‘Blurring of lines’ as cops get involved with wrongful conviction organisation

Sunday, 31 March 2024

Criminal Cases Review Commission (CCRC) chief executive officer Parekawhia McLean is defending the use of a top police officer to train CCRC staff - whose job is to scrutinise police investigations.

An organisation established to critique police investigations, has begun using police to train its staff.

The Criminal Cases Review Commission (CCRC) was set up in 2020 to investigate potential wrongful convictions, after numerous miscarriages of justice were exposed in New Zealand, most caused in part by misconduct.

The CCRC was meant to be an entirely independent body, with wide powers to investigate past cases, and was located in Hamilton, away from the centres of police, government and judicial power.

However, the Sunday Star-Times has learnt the CCRC has now asked the head of interviewing at Wellington’s Police College, to train its own investigators in interviewing techniques.

Former Detective Superintendent Tom Fitzgerald, who created the controversial CIPEM police interviewing technique, which led to a false confession, and has now been abandoned after a review into police interviewing.

It comes at a time when widespread concerns about elements of police interviewing, including the controversial CIPEM technique, have forced police to review their entire interviewing programme - a review that is still ongoing.

Sources close to the CCRC have expressed alarm that the very organisation the CCRC’s investigators are meant to be scrutinising, is now being used to train them.

Poor or coercive police interviewing contributes to many wrongful convictions, and sources felt it was entirely inappropriate for police to now teach CCRC investigators how to interview.

In addition, there was a fear that blurring the lines between the CCRC and police will seriously harm the CCRC’s reputation, and make people less likely to approach it for help, because they no longer trust its independence.

When the Criminal Cases Review Commission was established by Labour and New Zealand First in 2020, it was deliberately located in Hamilton, away from the centres of government, police and the courts in Wellington, in an attempt to underline and ensure its independence.

Previously, in an effort to ensure distance from the police, the CCRC deliberately contracted Mary Schollum, an interviewing expert who wasn’t part of the police, to train its staff. Schollum moved from NZ to the UK in 2007, and has been based there since.

However, the current CCRC investigations manager, Kerri Fergusson, a former police officer, has now asked Detective Senior Sergeant Glen Turner, a 39-year police veteran who runs the investigative interviewing unit at the Police College, to train CCRC staff in interviewing.

When approached directly, Fergusson refused to discuss the matter, insisting questions go through “our official media lines”.

“It’s pretty normal for most organisations to tell a journalist that we’ll get back to them, and also, to go through the correct avenues,” Fergusson told the Star-Times.

In emailed responses to questions, the CCRC’s chief executive, Parekawhia McLean, said they maintained a constructive working relationship with a range of parties, including police, and a one-off training session didn’t blur the line between the CCRC and police.

“We have conducted a review of our training requirements, and interviewing is one topic that we have identified that benefit [sic] and complement our work.

Colin Carruthers, KC, chief commissioner of the Criminal Cases Review Commission.

“There are different aspects to interviewing, one that will be beneficial to understand being investigative interviewing techniques and how police interview in practice.”

McLean said Turner had “several years’ experience in investigative interviewing”, and the CCRC would only be paying for travel costs.

Others were considered to carry out the training - Mary Schollum, and the Griffiths University Centre for Investigative Interviewing in Australia.

McLean said the CCRC’s chief commissioner, Colin Carruthers, KC, was informed about the training session.

Justice campaigner Mike Kalaugher. It was Kalaugher and prison lawyer Arthur Taylor who took a private prosecution against jailhouse snitch Roberto Conchie Harris for evidence he gave in David Tamihere’s trial. Harris was subsequently convicted of eight counts of perjury.

However, when the Star-Times contacted Carruthers, he said he was “in the dark” about CCRC investigators being trained by police.

“I’m sure it will be reported to me, or the board at some point, or as a step management has taken, but I don’t know anything more about it than what you’ve just told me, at the moment.”

Carruthers said such training didn’t raise initial concerns for him, as it was “simply drawing on a skillset that is available, and is purely educating our people on the way in which police investigate, and the techniques and skills that they use, without in any way to suggest that we are beholden to the police”.

