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Abstract

  1. Top of page
  2. Abstract
  3. Traditional versus recent approaches to witness testimony
  4. The competency requirements of witnesses
  5. Psychological vulnerabilities
  6. Cases of miscarriage of justice 1989–2009
  7. Conclusions
  8. Appendix
  9. References

Over the past three decades much has been learned about the role and importance of psychological vulnerabilities in the context of unreliability of information obtained during police interviews. This paper reviews the current state of knowledge and explains why vulnerabilities are important. Psychological vulnerabilities are best construed as potential ‘risk factors’ rather than definitive markers of unreliability. They are important, because they may place witnesses, victims, and suspects at a disadvantage in terms of coping with the demand characteristics of the interview (and subsequent Court process) and being able to provide the police with salient, detailed, accurate, and coherent answers to questions. Early identification of relevant and pertinent vulnerabilities in the interview process helps to ensure fairness and justice. Currently, the identification of vulnerabilities is poor, and even when identified, they are not always acted upon. Nevertheless, England has taken the lead in improving the police interview process and the protection of vulnerable interviewees. More work needs to be done, but the Bradley Report recommendations represent an excellent opportunity for police and health care professionals to work together to improve justice for all. This is the key initial interface that will be vital for reducing future miscarriages of justice.

The interviewing of victims, witnesses, and suspects forms an integral part of the police investigation into criminal activities (Williamson, 2007). It is the quality and fairness of those interviews that often determines whether or not justice is seen to be served (Gudjonsson, 2006a). It is the current author's view that the evaluation and determination of the credibility (i.e., believability) of victims, witnesses, and suspects is one of the most challenging tasks facing the criminal justice system. It will also be argued that there has been improved scientific knowledge about the psychological vulnerabilities of interviewees and how vulnerabilities may impact on their credibility during police interviews or when giving evidence in court. Psychological vulnerabilities of interviewees during police questioning form an important part of a complex and dynamic process (Gudjonsson, 2003a).

The continually growing scientific knowledge about psychological vulnerabilities in police interviews has been accompanied in several countries by improvements in police interview training and judicial procedures and protection (for a review, see Williamson, Milne, & Savage, 2009, Eds., and Vol. 15, Part 1, in Legal and Criminological Psychology). However, a great deal more remains to be done. For example, in light of the high proportion of false confessions found among cases of DNA exonerations in the USA, recommendations for major reforms of police interview practices have recently been put forward (Kassin et al., 2010a,b).

This article will focus on the nature of psychological vulnerabilities in police interviews of witnesses, victims, and suspects, and address the question: why are they important? In order to answer this key question, the author will review the relevant background literature, discuss recent advances in research and practice, identify key issues involving ‘competencies’, ‘reliability’, and ‘vulnerabilities’ and discuss them within the current English legal framework, and give a summary of 34 cases of miscarriage of justice involving disputed confessions between 1989 and 2009, commencing with the case of the ‘Guildford Four’.

This paper is particularly timely in view of Lord Bradley's recent review of people with mental health problems and learning disabilities in the criminal justice system and the numerous recommendations (The Bradley Report, 2009).

Traditional versus recent approaches to witness testimony

  1. Top of page
  2. Abstract
  3. Traditional versus recent approaches to witness testimony
  4. The competency requirements of witnesses
  5. Psychological vulnerabilities
  6. Cases of miscarriage of justice 1989–2009
  7. Conclusions
  8. Appendix
  9. References

