Dr Donna McNamara, University of Newcastle, Australia
The police interview is perhaps the most critical stage in the overall process of case construction. It provides officers with an opportunity to gain relevant information about the case using non-accusatorial questions which are designed to attain a full account from the interviewee (Williams 2000). While the experience of being questioned can be intimidating for everyone, my research examines how this vulnerability can be even more heightened for people with disabilities.
It is important to first recognise that a person does not need to be arrested to be interviewed by the Gardaí – an individual can be invited to attend the station voluntarily to assist in an investigation. In these cases, an individual may still be at risk of making an incriminating statement and should be informed of their right of access to a solicitor at a minimum.
Regardless of the status of the interviewee (i.e. whether they are being questioned under arrest or voluntarily), it is important to examine how the style of questioning and language used to pose questions can impact on the individual’s responses. Certain variables such as how long the crime lasted, how long ago the crime took place, or whether the individual was intoxicated, can also affect how an individual responds to questions (Kebbell and Gilchrist 2010). While these variables are out of the control of the interviewing officers, they do retain complete control over the type of questions asked during questioning, their use of non-verbal communicative styles and their behaviour more generally. The latter is particularly important as certain gestures or psychological methods may in fact influence the individual to make an incriminating statement or false confession (Leo 1994).
There are a number of factors which must be considered when interviewing vulnerable persons, including the impact of memory and suggestibility. Essentially, the poorer the person’s memory, the more suggestible they are likely to be (Gudjonsson and Clare 1995). This is particularly relevant for persons with intellectual disabilities or persons experiencing psychiatric distress, who may have difficulty recalling information or details to the police (see Milne and Bull 2001). There are different considerations for people depending on the nature of their disability. For persons with attention deficit hyperactivity disorder (ADHD), for example, they may appear disorganised, unable to concentrate or listen during the interview, or may have an impaired or limited attention span (DSM-5 2013). Within the confines of an interrogation room, they may also appear to fidget incessantly or be uncomfortable waiting for long periods of time. In the event that the interviewing officers are not aware of these associated behaviours, it may be impossible for the officers in question to establish a positive rapport with the individual.
Traditionally, interrogation methods were designed to elicit a confession from the suspect, normally through the use of confrontational, manipulative or aggressive psychological methods (Drizin and Leo 2003). The interview was intentionally structured to induce stress, promote isolation, and feelings of anxiety, fear, powerlessness, and hopelessness in order to break the anticipated resistance of an individual who was presumed to be guilty (ibid). There has been a shift away from such tactics in the UK and Ireland towards an inquisitorial model of questioning which is premised on the importance of establishing a rapport between the officers and the interviewee. There is also an emphasis on the value of “free narrative” which requires an open-ended style of questioning in which the interviewee is free to give as much information as possible before progressing to direct or focused questions (Lamb et al 2007).
The Garda Interviewing Model
In Ireland, the Garda Síochána Interviewing Model (GSIM) is similar to the PEACE model in England and Wales (Walsh and Milne 2008). Similar to PEACE, the GSIM aims to seek as much information as possible from the individual using effective, non-coercive, questioning techniques. It was designed in consultation with international experts such as Gísli Guðjónsson and John Pearse, who are both widely renowned experts in psychology and police interviewing. Training is delivered to gardaí from Level 1 to Level 4 (see Noone 2015 and An Garda Síochána Inspectorate Report 2014):
Within the GSIM, vulnerable persons are categorised on the basis of age, intellectual disability, mental health, addiction, psychological vulnerability and intimidation. Level 3-trained Garda Interviewers are required to carry out these interviews as they are trained to identify and manage vulnerable interviewees (see Noone 2015 and also An Garda Síochána Policy on the Investigation of Sexual Crime, Crimes against Children, Child Welfare 2013). Level 3 training involves ‘interview planning, identifying and managing vulnerabilities, appropriate ethical and legal measures, managing appropriate adults, suggestibility, eliciting free narrative, questioning and appropriate challenge’ (Noone).
During my PhD, I found that there were 307 Garda members trained to Level 3 of the GSIM as of 2018, while just 40 were trained to Level 4. To date, the specific nature of garda interview training remains unclear, particularly in relation to interviewing persons with disabilities as suspects of crime. Trainee gardaí are required to undertake ‘mental illness awareness’ training which includes a general overview of the different categories of mental health and garda powers under the Mental Health Act 2001 (McNamara 2020). During my research, I found that 1,850 trainees had completed this module (out of 14,000 Gardaí in 2018). There is no further indication regarding whether this training will be rolled out to those other gardaí who graduated before this module was introduced as part of the training curriculum.
