05 January 2010
Stuart Armstrong

After a serious incident or a fatal accident, the police and regulatory bodies such as the HSE or the Environment Agency will interview representatives of the employer, the site owner or anyone else they believe could yield evidence to help them make a case.

Health and safety managers, along with line management and other workers can often find themselves at the sharp end of these interviews and may not always realise that even the ones that take the form of a “quick word” or a friendly chat, can be used as evidence, either against themselves or the organisation.

Many sites are treated as crime scenes after an incident and the briefest conversations may be recorded in the regulators’ notebooks for later reference. Interviewees are also unlikely to realise that even the most casual interactions under these conditions are structured to get them to reveal as much as possible to the interviewer. Police and HSE inspectors sometimes go through years of training before leading investigations. Below we explain some of the techniques they use; forewarned is forearmed.

The PACE interview (see box below) and the increasing monitoring of regulators’ performance has led to the development of more skilled interviewing techniques. One of these techniques is the PEACE model, developed by a group set up by the Home Office in 1991 and now commonplace in regulatory interviews. PEACE stands for Planning and Preparation, Engage and Explain, Account, Closure and Evaluation. The model is intended to stop suspects or witnesses being coerced or bullied, but allows techniques which will encourage the unwary interviewee to say more than they intended.

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Keeping PACE

Before the introduction of the Police and Criminal Evidence Act 1984 (PACE) and the related Codes of Practice, defence lawyers were often concerned about the potential for the police to force interviewees or suspects to confess to crimes they had not committed. Following the Guildford Four and the Birmingham Six appeals, evidence of such coercion, threats, and the alleged mistreatment of suspects emerged.

PACE was developed to introduce stricter statutory controls over the acceptable conduct required of interviewers during interviews. Detention timescales, the tape recording of interviews with suspects and tighter controls on interviewer conduct were set out under PACE and, with minor amendments, these rules are still  followed today, but there are examples of coercion and failure to comply with the Act.

Since 1984, it has been expected that other regulators besides the police would follow the PACE Codes but it has been all too common for regulators’ interviews to take place with inexperienced interviewers who are unfamiliar with the Act’s requirements.

It’s also common for breaches of PACE and other procedures to go unchallenged. Lay interviewees don’t necessarily know when breaches have taken place. If interviewees are unrepresented, or accompanied by inexperienced representatives or colleagues, they may miss the opportunity to object to or prevent inappropriate behaviour, and it may be much more difficult to have this interview evidence dismissed later.

After serious incidents, where the organisation is insured, the costs of reasonable representation may be met by the insurers under the terms of an employers’ liability or public liability policy.

PACE interviews should take place where the police or another regulator is confident they have reasonable grounds for suspecting that an interviewee/organisation may have committed an offence. They must have some reasonable, objective grounds for the suspicion, based on information or facts relevant to the likelihood the offence has been committed and that the person to be questioned committed it. Frequently the interviews which the police or other regulators carry out are not conducted in this way, because they have no reasonable, objective grounds for the suspicion.

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Planning and preparation

Planning refers to the interviewer’s gathering information to allow them to remain in control of the interview and steer its direction. The officer is supposed to understand the interview’s purpose, the background circumstances, and have a profile of the interviewee. Not every interview is this well planned but the more significant the offence, the more likely the police and other regulators are to invest in planning and preparation. Good planning should save the interviewer overlooking important evidence or inconsistencies in the interview evidence and avoid unnecessary breaks to obtain further information.

Preparation includes getting the location and environment (the setup of the interview space and seating) ready and bringing any exhibits that will be needed for examination during questioning.

The points that will have to be established to prove an offence was committed should be set out by the interviewer before they interview a witness or a suspect, as well as any aggravating or mitigating features.

Engage and explain

The opening phase of an interview can be crucial to the interviewer’s success. If they can “warm up” the interviewee by chatting to them for a few minutes they may be able to create a more relaxed relationship which could continue through the interview.

Engaging the interviewee is sometimes described as the rapport stage. Courtesy, politeness, and understanding can make all the difference between the interviewer’s success or failure. Successful interviewers often take time to find out what motivates the interviewee.

They may have to explain the interview’s formalities; the tape recording, and other procedures, plus the format of the interview, to demystify the process and to give the interviewee the impression that they are not going to be tricked. 

They will often show consideration for the interviewee, asking if they want a drink or to use the toilet, how they prefer to be addressed in the interview and whether there are any time constraints on the interviewee. This reassurance and consideration all makes the interviewee more likely to feel sympathetic with the interviewer.

Next, the interviewer will set the scene by saying that the interview is very important, as is everything the interviewee says. As a result they should not leave anything out, even if they believe it is of no relevance.

The interviewee may even be led to believe that they will have to work hard because they have all the information. This creates the impression that there is something that the interviewee needs to say to the interviewer.

The interviewer may also use the engagement stage as training for later in the interview. They will be establishing their control and getting the interviewee ready for the next stage. The interviewee will be encouraged to answer simpler questions (with yes or no answers) and the interviewer will be assessing the interviewee’s language and communication abilities.

At any stage of the interview to ensure fairness, the interviewee may be encouraged to ask a question of the interviewer if there is something they don’t understand.

But it is unlikely that an interviewee will be reminded or encouraged to:

• remain silent if the reasons for their being suspected of having committed an offence are unclear
• ask a question for clarification where there is more than one possible meaning for a question
• ask the interviewer to explain something they felt was inappropriate or leading
• say that they do not feel it is appropriate for them to answer a question
• refuse to speculate or give their opinion as to hypothetical circumstances (“What might have happened if...” or “What do you think X was thinking when she…”).

