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Old 26th October 2019, 07:01 AM   #1
Elaedith
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Police interviewing/interrogation methods in Scotland and England

I gather that the Police and Criminal Evidence Act (PACE) doesn't apply in Scotland. Does anyone (maybe Nessie or Rolfe) know the equivalent legislation that applies in Scotland (if there is any), i.e. what regulations or guidelines restrict what police can do when interviewing? I noticed that Rolfe stated in another thread that Luke Mitchell was subjected to the Reid technique. That was after the introduction of PACE in England and Wales so I assume police in Scotland were more at liberty to use these methods, but is this still the case? I need to correct a lecture that states that in the UK PACE prevents practices such as lying to suspects, but when this is made specific to England and Wales somebody may ask what is permitted in Scotland. I have found various sources regarding police practices and rights in Scotland but nothing explicitly stating what police may or may not do in relation to interviewing methods.

In relation to this, I noticed that although a lot of sources say specifically that PACE prohibits lying to suspects, when looking through Annex C I can’t see that it is specific about what police are or are not allowed to do in relation to questioning. Point 11.5 states ‘No interviewer may try to obtain answers or elicit a statement by the use of oppression’. I can’t see anything more specific about what constitutes ‘use of oppression’. I assume that the general purpose and ethos of both PACE and the PEACE model imply that deception is unacceptable, but was wondering if there is something more specific about what methods are not permitted?

This is outside my area but relevant to support arguments about the effects of police techniques of false confessions and guilt-presumptive bias.
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Old 26th October 2019, 07:28 AM   #2
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I don't know. Nessie probably does. Sandra Lean might know. I have a couple of lawyer friends I might be able to ask, too.
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Old 26th October 2019, 08:44 AM   #3
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This response from a senior Scottish QC.

Quote:
It all comes down to fairness. Was what the police did in the interview to elicit the response from the suspect unfair? If so, his response is inadmissble in evidence. Admissibility is normally a matter of law for the judge, and there could be a "trial within a trial" so that the matter can be decided by the judge in the absence of the jury. Lying to the suspect about the evidence already obtained would normally (but not necessarily always) be held to be unfair police conduct.
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Old 26th October 2019, 10:12 AM   #4
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Wow, thanks Rolfe.

So in England and Wales, it seems there is more specific restrictive legislation rather than relying on court judgement of admissibility. I am still surprised though that PACE is not that specific about what particular techniques are allowed (e.g. what constitutes 'using oppression') given the way it is often cited as evidence that specific methods are against the law.

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Old 27th October 2019, 02:58 AM   #5
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Originally Posted by Elaedith View Post
Wow, thanks Rolfe.

So in England and Wales, it seems there is more specific restrictive legislation rather than relying on court judgement of admissibility. I am still surprised though that PACE is not that specific about what particular techniques are allowed (e.g. what constitutes 'using oppression') given the way it is often cited as evidence that specific methods are against the law.
If you are interested in interviews the relevant framework is PEACE.
https://www.app.college.police.uk/ap...-interviewing/
This was designed to avoid the problem with false confessions from the Reid technique. Any interview that did not follow the PEACE framework would be unlikely to be acceptable to the court as evidence.One of the key things in PEACE is the need to agree an interview process with the legal representative before the interview.

I do not know if Scottish police follow the PEACE structure for interviews or if this is limited to E&W&NI.*

*If you have watched Line of Duty; the presentation of the interview techniques by AC9 is supposed to be as close to the reality of a PEACE interview as drama allows.

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Old 27th October 2019, 03:08 AM   #6
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My problem is that I have now been retired for nearly 4 years and my knowledge is getting out of date.

I did two courses on interviewing suspects. One as a trainee DC and a general one. They were basically about how to work the tape machine and how to avoid leading questions.

There were also "toolkits" with set questions to ask during certain interviews, such as domestic violence.

I looked online and found the following SOPs which touch on interviews and the does and do nots;

https://www.scotland.police.uk/asset...estigation-sop
https://www.scotland.police.uk/asset...st-process-sop

There are other SOPs regarding appropriate adults, solicitor access and custody procedures when it comes to interviews.

I think that if you add together all the legal and procedural requirements for interviews by the police in Scotland, you would end up with PACE. It is just that Scotland does not have everything down in one piece of legislation.
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Old 27th October 2019, 04:12 AM   #7
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NB PEACE and PACE are different. PACE is the legislation; PEACE is the agreed SOP for interviewing suspects (and witnesses). PEACE would be a regulation. It ensure that PACE and Human rights law is followed, but goes beyond what legislation requires.

ETA PEACE is also promoted as the gold standard technique in non police situations e.g. work place disciplinary interviews about e.g. sexual or racial harassment.

