Fairness of Interview - A New Legal Concept

1. �Fairness of Interview�- A New Legal Concept Willox, E., Douds, F. & Thomson, L. This research was undertaken at the high secure psychiatric hospital for Scotland and Northern Ireland, commonly refered to as the State Hospital, Carstairs along with Fergus Douds, Consultant Learning Disability Psychiatrist at the State Hospital and Lindsay Thomson, Medical Director. �Fairness of Interview� refers to the fairness of interviews of the mentally disordered by the police. COMPLIANCE- Eagerness to please and wish to maintain self-esteem (veneer of competence) SUGGESTIBILITY- Internal belief change in response to environmental factors and leading questions. AQUIESCENCE- Tendency to answer in the affirmative regardless of the questions content.This research was undertaken at the high secure psychiatric hospital for Scotland and Northern Ireland, commonly refered to as the State Hospital, Carstairs along with Fergus Douds, Consultant Learning Disability Psychiatrist at the State Hospital and Lindsay Thomson, Medical Director. �Fairness of Interview� refers to the fairness of interviews of the mentally disordered by the police. COMPLIANCE- Eagerness to please and wish to maintain self-esteem (veneer of competence) SUGGESTIBILITY- Internal belief change in response to environmental factors and leading questions. AQUIESCENCE- Tendency to answer in the affirmative regardless of the questions content.

2. Background Psychiatrists asked to comment on the �fairness� of police interview Not described in legal or medical literature Within the State Hospital, informal discussion had taken place as to what psychiatrists viewed as important when retrospectively being asked by the court to comment on the fairness of a police interview involving an alleged offender with mental disorder (LD, PD & mental illness). Their appeared to be no known legal or medical literature available to assist in directing what constituted fairness in such a situation.Within the State Hospital, informal discussion had taken place as to what psychiatrists viewed as important when retrospectively being asked by the court to comment on the fairness of a police interview involving an alleged offender with mental disorder (LD, PD & mental illness). Their appeared to be no known legal or medical literature available to assist in directing what constituted fairness in such a situation.

3. R v Lattimore, Leighton & Salih (1976) 62 Cr. App. R. 53 Role of the appropriate adult developed Appropriate adult role important in considering fairness? It is established that the presence of mental disorder may disadvantage an individual being interviewed by the police. In the wake of high profile miscarriages of justice such as the Confait case, the role of the appropriate adult was developed to assist those suspected of suffering mental disorder in taking part in a police interview and reduce the chance of them being disadvantaged during it. For the purposes of this presentation it is important to note that the remit and functioning of the appropriate adult schemes vary throughout the UK. Thomson et al described these these as this table shows. It is established that the presence of mental disorder may disadvantage an individual being interviewed by the police. In the wake of high profile miscarriages of justice such as the Confait case, the role of the appropriate adult was developed to assist those suspected of suffering mental disorder in taking part in a police interview and reduce the chance of them being disadvantaged during it. For the purposes of this presentation it is important to note that the remit and functioning of the appropriate adult schemes vary throughout the UK. Thomson et al described these these as this table shows.

4. Thomson et al, 2007 Three important differences to note are: In England the scheme is defined by statute, in Scotland it is not. In England the AA is there to support, advice and assist, in Scotland only to provide support and reassurance. Lastly in Scotland the AA requires to have had experience or training in dealing with people with mental disorder and cannot be a relative, friend or professional known to the accused. Three important differences to note are: In England the scheme is defined by statute, in Scotland it is not. In England the AA is there to support, advice and assist, in Scotland only to provide support and reassurance. Lastly in Scotland the AA requires to have had experience or training in dealing with people with mental disorder and cannot be a relative, friend or professional known to the accused.

5. R v Lattimore, Leighton & Salih (1976) 62 Cr. App. R. 53 Role of the appropriate adult developed Appropriate adult role important in considering fairness? As we considered fairness we hypothesised that the role of the appropriate adult would therefore be important in determining fairness but we wished to establish if other factors were too. As we considered fairness we hypothesised that the role of the appropriate adult would therefore be important in determining fairness but we wished to establish if other factors were too.

