From interrogation to conversation
In 2016, Professor Juan Ernesto Méndez – then United Nations Special Rapporteur on Torture and other cruel, inhumane treatments – recommended to the UN that a ‘universal protocol’ be written for authorities such as the police or military when interviewing suspects. He made the point that too often, the ‘accusatorial’ stance of interviewers – driven by their desires to obtain a confession – leads to inaccurate information and miscarriages of justice.
Fast forward five years to June 2021 and we see the publication of new guidelines, dubbed the Méndez Principles, otherwise called the ‘Principles on Effective Interviewing for Investigations and Information Gathering’.
Principle 1 – On Foundations
Effective interviewing is instructed by science, law and ethics.
Principle 2 – On Practice
Effective interviewing is a comprehensive process for gathering accurate and reliable information while implementing associated legal safeguards.
Principle 3 – On Vulnerability
Effective interviewing requires identifying and addressing the needs of interviewees in situations of vulnerability.
Principle 4 – On Training
Effective interviewing is a professional undertaking that requires specific training.
Principle 5 – On Accountability
Effective interviewing requires transparent and accountable institutions.
Principle 6 – On Implementation
The implementation of effective interviewing requires robust national measures.
Its aim, writes Professor Méndez, is to provide an international framework ‘for effective interviews that avoids human rights abuses, namely torture and ill-treatment, as well as make the investigation and prevention of crime much more effective and consistent’.
The new principles for interviewing build on a body of scientific research which has found that rapport-based, non-coercive methods work best for gathering accurate information. They also draw on the experiences of countries, including the UK, which have already adopted and put into practice such principles since the 1992 introduction of the ‘PEACE’ method in England and Wales. The ‘PEACE’ model – Planning and Preparation, Engage and Explain, Account, Closure, and Evaluation – endorses the use of non-leading, open-ended questions. These require interviewees to put more thought into their responses (instead of responding with ‘yes’ or ‘no’). The method is designed to be systematic, directing officers to approach investigations with an open mind. It provides suspects with an opportunity to explain their involvement in an event, while minimising confusion and contamination, and without establishing a presumption of the suspect’s guilt at the outset.
Dr Kai Li Chung is perhaps the only academic psychologist in Malaysia whose work focuses on investigative interviewing. She met a victim care psychology officer serving in the Royal Malaysian Police Crime Investigation Department at a conference in 2019, and this led to an opportunity to deliver a lecture on investigative interviewing to investigative officers and to conduct a study with them. This revealed that not all investigative officers base their interviews on recommended guidelines. She spoke with Professor Ray Bull, a pioneer of the PEACE method, about what has changed with the new Principles, and what challenges remain.
Kai Li – I attended the online launch of the report in early June. First of all, congratulations to you Ray as part of the steering committee – it’s great to see clear investigative interviewing guidelines, grounded in human rights- and dignity-based approaches for future adoption by the United Nations, being laid down.
You are one of the researchers involved in developing the PEACE method of police interviewing in the UK. As a result, over the past decades, investigative interviewing in the UK has moved to a more conversational, information-gathering process. However, we are aware that in many parts of the world methods of investigations are largely deductive, where suspect interviews or ‘interrogations’ operate on a presumption of guilt. Through laboratory and field studies (albeit many conducted in Western European countries), we know the shortcomings of this method – the danger of presuming guilt is that investigators may engage in confirmation bias, i.e. to seek or evaluate information in ways that fit their initial theory of how the crime occurred or who the perpetrators are.
In the past few years, a few colleagues and I have been conducting investigating interviewing research with and for law enforcement agencies in Malaysia. Through some preliminary work we conducted last year, we observed that police officers are keen to update their knowledge and skills in the light of psychological research, which might help them improve their practice. As a forensic psychology researcher involved in this knowledge translation interface with police officers, there are a number of questions that I’d like to ask you as a colleague who had been the same position as me some years ago.
Firstly, drawing on your experience, what are the main challenges faced by any country that has not had the opportunity to move forward in terms of their investigative interviewing practices?
Ray – Probably the main challenge is for investigative organisations to realise that the way(s) in which they interview victims, witnesses and suspects can be substantially improved (in the light of a large body of research by psychologists and others over the last 30 years). However, many traditional organisations (such as the police) find it difficult to accept that ‘they could do better’ – partly because this implies that up till now they have not been achieving high standards.
One of the ways in which I try to deal with this is to say to them: ‘My role is to help you with your mission statement to constantly improve. I am not here to criticise you but am here to help you.’ In the growing number of countries in which the police nowadays electronically record (some of) their interviews/interrogations but as yet there is not modern training, such recordings make it clear that much of the interviewing is unskilled/rather inept: this can act as an inspiration to improve.
