How far may the Police go in tricking someone to "confess" to murder? Well, I can talk about what happens in Canada ... .

 In the early 1990s, Police in British Columbia came up with a pretty novel way of trying to get information out of suspects who had refused to tell them the "truth" in formal interviews. It's since become known over there as the "Mr Big" technique. The CBC's website describes it as follows:

Here's how Mr Big works:

Significant profiling work is done before the Mr. Big operation begins to determine how to approach the target.

One police officer, called the Cover, keeps in close contact with the undercovers and directs how all day-to-day scenarios are played out. There is usually one or two Primary Operators - police undercovers who befriend the target and bring them into the gang. They involve the target in fictitious criminal activities, including drug deals, assaults or theft and pay them cash money. Other Operators are brought in as needed to act as supporting cast to the Primary Operators. Once the target is hooked the Primary Operators introduce the target to Mr. Big. The target must come clean about a past crime to gain the trust of the gang leader and move up the ranks.

Usually, the next time the target sees his so-called criminal buddies is in court when they testify as police officers.

At first blush, this may seem pretty unobjectionable behaviour. After all, the Police regularly fool folks who are (or have been) involved in criminal behaviour into saying or doing things that betray their guilt. There's many a drug dealer, for example, who has cursed loudly upon discovering that the long-haired hipster from "up North" that he's been happily supplying with cannabis actually is DCI Joe Bloggs in disguise. Most of the time, that's just good old-fashioned investigative policing. 

However, when you take a closer look, the Mr Big technique has a bit more to it than that. Let me illustrate what I mean by way of the facts from R v Hart, the Canadian Supreme Court's recent examination of the practice (there's a pdf copy here). They're fairly lengthy, but tell a pretty amazing tale of deception and the lengths the Police can go to in order to obtain a confession.

The case involved Mr Hart, whom the Police suspected of having drowned his two young daughters in a local lake. However, despite his story about how they came to drown being somewhat hard to believe (to put it mildly), there was no concrete evidence that he had done so. Meaning that before he could be tried, he really was going to have to confess to the deed. Which the Police then set out to get him to do.

The preliminary stages of the undercover operation began in December 2004 when officers conducted several weeks of “lifestyle” surveillance on Hart.

The surveillance revealed that Hart was on social assistance and that he was socially isolated - he rarely left home, and when he did he was accompanied by his wife.

Undercover officers made their first move in February 2005. An officer, whom I will call “Jim”, approached Hart outside of a convenience store. Jim asked Hart to help him look for his missing sister.

Hart obliged and was paid $50. During the day, Jim told Hart that he owned a trucking company and that he needed a driver. Hart volunteered for the job.

The goal of the operation over the next several weeks was to develop a relationship between Hart and the undercover officers.

Hart worked for Jim and drove truckloads of goods for him from one location to another. He was introduced to another undercover officer, whom I will call “Paul”, whose role was to work with him and become his “best friend”. Initially, Hart sought to bring his wife with him when he did deliveries, but early on, Jim and Paul forbade him from doing so.

Around the same time, Jim and Paul revealed that they were part of a criminal organization and that there was a “boss” who headed up their operations. Thereafter, Hart participated in simulated criminal activity with the officers, delivering trucks that purportedly contained smuggled alcohol and packages with stolen credit cards.

The financial rewards that flowed from working with the organization quickly became apparent. In February and March, Hart travelled to St. John’s and Halifax, spending several nights in hotels paid for by his benefactors and enjoying frequent dinners with Jim and Paul. In the two month period, he was paid approximately $4,470 for his work.

By the beginning of April, Hart was fully immersed in his new fictitious life. Hart would “constant[ly]” tell Jim that he loved him. At a dinner with Jim and Paul, he told both officers that they were “brothers” to him and that there was nowhere else in the world he would rather be. He raised a toast to the boss.

On April 10, 2005, according to Jim, Hart confessed to murdering his daughters. That night, Hart had dinner with Jim. Jim told Hart that their organization was involved with prostitution in Montreal, and that if prostitutes were dishonest, the organization had to deal with them. Jim claimed that he had assaulted a prostitute himself, and that bad things sometimes had to be done. Hart informed Jim that he had no problem getting his hands dirty. He too had done terrible things in the past. At that point, he produced a picture of his daughters from his wallet and told Jim that they were both dead. He confided that he had planned their murder and carried it out.

[Hart denies that this conversation ever took place.]

The operation continued over the next two months. Jim and Paul constantly preached the importance of trust, honesty and loyalty within the organization. Those who were not trustworthy were met with violence.

On one occasion, Jim slapped another undercover officer across the face in front of the respondent, ostensibly because he had spoken to others about their business dealings.

In the middle of May 2005, the operation began building towards the climatic meeting with Mr. Big. During a trip to Vancouver, Jim told Hart that there was a “big deal” coming in the future that would “set [Hart] Financially”.

Hart was told he would be paid between $20,000 and $25,000 if he participated. Later on, while on a trip to Toronto, Hart was shown $175,000 in cash. The money was said to be a down payment toward the impending deal.