6. Aim To clarify and provide guidance on the concept �fairness of interview� The aim of our project therefore was to clarify what constituted fairness of police interview and then to offer guidance as to how this could be applied clinically.The aim of our project therefore was to clarify what constituted fairness of police interview and then to offer guidance as to how this could be applied clinically.

7. Method AA(s), police interview(s), mentally disordered offender(s), mentally ill offender(s) & fairness of interview(s) Systematic Literature Review 3406 papers, 56 relevant, 0 specific Scottish Case Law Reports 6 cases Unreported 2 cases The studies method began with a review of the literature in May 2006 using five terms and their pleural: appropriate adult(s), police interview(s), mentally disordered offender(s), mentally ill offenders(s), and fairness of interview. The systematic literature review used a number of databases: OVID (1980-2006); EMBASE (1980-2006); PSYCHOINFO (1967-2006); Research; Papers 1st; and Social Care Online. This identified 3406 papers, of which 56 were found to be of some relevance but with none specifically addressing fairness of interview. Six relevant Scottish Case law reports were identified using Lexis � Nexis Buttersworth and Westlaw Scots Law. A further two unreported cases were found in National UK and Scottish Newspaper reports within Lexis Professional, 1996 to May 2006.The studies method began with a review of the literature in May 2006 using five terms and their pleural: appropriate adult(s), police interview(s), mentally disordered offender(s), mentally ill offenders(s), and fairness of interview. The systematic literature review used a number of databases: OVID (1980-2006); EMBASE (1980-2006); PSYCHOINFO (1967-2006); Research; Papers 1st; and Social Care Online. This identified 3406 papers, of which 56 were found to be of some relevance but with none specifically addressing fairness of interview. Six relevant Scottish Case law reports were identified using Lexis � Nexis Buttersworth and Westlaw Scots Law. A further two unreported cases were found in National UK and Scottish Newspaper reports within Lexis Professional, 1996 to May 2006.

8. Method cont January 2006 prior 24 months. 16 Approved Medical Practitioners The State Hospital, Carstairs, Scotland Submit anonymised reports Analysed using grounded theory (Corbin & Stauss, 1990) �On examination� of the psychiatric interview Opinion of the police interview We then looked to obtain reports which made comment on fairness of interview with the aim to consider what had been considered relevant in these. Our sample was all the approved medical practitioners working within the State Hospital in January 2006, which included 2 Specialist registrars and 14 Consultants. All but one was present at the weekly referrals meeting where each were asked to consider if they had undertaken such a report between January 2004- January2006. The absent consultant was asked on an individual basis. Anonymised reports were submitted or confirmation given that no such reports had been undertaken. The reports were retrospectively analysed by the first author using a grounded theory approach. This involved initial familiarisation with the data allowing for identification of concepts that could then be placed into categories and finally the development of propositions. Interpretation was influenced by our stated objective to identify what constituted fairness of interview. Analysis of two specific parts of the reports occurred: First the �on examination � of the report authors� psychiatric interview with the accused & Secondly the report authors opinion on fairness of the police interview.We then looked to obtain reports which made comment on fairness of interview with the aim to consider what had been considered relevant in these. Our sample was all the approved medical practitioners working within the State Hospital in January 2006, which included 2 Specialist registrars and 14 Consultants. All but one was present at the weekly referrals meeting where each were asked to consider if they had undertaken such a report between January 2004- January2006. The absent consultant was asked on an individual basis. Anonymised reports were submitted or confirmation given that no such reports had been undertaken. The reports were retrospectively analysed by the first author using a grounded theory approach. This involved initial familiarisation with the data allowing for identification of concepts that could then be placed into categories and finally the development of propositions. Interpretation was influenced by our stated objective to identify what constituted fairness of interview. Analysis of two specific parts of the reports occurred: First the �on examination � of the report authors� psychiatric interview with the accused & Secondly the report authors opinion on fairness of the police interview.