Of course, another challenge is financial – although electronic recording equipment nowadays is no longer expensive, the cost of quality training can be relatively high partly in terms of officers being away from their regular duties while being trained, as well as in terms of the delivery of the training. But in the longer term, having skilled interviewers may well save the organisation and the government/country money and thus foresight is needed.
Kai Li – You are right that there are financial considerations in terms of delivering quality training, including sourcing appropriate expertise and facilities. There is also a common belief that police interviewing is an inherent skill that officers have, or a skill that can be picked up from more experienced officers. The reality, however, is that investigative interviewing is a highly specialised area that requires expert skills, that can only be developed through training, practice, and routine supervision. Ideally, interviewers should have some understanding of basic psychological knowledge, including how memory works, how cognitive biases and individual differences can influence how people behave in an interview etc. We as psychologists know from years of research that these factors change the dynamic of how interviews are conducted, which can have a profound impact on the outcome of subsequent criminal proceedings. Authorities in the criminal justice system are not necessarily equipped with such knowledge. Those with pre-existing intuitive or pseudoscientific beliefs about what works in an investigative interview may be hesitant to acquire up-to-date knowledge about effective techniques, especially if these are inconsistent with their prior experiences.
One challenge – in the context of Malaysia (and many other countries) – is that the transfer of knowledge to practitioners has not always been successful. You were invited to speak at the Royal Malaysian Police College some years ago as a subject matter expert, and you’ve worked in many countries now – what are some of the ways we can bridge that gap?
Ray – An important thing that I learned years ago, perhaps being a psychologist, is that practitioners will be motivated to assimilate knowledge if it seems like it will help them do their job either (i) more easily or (ii) more effectively or (iii) more enjoyably. So, when I’m delivering knowledge (some call it ‘training’), I emphasise how what I am saying may well achieve all of these three. I also emphasise that one reason for some of them not yet being ‘skilled’ is that, as yet, no-one has taken the trouble to provide them with quality knowledge (i.e. knowledge based on good, peer-reviewed research). Therefore, it is not ‘their fault’ that room for improvement exists regarding their professional practice. I focus much more on advising them what to do rather than seeming critical by focusing on what not to do. Often to achieve this I use metaphors such as ‘Do you approve of people being allowed to drive cars without knowing the rules of the road?’ or ‘Would you agree to a doctor performing surgery on your brain who had little or no knowledge of how the brain works?’.
Kai Li – Speaking of focusing on what is recommended in investigative interviewing practice, as you know, some key strategies including the UNCAT Implementation Tool in 2017, have been put forward by the Convention Against Torture to safeguard against ill-treatment during police detention. These include informing detainees of their rights, offering access to lawyers, allowing communication with a family member or third party, and the recording of interviews.
Like many other countries, including the UK, Malaysia has experienced some unusual cases where detainees have died in custody. While this might be infrequent, they are the kind of cases that get into the media, especially when there are misconduct allegations. I think that there are relatively simple and straightforward preventive measures that have important benefits for Malaysia, and you’ve mentioned at the start that electronic recording of the interview or interrogation is perhaps one of the most effective (and economical) ways of improving the investigation process. It protects authorities against false accusation of ill-treatment, it works as a reliable piece of evidence, and it just makes the criminal justice system look more professional. This would certainly instil public trust and confidence in the criminal justice system. Also, more importantly, some of the recommended safeguards in the Méndez Principles are especially useful in protecting vulnerable individuals such as young persons and people with disabilities. This is a relevant point as there is psychological evidence to show that some people are at a higher risk of being influenced by manipulative interview methods, for instance, those who are naturally anxious, or who have been affected by negative life events. These psychosocial factors are associated with compliance with officer questioning, and this can be problematic if the interrogating officer had adopted inappropriate interviewing techniques.
Whenever I speak to the public or the police, I often get asked what can be done during the investigative interview process to ensure the guilty party is brought to justice and the innocent is acquitted. Could you highlight a few practical steps from the ‘Principles’? For example, how would an investigative interviewer deal with a suspect, witness, or victim who is reluctant to cooperate?
Ray – Yes, many interviewees are initially reluctant to cooperate, especially in countries where there currently exists little or no harmony between investigators and the public. The 'Principles of Effective Interviewing' are designed to address this. In countries where most people have some positive feelings towards the police (such as in England) the interviewing skills mentioned in the 'Principles' are those that research has found do encourage people to cooperate. For example, we have found in our work (i) relationships between interviewers' demonstrations of cognitive empathy and the provision of investigation-relevant information by suspects in real-life serious cases, and (ii) associations between such suspects being willing to talk 'on topic' and the skills of rapport and presentation of evidence.
