Institute of Criminal Justice Studies

Peter Gartrell

University of Portsmouth

Institute of Criminal Justice Studies

October 2012

Dissertation submitted in partial fulfilment for the requirements of the MSc Criminology and Criminal Psychology degree

TITLE: IS THE FREE RECALL IN A SIGNIFICANT WITNESS INTERVIEW SUITABLE FOR EVIDENCE-IN-CHIEF IN CRIMINAL PROCEEDINGS?

AUTHOR: PETER GARTRELL

STATEMENT OF ORIGINALITY:

I confirm that to the best of my understanding this work has been prepared in accordance with the university’s regulations and guidelines on referencing and is substantially my own work.

SIGNED:

DATE: 22nd OCTOBER 2012

ACKNOWLEDGEMENTS

This research study and dissertation could not have been completed without the continual encouragement, advice, direction, resources, time and tolerance of several people and I would like to take this opportunity to thank them for the part they have played in allowing it to have reached its conclusion:

Dr Becky Milne

My dissertation supervisor whose enthusiasm, encouragement and high standards have driven me forward in difficult times.

Devon & Cornwall Constabulary

All of the Tier 3 ABE (Significant) interviewers who have willingly provided their real life interviews for evaluation and who always show an interest in their performance.

Hayley

Whose impeccable standards of administrative support have kept me from floundering.

Most importantly, to Gezzie and Zack who have been so understanding and patient while I have been studying, but whose willingness to go without has made all this possible. Thanks guys.

ABSTRACT

Over the last thirty years, the Enhanced Cognitive Interview (ECI) has been developed and introduced into investigative interview training in the UK resulting in a substantial increase in the quantity and quality of information obtained in real life investigations. The Criminal Justice Act 2003 allows these visually recorded accounts to perform the role of evidence-in-chief but the phased structure of the ECI model means information emanates from several different points across the interview. Playing an edited recording in court therefore makes the interview appear disjointed and unstructured, limiting its usefulness as an evidential product. Consequently, current practice is for written statements to be produced and served in the usual manner as part of the prosecution case. Additionally, research has shown the cognitive mnemonics contained within the ECI model to be poorly utilised, including unskilled use of questioning strategies. Therefore, using a sample of thirty interviews conducted by the Devon and Cornwall Constabulary (D&CC) between 2010-2012, and a specifically designed rating scale to measure information quantity, duration and composite evidential effectiveness, a quantitative and qualitative evaluation of significant witness interviews was conducted to ascertain the suitability of the free recall to be used as evidence-in-chief. Common practices were identified, with witnesses being poorly prepared to undertake the cognitive interview task, subject to a high proportion of unsuitable question types and the cognitive mnemonics remaining largely unused. This resulted in inadequate quantitative and qualitative free recall for evidential use. The study acknowledges this and makes suggestions how significant witness interviewing training may be restructured and refocused with a view to the free recall information being adequate for use as evidence-in chief in criminal proceedings.

TABLE OF CONTENTS

Contents Page

Table of contents 5

List of tables 6

Introduction 7

Chapter 1 – Literature Review 9

Chapter 2 – Methodology 34

Chapter 3 – Results 48

Chapter 4 – Discussion 66

Chapter 5 – Conclusion 82

Appendix ‘A’ – Witness Pre Interview Assessment form 85

Appendix ‘B’ – Scoring matrix and data 86

Bibliography 87

LIST OF TABLES

Table / Title / Page
Table 1 / NPIA Principles of Investigative Interviewing 2007 / 13
Table 2 / PEACE Model of Investigative Interviewing / 14
Table 3 / The five tiered model for investigative interview training / 15
Table 4 / The Cognitive Management Model of investigative interviewing / 17
Table 5 / Fisher and Geiselman’s Cognitive Interview model / 19
Table 6 / Ministry of Justice Enhanced Cognitive Interview model 2011 / 21
Table 7 / Factors affecting witness perception / 27
Table 8 / Interviewer data / 43
Table 9 / Interview sample data / 45
Table 10 / Time attribution of an ABE (Significant) interview / 49
Table 11 / Source of information in an ABE (Significant) interview / 50
Table 12 / Correlation of information with time in an ABE (Significant) interview / 51
Table 13 / Interviewer’s explanation of memory aids in an ABE (Significant) interview / 53
Table 14 / Free recall as an evidential product in an ABE (Significant) interview / 55
Table 15 / Interviewer’s use of question types in an ABE (Significant) interview / 56
Table 16 / Questioning as an evidential product in an ABE (Significant) interview / 57
Table 17 / Effect of the temporal order mnemonic in an ABE (Significant) interview / 59
Table 18 / Effect of the changed perspective mnemonic in an ABE(Significant) interview / 61
Table 19 / Effect of the sensory focus mnemonic in an ABE (Significant) interview / 62
Table 20 / Information sources for the summary phase of an ABE (Significant) interview / 64