Last edited by Planigale; 27th October 2019 at 04:22 AM.
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Old 27th October 2019, 07:30 AM   #8
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Originally Posted by Rolfe View Post
This response from a senior Scottish QC.
I once sat on my own for two days in a witness room at a high court, waiting for Neil Hamilton QC for the defence arguing in a "trial within a trial" as to whether or not a statement I had obtained was admissible or not. It was finally accepted.
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Old 27th October 2019, 09:31 AM   #9
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Originally Posted by Planigale View Post
If you are interested in interviews the relevant framework is PEACE.
https://www.app.college.police.uk/ap...-interviewing/
This was designed to avoid the problem with false confessions from the Reid technique. Any interview that did not follow the PEACE framework would be unlikely to be acceptable to the court as evidence.One of the key things in PEACE is the need to agree an interview process with the legal representative before the interview.

I do not know if Scottish police follow the PEACE structure for interviews or if this is limited to E&W&NI.*

*If you have watched Line of Duty; the presentation of the interview techniques by AC9 is supposed to be as close to the reality of a PEACE interview as drama allows.
I know about PEACE as a model of interviewing practice, but what was confusing me was the references (both in texts and websites) to certain practices being against the law and referring to PACE, yet PACE does not appear to contain anything that specific. I have seen PEACE referred to as an alternative to the Reid method in sources that compare US with UK (or at least England/Wales), but from what you say PEACE is essentially obligatory in the relevant countries that adopted it (I believe only England/Wales), whereas from what I understand Reid is only used one approach that might be used in the US. So methods such as deception, confrontation etc. would be against the ethos of PEACE and lead to inadmissibility.

I did find one article tracing the history of these models which implied that PACE itself did not prevent coercive methods, and a number of articles suggesting that use of coercive methods has declined since PEACE (but also that interviewing practice is still poor in many cases).
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Old 27th October 2019, 09:42 AM   #10
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Originally Posted by Nessie View Post
My problem is that I have now been retired for nearly 4 years and my knowledge is getting out of date.

I did two courses on interviewing suspects. One as a trainee DC and a general one. They were basically about how to work the tape machine and how to avoid leading questions.

There were also "toolkits" with set questions to ask during certain interviews, such as domestic violence.

I looked online and found the following SOPs which touch on interviews and the does and do nots;

https://www.scotland.police.uk/asset...estigation-sop
https://www.scotland.police.uk/asset...st-process-sop

There are other SOPs regarding appropriate adults, solicitor access and custody procedures when it comes to interviews.

I think that if you add together all the legal and procedural requirements for interviews by the police in Scotland, you would end up with PACE. It is just that Scotland does not have everything down in one piece of legislation.
Thanks Nessie. I found this response to an FOI request somebody made (in 2015) that states neither PEACE nor REID are used in Scotland but something called the Price model (maybe just another name for the SOP you mentioned). However, I don't know when that was brought in or if it is still the case. I'm not going to spend too much time looking into this (I just realised I haven't considered NI either) as it's peripheral, but I think I have a somewhat clearer picture now).
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Old 27th October 2019, 11:25 AM   #11
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Of course you can aggressively interview someone without technically calling it the Reid technique.
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Old 27th October 2019, 11:33 AM   #12
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Originally Posted by Rolfe View Post
Of course you can aggressively interview someone without technically calling it the Reid technique.
Good point.

I couldn't find that article comparing PRICE and PEACE, unfortunately (the link provided with the FOI response was broken). I've found quite a few recent articles analysing the content and methods of actual police interviews in England, but not for Scotland.
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Old 27th October 2019, 11:36 AM   #13
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I don't imagine the policemen who interviewed Luke (and later Shane) Mitchell were consciously following a protocol they recognised as "the Reid technique". People who know what that technique is have however no difficulty in recognosing it in the transcripts of the interviews.
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Old 28th October 2019, 07:11 AM   #14
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Originally Posted by Elaedith View Post
Thanks Nessie. I found this response to an FOI request somebody made (in 2015) that states neither PEACE nor REID are used in Scotland but something called the Price model (maybe just another name for the SOP you mentioned). However, I don't know when that was brought in or if it is still the case. I'm not going to spend too much time looking into this (I just realised I haven't considered NI either) as it's peripheral, but I think I have a somewhat clearer picture now).
PRICE rings a bell from the interview courses. One that was/is used a lot is JIT for interviewing children and vulnerable people.

https://www2.gov.scot/Resource/Doc/365398/0124263.pdf

I know that is about witnesses, but since training has varied over the years and had to change with the likes of solicitor access becoming the norm, IME, standards and methods varied and were somewhat ad hoc, variance down to what, of any training the police officer had had.
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Old 29th October 2019, 03:05 PM   #15
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Originally Posted by Rolfe View Post
I don't imagine the policemen who interviewed Luke (and later Shane) Mitchell were consciously following a protocol they recognised as "the Reid technique". People who know what that technique is have however no difficulty in recognosing it in the transcripts of the interviews.
I found some info on the PRICE model which states it was introduced in 1996 and is similar to PEACE. But given the Mitchell case, that obviously isn't sufficient to prevent bad practice. I suppose that is the question I was pondering; to what extent are specific practices specifically proscribed and how is this enforced?