Loftus, Wolchover, and Page (2006) argue that the traditional approach to the evaluation of the credibility of witness testimony ‘was for fact-finders to focus exclusively on the content of their narrative testimony in court, their reactions under cross-examination and their demeanour when giving that evidence’ (p. 20). This is exactly what happened in the case of Engin Raghip, one of the ‘Tottenham Three’, when in 1988 Lord Lane refused to allow the evidence of the present author in the Court of Appeal (Gudjonsson, 2003b). However, that view was to change in 1991 when Raghip and his two co-appellants had their convictions for the murder of PC Blakelock overturned after successful submissions by defence counsels and the expert testimony of three clinical psychologists. The ruling in the case broadened the criteria for admissibility and acceptance of psychological testimony in cases of disputed confessions to include borderline IQ and personality traits related to interrogative suggestibility and compliance. Importantly, the Court of Appeal judges warned that ‘high suggestibility and intellectual deficits could not satisfactorily be detected by observations of the defendant's performance in the witness box’ (Gudjonsson, 2003b, p. 468). This case was the first of its kind and delivered the most important judgment for the psychology profession in the UK. It has influenced the admissibility of expert psychological testimony in many other cases (Gudjonsson, 2006a).

The Right Honourable Lord Bingham of Cornhill (Bingham, 2006) gives an excellent overview of how judges traditionally determine the credibility of witnesses. Lord Bingham describes ‘five tests’, which principally focus on detecting indicators of deliberate deception (i.e., the consistency of the witness's evidence with other tangible evidence, the internal consistency of the witness's evidence, consistency with what the witness has said on other occasions, the general credibility of the witness not germane to the litigation, and the demeanour of the witness). Bingham also discusses the cases where witnesses are ‘honest but mistaken’ and argues that judges are generally reluctant ‘to brand anyone a liar’ (p. 340) and therefore tend to err on the side of caution. He argues that there are generally three sources of unreliability in these ‘honest but mistaken’ cases (i.e., errors to do with observations and memory, loss of memory with the passage of time, and wishful thinking or self-deception). Lord Bingham's thoughtful conceptualization dovetails reasonably well with the psychological distinction between ‘eyewitness motivation’ (i.e., motivation to give an open and honest account) and ‘eyewitness ability’ to give a clear and coherent account of events (Undeutsch, 1982). Unfortunately, as Vrij (2008) points out, the detection of deception through observations of demeanour (i.e., on the basis of what the person says and the manner in which he or she says it) are fraught with misconceptions, unreliability, and overconfidence by the observer. Even the influential work of Undeutsch (1982) into the first ‘verbal detection tool’ has come under recent criticism (Vrij, 2008). Porter and ten Brinke (2010) argue for more innovative and ecologically valid methods for studying forensic populations and high-stakes lies. This is undoubtedly a sensible way forward.

Loftus et al. (2006) assert that the development of theory and practice in psychology from the end of the nineteenth century until the present time has resulted in a scientifically based knowledge and evidence base, which contradicts the traditional approach to evaluating witness credibility. This growing evidence base has shown that memory processing and witness testimony are much more dynamic and complex than previously assumed and this realization has resulted in the increased role of expert psychological evidence (Gudjonsson, 2003a). The focus of the psychological evaluation is on the strengths and weaknesses (‘vulnerabilities’) of the witness which may have a bearing on the ‘reliability’ of their evidence (Gudjonsson, 2006b). In an early case study, Gudjonsson and Gunn (1982) demonstrated how a psychological evaluation of a victim with severe learning disability assisted the jury at the Central Criminal Court in determining the ‘reliability’ of the victim's testimony. This case led to the development of the Gudjonsson Suggestibility Scales (Gudjonsson, 1997, 2003b), which are internationally recognized (Frumkin, 2008; Geisinger, Spies, Carlson, & Plake, 2007).