9. Results 100% response rate Two authors of all fairness reports Four reports. There was a one hundred percent response rate. Two psychiatrists, both working within the field of forensic learning disability had written four reports on fairness of interview. The four reports were then analysed. There was a one hundred percent response rate. Two psychiatrists, both working within the field of forensic learning disability had written four reports on fairness of interview. The four reports were then analysed.

10. Questions Directed to the Psychiatrist, Material Made Available & Case Overview Two of the four reports had been commissioned by the crown and two by the accuseds solicitor. Material made available relating to the police interview was a paper interview transcript in each, a video of the police interview in two reports and a psychology report in three, with the fourth having a psychology report available within their medical case file. Report 1 considered the case of a 20 year old male with a full scale IQ of 62. He was charged with two counts of assault. The question of fairness of interview arose following the inappropriate use of the accused�s mother as an appropriate adult. Report 2 considered the case of a 32 yo male with a mild learning disability, charged with fraud, who had been interviewed by the police without an AA. Report 3 was commissioned by the accuseds solicitor who had found it difficult to obtain instruction from him. The accused was aged 27 with psychological assessment finding a full scale IQ of 56. The fourth report, again commissioned by the defence solicitor involved a 22 year old male, charged with lewd and libidinous acts against a minor. The man was thought by the solicitor to have a learning disability. He had been interviewed by the police without an appropriate adult.Two of the four reports had been commissioned by the crown and two by the accuseds solicitor. Material made available relating to the police interview was a paper interview transcript in each, a video of the police interview in two reports and a psychology report in three, with the fourth having a psychology report available within their medical case file. Report 1 considered the case of a 20 year old male with a full scale IQ of 62. He was charged with two counts of assault. The question of fairness of interview arose following the inappropriate use of the accused�s mother as an appropriate adult. Report 2 considered the case of a 32 yo male with a mild learning disability, charged with fraud, who had been interviewed by the police without an AA. Report 3 was commissioned by the accuseds solicitor who had found it difficult to obtain instruction from him. The accused was aged 27 with psychological assessment finding a full scale IQ of 56. The fourth report, again commissioned by the defence solicitor involved a 22 year old male, charged with lewd and libidinous acts against a minor. The man was thought by the solicitor to have a learning disability. He had been interviewed by the police without an appropriate adult.

11. Categories Emerging Using Ground Theory Analysis Within the �on examination� Section of the Psychiatric Interview and the Report Author�s Opinion on the Police Interview. Grounded theory was used to analyse each of the four psychiatric reports. Conceptualisation of the data led to mapping of a number of categories. Categories arising from analysis of the �on examination� of the psychiatric interview are listed under psychiatric interview on the left of this table. All reports considered the accused�s functional level of intellectual ability and other mental state factors with the excepyion of insight. This has been assumed under the category mental disorder. Comprehension was considered in three reports; veneer of competence in two reports; suggestibility was referred to in three reports with only one of these reports identifying the two facets of interrogative suggestibility as defined by the Gudjonsson and Clark Model, 1996(enviromental factors & leading questions); two reports specifically considered the police interview format; and two reports considered acquiescence. Categories emerging from analysis of the report author�s opinion on the fairness of each police interview are seen on the right of the table under the heading �Police Interview�. Two report authors had considered whether a layperson would have identified that the accused was mentally disordered. General comprehension was assessed by all report authors, with three reports specifically considering comprehension of the police caution. One accused was thought not to have understood the caution, even when the police officers attempted to aid comprehension by using simplified language. The accused�s ability to effectively communicate with police officers was considered and found to be appropriate in one report. Interview style was addressed by all reports, three specifically considered the use of leading questions, three commented on the use of coercion, with only one finding coercive tactics to be to the accused�s disadvantage. All of the reports made a more general comment on suggestibility. One report found acquiescence to have disadvantaged the accused. By that, the individual answered questions in the affirmative regardless of their content (Cronbach, 1946). All reports commented on the presence or absence of an appropriate adult, and two reports considered whether the appropriate adult had fulfilled their role. Grounded theory was used to analyse each of the four psychiatric reports. Conceptualisation of the data led to mapping of a number of categories. Categories arising from analysis of the �on examination� of the psychiatric interview are listed under psychiatric interview on the left of this table. All reports considered the accused�s functional level of intellectual ability and other mental state factors with the excepyion of insight. This has been assumed under the category mental disorder. Comprehension was considered in three reports; veneer of competence in two reports; suggestibility was referred to in three reports with only one of these reports identifying the two facets of interrogative suggestibility as defined by the Gudjonsson and Clark Model, 1996(enviromental factors & leading questions); two reports specifically considered the police interview format; and two reports considered acquiescence. Categories emerging from analysis of the report author�s opinion on the fairness of each police interview are seen on the right of the table under the heading �Police Interview�. Two report authors had considered whether a layperson would have identified that the accused was mentally disordered. General comprehension was assessed by all report authors, with three reports specifically considering comprehension of the police caution. One accused was thought not to have understood the caution, even when the police officers attempted to aid comprehension by using simplified language. The accused�s ability to effectively communicate with police officers was considered and found to be appropriate in one report. Interview style was addressed by all reports, three specifically considered the use of leading questions, three commented on the use of coercion, with only one finding coercive tactics to be to the accused�s disadvantage. All of the reports made a more general comment on suggestibility. One report found acquiescence to have disadvantaged the accused. By that, the individual answered questions in the affirmative regardless of their content (Cronbach, 1946). All reports commented on the presence or absence of an appropriate adult, and two reports considered whether the appropriate adult had fulfilled their role.

