Who’s watching Mr Big? Scenario operations and induced confessions

Abstract

ABSTRACT Introduced in Australia in the late 1990s, the Mr Big investigative technique is a complex undercover police operation structured around a fictional criminal gang, which is created to build rapport with the suspect of a serious crime. The suspect is encouraged to confess to the crime to benefit from advantages and protection offered by the gang, including the possibility of influencing the outcome of any prosecution. Challenging Mr Big confessions in Australia has been unsuccessful. The lack of transparency and need for deception inherent in covert operations, however, exposes a potential for fabricated and coerced confessions and the risk of wrongful convictions. Scenario operations are not directly scrutinised by independent oversight bodies and an examination of reported cases suggests that Australian Mr Big operations do not involve covert police in unlawful activities that might been scrutinised under controlled operations regimes. This is a concern given a cultural predisposition within Australian law enforcement towards secrecy, rank-closing, and resistance to examination. We explore options for ensuring the safety of Mr Big convictions, including implementation of robust, independent oversight mechanisms, amendments to evidentiary rules about inducement-based confessions, and revised warning regimes to include direction on the need for caution in accepting scenario confessions.