Fisher (2010) argues that the cognitive interview and other scientifically informed and theory driven interviewing protocols have a great deal to offer when it comes to improving the quality of police interviews with cooperative witnesses. However, he raises two key concerns. Firstly, the lack of collaborative work between scientists and police practitioners in the USA means that the scientific work is not being effectively incorporated into police interviewing protocols. Police officers keep making the same interviewing mistakes as they have traditionally done in the past. This urgently needs to change. A good and effective collaborative relationship between scientists and police officers is essential for future developments in forensic interviewing (Meissner, Hartwig, & Russano, 2010). This kind of collaborative relationship has been achieved in several countries in relation to the interviewing of children suspected of having been sexually abused (Gudjonsson, Sveinsdottir, Sigurdsson, & Jonsdottir, 2010; Lamb, Hershkowitz, Orbach, & Espin, 2008). Secondly, Fisher argues that psychology has not been successful in developing effective interview methods for improving the identification of perpetrators in line-ups. This is another important potential area of collaborative work between scientists and police officers.

Within the context of suspect interviews, Kassin, Appleby, and Perillo (2010) recommend that current American models of police interviewing are replaced with the British PEACE approach and accompanied by mandatory video-recording of police interviews. This does require good collaboration between police interviewers and scientists. Within this context, an important recent development is that psychologists are increasingly taking an active part in the training of police officers in investigative interviewing and acting as consultants in several different countries, including the UK (Shawyer, Milne, & Bull, 2009), the Nordic countries (Fahsing & Rachlew, 2009), France, Belgium, and The Netherlands (Clement, van de Plas, van den Eshof, & Nierop, 2009), Canada (St-Yves, 2009), and Australia (Moston, 2009). Of particular importance has been the move away from obtaining confessions and towards a search for the truth where the focus is on fairness and transparency (Williamson, 2007). Williamson concludes:

A current challenge for psychologists is to convince investigators, lawyers and judges that they need a better understanding of the psychological factors that affect the reliability of witness testimony and the weight it should be given (p. 87).

The competency requirements of witnesses

  1. Top of page
  2. Abstract
  3. Traditional versus recent approaches to witness testimony
  4. The competency requirements of witnesses
  5. Psychological vulnerabilities
  6. Cases of miscarriage of justice 1989–2009
  7. Conclusions
  8. Appendix
  9. References

Psychologists have taken an active part in assessing the capacity of victims and witnesses to give evidence (Gudjonsson & Gunn, 1982; Gudjonsson, Murphy, & Clare, 2000). Issues related to the mental capacity of a witness to testify (i.e., competency requirements) are separate to those related to reliability or the credibility of the witness. The former is determined by the trial judge, the latter by the jury in terms of the weight attached to the evidence (Gudjonsson & Gunn, 1982). Currently in England, witness capacity can be viewed in the context of two legal frameworks: Part 1 of the Mental Capacity Act 2005 and Section 53 of the Youth and Criminal Evidence Act 1999. Both Acts are relevant to the capacity of people to be interviewed by police. The former focuses on the capacity of impaired or disturbed individuals to make decisions regarding relevant issues and applies to persons above the age of 16 years. In contrast, the Youth and Criminal Evidence Act competency requirement applies to persons of any age, including very young children (see R v Barker; [2010] EWCA Crim 4; 21 January 2010). Section 53 (Subsection 3) states that a person is not competent to give evidence in criminal proceedings if it seems to the Court that the person is not able to: (a) ‘understand questions put to him as a witness’ and (b) ‘give answers to them, which can be understood’. Smith and Tilney (2007) discuss some of the applications of these two Acts in the context of the police interviewing of vulnerable witnesses.

The following guidance has been developed as part of Action for Justice, the implementation programme for the measures to assist vulnerable or intimidated witnesses in the 1998 Home Office report Speaking Up for Justice.

The trial judge will decide on the competency issues, typically after watching the achieving best evidence (ABE) interview of the witness (Home Office, 2002, 2008a – this interview process involves special measures that are available when vulnerable and intimidated witnesses are interviewed by police), listening to expert testimony regarding an evaluation of the witness, and hearing submissions from the defence and prosecution. On occasions, a trial judge may also listen to the testimony of a registered intermediary and ask the witness some preliminary questions in Court. Even after determining that the witness is competent to give evidence, the judge may re-visit the issue at a later stage during the trial, and if necessary, exclude the ABE interview under section 78 of the Police and Criminal Evidence Act 1984.