12. HMA v William Duncan & Lisa Stuart [2006] HCJ 06 23 ?, mild learning disability Rape of minor Interview claimed to be unfair due to �mental capabilities� and conduct of the interview During the study, an important ruling was made, clarifying the legal position of �fairness of interview� in Scotland. The issue of �fairness of interview� by the police and what constitutes fairness was considered by Lord Hodge within the High Court ruling of HMA v William Duncan & Lisa Stuart [2006] HCJ 06. The case involved a 23 year old man functioning in the mild learning disability range who was charged and subsequently found guilty of the rape of a 9 year old child. His Counsel made an application to the court that video evidence of the offences, the existence of which came to light during the police interview, should have been excluded from the trial. His Counsel claimed that due to his client�s mental capabilities and the way in which the police interview had been conducted, the interview was unfair and as such the content of it inadmissible. What had happened was that the accused had asked to speak to officers from within his cell and volunteered information that a video recording of the alledged offence existed. During the study, an important ruling was made, clarifying the legal position of �fairness of interview� in Scotland. The issue of �fairness of interview� by the police and what constitutes fairness was considered by Lord Hodge within the High Court ruling of HMA v William Duncan & Lisa Stuart [2006] HCJ 06. The case involved a 23 year old man functioning in the mild learning disability range who was charged and subsequently found guilty of the rape of a 9 year old child. His Counsel made an application to the court that video evidence of the offences, the existence of which came to light during the police interview, should have been excluded from the trial. His Counsel claimed that due to his client�s mental capabilities and the way in which the police interview had been conducted, the interview was unfair and as such the content of it inadmissible. What had happened was that the accused had asked to speak to officers from within his cell and volunteered information that a video recording of the alledged offence existed.