INTRODUCTION

The principal aim of this study was to identify if the free recall within a significant witness interview contained an adequate quantity of information presented in a structured and logical enough format to serve the demands of evidence-in-chief in criminal proceedings. To achieve that, the study has developed and utilised an approved scoring matrix with which to critically evaluate a sample of real life significant witness interviews conducted by the Devon and Cornwall Constabulary. This has created a data set which has been statistically analysed in order to identify changes that are necessary to both significant witness interview training and conduct of those interviews in order that they can more adequately serve an evidential purpose.

Chapter 1 comprises a wide-ranging review of the pertinent literature that underpins this study. It identifies the origins of the cognitive interview and critically examines relevant research that has supported its development and introduction as an investigative tool in major investigations before explaining how the model is currently incorporated into national investigative interviewing policy. The current need for it to meet evidential requirements is discussed and an overview of the limited research into this functionality is provided, contextualising how this study contributes to filling a current research void.

Chapter 2 examines the methodology employed to complete the study. It begins with an explanation as to why an inductive strategy using primary research was utilised and describes the procedure used for gathering the sample including relevant ethical considerations. It then explains the analytical methodology employed to collect the data required to satisfy the research aims before concluding with an overview of the training undertaken by accredited practitioners and an explanation of the suitability of the sample to satisfy the study’s aims.

Chapter 3 presents the results of the data analysis covering the qualitative and quantitative values obtained from each identified memory aids and recall attempts. It provides percentage and standard deviation outcomes some of which are presented in a tabular format with accompanying explanations.

Finally, chapters 4 and 5 discuss the details of the study’s findings and make concluding comments. They include a comprehensive review of the data gathered from analysis of the sampled interviews, discuss identified key trends and potential causation before proposing solutions in the form of future research opportunities and changes to training syllabi to further develop the evidential capacity of significant witness interviewing.

CHAPTER 1

LITERATURE REVIEW

Investigative tool

Historically, investigative interviewing in the UK has been significantly directed towards the suspect. Interviewers received no approved training and learned skills and techniques only by partnering colleagues deemed more experienced by virtue of the length of their police service or rank within the organisation (Shepherd, 2007, p.15). Consequently, poor skills and unethical interviewing techniques became the heirloom inherited by successive generations of detectives when obtaining information from a detainee, the resultant confession or incriminating statement being the underpinning foundation for convicting a suspect (McConville & Baldwin, 1982; Gudjonsson, 2007, p.466). The Royal Commission on Criminal Procedure, conducted through research by Irving (1980), Softley (1980) and Steer (1980), identified ongoing disquiet surrounding the alleged use of intimidation, physical force and psychological manipulation during suspect interviews. Together with a mindset of presumed culpability and contaminated memorial recall, resulting from interviewers making a retrospective interview record (Kassin & Gudjonsson, 2004, p.65), the Police and Criminal Evidence Act 1984 (PACE) was introduced. In dictating how detainees should be treated while in police custody, this legislative milestone also introduced the audio recording of all suspect interviews and exposed interviewers’ conduct, performance and techniques to assessment and evaluation. Shortly thereafter, Baldwin’s influential research (1992a, p.28-31) identified the primary shortcomings of police interviewing in the UK as inadequate preparation, repeated and repressive questioning, blameworthy supposition and a failure to obtain an interviewee’s account. Together with incorrect beliefs regarding their interviewing skills, a closed mindset towards potential hypotheses (Gudjonsson, 2007, p.487) and a series of prominent acquittals and successful appeals, evidence obtained from suspect interviews began to be excluded from court proceedings (Shepherd, 2007, p.17).