The recent ruling in R v Barker makes it clear that when determining witness competence it is not necessary that the witness understands every single question or gives readily understood answers to all questions. In broad terms, provided the witness can understand the questions and provide understandable answers, he or she is judged competent. Of course, vulnerable and intimidated witnesses may be provided with ‘special measures’ to assist them to cope with giving testimony (see Part II of the Youth Justice and Criminal Evidence Act 1999). These include testifying behind a screen or via a live video link, evidence given in private, removal of wigs and gowns, the use of video-recorded evidence in chief, examination of the witness via an intermediary, and the use of aids to further communication. According to Burton, Evans, and Sanders (2006), the additional measures of pre-trial video-recorded cross-examination and re-examination are not currently used but will be subject to a review. The reason for the special measures is to provide vulnerable and intimidated witnesses with assistance in order to enable them to give evidence as effectively as possible (i.e., their ‘best evidence’ possible) and to minimize the stress associated with giving evidence.

Burton et al. (2006) tried to estimate the number of vulnerable and intimidated witnesses encountered by police. In their research, Burton and colleagues adapted the screening interview used by Gudjonsson, Clare, Rutter, and Pearse (1993) to provide an estimate of the number of vulnerable and intimidated witnesses. Gudjonsson et al. (1993) had found that the police identified only 4% as being sufficiently vulnerable to require the services of an appropriate adult, whereas the clinical evaluation of the detainees suggested that between 15 and 20% required the services of an appropriate adult. Burton et al. (2006) similarly found that the official recognition of potentially vulnerable witnesses by police and the Crown prosecution Service was much below that identified by the researchers (i.e., an official figure of 9 vs. 24% when the researchers used a ‘very conservative estimate’ – they also give a much higher figure of possible vulnerability −54%). The largest groups that were not identified were the mentally disordered and learning disabled. The findings suggest that there still remains a huge unmet need among vulnerable witnesses with regard to identification and implementation of the special measures. There may also be important differences between witnesses (i.e., bystanders and observers) and victims of crime in terms of vulnerabilities and this requires further research (Sigurdsson, Gudjonsson, Einarsson, & Gudjonsson, 2006).

How challenges by defence lawyers to the competencies of witnesses are resolved are crucial to the outcome of cases. A case in point is that of Ms Kara Hoyte, a 19-year-old aspiring model (Times Online, 4 July 2009). In 2002, Mr Mario Celaire, a former professional footballer, was acquitted by a jury of murdering his ex-girlfriend, Ms Cassandara McDermott. In February 2007, Mr Celaire attacked another former girlfriend with a hammer and caused her to suffer from severe brain damage, which left her partially paralysed and significantly affected her ability to communicate (her expressive dysphasia was particularly marked). The Crown needed Ms Hoyte's evidence to convince the Court of Appeal to quash Mr Celaire's 2002 acquittal in line with recent changes in the law regarding ‘double jeopardy’ and for Mr Celaire to be tried for the attempted murder on Ms Hoyte. The Crown instructed Dr Susan Young and Professor Gisli Gudjonsson to assess Ms Hoyte's capacity to act as a witness. Both experts considered Ms Hoyte competent to act as a witness, but supported the recommendation of a registered intermediary for special provisions during her testimony. The defence tried to argue that Ms Hoyte did not meet the competency requirements and instructed their own experts. The Crown's application to the Court of Appeal was successful and a re-trial was ordered concerning the murder of Ms McDermott. Mr Celaire was also to be tried for the attempted murder of Ms Hoyte. Ms Hoyte was determined to give evidence and the Crown experts were warned to attend Court to support the legal arguments that Ms Hoyte met the competency requirements. At the day of the trial, Mr Celaire admitted the manslaughter of McDermott and attempted murder of Ms Hoyte and was ordered to serve a minimum of 23 years in prison (Mail Online, 4 July 2009).