13. Case law factors in determining �fairness of interview� Individual of normal robustness for questioning Interview format The degree of coercion used to obtain a confession The interviewee�s suggestibility Level of understanding and comprehension Presence of AA and fulfilment of their role Lord Hodge ruled that six factors were of relevance in considering fairness of police interview: Firstly whether the individual was of normal robustness to be questioned. This could be interpreted as whether mental disorder was present. Next the interview format, for example were sessions short enough with adequate breaks in between. The interview style should be considered, with specific reference to the use of coersion. The interviewees suggestibility was also important, so how easy was it for them to change an internal belief in response to environmental pressure and leading questions. Their level of understanding and comprehension was also to be considered, in particular their understanding of the of the charge and caution. Finally an AA should be present for those suffering mental disorder but if present they should also have acted competently within their role.Lord Hodge ruled that six factors were of relevance in considering fairness of police interview: Firstly whether the individual was of normal robustness to be questioned. This could be interpreted as whether mental disorder was present. Next the interview format, for example were sessions short enough with adequate breaks in between. The interview style should be considered, with specific reference to the use of coersion. The interviewees suggestibility was also important, so how easy was it for them to change an internal belief in response to environmental pressure and leading questions. Their level of understanding and comprehension was also to be considered, in particular their understanding of the of the charge and caution. Finally an AA should be present for those suffering mental disorder but if present they should also have acted competently within their role.

14. Report Categories and Case Law Factors in Determining Fairness of Interview This table allows discussion of our results. On the left are the categories identified as relevant by the report authors from the psychiatric interview and opinion on police interview and on the right the Scottish case law factors determining fairness of interview. It would seem that they overlap almost entirely. In clinical application then, we would recommend that psychiatrists consider six key elements when assessing fairness of police interview. From prior clinical practice and well established research, for example by Gudjonsson, we would suggest that the six case law factors be expanded to include the term �psychological vulnerabilities� rather than simply suggestibility. This would also then include acquiescence and veneer of competence. This table allows discussion of our results. On the left are the categories identified as relevant by the report authors from the psychiatric interview and opinion on police interview and on the right the Scottish case law factors determining fairness of interview. It would seem that they overlap almost entirely. In clinical application then, we would recommend that psychiatrists consider six key elements when assessing fairness of police interview. From prior clinical practice and well established research, for example by Gudjonsson, we would suggest that the six case law factors be expanded to include the term �psychological vulnerabilities� rather than simply suggestibility. This would also then include acquiescence and veneer of competence.

15. Clinical Application Mental disorder Necessity of an AA Communication, comprehension, psychological vulnerabilities, IQ Psychiatric examination directs how the police interview should be changed The aim of our project was not only to define fairness of interview but also to provide clinical guidance on how the concept can be applied. To do this I�ll consider each of the key elements in turn. Firstly then is the whether mental disorder exists, identified trough the mental state examination. If mental disorder exists then this directs the necessity of an appropriate adult at police interview and highlights the potential for identifiable symptoms that may interfere with communication, comprehension or heighten psychological vulnerabilities during police interview. Of particular importance is the accused�s level of intellectual ability as defined by formal testing but also by their functional ability. The psychiatric examination will form the baseline from which the police interview should be retrospectively considered. The findings on psychiatric examination will direct the report author�s thoughts as to the accused�s level of functioning within an interview and how this may have merited any changes to the normal police interview. For example, the accused�s degree of attention and concentration should be observed, with particular note if their ability to partake in the psychiatric interview is altered by these. This will identify whether regular breaks sufficient to maintain the necessary attention and concentration of the accused occurred during police interview, directing the format of interview.The aim of our project was not only to define fairness of interview but also to provide clinical guidance on how the concept can be applied. To do this I�ll consider each of the key elements in turn. Firstly then is the whether mental disorder exists, identified trough the mental state examination. If mental disorder exists then this directs the necessity of an appropriate adult at police interview and highlights the potential for identifiable symptoms that may interfere with communication, comprehension or heighten psychological vulnerabilities during police interview. Of particular importance is the accused�s level of intellectual ability as defined by formal testing but also by their functional ability. The psychiatric examination will form the baseline from which the police interview should be retrospectively considered. The findings on psychiatric examination will direct the report author�s thoughts as to the accused�s level of functioning within an interview and how this may have merited any changes to the normal police interview. For example, the accused�s degree of attention and concentration should be observed, with particular note if their ability to partake in the psychiatric interview is altered by these. This will identify whether regular breaks sufficient to maintain the necessary attention and concentration of the accused occurred during police interview, directing the format of interview.

