Page 15 - Top Cover Issue 9

TOP COVER ISSUE 9 15

ACHIEVING BEST EVIDENCE – FOR WHO?

ven more believe that their intervention with a witness
genuinely reveals more of the ‘truth’ behind their
investigation. Surprisingly few detectives really appreciate
just how memory is influenced and affected by their personal
interactions with witnesses.
Many investigators are really quite poor at interviewing and
taking statements but remain supremely confident that their
title alone naturally correlates with professional ability. Poor
interviewing remains the leading source of inducing errors into
Ewitness accounts, which has genuine implications for all police
witnesses involved with a fatal encounter.
Firearms officers are readily encouraged and even pressurised into putting themselves
forward into the hands of ‘great investigators’ post incident, and when Federation solicitors
advise that this would not be wise, suspicion and concern is expressed, sometimes by senior
police officers.
‘Why are my officers reluctant, do they have something to hide?’
Surely the truth will prevail if the ABE process is used!
However, just think for a moment. ‘Achieving best evidence’ can mean different things to
different parties within the same legal process.
Firearms officers face a unique position of legal vulnerability in every armed deployment.
Aside from a tactical consideration of ‘Critical Shots’, the decision to use lethal force rests with the
individual officer alone. Ultimately they could be looking at a criminal charge for murder if the
forensic evidence suggests that there are substantial errors within their written accounts.
The process of providing statements post shooting directly influences the public’s trust and
confidence. In recent years conferring and separation has become the cause célèbre for both political
groups and lawyers at inquest. It remains the most contentious element within the current PIP process.
Conferring is frequently portrayed in negative terms such as collusion, contamination and conspiring
with the suggestion that officers get their heads together to concoct their story.
The most recent High Court review of separation and conferring (Duggan & Delezuch) stated that the
current APP “lacked clarity and precision … leaving open a greater risk of collusion than the IPCC’s draft
guidance” despite rejecting the claims of unlawfulness, the NPCC has recognised that further re-drafting of
the APP would be helpful.
The practice of conferring typically leads to concerns about the reliability and independence of the
testimony provided by officers. Sanctioned conferring deviates in policy and practice from the experience of
non-police witnesses, raising a number of questions about the transparency of Police activities.
The introduction of the Appointed Officer role has provided an additional layer of integrity, despite this –
the note writing process is under consistent attack from both the IPCC and media.
To address the attendant concerns about separation, ‘collusion’ and conferring, the IPCC has approached the
Home Office to propose the immediate segregation of firearms officers post incident, and also new powers to
interview officers directly after a shooting.
Clearly any such changes would represent a significant break in current PIP’s practice. The IPCC proposals raise
a number of critical questions concerning both the implementation of new interviewing practices and the reliability
of evidence obtained in such circumstances. Having focused upon the potential misinformation and memory
contamination that can occur when officers confer, has the IPCC considered the pitfalls of its proposed alternatives?
According to the IPCC, best evidence is achieved by capturing detailed accounts as soon as possible after the
incident, they would like to either interview or take a detailed account from Principal Officers ‘asap’. In contrast, the
APP recommends that officers are provided with two periods of rest, generally 48 hours prior to committing to detailed
memory retrieval.