Nazhat Shameem's Important Address to the Police Crime Investigation Workshop Police Workshop

Keynote Address – Fiji Police Crime Investigation Management Workshop 21^st – 23^rd May 2012, Fiji Police Academy, Suva, Nazhat Shameem, 21^st May 2012.

I am sometimes asked by school students what the traditional symbol of justice, a blind-folded woman holding scales and a sword, means. That symbol can be traced back in history to the Greek Goddess Maat and the Egyptian Goddess Isis. However the modern symbol, of the Roman Goddess Justitia, was not originally depicted with a blind fold. Originally, she was only shown with a double edged sword – the sword of reason and justice, and with scales which depict the weighing up of evidence on the merits
of the case. Her blindfold, first seen in the 19^th century is a message of blindness to the status of the parties, blindness to the rich and to the poor. Blind-folded, justice concentrates only on the evidence and on the merits of the case. All who serve in law enforcement and the justice system need to be reminded of the basis for justice and the law, and the need to administer an equal justice. Justice must not be a mere symbol.

Modern policing methods have moved on significantly from the old process of deciding when to open an investigation, of gathering evidence, and of interviewing suspects. Greater sophistication in the gathering of police intelligence, of using electronic means to discover the movements of people, money and things over long periods of time, the overcoming of national boundaries to investigate transnational crime, and the creation of an international criminal jurisprudence on police methods such as eavesdropping, telephone tapping, covert surveillance, the interviewing of suspects and the use of exhibits which were unlawfully obtained, have all changed policing methods. Such a change is expected. It is desirable, if only because human behaviour has adapted to technology and modern communication. Even here in Fiji, changes in human rights law have modified police procedures in relation to the Judges’ Rules, for instance in requiring police officers to state to a suspect, the right to counsel, to seeing relatives and friends, and to hold off interview if a suspect asks for legal advice. When I first started to practise law, all the police were required to do, was to follow the Judges’ Rules. 

Yet despite these developments, some things in relation to police forces, and in particular to the Fiji Police Force, do not change. One such trend is the over reliance on a caution interview. I often ask police officers what they will do in an investigation if there was no caution interview. Would they be able to piece together evidence which is circumstantial? Is there independent evidence which supports the confession? In my opinion, the subject of police interviewing techniques raise three important issues: firstly the need to conduct interviews in a transparent and fair way, without resorting to ambush, oppression, or violence; secondly the need to construct the caution interview around the elements of the offence and the components of potential defences; and thirdly the need to obtain evidence to substantiate and support the caution interview, which will give greater weight to it. If the police relied less on the interview, and more on independent supporting evidence, police conduct and alleged misconduct at the station is less likely to be the focus of a criminal trial. The result will be a greater professionalism in conduct of criminal investigations.

Let me paint for you, a scenario that I would like to see practised by every police station in Fiji.

1. No person is investigated unless and until there are reasonable grounds to suspect that a person has committed a criminal offence. This is an objective test.
2. When a person is required for police questioning, it will be clear whether the person is a suspect or a volunteer. A suspect may also be a volunteer, but as soon as a volunteer becomes a suspect, the caution will be administered, and no conversation will be held with the suspect unless it is (a) under caution, and (b) recorded either in the police notebook or in interview notes.
3. As soon as person is in custody, which means that he or she is not free to leave police custody, the person will be arrested by a person of his or her own gender.
4. At the time of arrest the suspect will be told of the reasons for arrest, the right to remain silent and the right to obtain legal advice from a private solicitor or from the Legal Aid Commission.
5. The suspect will be allowed to make a telephone call to relatives, friends or a lawyer.
6. If the suspect opts for a lawyer, the police will not commence interview until legal advice has been received by the suspect.
7. The interview will commence in an interview room which is equipped for video recording.
8. The police officers in the Crime Branch of every station in Fiji will have been trained to conduct caution interviews on video.
9. A failure to video record the interview will lead to discipline unless there is a good explanation, and such failure may also lead to the exclusion of the interview in court.
10. Where an interview cannot be video recorded in a station, the Crime Officer will decide whether the suspect should be transferred to a station which has video recording equipment, or to proceed without the video. In these circumstances, the interview should be audio recorded instead.
11. Every suspect in custody will be the responsibility of a custody officer, who will give evidence in court if there are questions about the way in which a suspect has been kept in custody.
12. A Police Act should set out a “Custody Clock” which limits the time a person can be kept in police custody, and which provides for extensions of time to be ordered by the courts, on the basis of good cause shown by the police.
13. No person should be kept in custody for questioning for more than 24 hours, unless the circumstances are exceptional. Thereafter the suspect must either be released, or charged and released on bail or remanded in prison custody by the courts.
14. Custody must be authorised by an officer above the rank of Corporal, and the Custody Officer must be a Sergeant or Inspector.
15. In court the video or audio recording of the interview will be admissible in evidence unless admission would be unfair, or where a confession is considered unreliable.