16. Clinical Application Interview Format Regular breaks Ability of AA to intervene Appropriate communication Informed of rights Assessment should occur as to the appropriateness of the interview format. This would include consideration of: the use of regular breaks; the ability of the appropriate adult to intervene without police constraint; the use of appropriate communication to maximise the accuseds ability to partake in the interview; and whether the accused had been informed of their rights at interview and how this was explained to them.Assessment should occur as to the appropriateness of the interview format. This would include consideration of: the use of regular breaks; the ability of the appropriate adult to intervene without police constraint; the use of appropriate communication to maximise the accuseds ability to partake in the interview; and whether the accused had been informed of their rights at interview and how this was explained to them.

17. Clinical Application Interview Style Coercive tactics Leading questions Pace of interview It is established that the use of deception, bullying or excessive pressure during police interview to obtain a confession is not permitted. The use of leading questions is accepted practice. It is however important to consider the interview style in light of the accused�s individual vulnerabilities to such tactics. Additional factors to be included in consideration of style are the pace of the interview and types of questions used. If the accused has a limited comprehension, this may be further hindered by a rapid pace of interview, the use of multiple questions or of multiple negatives within questions.It is established that the use of deception, bullying or excessive pressure during police interview to obtain a confession is not permitted. The use of leading questions is accepted practice. It is however important to consider the interview style in light of the accused�s individual vulnerabilities to such tactics. Additional factors to be included in consideration of style are the pace of the interview and types of questions used. If the accused has a limited comprehension, this may be further hindered by a rapid pace of interview, the use of multiple questions or of multiple negatives within questions.

18. Clinical Application Psychological Vulnerabilities Suggestibility: leading questions; & interrogative pressure (Gudjonsson, 1997) Veneer of competence: to maintain self-esteem Acquiescence: Answering in the affirmative (Sigelman et al, 1981) Psychological vulnerabilities to be considered at examination include suggestibility, veneer of competence and acquiescence. Suggestibility has been extensively defined in the literature, with two facets of importance when considering police interview: the extent to which the accused will give in to leading questions; and how they respond to �interrogative pressure� which may include the use of coercive questioning. The Gudjonsson Suggestibility Scales (Gudjonsson, 1997) continue to be used widely to assess the level of suggestibility and can readily assist the clinician with evaluation of the fairness of a particular line of questioning. Integration within the community can lead to those with a learning disability using learned behaviour and language to create a superficial facade of competence to enhance social acceptance. This can be referred to as a veneer of competence and will only be identified if the report author takes the time to explore concepts with the accused, in particular areas of interest to them, where socially they may feel more at ease. An example would be to ask an individual with an avid interest in football about the weekend scores, recent fixtures and transfers. If they continue to answer confidently yet incorrectly, they are demonstrating their lack of knowledge in the context of appearing competent. Although not readily apparent to the layperson, this veneer can result in the overestimation of an individual�s ability at interview, leading to disadvantage. Acquiescence refers to the tendency of a person to answer yes to a question even when an answer is not inferred. By that, given a list of opposite statements, the interviewee will answer yes to each, regardless of the apparent inconsistency of their answers (Sigelman et al, 1981). The level of acquiescence can be easily assessed by offering a list of matched opposite statements based on daily routines, emotions or interests, for example, �Are you usually happy?� paired with �Are you usually sad?�Psychological vulnerabilities to be considered at examination include suggestibility, veneer of competence and acquiescence. Suggestibility has been extensively defined in the literature, with two facets of importance when considering police interview: the extent to which the accused will give in to leading questions; and how they respond to �interrogative pressure� which may include the use of coercive questioning. The Gudjonsson Suggestibility Scales (Gudjonsson, 1997) continue to be used widely to assess the level of suggestibility and can readily assist the clinician with evaluation of the fairness of a particular line of questioning. Integration within the community can lead to those with a learning disability using learned behaviour and language to create a superficial facade of competence to enhance social acceptance. This can be referred to as a veneer of competence and will only be identified if the report author takes the time to explore concepts with the accused, in particular areas of interest to them, where socially they may feel more at ease. An example would be to ask an individual with an avid interest in football about the weekend scores, recent fixtures and transfers. If they continue to answer confidently yet incorrectly, they are demonstrating their lack of knowledge in the context of appearing competent. Although not readily apparent to the layperson, this veneer can result in the overestimation of an individual�s ability at interview, leading to disadvantage. Acquiescence refers to the tendency of a person to answer yes to a question even when an answer is not inferred. By that, given a list of opposite statements, the interviewee will answer yes to each, regardless of the apparent inconsistency of their answers (Sigelman et al, 1981). The level of acquiescence can be easily assessed by offering a list of matched opposite statements based on daily routines, emotions or interests, for example, �Are you usually happy?� paired with �Are you usually sad?�

