Louise Parker, Dr Clea Wright and Dr Michelle Mattison, the School of Psychology, University of Chester.
Introduction
In England and Wales, it is a statutory requirement that the police caution is delivered upon arrest, at interview and if the suspect is charged with a criminal offence. The function of the caution is to inform the suspect of their legal right to silence, and the interviewer must ensure that the suspect understands the caution to enable fair and effective participation in the investigation. Comprehension of the caution has been poor across a range of populations including detained persons (Fenner et al., 2002; Sim & Lamb, 2018), university students (Moore and Gagnier, 2008), members of the public (Hughes et al., 2013; Fenner et al., 2002) and persons with an intellectual disability (Fulero & Everington, 1995; Rendall et al., 2021).
Research has found that the caution is complex and contains legal ambiguity making it difficult to understand (Rock, 2007, Shuy 1998). Subsequently, researchers have modified the caution to measure the effects on participants’ comprehension. In one study, when the caution was presented in its entirety only 4% of the participants fully understood it, however, when it was presented in a sentence-by-sentence format, 48% of participants fully understood the caution (Eastwood & Snook, 2010). Following this study, Eastwood, and Snook (2012) modified the caution by adding sentences to the beginning, middle and end to increase its listenability, and subsequently comprehension increased by 30% for participants (university students). When the study was replicated with participants with an intellectual disability, there was no increase in comprehension levels, instead, comprehension remained very poor (Rendall et al., 2021). The mixed findings from the two studies suggest that different adaptations to the caution are needed for individuals with impaired intellectual functioning. A UK study indicated that the prevalence of intellectual disabilities amongst suspects in the criminal justice system ranged from 5% to 9.6% based on a screening measure (Murphy et al., 2017). On a broader level, individuals who are vulnerable to miscomprehending their rights, such as those with a mental health condition, are overrepresented in the criminal justice system (Farrugia, 2021). Subsequently, those suspects are at an increased risk of being unable to participate fairly and effectively in a criminal investigation.
Contextualising Vulnerability in the Current Study
All humans are considered inherently vulnerable (Fineman, 2008), particularly in a high-stakes context such as an investigative interview, where individuals are questioned about their involvement in an alleged criminal offence. It has been argued that individuals are not ‘more or less vulnerable’, but instead have different levels of resilience depending on the resources available to them (Travis, 2019). For example, in the context of an investigative interview, if a suspect has difficulties comprehending information, an Appropriate Adult (AA) will likely increase their resilience to overcome these hindrances by supporting the suspect to understand information. Subsequently, this provision should increase a suspect’s ability to participate effectively in the investigation. In the Police and Criminal Evidence Act’s (PACE) codes of practice, despite suspects being referred to as vulnerable, the focus of vulnerability within these codes is on identifying vulnerability and the course of action, i.e., securing an AA for the vulnerable suspect. However, currently, there are issues within the criminal justice system, most notably in police custody with identifying vulnerability (Farrugia, 2021; Gulati et al., 2020). These problems include screening tools described as not being ‘fit for purpose’, custody officers’ attitudes towards vulnerability, and the availability of resources to secure appropriate provisions (Farrugia, 2021).
Despite the term ‘vulnerable persons’ within PACE guidelines (2019), and a recent study labelling suspects as ‘vulnerable’ and ‘non-vulnerable’ (Farrugia & Gabbert, 2020), there is a prevalence of misidentification of vulnerable suspects in custody, which is subsequently problematic (Farrugia, 2021). Considering this, in the current study suspects will not be referred to as explicitly ‘vulnerable’ or ‘non-vulnerable’ to avoid any misrepresentation of the term ‘non-vulnerable’. Instead these will be distinguished as interviews with and without an AA present.
The current study explores how police interviewers modify the caution by exploring the type and quantity of information given about the caution’s function. Specifically, this study aims to explore how the caution is modified for those suspects considered to be most vulnerable.
Method
The data consisted of 179 police interview transcripts (92 interviews with an AA, 87 interviews without an AA), with suspects being questioned about an alleged serious criminal offence. The transcripts were taken from a large police force in England. Due to revisions to PACE guidelines in 2018 around the vulnerability provision, only interviews conducted in 2018 onwards were included. Due to the nature of the alleged offences, breaks and subsequent interviews were to be expected, therefore only the first interview (within a 24-hour time period) was used for consistency.
A coding frame was developed and applied to the transcripts with a mixed methods approach used in the analyses. The first step involved a content analysis of the information to design the coding frame where specific codes were developed. The presence of the information was then coded dichotomously. The quantitative analysis is still ongoing.
Preliminary Findings
Setting up structures of expectation
At the beginning of the cautioning exchange, it was found that interviewers were informing the suspect of the legal nature of the upcoming information, and what the suspect was expected to do with that information. At the beginning of the exchange, it was found that suspects were notified that they would be required to demonstrate their understanding of the caution in 8.7% (n =8) of interviews with an AA and 8% (n =7) of interviews without an AA. However, it was found that in 80.4% (n =74) of interviews with an AA and in 86.2% (n =75) of interviews without an AA, suspects were asked to demonstrate their understanding of the caution. Furthermore, at the beginning of the cautioning exchange, suspects were notified of the requirement to understand the caution in 26.1% of interviews (n=24) with an AA, and in 25.3% (n = 22) of interviews without an AA, despite there being a legal requirement for all suspects to understand the caution.
