Since about 1990, in all jurisdictions in Australia, for a defendant’s custodial confession or admission to be legally admissible it must be electronically recorded by audio or audiovideo.
- General rule: The South Australian provisions apply in relation to the investigation of “indictable offenses.” Summary Offenses Act of 1953 §74D (“SOA”). In the Northern Territory, the recording requirement applies to offenses for which the maximum penalty is imprisonment in excess of two years. Police Administration Act of 1978, Division 6A §139(c) (“PAA”).
- Exceptions: If it is not reasonably practicable to record the interview on videotape, but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made. SOA §74D(1)(b). If it is “neither reasonably practicable to record the interview on videotape nor reasonably practicable to record the interview on audiotape (i) a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and (ii) as soon as practicable after the interview, the record must be read aloud to the suspect and the reading must be recorded on videotape.” §74D(1)(b)(c). “In deciding whether it is reasonably practicable to make a videotape or audiotape recording of an interview, the following matters must be considered: (a) the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed; (b) mechanical failure of recording equipment; (c) a refusal of the interviewee to allow the interview to be recorded on videotape or audiotape; (d) any other relevant matter.” §74D(3).
- Consequences of unexcused failure to record. In South Australia, unexcused failure to record results in inadmissibility of the “evidence of an interview,” unless “the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer’s non-compliance.” SOA §74E. In the Northern Territory, “A court may admit evidence . . . even if the requirements of [the recording statute] have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice.” PAA §143.
- Preservation: None given.
- Miscellany: In South Australia, “[a] suspect must be provided, on request and on payment of the fee fixed by regulation, with (a) an audiotape of the soundtrack of a videotape recording of an interview with the suspect under this Part; or (b) a copy of an audiotape recording of an interview with the suspect under this Part.” SOA §74D(6). In the Northern Territory, “[t]he investigating member must (1) inform the person that the person is entitled to a copy of the electronic recording on request; (2) issue a certificate the recording has not been altered after being made and that the prescribed requirements in relation to the method of making the recording have been met; and (3) cause o copy of the audio or video recording to be made available to the person or the person’s legal representative, without charge, within 7 days after request. PAA §142(a).
Recording of custodial interrogations is mandated by the Police and Criminal Evidence Act 1984 (PACE), Code E, Code of Practice on Audio Recording Interviews with Suspects.
- General rule: “[A]udio recording shall be used at police stations for any interview” (a) with a person cautioned “in respect of any indictable offence, including an offence triable either way,” “(b) which takes place as a result of an interviewer exceptionally putting further questions to a suspect about an offence described in paragraph 3.1(a)after they have been charged with, or told they may be prosecuted for, that offence,” “(c) when an interviewer wants to tell a person, after they have been charged with, or informed they may be prosecuted for, an offence described in paragraph 3.1(a), about any written statement or interview with another person.” §3.1. The Terrorism Act 2000 provides for the audio recording of interviews of persons suspected to be terrorists. §3.2.
- Exceptions: “The custody officer may authorise the interviewer not to audio record the interviewwhen it is:(a) not reasonably practicable because of equipment failure or the unavailabilityof a suitable interview room or recording equipment and the authorising officerconsiders, on reasonable grounds, that the interview should not be delayed;or(b) clear from the outset there will not be a prosecution.” §3.3.
- Consequences of unexcused failure to record: None given.
- Preservation: “The officer in charge of each police station at which interviews with suspects are recorded shall make arrangements for master recordings to be kept securely and their movements accounted for on the same basis as material which may be used for evidential purposes, in accordance with force standing orders.” §6.1. “Interview record files are stored in read only format on non-removable storage devices, for example, hard disk drives, to ensure their integrity. The recordings are first saved locally to a secure non-removable device before being transferred to the remote network device. If for any reason the network connection fails, the recording remains on the local device and will be transferred when the network connections are restored.” §7.16.
- Miscellany: “At the conclusion of the interview, the suspect shall be offered the opportunity to clarify anything he or she has said and asked if there is anything they want to add.” § 7.12.