Mainly, the comparison we will look at is PACE & PEACE in England/Wales with North American practice, particularly Reid.
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Old 29th October 2019, 03:20 PM   #16
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Nessie is probably the best person to tell you about that. What the police are trained to do and what they actually get up to can be two entirely different things.
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Old 30th October 2019, 02:33 AM   #17
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What with tape and video recording of interviews and solicitor access before a suspect is interviewed, very little in the way of bad practice takes place during interviews.

Cops know that becoming aggressive, suggesting incentives, badgering, lying, leading questions, interviewing vulnerable persons without an accompanying adult can cause later problems for them and was evidenced by what could be heard on tape, or seen if it was videoed. Any interview with a solicitor or appropriate adult present and nothing untoward was going to happen.

I am going back 15 years, but tape recorded interviews to be used in High Court trials are typed up in full by typists not employed by the police (some who were based in the court house at Campbeltown of all places). COPFS would get everything.

Tape recorded interviews for lesser courts were typed up by the cops themselves and could be edited to only include what they thought was relevant. COPFS were relying on the cop to fully disclose relevant evidence.
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Old 1st November 2019, 11:30 AM   #18
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Originally Posted by Nessie View Post
What with tape and video recording of interviews and solicitor access before a suspect is interviewed, very little in the way of bad practice takes place during interviews.

Cops know that becoming aggressive, suggesting incentives, badgering, lying, leading questions, interviewing vulnerable persons without an accompanying adult can cause later problems for them and was evidenced by what could be heard on tape, or seen if it was videoed. Any interview with a solicitor or appropriate adult present and nothing untoward was going to happen.

I am going back 15 years, but tape recorded interviews to be used in High Court trials are typed up in full by typists not employed by the police (some who were based in the court house at Campbeltown of all places). COPFS would get everything.

Tape recorded interviews for lesser courts were typed up by the cops themselves and could be edited to only include what they thought was relevant. COPFS were relying on the cop to fully disclose relevant evidence.
I guess things have changed then over the years, and hopefully what happened with Luke Mitchell is less likely now. Thanks for the info.
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Old 1st November 2019, 11:55 AM   #19
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Luke Mitchell's interviews seem to have been fully recorded, given that Sandra's book quotes extensive passages verbatim. This doesn't seem to have stopped them. Although I tend to agree that things probably have got a bit better in the intervening 16 years.

What is perhaps even more shocking is that the SCCRC considered all that, agreed that the treatment of Luke was absolutely outrageous, but then dismissed his application for an appeal on that basis on the grounds that since he didn't actually confess and indeed held his ground remarkably well for a 14 year old child, he wasn't actually disadvantaged by the treatment.

The wider point about the tone of the interviews demonstrating that the police had cloed minds and an absolute conviction that Luke and nobody else had committed the murder, and wouldn't entertain any other theory, completely passed them by.
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Old 1st November 2019, 12:36 PM   #20
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Originally Posted by Rolfe View Post
Luke Mitchell's interviews seem to have been fully recorded, given that Sandra's book quotes extensive passages verbatim. This doesn't seem to have stopped them. Although I tend to agree that things probably have got a bit better in the intervening 16 years.

What is perhaps even more shocking is that the SCCRC considered all that, agreed that the treatment of Luke was absolutely outrageous, but then dismissed his application for an appeal on that basis on the grounds that since he didn't actually confess and indeed held his ground remarkably well for a 14 year old child, he wasn't actually disadvantaged by the treatment.

The wider point about the tone of the interviews demonstrating that the police had cloed minds and an absolute conviction that Luke and nobody else had committed the murder, and wouldn't entertain any other theory, completely passed them by.
I think people quite commonly fail to appreciate the full consequences of confirmation bias on judgement.