The Bradley Report recommends that consideration should be given to extending to vulnerable defendants the current provisions regarding court attendance available to vulnerable witnesses. This will be an important future development, because some defendants do have problems in Court. A good example is the case of Barry George, who in 2001 was convicted of murdering the BBC broadcaster Jill Dando, and subsequently acquitted after a re-trial in 2008. Mr George was a man of borderline intelligence, who had a long-standing history of epilepsy and severe impairment in memory and executive functions. These functional impairments made it difficult for him to follow the trial process. In view of this, at the first trial the judge ordered that a psychologist, Dr Susan Young, should be present throughout the trial to assist the defendant with following proceedings and coping with the trial process. This provision was considered vital to ensure that the defendant received a fair hearing and in order to enable the trial to proceed properly (Gudjonsson, 2003b). Dr Young provided the same psychological assistance throughout the second and final trial and this resulted in huge media interest after Mr George's acquittal (Young, 2008).

Psychological vulnerabilities

  1. Top of page
  2. Abstract
  3. Traditional versus recent approaches to witness testimony
  4. The competency requirements of witnesses
  5. Psychological vulnerabilities
  6. Cases of miscarriage of justice 1989–2009
  7. Conclusions
  8. Appendix
  9. References

Bull (2010) states that there is no internationally agreed definition of the word ‘vulnerable’ with regard to witnesses. He does not provide a definition in his article that would assist with the assessment of individual cases and focuses instead on vulnerable groups, such as children and those with learning disabilities. The focus on groups of vulnerable individuals is helpful but what is also needed is a generic definition related to psychological vulnerabilities that is applicable to witnesses, victims, and suspects. Within this in mind, Gudjonsson (2006b) defines psychological vulnerabilities as ‘psychological characteristics or mental state which render a witness prone, in certain circumstances, to providing information which is inaccurate, unreliable or misleading’ (p. 68). In this context, psychological vulnerabilities represent potential ‘risk factors’ rather than definitive markers of unreliability. This is consistent with the letter and spirit of Code C of Practice of the Police and Criminal Evidence Act (Home Office, 2008b), where it states:

Although people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or wanting to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self-incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person's mental state or capacity. Because of the risk of unreliable evidence, it is important to obtain corroboration of any facts admitted whenever possible (p. 80).

As far as psychological vulnerabilities are concerned, these should not be interpreted in isolation to other surrounding factors (Gudjonsson, 2003a,b). Investigative interviewing is a dynamic and interactive process. Gudjonsson and MacKeith (1997) argue that the capacity of the interviewee to cope with police interviews depends in some cases on medical, psychiatric, and psychological factors. They use the acronym CIPH to discuss this process. C stands for circumstances (nature and seriousness of the crime, pressure on the police to solve the crime), I for interactions (there may be complex interactions between the interviewee, the police, and other persons present in the interview), P for personality (i.e., enduring qualities of the interviewee), and H for health (physical and mental health, mental state). Gudjonsson (2003a) presents this conceptual framework slightly differently and emphasizes the nature of the interaction between circumstances/contextual factors, custodial factors, vulnerability factors, and support factors (e.g., presence of a lawyer, appropriate adult). Kassin and Gudjonsson (2004) construe vulnerability factors as potential ‘risk factors’, which may also include young age, lack of life experience, and immaturity. Young persons seem to be particularly at risk of making false confessions, especially if they have experienced negative life-events (Drake, 2010; Gudjonsson, Sigurdsson, & Sigfusdottir, 2009a,b; Gudjonsson, Sigurdsson, Sigfusdottir, & Asgeirsdottir, 2008).