And he stressed that in the three cases the CCRC had identified as being miscarriages of justice, and had referred back to the courts for another appeal, the CCRC had strongly questioned police actions.

However, veteran justice campaigner Mike Kalaugher, said it now appears police will be training the watchdog.

Kalaugher campaigned for a CCRC for many years, has been involved in several cases referred to the body for investigation, and says it has been “the best thing that’s happened for years” in terms of correcting miscarriages of justice.

One of New Zealand’s worst miscarriages of justice was Teina Pora, jailed for more than 20 years for rape and murder, despite being innocent. Poor and coercive police interviews contributed to his wrongful conviction.

But Kalaugher said using police to train its staff is a huge shift from the CCRC’s mandate of independence, and invites a level of familiarity with one of the main organisations the CCRC is meant to be investigating and critiquing, that simply shouldn’t be there.

“It is definitely muddying the waters. I think it’s a really bad idea.”

Kalaugher said if someone is sitting in prison, believing they have been wrongfully convicted by the police, and they hear there is an independent organisation that will investigate their case, but then learn that organisation’s investigators have been trained by the police, they will be much more reluctant to even approach the CCRC.

He said, at the very least, the perception of what the CCRC was doing was terrible, and he urged it to look further afield for an independent trainer.

Kalaugher noted that wrongful convictions weren’t overturned by police, but by lawyers, journalists, psychologists, private investigators, and justice organisations, all who had interviewing skills, and weren’t trained by current police how to talk to people.

Waikato University psychology lecturer Andrew Evelo, whose work focuses on legal and justice issues, pointed to many individuals and organisations that could provide independent training for the CCRC.

“There are absolutely lots of alternatives to the police.

The use of a top police officer to train Criminal Cases Review Commission investigators in interviewing techniques, has caused alarm and criticism.

“For instance, we know lots of academics have studied interrogation techniques. And psychologists have put together a lot of interviewing techniques, and there are experts around the world that do this sort of thing.”

Detective Senior Sergeant Turner, who wasn’t trained in the now-abandoned CIPEM interviewing technique, said he was comfortable with training CCRC staff.

“I know, with what I teach them, is that I emphasise fairness and appropriate behaviour, and I guess the whole aim of an interview is to establish the truth, without coercion or manipulation.”

Mikaere Oketopa, previously known as Michael October, was convicted of murdering Anne-Maree Ellens in 1994 but has always insisted he is innocent. His case has been referred back to the Court of Appeal by the Criminal Cases Review Commission for another hearing.

But Turner admitted “perception is everything”, and he hadn’t previously considered the optics of police being closely involved with the CCRC.

However, this was an issue for the CCRC to think about, Turner said.

“I mean, there are private people out there that do interview training, and if there was a perception that there could be a bias, then the organisation, I guess, needs to go to other places.”

The CCRC has always used former police officers as investigators, along with staff who have legal and journalism backgrounds.

However, concerns have been raised that only ex-cops are now being employed by the CCRC as investigators.

CCRC CEO Parekawhia McLean insisted they didn’t have a preference for former police officers, and recruitment was based on competence and experience, although she acknowledged the last time they hired an investigator who wasn’t an ex-cop, was in 2021.

The Scottish CCRC, on which the New Zealand organisation was partly modelled, uses lawyers to review cases. However, one of its board members is a retired police superintendent, who is able to assist with questions about police procedure.

Since opening its doors in July 2020, the New Zealand CCRC has been swamped with more than 430 applications from people who believe they have been wrongfully convicted.

So far, it has referred three cases back to the courts for further consideration, with two being accepted as miscarriages of justice.

The most high-profile case, is the controversial murder and rape convictions of Mikaere Oketopa, formerly known as Michael October. Oketopa’s appeal will likely be heard in 2025.

In March, the CCRC announced it was launching an inquiry into the use of eyewitness identification evidence in New Zealand, which it has found to be an issue in a number of cases it has considered.