The essence of these skills is given in paragraph 57 of the Principles:
An effective interview process will typically involve the following:
a. Thorough preparation and planning
b. Ensuring relevant safeguards are applied throughout
c. Keeping an open mind, including avoiding prejudice
d. Creating a non-coercive environment
e. Establishing and maintaining rapport
f. Using lawful and scientifically supported questioning techniques
g. Active listening and enabling the interviewee to speak freely and completely
h. Assessment and analysis of the information gathered and the interview process.
Ways to establish rapport include paying attention the interviewee’s mental and physical state e.g. by providing them with enough rest periods, food and drink during the interview. Also, setting out expectations at the start may lead to a more effective interview e.g. by encouraging interviewees to say if there’s anything they do not understand.
Kai Li – Referring to this protocol, as academics and psychologists we’re aware that rapport-based, non-coercive interviewing is effective for information gathering. Yet, there is a widespread myth in many parts of the world that ‘torture works’ – I’d be interested in hearing your views. To implement the Principles in Malaysia, our national legal framework has to conform with legal obligations of international law, specifically in relation to the prohibition of torture and all forms of ill-treatment. Whilst there has been a strong push for Malaysia to ratify the United Nations Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), our country remains among the 25 member states that have yet to accede to the convention. The ratification of this treaty, I think, is a crucial first step in strengthening the government’s efforts to boost the reputation of the police force. That said, there are simple questions that the public asks but are hardly addressed. For instance, what causes torture?
Ray – That is a good question and one I often mention when invited by organisations around the world to update their training on the interviewing of suspects. I cite the following words from Professor Richard Leo’s excellent 2008 book Police Interrogation and American Justice to emphasise the pervasive ‘common-sense’ but incorrect belief that ‘…suspects almost never confess spontaneously but virtually always in response to police pressure’ and ‘…confessions, especially to serious crimes, are rarely made spontaneously’ that ‘rather they are actively elicited…typically after sustained psychological pressure’. Unless trained/informed to the contrary, interrogators/interviewers rely on such (mis-placed) ‘common sense’, but there is now a growing body of research by psychologists which consensually has found that a meaningful proportion of guilty suspects have already decided prior to their police interview to provide relevant information/confess (as long as they are treated ethically) and that another sizeable proportion have not yet made up their mind and are waiting to see (i) how ethically they are treated within the interview and (ii) the nature of the evidence/information incriminating them. It is of credit to psychologists (and others) around the world that the 2021 ‘Principles of Effective Interviewing’ are based on a substantial wealth of peer-reviewed research which makes it clear that torture and other cruel and inhumane treatments are actually counter-productive, and that an alternative based on a more peaceful, ethical and effective approach is available.
Kai Li – Well, I think we are at a turning point. In Malaysia, the subject area of investigative interviewing has yet to permeate the psychology and law curriculum, and there is a dearth of academic publishing on this area. But last year I received a grant from the Ministry of Higher Education Malaysia to examine child suggestibility in forensic interviews, and I have obtained approval to conduct further research within the Crime Investigation Department. It is essential that we generate more context-specific data. That will create public awareness, enabling policymakers and the relevant agencies in the criminal justice system to reflect on the current practices and ensure appropriate systems are put in place.
The universal protocol is less than 40 pages, readily available at no cost, with clear guidelines and safeguards grounded in research. I’m aware, however, that there are cultural factors that need to be taken into consideration: language, conformity, obedience to authority, to name a few. It is in my research agenda to empirically examine some of these factors.
I think there is a need for more like-minded researchers and practitioners to push this agenda forward. In my opinion, the next step would be to provide empirical data in countries such as Malaysia that ethical alternatives to torture and cruel, inhumane treatment in practice are indeed effective in such cultures – as found by Dr Taeko Wachi in Japan. This will serve as a motivating factor for developing countries like Malaysia to bring about systemic change.
Particularly relevant to the context in Malaysia are leadership and open-mindedness. The desire to change typically comes after high-profile miscarriages of justice, in which there is a demand for authorities to increase accountability and transparency in their practices. With more public awareness and continued training, I think investigators would be more open to reflecting upon their own methods.
- Professor Ray Bull is Professor of Criminal Investigation at the University of Derby, Emeritus Professor of Forensic Psychology at the University of Leicester and an Honorary Fellow of the BPS. [email protected]
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