Simultaneously, in 1975, the Rand Corporation reported on research with investigative organisations. They concluded that the completeness and accuracy of eyewitness accounts was a substantial feature in determining if the perpetrator of a crime was apprehended and convicted (Fisher, Geiselman & Raymond, 1987, p.177). Stewart (1985, p.1) concurred, arguing, “Information is the lifeblood of criminal investigation and it is the ability of investigators to obtain useful and accurate information from witnesses and victims of crime that is crucial to effective law enforcement.” More specifically, and prior to the emergence of DNA technology, Harris (1991, p.1285) contended that without eyewitness information, the frequent absence of tangible evidence to establish significant lines of enquiry would result in a failure to satisfy the criminal justice system’s (CJS) evidential thresholds. Consequently, prosecutions could fail and the CJS could cease to function. Even Wolchover and Heaton-Armstrong (1997, p.855), two eminent defence barristers, agreed, advocating, “The bedrock of the adversarial process is the evidence of witnesses for the prosecution, not the confession of the accused.” Additionally, Shepherd (1986, p.294) claimed that despite the high frequency of witness interviewing, the presumption they were always cooperative led to it attracting low status. The resultant lack of focused training and inadequate skills, arguably led to Harris’ evocative description of witnesses as “…the forgotten souls of the criminal justice system…” (1991, p.1376) and to Spencer and Stern (2001, p.11) describing them as “…the cannon fodder of the system.”

The necessary change of focus, supported findings by Fisher, Geiselman and Raymond (1987), whose applied US research recognised widespread trends in standard question and answer police witness interviews. These included frequent interruption and unsuitable question sequencing within an agenda driven mindset (Shepherd & Milne, 1999, p.133). Consequently, this prevented mental application to the memory retrieval process as witnesses concentrated on answering questions and developed an expectation of being interrupted. In turn, the cognitive workload associated with memory recall increased and witnesses became passive, providing information consistent only with that required to answer questions rather than being allowed to recall freely (Fisher & Geiselman, 1992, p.18-19). Less frequently, interviewer behaviour also included negative phraseology, leading questions, formal or official terminology, judgmental comments and a failure to request elaboration, through, for example, a range of sensory functions (Fisher, Geiselman & Raymond, 1987, p.180-3). Clarke and Milne (2001) identified how this transpired because the primary objective of a police interview was to produce a signed written statement for court purposes, which from the outset, led to good general interviewing practices being ignored. Witnesses were not encouraged to give an uninterrupted account in their own words but their responses were shaped by questioning which the interviewer believed to be relevant to the circumstances (Canter & Youngs, 2009, p.220).

The interviewing of eyewitnesses had therefore become concerned solely with producing written statements which only; i) legislatively satisfied the points to prove and statutory defences, ii) were acceptable to the court and iii) had total disregard for the quality of the information provided (Ainsworth, 2006, p.81). However, Shepherd and Milne (1999, p.126, 133) claimed such statements included pre-emptive conclusions; confirmation bias, where information which confirmed existing beliefs is favoured over other competing information, and selective synthesis where only information deemed relevant is included. This ensured no doubts existed over the plausibility and reliability of the witness’ information satisfactorily integrating with other prosecution evidence. Despite written statements being central to charging decisions and forming the basis of both prosecution and defence cases, the interactions between interviewer and interviewee remained unrecorded and unmonitored, allowing contaminated evidence obtained through poor interviewing practices to infiltrate and taint the fairness of criminal trials (Heaton-Armstrong, Wolchover & Maxwell-Scott, 2006, p.171). Therefore, the Association of Chief Police Officers and Home Office Steering Group on Investigative Interviewing produced Circular 2/1992 which introduced the Principles of Investigative Interviewing (Table 1). Following ongoing revision, to take account of changes in operational practice and developments in implementation, these have withstood the test of time and remain part of the UK’s National Investigative Interviewing Strategy (NPIA, 2009, p.6).

Table 1: The NPIA Principles of Investigative Interviewing 2007

No. / Principle
1 / The aim of investigative interviewing is to obtain accurate and reliable accounts from victims, witnesses or suspects about matters under police investigation.
2 / Investigators must act fairly when questioning victims, witnesses or suspects. Vulnerable people must be treated with particular consideration at all times.
3 / Investigative interviewing should be approached with an investigative mindset. Accounts obtained from the person who is being interviewed should always be tested against what the interviewer already knows or what can reasonably be established.
4 / When conducting an interview, investigators are free to ask a wide range of questions in order to obtain material which may assist an investigation.
5 / Investigators should recognise the positive impact of an early admission in the context of the criminal justice system.
6 / Investigators are not bound to accept the first answer given. Questioning is not unfair merely because it is persistent.
7 / Even when the right of silence is exercised by a suspect, investigators have a responsibility to put questions to them.

(NPIA, 2009, p.6)