Vulnerabilities or potential ‘risk factors’ during police interviews can be incorporated within legal competencies constructs. These are functional abilities that refer to what ‘an individual can do or accomplish, as well as knowledge, understanding, or beliefs that may be necessary for the accomplishment’ (Grisso, 2003, pp. 23–24). In the USA, the three types of legal competencies in criminal cases requiring the services of mental health professionals are those relating to fitness to plead and stand trial, waiver of rights during interrogation (this also includes vulnerabilities in relation to coping with a police interview), and criminal responsibility (Grisso, 2003; Gudjonsson & Grisso, 2008). In England, there is the added role of vulnerable persons, including juveniles and the mentally disordered, being entitled to special protection in the form of assistance from an appropriate adult and medical attention, if appropriate, during detention and custodial interrogation (Home Office, 2008b). Competencies related to Grisso's framework are also relevant to witnesses and victims and include both legal competency requirements (i.e., fitness to give evidence) and reliability/credibility issues (i.e., the weight of the evidence considered by the jury and includes the demeanour of the witness).

Gudjonsson (2006b) argues that there are typically four types of psychological vulnerabilities relevant to the psychological or psychiatric evaluation of victims, witnesses, and suspects in criminal cases. These are labelled ‘mental disorder’ (i.e., mental illness, learning disabilities, personality disorder), ‘abnormal mental state’ (e.g., anxiety, mood disturbance, phobias, bereavement, intoxication, or withdrawal from drugs or alcohol), ‘intellectual functioning’ (e.g., borderline IQ scores), and ‘personality’ (e.g., suggestibility, compliance, and acquiescence). Undoubtedly, personality disorder is likely to be the most controversial and complex ‘vulnerability’ to consider in view of its association with criminal propensity, dishonesty, and disregard for others, and the limited scientific knowledge about how it impacts on unreliability in police interview (Gudjonsson & Grisso, 2008).

Typically, the most difficult task for the psychologist or psychiatrist is, firstly, to identify vulnerabilities that are relevant and pertinent to the case, and secondly, to place these vulnerabilities firmly within the totality of the circumstances and background surrounding the case, which furthers the understanding of the processes and mechanisms involved. Psychological vulnerabilities should not be interpreted in isolation to other salient information. Indeed, Gudjonsson and MacKeith (1997) have raised concerns about how issues about vulnerabilities may be misconstrued when viewed in isolation to other important factors (e.g., using a high score on a suggestibility test to challenge the reliability of admissions made in police interview when in fact the admissions were made without any suggestions by police or pressure in the interview). Undoubtedly, most vulnerable interviewees, if motivated and co-operative, can give reliable evidence if carefully interviewed and provided with the special assistance they require (e.g., legal advice, the services of an appropriate adult, or a registered intermediary). In cases of suspects, if the legal support provisions are insufficient to ensure reliability then he or she may be judged to be unfit for interview, either temporarily or permanently (Gudjonsson, 2003b, 2005; see also Annex G ‘Fitness to be Interviewed’ in the Code of Practice, Home Office, 2008b, pp. 82–83). In England, psychologists sometimes advise police officers about vulnerabilities prior to the police interview being conducted in order to ensure fairness and reliability in interview (Gudjonsson, 2007).

The Criminal Justice and Public Order Act 1994 makes it possible to draw adverse inferences if the accused remains silent during police interviews or chooses not to go into the witness box at trial. Psychologists are increasingly being asked to conduct a psychological evaluation of defendants with this in mind in order to ascertain relevant psychological vulnerabilities and offer advice about their capacity to give evidence (Gudjonsson, 2003b).

Cases of miscarriage of justice 1989–2009

  1. Top of page
  2. Abstract
  3. Traditional versus recent approaches to witness testimony
  4. The competency requirements of witnesses
  5. Psychological vulnerabilities
  6. Cases of miscarriage of justice 1989–2009
  7. Conclusions
  8. Appendix
  9. References

The acquittal of the ‘Guildford Four’ in October 1989 ‘opened the gates’ for other cases of miscarriage of justice in the UK involving disputed confessions (Gudjonsson, 2003b). Ewing and McCann (2006) provide a detailed and thoughtful account of the case and describe it as ‘one of the most infamous occurrences of wrongful conviction based on false confession and was one of the worst miscarriages of justice in recent history’ (p. 54). Since that time there has been a growing number of other cases where appellants have had their convictions overturned on the basis of unsafe confessions. Gudjonsson (2002) reviewed 22 cases; a few years later he reviewed 30 cases (Gudjonsson, 2006a).