This is my wish list, but my wish list is in fact the state of the law on police confession in many countries in the world. The recording of police confessions is important, because it leads to greater transparency in police methods, it encourages police officers to prepare for their interviews on the basis of the law and the elements of the offence, it leads to the virtual eradication of the trial within a trial, and it protects the suspect from unfair police conduct, and the police from unfair allegations of unfair police conduct.

However, we need to have a degree of honesty in considering the question of greater transparency of police procedures. Are you ready for transparency? Are you ready for a record of your conduct and questioning style to be recorded on video and displayed in court? The question is not a question of law. Any evidence can be admitted in court under the Criminal Procedure Decree if it is relevant and admissible. The question is one of police attitudes. If you are reluctant to video record your interviews, why are you reluctant? Is it simply resistance to a new mode of policing, or is it reluctance to allow the courts, the media and the public to see how people are treated at police stations?

This is a workshop on the management of criminal investigations, and it is the most appropriate place for you to confront these uncomfortable questions. Police conduct in the stations, and while interviewing suspects has recently been under the spotlight. People who should not have been convicted for crimes, have been convicted of those crimes on the basis of police confessions made in custody. In almost every serious case, allegations of police brutality and unfairness are made. In almost all serious cases, trials within a trial are held, which focus not on whether the accused committed the offence, but on whether the accused was assaulted in police custody. If we deserve to be called a civilised country, then we must take a long hard look at the way in which criminal investigations are conducted, and ask whether it is the lack of transparency in the interviewing of suspects, and a lack of adherence to proper police procedures which have resulted in this unnatural and undesirable situation.

I hope that you give the issue of recording police interviews thoughtful consideration at this Workshop.

In relation to the way in which confessions are recorded, there is a greater need for planning the questioning. No police investigator should commence an interview unless he or she has read all the evidence that is available, and that has led to a conclusion that this suspect may have committed particular offences. No investigator should commence an interview without first breaking down an offence into elements. Let me give you an example. The elements for rape are:

1. That the accused;

2. Committed a sexual act defined in the Crimes Decree;

3. Without the victim’s consent; and

4. That he or she did the act knowing or being reckless about whether the victim consented to the act.

The interview should not commence without the investigator looking up the definition of consent in the Crimes Decree, obtaining the medical report, obtaining the victims’ statement, and any evidence of recent complaint. The definition of consent in the Crimes Decree includes consent obtained as result of threats, as a result of intimidation or the exercise of power, The interview then needs to deal with each element;

Did you have carnal knowledge (or any other act of penetration defined in the Crimes Decree)?

Did you know that she did not consent, and (if the answer is no)?

Isn’t it the case that you must have known and were reckless about whether she consented or not, and isn’t it the case that you knew that there was a substantial risk that she did not consent and that you went on to take that risk anyway?

And isn’t it correct that as her father you used your authority over your daughter to obtain her submission to the act of carnal knowledge? 
 

A good caution interview is based on knowledge of the law and the evidence. A good caution interview does not need to resort to unfair and oppressive methods of interviewing. We do not need the inappropriate use of sexual language. Nor do we need police officers who are big, strong and (with respect) male to conduct a good caution interview.

What sort of police officer do we need, then in the CID? And what sort of police leadership is the public entitled to expect? After all, the police are accountable, ultimately, to the public in the performance of their duties.

Firstly, we need police officers who are honest. Honesty is mandatory. There is no room for corruption in the Police Force. Not all police officers are paid very highly, yet they are expected to investigate crime, sometimes in remote areas of Fiji, with no or little supervision. An individual police officer has powers which are easy to abuse. 