Jim informed Hart that he would only be allowed to participate in the deal if Mr. Big gave his approval. Jim took Hart’s licence and social insurance number so the organization could perform a background check to see if he had any “heat” on him or was a “rat”. In early June, while in Montreal, Jim told the respondent that Mr. Big had checked into him and that he had found a problem. The respondent would not be allowed to work with the organization until the issue was resolved. Hart did not know what the problem was, but he became very concerned that he would not be involved in the impending deal.

Hart met with Mr. Big on June 9, 2005. Jim told Hart that Mr. Big was going to question him about the problem that had been uncovered during his background check. Jim urged Hart to be honest with Mr. Big.

At the beginning of the meeting, Hart expressed his gratitude to Mr. Big, telling him that his life had turned around since he started working for the organization.

Mr. Big shifted the topic of the conversation to the death of Hart’s daughters.

He told Hart that there might be some “heat” coming regarding their deaths and he asked Hart why he killed his daughters. Hart replied that he had suffered a seizure, implying that their deaths were accidental. Mr. Big dismissed this explanation and told Hart not to “lie” to him.

After some further prodding by Mr. Big, Hart confessed to killing his daughters. He explained that he had done so because he feared Child Welfare was going to take his daughters from him and place them with his brother.

When Hart was asked how he killed his daughters, he said that they “fell”over the wharf at the park. Mr. Big pressed Hart for more details, and Hart explained that he “struck” his daughters with his shoulder and that they fell over the wharf into the water.

 Two days later, on June 11, 2005, Hart returned with Jim to the park where his daughters drowned. Jim had Hart re-enact how the drowning occurred. During the re-enactment, Jim knelt down and Hart demonstrated how he pushed his daughters into the water by nudging Jim with his knee.

On June 13, Hart was arrested and charged with two counts of first degree murder. The police allowed Hart to make a phone call, and his first call for help went to Jim.

With this confession in hand, you'd think Hart's conviction was a pretty cut-and-dried formality. However, what evidentiary weight should that confession have? Indeed, should it even be let into a court for a jury to hear at all? That was the question that the Supreme Court in Canada had to answer.

As far as the Police were concerned, they said that they had just given Mr Hart the opportunity to "come clean". He hadn't been forced into saying anything. So if he was prepared to spill his guts about his daughters to a bunch of (what he thought) crooks, then why shouldn't his words be used against him?

Well, the Supreme Court could think of a couple of reasons. First of all, while Hart's "confession" wasn't coerced out of him in the sense that he feared for his safety if he didn't make it, he certainly stood to gain from making it. If he told "Mr Big" that he was a murderer - which is what Mr Big clearly expected to hear from him, as he accused Mr Hart of lying whenever he said anything else - then he could expect to be brought into a criminal enterprise that would reward him with lots and lots of cash. And, after all, it was made clear that nothing bad would happen to him if he "confessed" as expected, so wasn't that the path of least resistance for him to take? And if that is so, then the reason that we believe confessions (because they are "evidence against interest", so why would anyone lie when making one?) is substantially undermined.

(Mr Hart's particular characteristics are relevant here. The thing that made him so susceptable to this investigative technique - his social isolation, his low level of education (and background intelligence), his poverty - made joining this gang so very, very attractive to him ... and maybe so attractive that he'd be prepared to falsely admit to murder in order to get in.)

Second, let's say this confession is allowed before a court. How could Mr Hart defend himself against it? Only by claiming that he lied in order to gain entry into a fairly high-level criminal enterprise that traded in drugs, prostitutes and other not very nice things. What impact might such an admission have on how the jury views him as a person? Will they be likely to convict him not so much because they're certain he's guilty of murder (which is the only thing the jury should be thinking about), but rather because they're certain he's a bad man who deserves some sort of punishment for something?

So, in the Supreme Court of Canada's eyes, Mr Hart's confession could not be safely permitted to go before a court ... and as this was the only real evidence against him, he's now walked free from custody. What is more, the Court laid down a new rule that future confessions obtained by means of these sorts of "Mr Big" stings should be presumptively excluded from trials, unless there is reason to allow them in. In other words, they reversed the usual presumption for confessions.

All of which is very interesting. But why am I telling you about it at such length? Well, you can assume that the Police in New Zealand are all too aware of how their Canadian colleagues use this investigative technique (and use it a lot - as of 2008, it had been deployed some 350 times). So you might be wondering whether our Police have ever tried a similar stratagem here. Which might cause you to google "Mr Big investigative technique New Zealand" (or similar).  Which will return you no relevant pages on the issue.

That fact might then lead you to conclude that this somewhat controversial method of gaining evidence (controversial for the reasons discussed by the Supreme Court of Canada, and also covered in papers like this one and books like this one) is not one that we use in New Zealand. Until you consider the Criminal Procedure Act 2011, s.205(2)(e):

Which should alert you to the fact that absence of evidence is not the same as evidence of absence. And that is all that I may say on the subject.