Miscarriages of justice: the role of homicide review

Introduction

Reviews of undetected murder inquiries are necessary in order to prevent some of the miscarriages of justice witnessed since the 1980s. The reasons for miscarriages of justice are varied, and include police malpractice, failed investigation, disclosure issues through to poor legal representation and questionable ‘expert evidence’ as well as the causes of failed investigations characterized by unwitting prejudice, ignorance, thoughtlessness stereotyping and other forms of bigotry. ¹ The author ² introduces the concept of ‘institutional incompetence’. This analogy was made by Grieve et al. suggesting that the concept identified by the findings of the Macpherson inquiry 1999 ³ of ‘institutional racism’ may also be described as ‘institutional incompetence’, and that the two ‘may not be mutually exclusive’.

Research has shown the police conduct in undertaking criminal investigations is a significant factor in public confidence. ⁴ Milne et al. reject the term ‘wrongful convictions’ in favour of ‘questionable convictions’ as the former suggests there has been a ‘denial of the truth’ which may not in fact be the case. They state that questionable convictions are not only the consequence of poor investigations, but also ‘inaction’ or ‘no action’ and so the miscarriage may be a result of a failure to act on the part of investigators. The inactivity of police in the early stages of the investigation into the death of Stephen Lawrence is quoted by Macpherson ³ as an example and is clearly an area of concentration for the review process (see also Savage et al. ⁵ ).

History of murder review

In order to emphasize the importance of the murder review process, it is necessary to place it within a historical context, which will set out the obligation with which the police have to review homicide cases. Perhaps the first recorded formal review of a murder was conducted by Leonard Matters in his book The Mystery of Jack the Ripper in 1929, more than 41 years after the last of the five murders in the Whitechapel area of London. ⁶ This is possibly the most frequently reviewed case of all time with many researchers claiming to have uncovered the truth. However, in reality, no review has ever conclusively revealed the killer and probably never will. ⁷

One of the most influential ‘reviews’ of a murder series was the report of Sir Lawrence Byford ⁸ into the ‘Yorkshire Ripper’ murders. The inquiry revealed a catalogue of errors and communication problems in managing 13 linked murder investigations. By the time Peter Sutcliffe was arrested, he had been interviewed no less than 12 times during the course of the investigations which spanned three police force areas. The investigations were ‘drowned’ by information overload, with 150,000 people interviewed, 27,000 house-to-house enquiries and 22,000 witness statements to analyse. When Sutcliffe was arrested, this was almost by accident. ⁹

The Byford inquiry made several recommendations. ⁱ One of the most important recommendations which has led to developments since its inception was the appointment of an ‘advisory team’ charged with assisting forces dealing with complex cases such as this. This manifested itself eventually into the National Crime Faculty (now called National Policing Improvement Agency [NPIA] operational support department), which carried forward most of the Byford recommendations, albeit 15 years after he made his report to the then Home Secretary William Whitelaw. This guidance was produced in the form of Home Office Circular 114 of 1982 (Home Office, 1982). ACPO issued further guidance in 1988.

Without doubt, the most significant review of a murder has been the report of Sir William MacPherson. ^3,ii following the racist murder of the teenager Stephen Lawrence in 1993. The reports which followed placed the whole police service under the spotlight and diminished public confidence in the Metropolitan Police Service. The inquiry revealed many shortfalls in the police investigation from the point of first police attendance and through the inquiry, up until the failed prosecution of identified suspects. The final report made 70 recommendations. Recommendation 19 was that ACPO devise codes of practice to govern reviews of investigations of crime, in order to:

‘Ensure that such reviews are open and thorough. Such codes should be consistently used by all police services. Consideration should be given to such practice providing for reviews to be carried out by an external police service’. (MacPherson, 1999, Chapter 47)

The 1998 ACPO guidance entitled ‘Revised Guidelines for Major Crime Reviews’ ¹⁰ set out the current review process. ACPO provided a checklist for a review which is still a valid document today although amendments need to be made to take cognisance of new technologies, advances in forensic science and changes in law and policy. This document is currently in the process of being updated by the NPIA.

The report by MacPherson criticized the internal review into the Lawrence murder which was commissioned by the Metropolitan Police and which took place in November 1993 and has become known as the ‘Barker Review’. ¹¹ This review was described by MacPherson as

‘… the unquestioning acceptance of the Barker Review by senior officers is a most serious aspect of this case … the review was flawed both in its recitation of facts and in its conclusions. The Review provided a convenient ‘shelter’ to those involved. The failure of all senior officers to detect the flaws in the Review is to be deplored’. (MacPherson, 27.24)

The Kent Police review in 1995 ¹² which followed was however not subject to the same criticism and this second review uncovered many flaws in the initial investigation.

