The views and opinions expressed in this blog are those of the author and do not necessarily reflect the official position, policies, or views of the Raoul Wallenberg Institute.
By: Matthew Sands
Matthew Sands is an international human rights expert with over 20 years’ experience, previously working for the Association for the Prevention of Torture, the Helena Kennedy Centre for International Justice, and as an independent consultant. He has recently authored the APT Guidelines for the Implementation of the Méndez Principles on Effective Interviewing. Linkedin profile at https://www.linkedin.com/in/matthew-sands-03037725/.
Abstract
Safeguards prevent torture and protect detainees. In doing so, they also strengthen criminal investigations by ensuring the integrity of evidence, supporting lawful prosecutions and increasing public confidence in justice institutions.
Around the world, police, military and security officials continue to rely on coercive interrogation practices despite overwhelming empirical evidence that such methods are counterproductive, leading to unreliable evidence in violation of an interview subject’s human rights (A/71/298).
The persistence of abuse in police investigation can be blamed on multiple false assumptions: the belief that torture is effective or that coerced confessions are reliable, the lack of training in alternative techniques or resources for effective investigations, or even attitudes that criminal suspects deserve to be ill-treated. Nevertheless, research in neuroscience, psychology and criminal investigation has consistently demonstrated that these assumptions are unfounded and serve as dangerous incentives or justifications for torture.
International law is clear that torture and other forms of ill-treatment are absolutely prohibited and the definition in the 1984 Convention against Torture includes explicit references to obtaining confessions and information. It is therefore plainly prohibited to use (or to threaten) torture to compel a person into giving a confession or other information and then to use any information so obtained in subsequent proceedings.
Adoption of Principles on Effective Interviewing
Following a call by former UN Special Rapporteur on Torture, Juan Méndez, in 2021 an international community of experts representing all regions and legal systems around the world adopted the Principles on Effective Interviewing for Investigations and Information Gathering.
The Principles set out a process for effective interviewing using techniques and practices that do not rely on coercion and, importantly, protects the integrity of both the investigators and the arrested person through a range of procedural and legal safeguards. The process of investigative interviewing described in the Principles draws heavily on experience from the UK and Norway, as two countries that have already incorporated models of investigative interviewing into their domestic practice. Investigative interviewing encourages the use of open questions without using intimidation or other methods of coercion and invites the interview subject to give a full account. Adherence to models of investigative interviewing has been acknowledged to lead to better results in obtaining accurate and reliable information, and professionals confirm that these techniques are much more effective in achieving the aims of an interview.
As a result, in many countries, including Brazil, Thailand, Poland, and Ireland, a reorientation of investigative practices is being undertaken. National authorities are adapting their models of investigation to incorporate professional models of investigative interviewing which greatly increase the reliability and integrity of evidence that may be used in criminal prosecution.
However, the risks of coercion and abuse in custody are not eliminated though interview techniques alone, and a range of legal and procedural safeguards must also be applied to ensure that the safety and security of the arrested person is guaranteed throughout their custody.
Safeguards as an essential element to effective interviewing
A growing body of international research has shown that safeguards are the most effective way to reduce risks of abuse in police custody, build rapport, and protect the integrity of the entire interview process. Research consistently shows that interview subjects are more willing to provide accurate and detailed accounts when they are treated fairly, respectfully and without coercion. Examples of custodial safeguards that should apply in the first hours of custody include the right to access a lawyer, the right to access a health professional and the right to contact the outside world.
In Chile, for instance, in 2021 during a period of social uprising, the Public Criminal Defence Service started a project to ensure early access to lawyers in the first hours of police custody. Lawyers visited police stations in areas where high numbers of people were arrested to check on detainee’s health, conditions of detention, and to identify vulnerabilities or specific protection needs. The lawyers then represented the persons the next day, during their initial court hearings. An assessment of the project was conducted by the Association for the Prevention of Torture, which found that the project led to a “stated decrease in complaints of ill-treatment and improved relations between the [police] and public defenders.”