The current law governing garda interviews is set out in the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 (the Custody Regulations, 1987) and in the Judges’ Rules. Regulation 22 refers to vulnerable persons in custody, specifically “mentally handicapped” persons (a label which is no longer acceptable in reference to people with disabilities) and provides that they are to be treated akin to a child. A responsible adult who is experienced in ‘dealing with the mentally handicapped’ (reg. 22(2)) can attend garda questioning. While this safeguard is set out in the Regulations, there is no evidence to suggest that the support of a responsible adult is ever provided to vulnerable adults in police custody. In the absence of an established appropriate adult service like that which is provided by the National Appropriate Adult Network in England and Wales, it is unclear who can be called upon to perform this role in Ireland and, moreover, what this role would actually involve in the absence of clear guidelines or training.
There is a clear lack of transparency and oversight in regard to the treatment of vulnerable suspects in the Irish criminal justice system. Of note, we do not know how many people are arrested each year (although it is estimated to be 20,000 people) (Lally 2017). There is therefore no further breakdown as to how many people with disabilities come into contact with the gardaí as suspects of crime. This is most concerning as we have very little information to assess the adequacy of the current pre-trial protections, police practices, and reasonable accommodations or supports. Within the interview setting, a failure to identify and provide supports for persons with disabilities, or the failure to mitigate the challenges associated with existing police styles of questioning, may adversely affect the individual suspect and prove harmful to the investigation as a whole.
As Dehaghani has argued in her blog post, ‘a “sea-change” is needed throughout the criminal justice system to take seriously the needs of vulnerable suspect.’ This is especially true in Ireland where the existing guarantees and protections for suspects – such as the right to have a solicitor present during questioning – is often contested. People with disabilities are in an even more precarious position, particularly during the police interview, and further work needs to be done in collaboration with An Garda Síochána and people with lived experiences of the justice system to assess whether the current GSIM, associated training and supports (if any) are actually appropriate for dealing with vulnerable suspects.
References
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Fifth Edition DSM-5 (2013) 32
An Garda Síochána Inspectorate, Crime Investigation (2014) part 9 <http://www.drugsandalcohol.ie/22967/1/GSI_Crime_Investigation_Full.pdf0.pdf>
An Garda Síochána, Garda Síochána Policy on the Investigation of Sexual Crime, Crimes against Children, Child Welfare (2nd edn., 2013) para [33.3.5]
Conor Lally, ‘Most arrested not availing of right to solicitor presence at questioning’ The Irish Times (22 September 2017) <https://www.irishtimes.com/news/crime-and-law/most-arrested-not-availing-of-right-to-solicitor-presence-at-questioning-1.3229668>
David Walsh and Rebecca Milne, ‘Keeping the PEACE? A study of investigative interviewing practices in the public sector’ (2008) 13(1) Legal and Criminological Psychology 39
Donna Marie McNamara, ‘Building a collaborative approach to policing in an age of disability human rights law’ (2020) Online First Version Journal of Psychiatric and Mental Health Nursing, DOI: https://doi.org/10.1111/jpm.12609
Geraldine Noone, ‘An Garda Síochána Model of Investigative Interviewing of Witnesses and Suspects’ in John Pearse (ed.), Investigating Terrorism: Current Political, Legal and Psychological Issues (Wiley Blackwell 2015)
Gisli Gudjonsson and Isabel Clare, ‘The relationship between confabulation and intellectual ability, memory, interrogative suggestibility and acquiescence’ (1995) 19 Personality and Individual Differences 333
James Williams, ‘Interrogating justice: A critical analysis of the police interrogation and its role in the criminal justice process’ (2000) 42 Canadian Journal of Criminology 209, 211
Mark Kebbell and Elizabeth Gilchrist, ‘Eliciting Evidence from Eyewitnesses for Court Proceedings’ in Joanna Adler and Jacqueline Gray (eds.), Forensic Psychology: Concepts, Debates and Practice (2nd edn., Routledge 2010) 146
Michael Lamb and others, ‘Structured forensic interview protocols improve the quality and informativeness of investigative interviews with children: A review of research using the NICHD investigative interview protocol’ (2007) 31 Child Abuse & Neglect 1201
Rebecca Milne and Ray Bull, ‘Interviewing witnesses with learning disabilities for legal purposes’ (2001) 29(3) British Journal of Learning Disabilities 93
Richard Leo, Police Interrogation and Social Control (1994) 3 Society & Legal Studies 93
Steven Drizin and Richard Leo, ‘The problem of false confessions in the post-DNA world’ (2003) 82 North Carolina Law Review 891, 911
