Interviewing suspects under caution: problems for historical allegations
| Pages | 58-67 |
| DOI | https://doi.org/10.1108/JCP-10-2016-0032 |
| Date | 06 February 2017 |
| Published date | 06 February 2017 |
| Author | David Hockey |
| Subject Matter | Health & social care,Criminology & forensic psychology,Criminal psychology,Sociology,Sociology of crime & law,Deviant behaviour,Public policy & environmental management,Policing,Criminal justice |
Interviewing suspects under caution:
problems for historical allegations
David Hockey
Abstract
Purpose –The purpose of this paper is to illuminate to the academic and research audience the legal
implications for suspects who are interviewed under caution for historical allegations, when the suspect’s
responses rely on episodic memory recall.
Design/methodology/approach –The paper is a review of a multi-disciplinary literaturebase, necessary to
understand the problem with the qualified right to silence.
Findings –The findings suggest that more research work is needed in order to be able to assess the
difficulties for a suspect faced with answering questions of an episodic nature and the subsequent
implications for the defendant once on trial. Implications: the current situation can lead to miscarriages of
justice, which are difficult to rectify.
Originality/value –This paper brings together a number of sub sections of disciplines from criminal law,
criminology, forensic psychology, and mainstream psychology (i.e. memory work) to identify a potentially
serious problem for preventing miscarriages of justice with the current system of qualified rights to silence
whilst being interviewed under caution in the case of historical allegations.
Keywords Criminal justice system, Episodic memory, Historical offences, Interview under-caution,
Right to silence, Suspect interviews
Paper type Viewpoint
Since the introduction in the UK of the Criminal Justice and Public Order (CJPO) Act (1994), the
right to a suspect’s silence in interview under caution has been qualified in particular
circumstances. However, there has been little attention paid to the fairness of the process for
suspects who potentially fall into a particular category encapsulated by s.34 of the act. That is to
say, a suspect no longer has an unfettered right to silence whilst being interviewed, as a
perceived unreasonable silence can now lead to a jury making an inference about why a suspect
remained silent when it was open and reasonable to them to answer questions relating to the
investigation. Furthermore, little attention has also been paid to the subtleties of the caution and
how it is delivered by interviewing police, as well as interpreted by the suspect who does not have
legal advice. Namely, when it may not be reasonable for a suspect to answer questions in relation
to historical allegations as this relies on memory recall and in particular, episodic memory for
accurate responses to those questions, given that inaccurate responses can be used against the
suspect in the event of a subsequent trial.
Since Operation Yewtree, the investigation into sexual abuse allegations, began in October 2012
there has been a marked increase in the number of complaints with regard to sexual offences
including cases classed as historical “Giving Victims a Voice”(Gray and Watt, 2013) (Table I).
Whilst former criminal barrister Perrins (2016) is concerned that feminists are turning the British
Justice System against men, Hewson (2013) has expressed concern that a “you will be believed”
mantra in the criminal justice system (CJS) is dangerous for two reasons. Hewson (2013)
postulates that this mantra creates an ideal climate in which those who have not been abused
can claim that they have. It also ignores the ease with which false memories of abuse can be
created, whether by self-persuasion, interaction with victim/survivor groups, or influence by third
parties with axes to grind. Those third parties may include therapists, police, injury lawyers,
Received 7 October 2016
Revised 8 December 2016
Accepted 8 December 2016
The author would like to thank
Professor Donal MacIntyre of
Birmingham City University; Doctor
Layla Skinns, Senior Lecturer at
the University of Sheffield and
Doctor Jacqueline Wheatcroft at
the University of Liverpool for their
helpful comments on this paper.
The author would also like to thank
the two anonymous reviewers of
the Journal of Criminal Psychology
for their helpful comments on the
paper. The author confirms that
there has been no research
funding for this paper.
David Hockey is a Professional
Investigator and Visiting Fellow
at the University of the West of
England, Bristol, UK.
PAG E 58
j
JOURNAL OF CRIMINAL PSYCHOLOGY
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VOL. 7 NO. 1 2017, pp. 58-67, © Emerald Publishing Limited, ISSN 2009-3829 DOI 10.1108/JCP-10-2016-0032
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