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Audio-visual recording of police interrogations, a matter of trust

admin - November 19, 2018

 

On 9th November, Fair Trials and the Hungarian Helsinki Committee brought together key criminal justice players in Paris to discuss and exchange experiences with audio-visual recording (AV recording) of police interrogations and its impact on defence rights. The participants included lawyers, civil society representatives, civil servants, officials and personnel from law enforcement bodies from 9 jurisdictions, including Croatia, the Czech Republic, France, Hungary, Ireland, Italy, Norway, the UK, and the US.

The event was opened by Rebecca Brown, Director of Policy at the Innocence Project, a US-based organisation that works to exonerate the wrongly convicted through DNA testing and to reform the criminal justice system to prevent future injustice. As part of their advocacy, the Innocence Project campaigns for the recording of custodial interrogations to prevent undue coercion and false confessions.

In fact, false confessions were reported to be one of the major drivers of wrongful convictions in the US, and count for about one third of all DNA exonerations the Innocence Project has been able to achieve over the years.

Contrary to popular belief, false confessions are not the exclusive prerogative of vulnerable people like children and adults with mental issues.  In fact, as Rebecca Brown put it, “mentally capable adults provide false confessions all the time”. Without AV recording, it is impossible to know whether the person was nervous and felt under pressure, how the police officers were behaving, and, ultimately, if any avowal was effectively spontaneous.

Audio-visual recording of police interrogations is getting ever-growing support from a wide range of stakeholders, including the American Bar Association and the International Association of Chiefs of Police. Such support from both sides of the criminal proceedings shows that audio-visual recording works for everyone and ultimately helps to reinforce trust among all actors involved.

In the EU, regional legislation only introduced AV recording of interrogations of children (EU Directive 2016/800), which is to be implemented in June 2019, and recommends it for vulnerable suspects, but largely leaves Member States to regulate the issue domestically. As a result, legislation and practice vary greatly from country to country.

For instance, in Hungary, AV recording was only introduced in July of this year, and is only mandatory for interviews of minors of 14 or less years old and of any minor reporting sexual abuse. In France, which first introduced AV recording in 2000 for interviews of children alone, any interview of any person suspected of or charged with a serious offence is recorded since 2007. In Croatia, AV recording applies to all interviews, regardless of the age of the suspect or accused, and regardless of the charges.

Participants from across these jurisdictions generally shared the view that AV recording is a key deterrent against abuses and undue pressure on people interrogated by the police, even if fixed equipment cannot technically cover all the blind spots from the moment of arrest to the actual interrogation.

AV recording can only work within a broader package of fair trial and other human rights safeguards. When this is not the case, there is a danger that AV recording may be pitted against fair trial rights, such as the right of access to a lawyer. In Ireland, for instance, the Supreme Court ruled last year that suspects are not entitled to legal representation during audio-visually recorded interviews, suggesting that the two offer the same protection to the person (DPP v Barry Doyle).

AV recording contributes to transparency, which in turn improves public trust in the police and ultimately leads to lasting changes in police behaviour as regards interrogation techniques and procedures. In fact, AV recording helps to shift the focus of interrogations away from confessions, which is still largely the case, towards interview techniques which seek to determine what actually happened and avoid the contamination of oral evidence, for instance when police officers inadvertently feed information about the case to the suspect.

The implementation of AV recording also raises questions about how defence lawyers are able to use the recordings to uphold fair trial rights in court: for instance, in France, lawyers are only able to request the judge to review the interrogation tape if they challenge the reconstruction made by the police. It follows from this that AV recording ultimately raises questions about how interviews are carried out because a discussion about the outcomes of the interrogation is only possible if the interviewing techniques are accepted by both the defence and law enforcement.

If we add up questions about the costs of setting up interrogation cells with the right equipment and about technical training, it becomes evident that this conversation needs the police to implement AV recording in a way that reinforces mutual trust among all the actors involved.

As one participant in the event said, “It’s because we want to trust the police, that we want AV recording”.

This is why we think that an inclusive conversation about AV recording is needed to ensure that it can be used in ways which protect the right to a fair trial for everyone.

This event was part of the “ProCam” project, a multijurisdictional project on the audio-visual recording of police interrogations of suspects, funded by the Justice Programme of the European Union. The project is led by the Hungarian Helsinki Committee and further implemented by project partners Antigone (Italy), Fair Trials (conducting research in France), Human Rights House Zagreb (Croatia), League for Human Rights (Czech Republic).

This specific event was kindly hosted by international law firm Allen & Overy in their Paris offices.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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