In this paper, the author briefly reviews 34 cases where convictions were quashed between 1989 and 2009. The cases, the year of conviction, the year of acquittal, whether or not oral psychological or psychiatric evidence was heard, whether psychological vulnerabilities (PV) or police/procedural impropriety (PI) were the main grounds for acquittal (based on the reasoning in the judgments), and the nature of the vulnerabilities, are shown in the Appendix. Psychological vulnerabilities refer to those characteristics that were identified during a psychological or psychiatric evaluation and cast doubt on the reliability of incriminating comments made in police interview. Police or procedural impropriety refers to serious breaches in police practice or behaviour (e.g., failure to provide suspects with their legal entitlement, such as access to a lawyer, fabrication of evidence, tampering with interview records), failure of disclosure, or misdirection by the trial judge (i.e., Derek Bentley).

There were 27 murder cases, 4 terrorist cases, including murder convictions (The Guildford Four, the Birmingham Six, Judith Ward, Alfred Allen), 1 attempted murder (Paul Blackburn), 1 conspiracy to rob (Kayed Antar), and 1 sexual assault (Shane Smith). This is probably not an exhaustive list, but involves all those cases known to the author. There were 46 successful applicants, 43 (93%) males and 3 females (Carole Richardson, Jacqueline Fletcher, and Judith Ward).

Appendix shows that expert psychological/psychiatric evidence was heard in the Court of Appeal in 15 (44%) of the cases (the present author testified in 11 of those 15 cases). In addition, in two cases (Fletcher and Long) only psychiatric evidence was heard, but there were written psychological reports available and referred to in the judgment in the case of Fletcher. In several of the other cases, the convictions were overturned at least in part on the basis of written psychological reports (e.g., Mackenzie, the Darvell brothers, Miller, Bridgewater, Gordon, Smith, Antar, Hindes and Hanna, Flanagan, Adams, Nolan, and Lawless). One of the failed cases in the Court of Appeal (Pendleton), went to the House of Lords in 2001 where the conviction was overturned, largely on the basis of the psychological evidence heard previously in the Court of Appeal.

Reviewing the judgments, it appears that in 23 cases (68%), the conviction was overturned mainly on the basis of psychological vulnerability identified and articulated in psychological or/or psychiatric reports. In one case (Miller), there were vulnerabilities present as well as police/procedural improprieties. In 10 cases (29%), there was police/procedural impropriety, which was the predominant reason for the conviction being overturned. This included fabricated evidence or alteration of police interview notes (Guildford Four, Birmingham Six, Allen, Darvell brothers), suppression of evidence (Kiszko), oppressive interviewing (Miller), a faked false confession by police (Bridgewater), failure to comply with legal rights (Downing), misdirection by trial judge (Bentley), a failure to provide an appropriate adult, length of detention, and failure to disclose evidence (Hindes and Hanna). In one further case (Hodgson), the conviction was overturned on the basis of DNA evidence, which proved Hodgson's innocence. It is important to note that in two of the cases in Appendix (Kiszko and Miller), subsequent DNA evidence lead to the conviction of the real murderers.

As can be seen in Appendix, there were a number of reasons for the unreliable confession or self-incriminating statement to police, including borderline IQ, personality disorder, clinical depression, pathological attention seeking, and abnormal traits of suggestibility and/or compliance. In the view of the present author, who was significantly involved in 28 (82%) of the cases and has studied all the cases in detail, in most of the cases, including those involving police/procedural impropriety, the key to the unreliable confession was the inability of the person to cope with the police and custodial pressures.

