Graham Jones leads on Investigative Interview Training for Sancus. Here is the first of a number of blogs about his favourite subject
There is no doubt that investigative interviewing is an art form. Much has been written about structuring the perfect interview. Perhaps one aspect is often overlooked – probably because it is the one part of the process that stays pretty much the same every time and that is the caution. However if we get this bit wrong then any useful evidence that comes out of the interview could be lost.
You can never take anything for granted, so they say. This is very true when developing investigative interviewing skills It is vitally important when issuing the caution that you make sure that the person ‘on the receiving end’ really does understand what you have just told them. (Don’t take my word for it – read the PACE – Codes of Practice!)
Easier said than done though. Most people will say the Caution then ask, “Do you understand?” I am afraid that that is not enough. There is a lot of research out there regarding learning difficulty and coping strategies to deal with that. It is your responsibility as the interviewer to CHECK comprehension. We will come on to that a little later.
Since the caution was introduced it has been a cause of many issues with the Police involved in interviews. The Home Office asked psychologists to come up with a simplified version – after 60 attempts they gave up! So what is the problem? Well, have a read ….
“You do not have to say anything but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence”.
If I look back to my English Language A level (may years ago I must add!) there are a number of problems which jump out – it’s much too long, it contains too may concepts (you don’t have to do something but if you don’t do that but you do something else then this may happen). The grammar is quite difficult as are the ways the ideas for the caution are connected. That middle bit ‘but it may harm your defence etc.’ does over complicate things – particularly if you are dealing with someone who has little or no concept of the judicial process.
Don’t believe me? Get hold of a member of your family/friends, preferably someone who has no legal background (Uncle Michael Mansfield would be a poor choice here). Tell them the caution – can they explain it back to you?
There has been a survey done in just this way – 109 people in the street where stopped and taken through the caution and their understanding was checked. On average people claimed that only about half of the caution made sense. Only about one in eight actually understood the second long element. Also very worryingly, 8 out of 10 people perceived the second element as pressuring – many viewed it as a threat that they would be in trouble if they didn’t answer any questions.
Part of the problem is that when the caution is said – and I have heard it said by many people – it is done so by rote – no expression – run through quickly – almost as if to get it over and done with. This is the worst thing you can do. They need to listen carefully to what you have to say, plus get to understand it and feel comfortable (not threatened) by the content.
So what do I suggest?
- Introduce the caution to them first. ‘I’m going to say something which is important that you understand. Listen carefully to what I say. It has a lot of information in it and can be difficult to understand. I am going to spend some time here to make sure that you do fully understand it.
- Deliver the caution in ‘bite size chunks’. Pause between each bit, giving it time to sink in and giving them time to listen carefully to each bit.
- Now it is your turn – explain the caution, chunk by chunk. Carefully pausing to ensure they have listened and have some understanding.
- Once you have done that – explain that you need to be sure that they understand the caution.
- Ask them the 3 questions which will give you an indication that they really do understand the concepts.
- If they make a mistake – go over that bit again – explain it in a different way. Ask the question again (remember this is not an option – they DO have to understand the caution or you can potentially be wasting your breath for the rest of the interview – PACE again).
- Once you are happy that they do understand – you are ready to rock and roll. Off we go into the PEACE process. (That’s another blog I’m afraid).
The process would follow something like this – introduce that you are going to say the caution – use you own words and phrases – it’s about being ‘you’ in the interview room, not having a frozen relationship with the interviewee.
Tell them the caution in the three parts. Taking time and pausing between each part
The Caution (Section 34 CJ & POA 1994)
“You do not have to say anything but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence”.
The Explanation
- You do not have to answer my questions BUT,
- If you choose not to answer my questions but this matter goes to court, and you answer the same questions, then, the court will ask you to explain why you did not answer here today.
Depending upon what you tell them, they may not believe you and this may influence their decision as to whether you are guilty or not.
- The tapes of this interview can be played in court, so that the court will be able to hear what you have said.
Check understanding
Ask them ..
- Do you have to answer my questions?
- If this matter goes to court and you tell the court something in your defence that they think you could reasonably have told me here today, what might they think?
- How can the court get to hear what you have said to me in this interview?
I have included my ‘caution’ process here for you. One other thing I would say though before signing off. Having been an interviewer and an interview skills trainer for years, I went into my first interview for quite some time – my plan was ready – everything was in place. Solicitor dealt with, second interviewer instructed, interpreter sorted (I didn’t say it was an easy one!) and interviewee completely at ease. On to the interview.
I could not remember the caution – Not a word – Not one iota.
After fumbling for a few sentences (it really threw me) I handed over to my second to do the business. NOW I always recommend taking in a bit of a ‘crib sheet’ as a fall back option. Lessons learnt.
For further details of our courses please follow this link Enhanced Investigative Interviewing Skills