Vulnerability: The Practicalities for health professionals and the Police

1. Vulnerability:The Practicalities for health professionals and the Police Kerry Marlow 2011 Kerry Marlow 2011 (c)

2. Aims and objectives • Consider the Legal Context • Identification of vulnerability • Assessment of vulnerability • Dealing with other professionals • Other interview considerations Kerry Marlow 2011 (c)

3. Legal Context for court • A court trying a criminal case has a general power to exclude evidence tendered on behalf of the prosecution, even if the evidence complies with the strict rules of admissibility. • Under Section 78 of the Police and Criminal Evidence Act 1984, the court may exclude evidence on the grounds that, because of the way in which it was obtained or for any other reason, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. • Courts may also exercise a common law power (i.e. one supported by previous decisions of the courts) to exclude evidence, the prejudicial effect of which outweighs its probative value. Kerry Marlow 2011 (c)

4. Police guidance:Annexe G PACE Codes of Practice A detainee may be at risk in an interview if it is considered: • It could significantly harm the detainee’s physical or mental state • Anything the detainee says in the interview about their involvement or suspected involvement in the offence about which they are being interviewed might be considered unreliable in subsequent court proceedings because of their physical or mental state Kerry Marlow 2011 (c)

5. Health Professionals:Mental Capacity Act 2005 • Principles –S.1 • Presumption of capacity S.1 (2) • A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. S1 (3) • A person is not to be treated as unable to make a decision merely because he makes an unwise decision S1 (4) • Best Interests S1 (5) • Least restrictive of the person’s rights and freedom of action S1 (6) Kerry Marlow 2011 (c)

6. Mental Capacity Act 2005 • Capacity • A person lacks capacity if at the material time s/he is: • Unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain • It does not matter whether impairment or disturbance is permanent or temporary • Incapacity not established by reference to – age, appearance, condition or behaviour that might lead to unjustified assumptions • Decided on ‘balance of probabilities’ Kerry Marlow 2011 (c)

7. Mental Capacity Act 2005 • Inability to make decisions • Unable to understand relevant information • Unable to retain the information • Unable to use or weigh the information as part of the process of making the decision Or, • unable to communicate the decision (talking, sign language, other) • May only be able to retain information for a short period • Relevant information includes reasonably foreseeable consequences of deciding or failing to make a decision Kerry Marlow 2011 (c)

8. Legal Practice Issues • Did the detainee understand the police caution after it has been carefully explained ? • Was the detainee fully orientated in time, place and person? Did the detainee recognise the key people present during the police interview. • Is the detainee likely to give answers that can be misconstrued by a court ? Kerry Marlow 2011 (c)

9. Identification of vulnerability • Custody Officer • Interviewing Officer • Legal Representative Kerry Marlow 2011 (c)

10. Assessment of vulnerability Who? • Force Medical Adviser • Community Psychiatric Nurse • Forensic Psychiatrist • Forensic psychologist • Issues? Kerry Marlow 2011 (c)

11. Health professionals:Issues of vulnerability • Circumstances of the incident • Interactions with the police • Health • Personality • Record in detail –Interview Strategy (Gudjonsson 2011) Kerry Marlow 2011 (c)

12. Assessment of vulnerability What is required? • Brief Assessment • Full Assessment • Issues? Kerry Marlow 2011 (c)

13. Assessment of vulnerability When and where ? • Whilst in custody • Bailed • Committed to Psychiatric unit • Issues? Kerry Marlow 2011 (c)

14. Fitness to be detained:Assessment of vulnerability Issues from the assessment: Whether the person's condition: • Is likely to improve • Will they require or be amenable to treatment; and • Indicate how long it may take for such improvements to take affect Kerry Marlow 2011 (c)

15. Fit to be interviewed:Assessment of vulnerability Additional information from assessment: • Method of interviewing • Length of interviews • Gender of interviewer • Behaviour of interviewer • Questioning style – probing etc • Ability to make informed decisions Kerry Marlow 2011 (c)

16. Example Extracts from FME “….unable to hold a train of thought” and was “unable to give consistent information even about things in which he is interested or are important to him” “…..his recall is liable to be somewhat although not totally unreliable, and that his memory for details of recent or past events will be incomplete and subject to inaccuracies” “some grasp of the purpose and process of court proceedings, it is evident that his understanding the legal process is at a very basic level.” “unable to hold a train of thought” Kerry Marlow 2011 (c)

17. Psychological assessment …….a two-hour psychological assessment he gave a reasonably coherent account of his background and recent circumstances, On the other hand, examples of vague and inaccurate reporting of information (such as an instance of confabulation)… ..his account would be coherent is liable to be situation-specific and to be affected his level of anxiety and the form of interview… ….it is clear that without considerable explanation in simple language he would be unable to explain the meaning of the middle section of the Police Caution… Kerry Marlow 2011 (c)

18. Psychological assessment …..Legal adviser observation that ‘he’ responded “guilty” to “last being cautioned” is a significant concern. It provides a sample of behaviour which should be acknowledged as adding to reservations as to whether or not ‘he’ is ‘fit to be interviewed by police’ (on grounds of a potential for self-incrimination in response to misunderstanding or being ‘overwhelmed’ by the investigation process)…… Legal adviser interpretation of the findings as suggesting his client would be unable to retain legal advice “even in the context of a 45 minute interview” is his interpretation and is not directly derived from conclusions reached in my report. Much would depend upon the quantity and complexity of the legal advice ‘he’ was expected to remember while simultaneously answering questions posed at police interview. The Legal adviser has stated that he would advise him “make no answer to any questions asked of him in interview”, even given a limited capacity for ‘delayed recall’ it is unlikely that he would need to be reminded of this advice following each and every question posed. Kerry Marlow 2011 (c)

19. Conclusion of report In my view ’he’ could participate in the process of police interviewing but his level of learning disabilities, high suggestibility, poor memory for past events, and anxiety about interrogation are in combination likely to have an outcome that the evidence obtained would be vague, sometimes inaccurate, could not be relied upon to be factually correct, and might be considered unreliable in any future court proceedings. Irrespective of his intentions to tell the truth or otherwise, he is also at risk of unwittingly making self-incriminating statements. Although suggestions have been offered as to how the interview process could be improved to increase his understanding of questions posed, it is acknowledged that these might prove insufficient to ensure that ‘he’ provides reliable information to answer the charges against him. Kerry Marlow 2011 (c)

20. Dealing with Legal advisers • Vulnerability identified by legal adviser • Requests for examination • Advice strategies Kerry Marlow 2011 (c)

21. Legal Advice Strong Strength of evidence Answer questions Prepared statement No Comment Weak Poor Good Ability of the client to cope in interview Anthony Edwards 2003 Kerry Marlow 2011 (c)

22. Legal Advice • Put to him/her the questions likely to be asked in interview and assess his/her performance • Consider carefully personal factors e.g. juvenile, mental vulnerability, severe nervous state, shock etc. Advise to remain silent in case he/she gives answers which could be wrongly interpreted as admissions. ( Anthony Edwards 2003) Kerry Marlow 2011 (c)

23. Alternative interviewing strategy • Vulnerability issues raised by Legal adviser • Vulnerability issues identified by professionals • Briefing information given to legal adviser • Objectives of interview • Verbal questioning – issues • Written questions requesting verbal reply • Written questions requesting written replies. Kerry Marlow 2011 (c)

24. Questions ? enquiries@investigativeinterviewing.co.uk Kerry Marlow 2011 (c)