Ireland has regulations promulgated in 1997 by the Minister for Justice relating to electronic recording of custodial interrogations - S.I. No. 74/1997 - adopted under the authority of the Criminal Justice Act of 1984, §27.
- General rule: Electronic recordings are required to be made of interviews conducted by officers in Garda Siochana (the police force for Ireland) stations that have recording equipment provided and installed for the purpose of recording interviews of persons detained under (1) Section 30 of the Offenses Against the State Act of 1939, (2) Section 4 of the Criminal Justice Act of 1984, (3) Section 2 of the Criminal Justice (Drug Trafficking) Act of 1996, as modified by Section 4(3). §§2-3.
Section 30 of the Offenses Against the State Act of 1939 covers “an offence under any section or sub-section” of the Act, including usurpation of functions of the government; obstruction of the government; obstruction of the President; interference with military or other employees of the State; printing of prohibited documents; possession of treasonable documents; conducting unauthorized military exercises; forming, promoting, or maintaining any secret society in the army or the police; and administering unlawful oaths. Section 4 of the Criminal Justice Act of 1984 covers “any offence for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and to an attempt to commit any such offence.” Section 2 of the Criminal Justice (Drug Trafficking) Act of 1996 covers “drug trafficking” offenses.
Before the interview is commenced, the officer in charge shall inform orally and in ordinary language the person to be interviewed that the interview may be electronically recorded, and that the person is entitled to receive a notice as to what is to happen to the tapes of the interview. §5. At the conclusion of the interview, the officer shall enquire of the person interviewed if there is anything further he/she wishes to say or clarify; and read back any notes and memoranda taken in the interview and enquire if the person wishes to make any alterations or additions. §12.
- Exceptions: If the equipment is unavailable due to a functional fault; the equipment is already in use and the officer considers on reasonable grounds that the interview should not be delayed until the fault is rectified or the equipment becomes available; where otherwise the electronic recording of the interview is not practicable. §4. The recording may be interrupted where a person objects to the electronic recording of the interview. §7.
- Consequences of unexcused failure to record. None given.
- Preservation: As soon as practicable after the interview is concluded, the interviewing officer shall give the sealed master tape to the officer in charge, who shall make a record of the date of the interview, the date the tape was received, and the identification number of the tape. §13.
- Miscellany: Upon receipt of a written request, a working copy of the tape shall be provided to the person interviewed or his legal representative, unless the District Superintendant believes on reasonable grounds that to do so would prejudice an ongoing investigation or endanger the safety, security and well being of another person. § 16.
Countries In Which Recording Is Recommended
The Supreme Court has held that contemporaneous recordings of custodial police interrogations are not required. R. v. Oickle, 2 S.C.R. 3, 2000 SCC 38. The British Columbia Court of Appeal has observed that making contemporaneous recordings of custodial interrogations is highly desirable, and is a practice that has been both recommended and encouraged by courts and commissions of inquiry. R. v. Richards, 87 B.C.A.C. 21 (1997). Failure to record electronically a formal police interview, when there is no good reason not to, may raise suspicions and present obstacles to the Crown in its efforts to prove beyond a reasonable doubt that a statement given to a person in authority was voluntary. R. v. Ducharme, 2004 MBCA 29, 182 C.
The Ministry of Justice recommends that any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should be recorded by video, unless that is impractical, or the person declines to be recorded by video. Where the statement is not recorded by video, it should be recorded permanently on audio tape or in writing. The person making the statement should be given an opportunity to review the tape or written statement, or to have the written statement read to him/her, and given an opportunity to correct any errors or add anything further, and to approve the statement. See Ministry of Justice, Interrogation and Custody Rules, available at http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/international-human-rights-instruments/international-human-rights-instruments-1/convention-against-torture/united-nations-convention-against-torture-and-other-cruel-inhuman-or-degrding-treatment-or-punishment-new-zealand-periodic-report-6/article-11/17-interrogation-and-custody-rules.