The Baird government, having just passed laws giving police unchallengeable power over the movement of individuals, are now proposing laws which allow police to detain and question young people for up to a fortnight, without charging them with any offence.
The proposed laws could see children as young as 14 who police claim are terrorism suspects interrogated in custody for prolonged periods of time.
Preventative detention orders already allow law enforcement agents to detain suspects for up to 14 days in order to ‘prevent’ them from committing crimes, but police cannot currently question them in custody.
There are fears that removing young people from their family and friends, placing them in custody and exposing them to coercive police questioning for two weeks will result in the extraction of unreliable information, including ‘false confessions’ reminiscent of the days when unscrupulous police techniques like ‘verballing’ were common practice.
As usual, Premier Mike Baird has used the threat of terrorism to justify the removal of legal safeguards, saying he is doing “everything possible to protect our community from terrorist threats” and claiming that “These new powers do exactly that, by giving our police the ability to properly investigate terrorist plots.”
Deputy Premier and Justice Minister, Tony Grant, says the laws “would only be utilised when there is an imminent threat to our community from terrorism”, adding that “All the appropriate safeguards are in place to make sure these laws are not misused”.
However, Mr Grant does not elaborate on what ‘safeguards’ will be implemented, and there are concerns children will succumb to sustained police pressure, saying anything in the hope of being released from custody and reunited with their families.
That ‘evidence’ could then be used to charge them with criminal offences, allowing police to claim much sought after ‘victories’ in the fight against terrorism.
Scope of Proposed Laws
Under the proposal, anyone aged 14 or over could be issued with an “investigative detention order” if police suspect they are planning to commit a terrorist act within two weeks, or have committed one in the previous 28 days.
There does not appear to be a test for this ‘suspicion’, and there are concerns about both the breadth of police discretion and lack of judicial oversight.
Countless studies have been conducted over the years evidencing the fact that people – normally adults – frequently confess to crimes they did not commit.
Perhaps the danger of eliciting a ‘false confession’ is magnified when it is a child being detained and questioned, especially when the interrogation can last up to two weeks, rather than the usual four hours.
The unreliability of confessions has led to significant changes in police practices and the laws of evidence over the past two decades, with Part 3.4 of the Evidence Act 1995 imposing restrictions on the use of ‘admissions’, and section 165 categorising it as ‘unreliable evidence’ which requires judges to:
- Warn the jury that the evidence may be unreliable, and
- Inform the jury of matters that may cause it to be unreliable, and
- Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
Nevertheless, a jury faced with a confession might regard it as strong evidence of a person’s guilt.
The dangers of false confessions have received popular attention through the release of the Netflix series ‘Making a Murderer’.
The show explains the Reid Technique of interrogation, a controversial 9-step tactic used to wear down suspects until confessions are extracted. The psychological process involves the use of loaded questions to trap suspects into securing a confession – something that might be particularly effective against vulnerable people like children.
While the Reid Technique is not supposed to be used in Australia, there are concerns that the protracted questioning of impressionable young people will nevertheless result in false information being elicited.
Research by psychologist Elizabeth Loftus found that people under intense questioning can forge false memories, especially if they are suggestible. Loftus successfully implanted memories into subjects of being lost in a shopping mall as a child. This was done by giving subjects a list of three true stories, and one that was fabricated. After reading each story, the participants were asked to write down what else they remembered about the incident, or to indicate that they did not remember it at all.
Remarkably, about one-third reported partially or fully remembering the false event, and in two follow-up interviews, a quarter still reported recalling the implanted story.
The work of the Innocence Project further highlights the dangers of confessional evidence.
To date, the Project has led to the exoneration of 337 convicted prisoners in the US, using DNA to prove they could not have committed the crimes. Many of them had been sentenced to life imprisonment or were on death row, and dozens had already spent years or even decades behind bars.
In 27% of those cases, the convicted person had confessed to the crime.
Justice or Votes?
There’s no doubt public pronouncements of victories in the war against terrorism are a vote-winner, especially in an environment of fear.
However, the laws proposed by the Baird government may come at a significant cost – potentially leading to innocent children confessing and being convicted of crimes they did not commit.
In the current political climate where both major parties are loath to oppose measures ostensibly designed to protect against terrorism, it is likely the proposed laws will come into effect despite the dangers.