There are other potentially harmful consequences of guilt-presumptive questioning on the suspect aside from false confession. For example, research suggesting that guilt-presumptive questioning results in responses that are judged as more defensive and guilty by neutral observers and self-fulfilling prophecy.
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Old 1st November 2019, 12:42 PM   #21
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That seems to be true in the Luke Mitchell case. He understood what DNA is and something about DNA testing. When they told him they'd found partial profiles consistent with his DNA on Jodi's body he said, if it's a partial profile then it's not me, is it, it has to be a full profile before it's an identification. The police saw this (and other instances where he tried to stand up to the bullying) as him trying to control the interview and being very calculating. A 14-year-old boy who had just found his girlfriend's gruesomely murdered body!
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Old 2nd November 2019, 06:14 AM   #22
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Originally Posted by Rolfe View Post
That seems to be true in the Luke Mitchell case. He understood what DNA is and something about DNA testing. When they told him they'd found partial profiles consistent with his DNA on Jodi's body he said, if it's a partial profile then it's not me, is it, it has to be a full profile before it's an identification. The police saw this (and other instances where he tried to stand up to the bullying) as him trying to control the interview and being very calculating. A 14-year-old boy who had just found his girlfriend's gruesomely murdered body!
Is that part of a transcript provided in Sandra Lean's book? I have examples of false confessions (US & UK) but could use some examples of other types of harmful consequences of guilt-presumptive questioning.
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Old 2nd November 2019, 06:30 AM   #23
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Yes, it's in the book.
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Old 2nd November 2019, 07:28 AM   #24
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Originally Posted by Rolfe View Post
That seems to be true in the Luke Mitchell case. He understood what DNA is and something about DNA testing. When they told him they'd found partial profiles consistent with his DNA on Jodi's body he said, if it's a partial profile then it's not me, is it, it has to be a full profile before it's an identification. The police saw this (and other instances where he tried to stand up to the bullying) as him trying to control the interview and being very calculating. A 14-year-old boy who had just found his girlfriend's gruesomely murdered body!
Potentially correcting a police officer during an interview on matters of procedure or the law...oh boy! Guaranteed to annoy the officers.

IME police officers, in particular detectives and senior management HATE and I mean HATE, people who they even suspect are more intelligent than them.
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Old 2nd November 2019, 07:37 AM   #25
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There was also a point where they were showing Luke a video purporting to be a reconstruction of what he said he did after climbing over the wall. I think this was someone attempting to act out Luke's own account of his actions. The point of this was apparently to demonstrate that Luke hadn't gone close enough to Jodi's body to be able to see certain details he said he'd seen, so of course he could only have been aware of these details if he'd been closer at some other time, i.e. if he was the murderer.

The police sat with Luke showing him the video and said, look at that, you can't see [her hair clasp, or whatever it was] from there so you're lying. Luke tried to protest that in fact the video showed that you could see these details from that position, and asked for the video to be rewound and paused so that this could be appreciated. The police said it was impossible to rewind the video and insisted that their interpretation was the correct one and he was lying.
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Old 2nd November 2019, 03:07 PM   #26
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From what I understand, Reid and Associates have the Reid technique registered as a trademark and make their profit from training in the method. They seem to engage in concerted propaganda efforts to defend their brand. I found this document on their site that appears to be in response to proposals to switch to using the PEACE model in Canada. It describes the PEACE model as equivalent to the first step in the Reid process (the non-accusatory Behaviour Analysis Interview (BAI)), then asserts that the lack of the next step (interrogation) in PEACE ‘severely limits the investigator’s ability to solve cases’ (quoting a detective in Northern Ireland).

The document goes on to assert that the amendment of the wording of the right to silence in PACE to include ‘it may harm your defence if you do not mention, when questioned, something which you later rely on in court’, is an attempt to ‘overcome the limitations’ of the PEACE model and ‘solicit confessions.’ They also describe this and the use of reduced sentence for an early guilty plea as ‘extreme forms of the minimizations and maximizations’, implying that practices in the UK are more likely to produce false confessions than the use of Reid in the US (no mention of use of plea bargaining in the US).

Elsewhere I have seen the use of the accusatory interview defended on the grounds that it is only used when the initial BAI suggests guilt. What isn’t mentioned is that guilt is inferred from detection of deception using methods which contradict findings from research on cues to deception. The training therefore involves convincing interrogators to believe they can detect deception when they can’t, so that they can then conduct an accusatory interview only with suspects they have already decided are guilty (maximum confirmation bias because they only conduct interrogation if they believe the suspect has already lied).

All the research I have seen on the use of PEACE concludes that it does not impair fact-finding or reduce the incidence of true confessions. PEACE was introduced eight years after of PACE, so the amendment to allow adverse inferences to be drawn from silence in PACE can hardly be an attempt to overcome limitations caused by PEACE. In any case, it is a stretch to say that a warning about adverse inferences from silence is an attempt to ‘solicit confessions’ when it is referring to later using a defence in court that was not mentioned in interview. There appears to be a bait and switch where it is implied that rejecting these other features of justice systems in the UK would require acceptance of Reid.

However, I hadn’t really thought about the warning of adverse inferences from silence as a potential problem (apparently Scotland does have an absolute right to silence, like the US).
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