Abstract

The competence, courage, honesty, imagination and open-mindedness of investigators can have a profound effect on the fairness, validity and quality of an investigation. The record of how an investigation was managed, Investigative Policy, provides a way of assessing both. Experience points to six basic Investigative Styles: incompetent, political, corrupt, fearful, partisan and legal agnostic. Only one of which, legal agnostic, may be capable of producing investigations that are, fit for purpose, can be trusted and non-discriminatory. The remainder may tie evidence to an outcome (not necessarily a prosecution) by its proximity to prejudice, organizational or political interests. In short a Garbage Can Investigation.

Introduction

Churchill once said that his cigars were the best, but that the best were none to good. As a senior detective with responsibility for assess the quality, validity and fairness of police investigations, I could not stop similar thoughts from entering my mind. This article was born out of that concern. It seeks to achieve its purpose by providing lawyers and others interested in criminal justice with a way of assessing investigations without getting mired in detail. It is based on the assumption that:

1. The purpose of policing is, the preservation of life, protection of property, prevention and detection of crime and prosecution of offenders (in that order).

2. The quality of a service is determined by its fitness for purpose.

3. A valid investigation is a managed search for truth in which equal attention is paid to locating evidence capable of implicating and eliminating suspected offenders and disclosing information that may assist the defense or undermine the prosecution.

4. The fairness of an investigation is dependent upon the absence of prejudice, bias, doctrinal or other assumption, for example a fingerprint provides unequivocal evidence of identity.

5. The efficient, effective, economic and ethical management of any processes is dependent upon maintaining a concise, accurate, comprehensive, contemporaneous record of who did what, why, when, where, how together with the result.

6. The resulting documentation, called Investigative Policy, provides an effective and economic way of assessing the competence, courage, honesty, imagination and prejudices of investigators. As such it also provides a way of measuring the quality, validity and fairness of investigations.

What is Investigative Policy?

Investigative Policy is to an investigator what a statement of accounts is to an investor. In the same way that no one in their right mind would buy a business without first seeing the accounts, it may be unreasonable to ask victims, suspects or the courts to accept the outcome of an investigation without seeing the account of how it was managed.

Where business people use double entry bookkeeping to match income against expenditure, detectives use investigative policy to justify decisions with information. Whilst business people uses sequentially numbered, time-dated invoices to keep track of money, investigators use sequentially numbered, time dated and signed pages in Policy Books to keep track of decisions. In the same way that financial information may reflect a particular management style, Investigative Policy reflects the competence, courage, honesty, imagination and open-mindedness of investigators.

Investigators who score poorly in these areas may be unlikely to perform well in an environment in which, victims may lie, witnesses suffer from the frailties of human perception, informants deceive, expert evidence be tainted by self interest and even the certainties of forensic evidence may not be what they seem. After all fingerprint identifications are a matter of opinion rather than fact and fortuitous hits, the name given to anomalous identifications, may undermine the credibility of DNA evidence.

In much the same way as the absence of a watermark points to a forged banknote so the absence of a valid, properly documented Investigative Policy may point to a forged investigation. How without accurate documentation can any investigator claim to have identified let alone followed all viable lines of enquiry? Chief Officers claim that investigations are fit for purpose and lawful?

Assessing Investigative Style

Experience points to six basic Investigative Styles each with its own set of characteristics:

Incompetent - Conducted by people who do not know what they are doing and do not know that they do not know, but think that they do. There is some evidence that the incompetent are least likely to be aware of their failings and have an inflated opinion of In their ability. Poor judgement and the desire to conform may make them more likely to accept decisions on authority and social consensus rather than evidence. Investigative Policies born of incompetence may lack adequate documentation and that which does exist may be both verbose and confused. The verbosity may arise out of failure to understand the difference between a policy, to interview all of the people in a particular area and an action to interview a named individual. The result may be a long list of actions without any sort of justification. As it says in the Koran, ‘if you are lost any road will get you there.’ Or to put it another way if it looks like a shambles it probably is.