The impact of the MacPherson report on the whole police service was examined by Foster, Newburn and Souhami in 2005. ¹³ Foster et al. found there were changes to murder investigations generally as a result of the case, but changes also occurred in anticipation of the MacPherson findings. These changes were linked, although not exclusively, with the Lawrence case. Foster et al. identified several changes including formal reviews of murder investigations. Changes were apparent such as the introduction of dedicated murder investigation teams in the Metropolitan Police to concentrate skills and improve the quality of investigations; a homicide assessment team to attend and advise at life-threatening assaults and unexplained death and murder scenes; more oversight of SIOs and their investigations and critical incident training. These changes led to an improved initial response at murder scenes and increased scrutiny of investigations (see also Grieve et al. ² ).

The need to professionalize has led directly from these failed cases to the writing of the Murder Investigation Manual (MIM) the first version of which was published in 1998. ¹⁴ The document was a first attempt to collate and conceptualize investigatory good practice, although Greenwood et al. ¹⁵ initially introduced the concept of a ‘scientific’ and structured approach to the investigation of crime before the MIM was written. The MIM was reviewed in 2000, ¹⁶ and the latest version was published in 2006. ¹⁷ The MIM has a ‘sister’ document called the Major Incident Room Standardised Administrative Procedures ¹⁸ which sets out the procedures and processes within a murder incident room from the Byford recommendations. The MIM and the MIRSAP documents set out the collective learning from murder investigations and reviews of the past and provide practice advice in the light of new technical and forensic advances.

The section of the MIM dealing with murder review sets out the objectives and benefits of the review process to ensure an inquiry conforms to nationally approved standards, is thorough, has been conducted with integrity and objectivity, that no investigative opportunities have been overlooked and that good practice is identified (pp. 83–88). The MIM outlines the core doctrine for the management of murder inquiries.

It is not just the review by public scrutiny or internal reviews which have changed practice over the years. Defence tactics have played a role, in particular the professionalization of how defence solicitors act when representing clients in police custody and through to court as prescribed in the defence solicitors' handbook ‘Active Defence’ ¹⁹ and the accreditation scheme ‘Police Station Skills for Legal Advisers’. ²⁰ In addition to this there have been a number of child abuse and mental health reviews which have informed and developed practice.

Investigative thinking

The Core Investigative Doctrine ²¹ seeks to plot a set of principles in relation to policing, in particular crime investigation, and refers to the use of hypotheses within the context of the investigation of crime. Hypotheses are defined as ‘a suggested explanation for a group of facts either accepted as a basis for further verification or accepted as likely to be true’. This is a key area for identifying shortfalls during the course of a review process.

The issue of identifying hypotheses within a murder inquiry has given rise to much debate among senior investigators, but Heuer ²² argues that a set of hypotheses should be identified and the inquiry should seek to disprove each one; the one which remains is probably the truth. ⁱⁱⁱ There is a school of thought that the use of hypotheses within a crime investigation should be avoided as the investigator could fall foul to the principles of ‘case construction’. ²³ This is highly debatable as it could be argued that hypotheses formation is inevitable, otherwise there would never be a scenario to prove or disprove. One of the early writers on the subject of hypothecation was William of Ockham (1288 to 1348). Ockham's razor was his principle that theory construction should always err towards the simple as this was more likely to be the truth. Ockham also warned about making hypotheses too elaborate and ‘hypothesizing about a hypothesis’. ²⁴

The argument as to whether investigators should or should not use hypotheses appears to have been settled in favour of hypotheses forming as this has been adopted within the MIM and Core Investigative Doctrine. Reviewing of murder inquiries is about examining processes and action but also decision-making rationale and the examination of hypotheses formulation, considering how the hypotheses are proved or disproved.

The theme of investigative decision-making and hypothecation is addressed in the Core Investigative Doctrine. Heller ²⁵ describes generic decision-making as ‘a choice between a variety of alternatives and a decision maker is whoever makes such a choice’. A decision can be made instantly but more often involves the decision-maker in a process of ‘identification, analysis, assessment, choice and planning’. This is particularly significant for murder reviews as some infamous cases have revealed. ^iv A study by the Royal Commission on Criminal Justice in 1993 found that the most common type of error in crime investigation was related to decision-making. ²⁷ This is supported by the more recent study. ²⁸ There is a dearth of research in this area ²⁹ and therefore it is necessary to set ‘working rules’ which is what the MIM and the Core Investigative Doctrine provide. These working rules also assist in preventing personal bias based upon racism, sexism and homophobia as well as preconceived ideas based upon people, places and situations.

The ACPO Core Investigative Doctrine ²¹ describes the dangers inherent in many historical cases of ‘verification bias’. Verification bias is where an investigator forms an early view as to a hypothesis and then concentrates the focus of the inquiry into supporting that hypothesis to the subjective exclusion of other lines of inquiry.