The use of audio-video recording in police interviews is also regularly encouraged as a means of ensuring effective record keeping and, as the technology is becoming increasingly affordable, is being introduced in jurisdictions around the world, including Thailand and The Netherlands. Recording interviews can serve several purposes: It can protect suspects from abuse and coercion, but it also serves to protect the police against false allegations and ensures the integrity of evidence.
International monitoring bodies such as the European Committee for the Prevention of Torture as well as national preventive mechanisms promote the use of safeguards to protect against abuse and to help States rebuild faith in their justice institutions. Experts including the UN Special Rapporteur on Torture and the UN Committee against Torture have also continuously confirmed the accuracy of such research and added their own experience to encourage States to implement safeguards in their national practices.
The international legal framework for the implementation of custodial safeguards requires that States take effective measures to prevent torture and other ill-treatment and, as with other positive human rights obligations, States have flexibility to determine what measures are most effective in any context. Indeed, as risks become better understood and as technology becomes more accessible, models of protection may evolve to prioritise the implementation of one or more safeguard procedures over others. Whatever measures are taken to prevent torture, however, no single safeguard will likely be enough. The duty to prevent abuse is wide-ranging and multifaceted. As noted by the UN Subcommittee on Prevention of Torture (CAT/OP/12/6), to be effective, national efforts should be informed by a range of experts and multiple protection measures should overlap and complement each other.
Legal and procedural safeguards encourage suspects and witnesses to put their faith in the justice system in the knowledge that their security is assured and that their wellbeing is not at risk from physical or psychological abuse. By applying safeguards effectively, the detaining authority demonstrates respect for the arrested person’s safety and security, and in so doing, helps to create the trust necessary for meaningful cooperation.
The advantages of effective interviewing, including techniques of rapport-based investigative interviewing combined with legal and procedural safeguards, are therefore significant. For instance, as reported by the UN Manual on Investigative Interviewing, effective interviewing reduces the risk that persons are coerced, ill-treated or tortured in custody. Additionally, investigative interviewing improves communication, facilitates memory retrieval, increases accuracy, promotes honest and reliable accounts, and reduces the risk of false confessions and miscarriages of justice.
Implementation of safeguards should maximise preventive impact
Many States already demonstrate a range of legal and procedural safeguards in their national practice. However, the efficacy of safeguards as a tool of prevention varies from State to State and the scope for preventing coercion and abuse is often undermined by their limited application. For instance, many States offer some legal assistance to criminal defendants, but few facilitate access from the first moment of detention, and even fewer allow lawyers to accompany an arrested person during an interview. Among States that have introduced audio-video recording, concerns have been raised that recordings are applied selectively, and may reinforce existing investigator biases and obscure abuses that take place off-camera or outside an interview, thus undermining any preventive impact.
The implementation of safeguards should therefore accompany legal reform that regulates the treatment of persons in custody and maximises their preventive impact. This is acknowledged in the Mendez Principles on Effective Interviewing, which proposes enacting robust national measures including training for all relevant authorities, multi-stakeholder exchanges to design appropriate and effective strategies for torture prevention, and promoting oversight and regular systems of monitoring.
National authorities express legitimate concerns that some safeguards and associated reforms will incur significant costs. However, others (such as those that rely on volunteers or on existing facilities or posts) may be activated quickly, with little cost or regulation and can respond to emerging risks of ill-treatment.
The Convention against Torture requires that States systematically review their practices and rules to refine or to improve efforts to protect persons at risk from abuse or coercion. Therefore, even in resource-constrained contexts, national authorities should look to reduce risks of abuse.
Custodial safeguards are therefore not obstacles to effective criminal investigation. They are one of its essential foundations. By protecting dignity and preventing abuse, safeguards help to ensure that interviews are lawful, reliable and capable of delivering justice.