Discussion
The findings above present a very brief snapshot of the analyses currently taking place in this programme of research, and as these findings are preliminary, discretion needs to be exercised when making any inferences. However, so far, there appear to be no differences in the information given in both AA and non-AA interviews. Across all interviews (with and without the presence of an AA) interviewers tended to focus on communicating certain types of information. For example, interviewers tended to focus on the requirement for the suspect to understand the caution, as opposed to notifying them that they would be expected to demonstrate their understanding. This suggests that interviewers are focused on communicating specific information across all interviews regardless of whether there is an AA present.
Limitations and strengths
The data is taken from one large police organisation in England, and there may be slight variations in the training and practices across individual police forces. However, this is the first study to explore the cautioning exchange with specific reference to whether differences exist in practice between those suspects with and without an AA.
Conclusion
This study aimed to investigate what information about the caution’s function was communicated in a suspect interview. Preliminary findings showed that there was no difference between the type of information given to those suspects with and without the provision of the AA safeguard. So far, it is suggested that interviewers are consistent in how they set up structures of expectation in the cautioning exchange for suspects, regardless of perceived vulnerability.
References
In England and Wales, it is a statutory requirement that the police caution is delivered upon arrest, at interview and if the suspect is charged with a criminal offence. The function of the caution is to inform the suspect of their legal right to silence, and the interviewer must ensure that the suspect understands the caution to enable fair and effective participation in the investigation. Comprehension of the caution has been poor across a range of populations including detained persons (Fenner et al., 2002; Sim & Lamb, 2018), university students (Moore and Gagnier, 2008), members of the public (Hughes et al., 2013; Fenner et al., 2002) and persons with an intellectual disability (Fulero & Everington, 1995; Rendall et al., 2021).
Research has found that the caution is complex and contains legal ambiguity making it difficult to understand (Rock, 2007, Shuy 1998). Subsequently, researchers have modified the caution to measure the effects on participants’ comprehension. In one study, when the caution was presented in its entirety only 4% of the participants fully understood it, however, when it was presented in a sentence-by-sentence format, 48% of participants fully understood the caution (Eastwood & Snook, 2010). Following this study, Eastwood, and Snook (2012) modified the caution by adding sentences to the beginning, middle and end to increase its listenability, and subsequently comprehension increased by 30% for participants (university students). When the study was replicated with participants with an intellectual disability, there was no increase in comprehension levels, instead, comprehension remained very poor (Rendall et al., 2021). The mixed findings from the two studies suggest that different adaptations to the caution are needed for individuals with impaired intellectual functioning. A UK study indicated that the prevalence of intellectual disabilities amongst suspects in the criminal justice system ranged from 5% to 9.6% based on a screening measure (Murphy et al., 2017). On a broader level, individuals who are vulnerable to miscomprehending their rights, such as those with a mental health condition, are overrepresented in the criminal justice system (Farrugia, 2021). Subsequently, those suspects are at an increased risk of being unable to participate fairly and effectively in a criminal investigation.
Contextualising Vulnerability in the Current Study
All humans are considered inherently vulnerable (Fineman, 2008), particularly in a high-stakes context such as an investigative interview, where individuals are questioned about their involvement in an alleged criminal offence. It has been argued that individuals are not ‘more or less vulnerable’, but instead have different levels of resilience depending on the resources available to them (Travis, 2019). For example, in the context of an investigative interview, if a suspect has difficulties comprehending information, an Appropriate Adult (AA) will likely increase their resilience to overcome these hindrances by supporting the suspect to understand information. Subsequently, this provision should increase a suspect’s ability to participate effectively in the investigation. In the Police and Criminal Evidence Act’s (PACE) codes of practice, despite suspects being referred to as vulnerable, the focus of vulnerability within these codes is on identifying vulnerability and the course of action, i.e., securing an AA for the vulnerable suspect. However, currently, there are issues within the criminal justice system, most notably in police custody with identifying vulnerability (Farrugia, 2021; Gulati et al., 2020). These problems include screening tools described as not being ‘fit for purpose’, custody officers’ attitudes towards vulnerability, and the availability of resources to secure appropriate provisions (Farrugia, 2021).
Despite the term ‘vulnerable persons’ within PACE guidelines (2019), and a recent study labelling suspects as ‘vulnerable’ and ‘non-vulnerable’ (Farrugia & Gabbert, 2020), there is a prevalence of misidentification of vulnerable suspects in custody, which is subsequently problematic (Farrugia, 2021). Considering this, in the current study suspects will not be referred to as explicitly ‘vulnerable’ or ‘non-vulnerable’ to avoid any misrepresentation of the term ‘non-vulnerable’. Instead these will be distinguished as interviews with and without an AA present.
The current study explores how police interviewers modify the caution by exploring the type and quantity of information given about the caution’s function. Specifically, this study aims to explore how the caution is modified for those suspects considered to be most vulnerable.