Political- The fudge and fumble of political investigations is a sort of learned incompetence in which the desire to meet organisational expectations takes precedence over legal and professional requirements. Unlike the truly incompetent, political operators may be aware of their shortcomings. This knowledge and the fear of being held to account may result in poor record keeping and a tendency to blame others. Favoured strategies may include, a reluctance to sign documents, terms of reference that avoid difficult issues, demanding that victims or witness prove allegations (if you could prove a crime why would you need the police), a failure to follow problematic lines of enquiry, keep minutes and strained logic. At an organisational level it may include the appointment of quite junior people (who can be lent on) and or individuals who lack the required competences (do not know) required to investigate serious allegations. Honest individuals caught in political investigations may fain incompetence and or attempt to protect themselves by keeping two sets of records.

Corrupt - Investigators prostitute themselves for money or other advantage. They can range from highly ambitious political operators to highly competent, very brave and thoroughly disillusioned detectives. Whatever the motivation the methodology remains the same. Making the facts fit a desired outcome may involve, planting and losing evidence, inventing and editing information, destroying documents and suborning witnesses. Corruption may occupy the space created by politically motivated leaders and incompetent managers. Tell tale signs can include, the sudden appears of critical evidence, the loss or lack of supporting documentation, failure to use standard systems and procedures and lack of management supervision. They can also include the production of perfect documentation, for example, typed Policy Records that lack, spelling or other mistakes and failed lines of enquiry. It is often much easier to work backwards from a known outcome rather than forwards towards an unknown destination.

Fearful - Surprising as it may seem investigators can be frightened of the people they investigate. They may also be frightened of having their worked reviewed and criticised, for example in the High Court. Some may be just out for an easy life. Fearful investigators may never have enough information to make a decision and fearful managers may never challenge poor performance. The result may be poor record keeping and or a verbose list of excuses. The audit facility of computerised crime systems may reveal managers who lurk in cyber space only opening and supervising investigations they consider safe. There is an old saying in the police, if don’t do anything and you will never get into trouble.

Partisan - Investigators have strong prejudices and or beliefs, for example that children do not lie, which dominate their thinking. Some may even be willing or naive enough to record a positive statement of intent for example; the purpose of this investigation is to prove this lying creep guilty of theft. Others may achieve the same thing with a series of negative statements, for example the parents of this child should not be investigated or considered to be suspects. Intelligence led investigations may be at particular risk of becoming partisan. Why if an informant has identified a suspect should you need to do anything other than prove him or her guilty? Particularly if you had prior knowledge of the offence and, in order to secure a greater punishment, allowed it to take place. Partisan investigation may also have a tendency to flow backwards, with the appearance of a suspects followed by an investigation designed to prove guilt or in some cases innocence.

Legal Agnostic – Investigations are logical and systematic. They start with a legal purpose for example, to recover a kidnapped child alive. They then record how that purpose is translated into action. In doing so they may assess evidence from three sources; statements, exhibits and other documents, against its ability to implicate or eliminating a suspected offender, assist the defence, undermine the prosecution and need for Public Interest Immunity. Investigative Policies may be contemporaneously, concise, comprehensive, logical, supported by the minutes of management and other meeting and signed by the person making the decision. They may also reflect a high tolerance of ambiguity, a non-judgemental view of life and be innovative. Give the time pressures under which many Senior Investigating Officers (SIO’s) work they may be hand written, contain a large number of spelling and other mistakes including failed lines of enquiry.

No one is perfect and in the real world, with the exception of corruption, most Investigative Policies may contain elements of all styles. The tipping point in terms of the quality, validity and fairness of an investigation may be by the degree to which Investigative Policy; records a lawful purpose, the transparency with which that purpose is translated into action and the degree to which it identifies and records information that may undermine the credibility of those who manage, influence, participate or provide information to the investigation.

Conclusion

Investigative Policy provides a portal into the minds of investigators. Assessing how they think provides a way of determining if an investigation is, fit for purpose, can be trusted and equitable. The process may also be used to support secure the disclosure of information that may assist the defense or undermine the prosecution – was the investigator competent, the investigation legal, can the process be audited and can the outcome be trusted.

Des Thomas MBA Forensic Management Consultant (DtInvestReview@aol.com)