19. Clinical Application Understanding and Comprehension Of the charge and caution Not recall but ability to explain the concepts at interview Assessment of the accused�s general level of comprehension should be considered, which will be defined by their appropriate use of language, any necessity to simplify or explain common concepts to them and their ability to follow different forms of question. The accused should be examined more specifically in terms of their understanding of what is meant by the charge and caution, in particular their right under police interview to remain silent. Their ability to recall these from the time of police interview would not be relevant but rather their ability to explain these concepts when examined by the clinician. The clinician should begin by identifying the accused understanding of the words �charged� and �caution� as well as relating them to the context of the police interview. Each should be taken in turn with the concept explained using simple vocabulary if the accused has failed to demonstrate understanding. The accused should then be asked as to the details of the particular charge against them, or in simpler terms, what is it that the police are stating they have done. In relation to the caution, the accused should be asked to explain what is understood by the statement �You have the right to remain silent but anything you do say may be taken down and used in evidence against you�. Any misunderstanding will identify the level to which police officers or the appropriate adult should themselves have clarified comprehension. Assessment of the accused�s general level of comprehension should be considered, which will be defined by their appropriate use of language, any necessity to simplify or explain common concepts to them and their ability to follow different forms of question. The accused should be examined more specifically in terms of their understanding of what is meant by the charge and caution, in particular their right under police interview to remain silent. Their ability to recall these from the time of police interview would not be relevant but rather their ability to explain these concepts when examined by the clinician. The clinician should begin by identifying the accused understanding of the words �charged� and �caution� as well as relating them to the context of the police interview. Each should be taken in turn with the concept explained using simple vocabulary if the accused has failed to demonstrate understanding. The accused should then be asked as to the details of the particular charge against them, or in simpler terms, what is it that the police are stating they have done. In relation to the caution, the accused should be asked to explain what is understood by the statement �You have the right to remain silent but anything you do say may be taken down and used in evidence against you�. Any misunderstanding will identify the level to which police officers or the appropriate adult should themselves have clarified comprehension.

20. Clinical Application The presence & Competence of the Appropriate Adult To provide support and reassurance To ensure interviewee understands purpose of interview, questions put and implications of answers To facilitate communication To ensure proper interview procedures are followed To ensure a suspect with a mental disorder is not disadvantaged by that disorder and that he/she fully understands his/her rights and the stages of the process as explained by the police . The proactivity of the appropriate adult to assist the interviewee during the police interview should be considered in light of the accused�s specific mental disorder. The clinician should comment on whether the appropriate adult identified difficulties secondary to mental disorder which hindered the accused�s ability to partake in the police interview. As such, comment should be made as to whether the appropriate adult fulfilled their role. This role may have included interruption of the interview at any time to identify: the need for a break; the accused�s lack of understanding: and inability of the accused to reliably answer due to suggestibility or a wish to please. The appropriate adult should also have clarified whether the accused understood the purpose of the interview as well as the questions being put and the implications of answering. The appropriate adult should provide support and reassurance to the interviewee but not in a manner which encourages undue compliance with the interview. Any required facilitation by the appropriate adult of communication between the interviewer and the accused should be evident with the appropriate adult objecting if proper interview procedures are not being followed, for example use of coercion. Assessment of the level to which the appropriate adult�s intervention is necessitated will have been directed as above by the retrospective psychiatric examination.The proactivity of the appropriate adult to assist the interviewee during the police interview should be considered in light of the accused�s specific mental disorder. The clinician should comment on whether the appropriate adult identified difficulties secondary to mental disorder which hindered the accused�s ability to partake in the police interview. As such, comment should be made as to whether the appropriate adult fulfilled their role. This role may have included interruption of the interview at any time to identify: the need for a break; the accused�s lack of understanding: and inability of the accused to reliably answer due to suggestibility or a wish to please. The appropriate adult should also have clarified whether the accused understood the purpose of the interview as well as the questions being put and the implications of answering. The appropriate adult should provide support and reassurance to the interviewee but not in a manner which encourages undue compliance with the interview. Any required facilitation by the appropriate adult of communication between the interviewer and the accused should be evident with the appropriate adult objecting if proper interview procedures are not being followed, for example use of coercion. Assessment of the level to which the appropriate adult�s intervention is necessitated will have been directed as above by the retrospective psychiatric examination.

