Results of survey taken in January 2015 by legal transcriptionists of 58 ERISPs

In January 2015, I conducted a study of 58 records of interviews of persons of interest conducted by NSW police.  Six other legal transcriptionists at Spark and Cannon NSW assisted me gathering the data. The sample was random: ERISPs (Electronically Recorded Interview of a Suspected Person) of persons of interest (POIs) were chosen according to normal work practices, which are based on a due date rather than any content of the interview. Interviews of witnesses, or of children, have been excluded.

Each transcriptionist answered five questions of each interview they transcribed:

• The record number - for identification of the ERISP (because of copyright and confidentiality issues, no other details about the ERISP were recorded).
• Did the POI have a lawyer present? This was obvious to the transcriptionist from video footage.
• Did the POI  receive legal advice? If mentioned in the interview, this was noted as either yes or no. If not mentioned, it was noted as unknown.
• Did the POI attempt to remain silent during the interview? This question was answered in the affirmative if any attempt was made by the POI to remain silent. So a 'yes' to this question would represent a single question being answered with 'no comment', no verbal reply, or something similar.
• Was the POI successful in remaining silent in the interview? This required a level of judgment on the transcriptionist's behalf, based on the perceived aim of the POI. For instance, if the POI only attempted to remain silent to one question, were they successful in refusing to answer that question in the face of police pressure in the interview?  Or if the POI was trying to remain silent throughout the entire interview, were they successful in refusing to answer any question of the police?

Because about 53% (31 of 58) of the interviews did not mention whether the POI had received any legal advice, analysis has been done both only of those cases where this information was available, and over the whole of the cases analysed.  In the analysis of all of the cases, these interviews are treated as interviews where the POI has not had legal advice.  This decision is based on my experience of transcribing many hundreds of ERISPs and observing the general actions of police in ERISPs in NSW over the last five years.

With respect to the right to silence the following characteristics were noted:

• No POIs had a lawyer present in their interview (0 of 58).  Experience tells me that this is a very rare occurrence. In David Dixon's research,(1) his number of 0.76% of interviews having a lawyer present are probably generous.
• About 22% of POIs obtained legal advice when excluding unknowns (6/27), but this drops sharply to about 10% when the unknowns are included (6 of 58).
• About 17% POIs attempted to remain silent in at least part of their interview (10 of 58).
• Excluding unknowns, only one POI attempted silence without legal advice (3.7%, 1 of 27), but this rises to around 8% when including the unknowns (5 of 58), which is the same number of POIs who attempted silence having had legal advice (5 of 58).
• Only half of those who attempted to remain silent were judged to have successfully remained silent in their interview (5 of 10).  Excluding unknowns, the one POI who attempted to remain silent without advice did not succeed.  Including the unknowns, 40% of those without legal advice successfully remained silent (2 of 5), where 60% of those with advice succeeded in remaining silent (3 of 5).

No observations were requested from the transcriptionists, but several were recorded at any rate.

In R0351663, it was unknown if the POI received legal advice.  The POI remained silent on one charge (successfully), but did not remain silent on two other charges.

In R0353835, the POI received legal advice only partway through the interview.  The POI was clearly heavily intoxicated and distressed (both observably and stated so).  After considerable questioning by the police the POI requested legal advice, and (after a two hour suspension of the interview) then successfully remained silent for the rest of the interview.

In R0349934, the POI was under the influence of drugs (both observably and stated so), and did not understand his rights. The POI had no legal advice, and did not attempt to remain silent.

Conclusion

The incidence of a lawyer being present in an interview has been commented on elsewhere as being extremely low.  That finding was replicated here.(2)  The rate of POIs exercising their right to silence seems high when the unknowns are excluded, but with their inclusion as having no legal advice, falls to about 10%, which is in line with other studies.(3)

Of particular interest is that only half of those who attempted to remain silent succeeded. Again, this is in keeping with my anecdotal experience in viewing ERISPs. This is of concern, although a fairly high level of persistence in police interrogation in an ERISP is accepted by the courts.(4)  A 50% rate of failure to remain silent when a POI wishes to exercise their right to silence raises a concern that this right's value is limited without the presence of a lawyer(5) or perhaps a support person.

It is difficult to come to any clear finding on whether having received telephone legal advice makes a difference to the POI's ability to successfully remain silent given the low numbers of those who succeeded.  A wider-ranging study would be useful in discovering what correlation there was between the type of offence, the state of sobriety of the POI, and the reception of legal advice by the POI, in whether attempts to remain silent are successful. It would be interesting to see both what bearing police interrogation tactics have on the ability of a POI to remain silent, as well as whether those tactics are targeted more towards POIs who have not received legal advice, or otherwise seem vulnerable.

1. David Dixon, Interrogating Images: Audio-visually Recorded Police Questioning of Suspects (Institute of Criminology, 2007) 126.

2. Ibid; Federation of Community Legal Centres (Vic) Inc, Submission to the Parliamentary Scrutiny of Acts and Regulations Committee Inquiry into the Right to Silence, July 1998, 10-11; Derwent Coshott, A Hollow Ring: The Right to Silence (29 July 2013) DerwentCoshott.com <http://www.derwentcoshott.com/2013/07/a-hollow-ring-right-to-silence-under-s.html>.

3. New South Wales Law Reform Commission, The Right to Silence, Report No 95 (2000),16; Dixon, above n 1; Federation of Community Legal Centres (Vic) Inc, above n 2, 10, appendix 1.

4. MacKenzie v The Queen (2004) 150 A Crim R 451 453-4, 464-6.

5. Anthony Gray, 'Constitutionally Heeding the Right to Silence in Australia' (2012) 39 Monash University Law Review 156, 184.