Method
The data consisted of 179 police interview transcripts (92 interviews with an AA, 87 interviews without an AA), with suspects being questioned about an alleged serious criminal offence. The transcripts were taken from a large police force in England. Due to revisions to PACE guidelines in 2018 around the vulnerability provision, only interviews conducted in 2018 onwards were included. Due to the nature of the alleged offences, breaks and subsequent interviews were to be expected, therefore only the first interview (within a 24-hour time period) was used for consistency.
A coding frame was developed and applied to the transcripts with a mixed methods approach used in the analyses. The first step involved a content analysis of the information to design the coding frame where specific codes were developed. The presence of the information was then coded dichotomously. The quantitative analysis is still ongoing.
Preliminary Findings
Setting up structures of expectation
At the beginning of the cautioning exchange, it was found that interviewers were informing the suspect of the legal nature of the upcoming information, and what the suspect was expected to do with that information. At the beginning of the exchange, it was found that suspects were notified that they would be required to demonstrate their understanding of the caution in 8.7% (n =8) of interviews with an AA and 8% (n =7) of interviews without an AA. However, it was found that in 80.4% (n =74) of interviews with an AA and in 86.2% (n =75) of interviews without an AA, suspects were asked to demonstrate their understanding of the caution. Furthermore, at the beginning of the cautioning exchange, suspects were notified of the requirement to understand the caution in 26.1% of interviews (n=24) with an AA, and in 25.3% (n = 22) of interviews without an AA, despite there being a legal requirement for all suspects to understand the caution.
Discussion
The findings above present a very brief snapshot of the analyses currently taking place in this programme of research, and as these findings are preliminary, discretion needs to be exercised when making any inferences. However, so far, there appear to be no differences in the information given in both AA and non-AA interviews. Across all interviews (with and without the presence of an AA) interviewers tended to focus on communicating certain types of information. For example, interviewers tended to focus on the requirement for the suspect to understand the caution, as opposed to notifying them that they would be expected to demonstrate their understanding. This suggests that interviewers are focused on communicating specific information across all interviews regardless of whether there is an AA present.
Limitations and strengths
The data is taken from one large police organisation in England, and there may be slight variations in the training and practices across individual police forces. However, this is the first study to explore the cautioning exchange with specific reference to whether differences exist in practice between those suspects with and without an AA.
Conclusion
This study aimed to investigate what information about the caution’s function was communicated in a suspect interview. Preliminary findings showed that there was no difference between the type of information given to those suspects with and without the provision of the AA safeguard. So far, it is suggested that interviewers are consistent in how they set up structures of expectation in the cautioning exchange for suspects, regardless of perceived vulnerability.
References
Eastwood, J. and Snook, B. (2010) ‘The effect of listenability factors on the comprehension of police cautions’, Law and Human Behaviour, 36(3), pp. 177-83. https://doi.org/10.1037/h0093955.
Farrugia, L. (2021) ‘Identifying vulnerability in police custody: making sense of information provided to custody officers’, Journal of Forensic and Legal Medicine, 80. https://doi.org/10.1016/j.iflm.2021.102169.
Farrugia, L. and Gabbert, F. (2022) ‘Forensic interviewing of mentally disordered suspects: the impact of interview style on investigation outcomes’, Current Psychology: A Journal for Diverse Perspectives on Diverse Psychological Issues, 41(5), pp. 3216–3224. https://doi.org/10.1007/s12144-020-00747-8.
Fenner, S., Clare, C.H., and Gudjonsson, G.H. (2002) ‘Understanding of the current police caution (England and Wales) among suspects in police detention’, Journal of Community & Applied Social Psychology, 12(2), pp. 83-93. https://doi.org/10.1002/casp.658.
Fineman, M.A. (2008) ‘The vulnerable subject: anchoring equality in the human condition. Yale Journal of Law & Feminism, 20(1), pp. 8-40.
Fulero, S. M., and Everington, C. (1995) ‘Assessing competency to waive Miranda rights in defendants with mental retardation’, Law and Human Behaviour, 19(5), pp. 533-543. https://doi.org/10.1007/BF01499342.
Gulati, G., Kelly. B.D., Cusack, A., Kilcommins, S., and Dunne, C.P. (2020)‘The experience of law enforcement officers interfacing with suspects who have an intellectual disability – A systematic review’, International Journal of Law & Psychiatry, 72 https://doi.org/10.1016/j.ijlp.2020.101614.
Hughes, M., Bain, S., Gilchrist, E., and Boyle, J. (2013) ‘Does providing a written version of the police caution improve comprehension in the general population?’ Psychology, Crime and Law, 19(7), pp. 549-564. 10.1080/1068316X.2011.644793.
Moore, T.E. and Gagnier, K. (2008) ‘“You can talk if you want to”: Is the police caution on the ‘right to silence understandable’, Criminal Reports, 51(6), pp. 233–249.
Murphy, G.H., Gardner, J., and Freeman, M.J. (2017) ‘Screening prisoners for intellectual disabilities in three English prisons’, Journal of Applied Research in Intellectual Disabilities,30(1), pp. 198–204. https://doi.org/10. 1111/jar.12224.
