise the principle of innocence until guilt is proven in court. It is pertinent to note that there have been tentative steps taken in recent years towards forms of policing in which interviews with suspects are no longer regarded as the central investigative tool. More careful interviews with victims and witnesses, the greater use of surveillance techniques, and other such initiatives hold out the hope of providing an alternative to wringing a confession out of a suspect. Unfortunately, abolition of the right to silence is likely to undermine these embryonic developments, signaling, as it does, the Government's view that more pressure, not less, should be brought to bear on suspects to talk to their interrogators.
That the Government has rejected the due process option in favour of more crime control is obvious, but it has yet to admit to the oppressive nature of the current legal framework. The continuing failure to grasp the nettle of one or other alternative will simply mean the continued hypocrisy of laws which say one thing, mean something else, and are silent on crucial issues. This reduces respect for the law and for those who enforce it. It also reduces respect for the law on the part of police officers. Finally, the current vagueness and confusion in the law allows not just the conviction of the innocent, but, when the police are adjudged to have gone too far, the acquittal of the guilty too.
- Andrew Sanders & Richard Young.
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