Sanders et al. ²³ describe this as ‘case construction’ which is where the investigator adopts a hypotheses as to what has happened and identifies evidence to support that hypotheses to the exclusion of evidence which does not support or even contradicts that hypotheses. This phenomenon is particularly evident in the interviewing of witnesses, where there is now a considerable body of evidence to show that using traditional interviewing methods it is relatively simple for the investigator to obtain a statement as to what the interviewer wants the witness to say as opposed to what the witness wanted to say. ³⁰

The opposite of case construction is ‘case denial’ which is where the investigators form an early view that no crime has been committed which can limit the investigation to proving that no offence took place. Indeed this is what happened in the case of Ricky Reel in 1997. ³¹ When this youth was reported missing the police took the view that there was no crime even after his body was found in the River Thames.

Such preconceived views on the part of investigators can lead to ‘premature closure’ of investigations prior to all reasonable lines of inquiry being followed. Section 23a of the Criminal Investigations and Procedures Act 1996 was introduced by the Government, which placed a legal responsibility on the investigator to ‘follow all reasonable lines of inquiry’.

Work has been conducted in relation to investigative decision-making by Eyre et al., ³² particularly in terms of decision-making errors and false assumptions in criminal cases made by senior investigators and a significant factor was found by them to be the investigator's mindset. Eyre and Allison's core area of interest is social cognition and the processes by which individuals make sense of ambiguous, complex or contradictory information.

The Core Investigative Doctrine describes the many reasons for flawed decision-making on the part of senior investigators and accepts that it may be impossible to rid ones mind of ‘ingrained flaws’. However as Hammond et al. ³³ argue, if one is aware of the flaws which affect decision-making, the individual may be able to compensate for them. Hammond et al. describe the most common of the decision-making traps as being (i) over-confidence; (ii) over-cautiousness; (iii) memory interference or ‘recalability’ and (iv) what he describes as ‘anchoring’. The latter is described as an over-reliance upon the first accounts available to the investigator to the exclusion of further and perhaps more accurate information.

The tactics to overcome them are described as: (i) viewing a problem from different perspectives; (ii) thinking a problem through alone prior to consultation with others thus avoiding being anchored by their ideas; and (iii) to be open-minded and seek views from a variety of others to widen the frame of reference.

These are all intrinsically linked to the purpose of the review process. The important issue for the reviewers, however, is to be aware of the anchoring phenomena taking place and thus skewering the outcomes and focus of the review. People who have a preconceived belief and who find contradictory evidence tend to re-establish their belief to take account of this contradictory evidence, by either dismissing it altogether or amending their belief to take account of this evidence. In this way a degree of reinterpretation takes place. ³⁴ Laming ³⁵ concluded that investigative decision-making requires experience and competence based upon healthy scepticism, open mind but with an investigative approach.

The Core Investigative Doctrine ²⁶ lists five elements of what it describes as the ‘investigative mindset’ necessary for a senior investigator to acquire over time and with experience:

understanding the source of material

Irving et al. ²⁵ conducted research for the Royal Commission on Criminal Justice in order to identify ways of improving the quality of police investigations and found that the mindset and the way investigators ‘think’ could be improved upon as there was a reliance upon traditional methods such as ‘intuition’ for directing an inquiry and confession evidence to the exclusion of decision-making and reasoning skills. These traditional non-scientific methods and attitudes are more likely to lead to miscarriages of justice. ^1,37 The area of investigative decision-making was subject to some comment by Lord Laming within Chapters 14 and 15 of the inquiry into the death of Victoria Climbie, ³⁵ where the findings were critical of the investigations which preceded her death.

Another area of interest to the reviewer which affects the investigative mindset is what Schank et al. ³⁸ describe as ‘scripts’ and ‘schemas’. These tend to help us perceive and interpret in accordance with our experiences of the past. Individuals tend to rationalize information and events using their own experiences of life to fill in missing gaps with what they expect happened rather than what did in fact happen. ³⁹ This can be very problematic especially when obtaining an account of events from witnesses. ⁴⁰

Many of the miscarriages of justice referred to can be attributed in part to the application of the crime control investigative culture, ⁴¹ but there is now a move from a crime control to a due process oriented model of law enforcement.

Crime control and due process models were defined by Packer as two different and competing value systems. The crime control model effectively saw the point of the criminal justice system as that of controlling crime as its paramount aim. The due process model in contrast is characterized as intended to dispense justice but with the underpinning principle of the rights of the individual and adherence to the rule of law. ⁴² Logically, miscarriages of justice are more likely to take place in a crime control environment, but the criminal justice system in England and Wales has moved towards a due process model which in theory at least should reduce ‘questionable convictions’.

In respect of murder investigation, ⁴³ although some might argue that this is reversed for some types of volume crime, the inception of murder review is part of this move towards due process, and will further reduce miscarriages.