A major problem highlighted by these cases was the failure to identify psychological vulnerabilities prior to the trial.

Conclusions

  1. Top of page
  2. Abstract
  3. Traditional versus recent approaches to witness testimony
  4. The competency requirements of witnesses
  5. Psychological vulnerabilities
  6. Cases of miscarriage of justice 1989–2009
  7. Conclusions
  8. Appendix
  9. References

Psychological vulnerabilities are important in police interviews, because they may place witnesses, victims, and suspects at a disadvantage in terms of: (a) coping with the demand characteristics and stress of the interview (and also for suspects coping with detention), including making informed decisions and understanding questions and the implications of their answers and statement to police (e.g., becoming a material witness, possibly having to testify in court, being charged with a crime) and (b) providing the police with salient, detailed, accurate, and coherent answers to questions. In order for justice to be seen to be served, there has to be a fair process, which is recognized in Article 5 of the European Convention on Human Rights. Vulnerabilities may similarly be relevant to the capacity of the interviewee to testify in Court (Gudjonsson, 2006b).

Gudjonsson (2003b, 2007) has discussed in detail how police interviews can go wrong and the potentially damaging consequences, not just for those wrongfully convicted but also on occasions preventing the apprehension of the real perpetrator, who may continue to commit serious crimes. There is no doubt that England has taken an international lead in improving the police interview process and the protection of vulnerable interviewees. More work needs to be done, but the Bradley Report recommendations represent an excellent opportunity for police and health care professionals to work together to improve justice for all. This is the key initial interface that will be vital for reducing future miscarriages of justice.

There are important legal differences and support provisions between witnesses/victims and suspects (Gudjonsson, 2006a). However, it is evident from research among both suspects (Gudjonsson et al., 1993) and vulnerable and intimidated witnesses/victims (Burton et al., 2006) that in the majority of cases vulnerabilities are not identified, and even if identified, this information is not always acted upon in terms of service provisions. This problem needs to be urgently addressed and some reliable form of screening needs to be developed, implemented, and acted upon.

On occasions, the status of a witness may change to that of a suspect due to unidentified vulnerabilities which were misconstrued by police (Gudjonsson, 2003b). For example, Gudjonsson, Young, and Bramham (2007) have shown how people with symptoms of attention deficit hyperactivity disorder (ADHD) may appear vague in their answers during questioning and unwittingly arouse unfounded suspicions of deception. Recent research has shown that ADHD symptoms are disproportionally associated with the reporting of false confessions (Gudjonsson, Sigurdsson, Einarsson, Bragason, & Newton, 2008) and it is the attentional problems rather than hyperactivity and impulsivity that are most strongly associated with false confessions (Gudjonsson, Sigurdsson, Einarsson, Bragason, & Newton, 2010). Therefore, we have to look at psychological vulnerabilities more broadly than simply in terms of learning disabilities and mental illness, which has been the traditional approach. The focus needs to be on mental health issues and personality difficulties more generally.

A great deal has been learned about psychological vulnerabilities in police interviews during the past three decades, but we still need to learn more about the processes and mechanisms that provide the casual link between vulnerabilities and potential unreliability in police interviews and how these can be overcome by improved police interview techniques, improved identification, and better protection and provisions for vulnerable witnesses, victims, and suspects. The greatest challenge is undoubtedly in relation to personality disorders, because these are often linked to perceptions about criminality and dishonesty and the impact of their condition on the reliability of their accounts in police interviews and to others is less well understood than that of learning disabilities and mental illness.

References

  1. Top of page
  2. Abstract
  3. Traditional versus recent approaches to witness testimony
  4. The competency requirements of witnesses
  5. Psychological vulnerabilities
  6. Cases of miscarriage of justice 1989–2009
  7. Conclusions
  8. Appendix
  9. References
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