Therefore the police leadership must create and maintain enough checks and balances in the system to ensure that the Police Force is protected from corruption, dishonesty, abuse of office and nepotism. It is not easy. In other countries corruption in the police forces have lead to public scandals and enquiries which have revealed complicity in the police corruption from officers at the highest level. In my view corruption is more likely to thrive when senior police officers are either complicit in the corruption, or turn a blind eye to it because of the police culture of tolerance to breaches of procedure. For a disciplined force, one must expect high standards of audit compliance, of internal grievance procedures, of respect for police values and for officers of all ranks. A police force which adheres to internal good governance principles is less likely to lapse into corruption.

Secondly, we need police officers who are competent and know how to look up the law. No one expects police officers to know the Penal Code or the Crimes Decree off by heart. But they should know where to find offences which are the subject to investigations, they should know how to break down the offences into elements and they should know the legal definitions of common defences such as provocation, self-defence, mental impairment and claim of right.

Thirdly we need police officers who are professional and impartial in their approach to investigations. If they have arrested a person against whom there is insufficient evidence to lay a charge, that person must be released from custody. When exhibits are seized, they must be properly labelled and kept. Every action taken an the course of a police investigation must be recorded and kept in the docket in chronological order. The investigations diary must be up to date, and the search lists and search warrants must be copied and attached to the docket. Professionalism is an important attribute for police officers. Sadly, and with respect, this is one quality that is often lacking when police officers deal with the public.

The professionalism of the Police Force is judged by the way individual police officers answer the telephone, how they record complaints including the most minor ones, the way in which they return calls when members of the public are trying to contact them, and in the way they keep victims of crime informed about the progress of their cases.

These qualities are gender neutral. A good police officer does not have to be male or female. A good police officer does not have to tall or strong. Very little police work is now spent chasing criminals along the seawall, and if there is any chasing to be done; it is usually not done by the Criminal Investigations Department. It is time that the Police Force looked seriously at its image as a male province, where women police officers are not considered suitable for criminal investigation work. If you are seen as an equal opportunity workplace where men and women are treated with equality and respect, you will undoubtedly get greater respect from the women in our society. If police attitudes have in the past created a barrier to the reporting of crimes against women and children, then you need to ask yourselves whether the macho and male image of the Fiji Police Force has contributed to the dark figure of unreported crimes of sexual violence and domestic violence. 
 

I know that a greater professionalism can be achieved. The enlightened and professional way in which most police officers have responded to training on the Domestic Violence Decree, and the increasing numbers of restraining order applications in court, are a testament to your ability to work with new laws in a professional and gender competent way. However, police officers must confront the image of the police force as a predominantly male domain, and must work towards achieving gender competence for all its officers, male and female. After all, we should not assume that women are incapable of gender bias towards other women!

The last issue I wish to highlight in this address is the training of police officers for giving evidence in court. Again, professionalism is the key. Reading investigation diaries before coming to court, bringing notebooks and any relevant notes with you when coming into the witness box, and refusing to rise to the bait when being vigorously cross-examined by defence counsel, are features of the courts’ expectations of police officers. Above all, police officers are expected to appear in court when they are summoned or called by prosecutors. A non-appearance by a police officer reflects very badly on the professionalism of the Police Force.

How do we achieve professionalism? We achieve it by asking ourselves what our job is. We achieve it by refusing to be distracted by political bias, gender-based attitudes, and dishonesty. We achieve it by focusing only on our core responsibilities and being unwavering in our ethical duties as police officers. Your job is to investigate crime, and to ensure that in doing so, you do not use unfair or illegal methods of gathering evidence. Your job is to be ethical and honest, and to show a commitment to the building and strengthening of the institutional values of the police force. Your job is to build the public’s confidence in law enforcement by being efficient, knowledgeable and ethical. That is professionalism.

I hope that in your discussions over the next three days, you will discuss ways in which the Police Force can work towards greater public confidence in criminal investigation and law enforcement in Fiji. This must not just be a talk shop. The people of Fiji deserve much more than a talk shop. I hope that you will make recommendations that will help the Police Criminal Investigation Department become an effective law enforcement agency which is neutral, ethical and strong.

I wish you well in your discussions.