Called to account

Once this engagement stage has passed, the witness will be asked to give their
account of events. The three steps are:
■    obtaining the interviewee’s account of events
■    expanding and clarifying that
account
■    challenging the interviewee’s account with information from other
interviewees if necessary.

For cooperative interviewees such as victims and eyewitnesses, the interviewer may use free recall to begin with and perhaps move on to cognitive interviewing for more advanced interviews. For uncooperative interviewees the interviewer will normally rely on conversation management as a technique.

After allowing the interviewee to begin to give their account of the facts, the interviewer may interrogate them using techniques such as:
■    summarising
■    sympathising
■    repeating questions
■    leading questions
■    accusing questions
■    varying the questions to ask about the same circumstances
■    rephrasing the interviewee’s previous responses to suggest that they have already said something
■    encouraging different ways or repeated attempts to recall the same or
related facts.

The interviewer may need to clarify or challenge the interviewee’s account, either because the interviewer is unclear about something the interviewee has said, or because the information is inconsistent with other evidence.
This phase may include challenges to inconsistencies in the account or pre-planned challenges. The interviewer may well hold back information to test what the interviewee might say in the absence of key facts.
The practice of interviews rarely reflects the ethical philosophy of the PEACE model, which requires the interviewer to be open-minded during the questioning. Instead, interviewers are likely to approach interviews in a dominant way, constraining the questioning process and attempting to coerce the interviewee. This may be motivated by the desire to revert to pre-PEACE questioning techniques which relied on pressurised situations to produce a confession or a genuinely held pre­conception that the interviewee is guilty of an offence.
Interviews can be challenged under Sections 76 and 78 of PACE, including interviewers who restrict the suspect’s ability to respond by suggestive questioning, by using interrogative assertions, or reframing the suspect’s answers to fit with their views on events or motives, and misrepresenting a belief as a fact.

In criminal courts, the fact that some interview evidence is ruled as inadmissible suggests that officers use such tactics. Without the right representation during interviews, frequently the only record which is obtained is the statement drafted by the interviewer and signed by the interviewee.

Whether this is obtained as a voluntary statement or takes the form of a compelled statement may depend on whether the interviewee has had any advice before, during or after the interview.

The closure of an interview is frequently rushed. A short-term feeling of anticipated relief on the part of the interviewee can sometimes lead to an inadvertent admission.

One last point

The interviewer may increase the tension with the careful use of “just one more question” or similar phrases. A previously cautious interviewee may then be persuaded to believe that if they cooperate and answer this “last” point as fully as possible then the whole interview will be over. In fact, the interview is often prolonged beyond this point as the interviewee may make an unguarded or ill-considered response.
Among other issues, the closure stage is supposed to:
■    ensure the interviewee understands what has happened in the interview
■    ensure the interviewee is certain that the evidence they have given is accurate in all material respects or that any grey areas have been sufficiently highlighted
■    confirm that all aspects of the account have been covered
■    allow the interviewee to give any additional information they think is relevant and are willing to provide
■    explain what will happen in the next phase of the interview process.

A positive close to the interview may mean that witness availability is continually monitored in future, or that an interviewee is able to give any new and relevant information to the correct interviewer in the future, either through recall or as new information comes to light.
The evaluation stage concludes the PEACE interview but not necessarily the interviewing process. The interviewer will, in this section of the interview, also often suggest a short break for them to re-review their notes to see if the aims and objectives for the interview have
been achieved.

The interviewer will also review the investigation in the light of information it has yielded.

Some legal advisers have been used to the PEACE model of interviewing for years. Others, unused to representing clients during these interviews (or handling breaches of PACE 1984 and the Codes of Practice), have not intervened as well as they might in regulatory interviews.

False confession

Roger Smith, a director of the law reform and human rights organisation Justice,  describes in a recent article in the Law Society Gazette how Steven Miller, one of the “Cardiff Three”, charged with the murder of Lynette White while still a juvenile, falsely admitted the charge after five days of interviews and having denied it on more than 300 occasions.

Smith says Lord Taylor, the lord chief justice, listened to the tape of the Cardiff Three’s interview and commented that “Short of physical violence, it is hard to conceive of a more hostile and intimidating approach”.

Some commentators have suggested that legal representatives should consider intervening if the interviewer attempts to build any rapport with a suspect, by asking questions about the person’s interests or family, for instance.

The officer may be reminded that the interview is for the purpose of questioning a suspect about an offence, not questioning them about their welfare, home life or interests. If the officer continues to use such tactics, the legal adviser may wish to consider whether to advise their clients not to answer any questions.

On some occasions the interview might breach sections 76 or 78 of PACE; for example where the interviewer’s behaviour is oppressive, or fails to show appropriate consideration for the interviewee’s mental health or vulnerabilities, or even on occasion a failure to caution the suspect or explain their legal rights.

It has been estimated that as many as 10% of all interviews are in breach of the terms of PACE for one reason
or another.

If the PEACE model is better understood by the interviewee as well as the interviewer then it can sometimes lead to a more productive use of the interview by both parties.

Stuart Armstrong is a lawyer specialising in health and safety law, stuart.armstrong@svarmstrong.com, tel: 0113 265 5205.
 

Categories:
Directors' duties, HSE, Features, Corporate manslaughter, Enforcement (prosecutions)