21. Clinical Application Video or audio recording preferable Prologue to opinion on fairness Avoid medical jargon The authors recommend that if available, video or audio recording of police interviews are preferred to paper transcripts. These allow better appreciation of verbal and non-verbal communication at interview, with the clinician more able to consider the possibility of subtle coercion through gesture or tone, the rate of questioning and the time given for the accused to answer. Misinterpretation through lack of understanding, inattention, sensory deficit, concrete thinking or disordered thought would also be more readily identified. The clinician should look to assist the court in its duty of determination by offering a detailed prologue to any opinion on fairness of interview. This can be usefully considered by offering specific examples of disadvantage at interview applicable to the individual or examples of good or poor police interview practice. These can be usefully supported by verbatim accounts from within the psychiatric interview. In reporting to the court, the clinician should remember to avoid the use of medical jargon.The authors recommend that if available, video or audio recording of police interviews are preferred to paper transcripts. These allow better appreciation of verbal and non-verbal communication at interview, with the clinician more able to consider the possibility of subtle coercion through gesture or tone, the rate of questioning and the time given for the accused to answer. Misinterpretation through lack of understanding, inattention, sensory deficit, concrete thinking or disordered thought would also be more readily identified. The clinician should look to assist the court in its duty of determination by offering a detailed prologue to any opinion on fairness of interview. This can be usefully considered by offering specific examples of disadvantage at interview applicable to the individual or examples of good or poor police interview practice. These can be usefully supported by verbatim accounts from within the psychiatric interview. In reporting to the court, the clinician should remember to avoid the use of medical jargon.

22. Conclusion Aim: To clarify and provide guidance on the concept �fairness of interview� Fairness of Interview now defined by case law Legal test of retrospective consideration Authors suggest the clinical application should be based on case law and prior clinical practice Six key elements of fairness of interview. In conclusion of our research aim was to clarify and provide guidance on the concept �fairness of interview�. Fairness of interview is now defined by six case law factors. Fitness of Interview is a legal test of retrospective consideration which the psychiatrist may be asked to give an opinion on but it is for the court to make the determination. When asked for such an opinion, recent case law and analysis of clinical practice would suggest that six key elements are important to consider:In conclusion of our research aim was to clarify and provide guidance on the concept �fairness of interview�. Fairness of interview is now defined by six case law factors. Fitness of Interview is a legal test of retrospective consideration which the psychiatrist may be asked to give an opinion on but it is for the court to make the determination. When asked for such an opinion, recent case law and analysis of clinical practice would suggest that six key elements are important to consider:

23. mental disorder, the interview format, the interview style, psychological vulnerabilities, the accuseds level of understanding and comprehension during the interview and the presence and competence of the AA in fulfilling their role. mental disorder, the interview format, the interview style, psychological vulnerabilities, the accuseds level of understanding and comprehension during the interview and the presence and competence of the AA in fulfilling their role.

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