Criminal Litigation - Interview Procedure (2) Flashcards
What is an overview of the interview procedure?
Interview Procedure: Interviews comprise the questioning of suspects regarding their involvement in an alleged offence.
(1) Location: Generally, interviews take place at the station. However, questioning a person under suspicion at the scene can also amount to an interview, meaning the suspect should be placed under caution.
What are the rules regarding police conduct during an interview?
Police Conduct: Interviewing officers must conduct interviews fairly.
(1) Oppression: Officers cannot elicit answers by: a) force; b) threatening words or gestures; c) shouting; d) standing over/behind suspect; e) threatening indefinite detention; or f) breaching personal space (C 11.5).
(2) Inducement: Officers cannot indicate the effect of a suspect making or omitting a given statement, except to answer a direct question (C 11.5).
What are the rules regarding a caution in a police interview?
Caution: All interviews must take place under caution (C 11.1A).
What are the rules regarding fitness to interview?
Fitness to Interview: Suspects must appear fit enough to appreciate and answer questions (C 11.18).
(1) Fitness: Suspects who appear unfit due to intoxication or physical ailment should not be interviewed until fit.
(2) Vulnerabilities: Suspects with vulnerabilities are subject to additional rights (see vulnerable suspects).
(3) Exception: Interviews may proceed in matters of urgency (may have been changed since SQE 1).
What are the rules regarding interviews pre-charge?
Pre-Charge: Interviews can only take place prior to charge, subject to exceptions:
(1) Post-Charge Exceptions: Post-charge interviews are permitted in three circumstances.
Minimise Harm: To prevent or minimise harm.
Resolve Ambiguity: To clear up ambiguity in a previous answer/statement.
New Evidence: To put new evidence to the suspect (if this is in the interests of justice).
(2) Right to Silence: Suspects have the absolute right to silence post-charge (adverse inferences cannot be drawn).
What are the rules regarding recording interviews?
Recording: Police station interviews must be recorded by tape or digitally. If recorded by tape, there will be: a) Master Copy (sealed until trial, broken if contents disputed); b) Working Copy (for police); c) Suspect Copy (for defendant).
What should happen if a suspect asks to exercise their right to legal advice during the interview?
Legal Advice: Interviews should be postponed or paused if the suspect exercises their right to legal advice prior to or during an interview, until the advice is sought (C 6.6).
(1) Delay in Right: Superintendents may delay right by up to 36 hours (but no adverse inferences) (see detention) .
(2) Delay in Investigation: If a solicitor is causing ‘unreasonable delay’ to the investigation due to non-arrival or non-engagement, the interview may proceed (but no adverse inferences) (C6.6).
(3) Rejecting Legal Advice: The suspect can reject advice that they previously requested, in writing, provided an inspector records the reasons, date and time in the custody record, and authorises the interview to continue (C 6.6).
>If the solicitor still arrives, the interview is paused to permit the suspect to consider re-engaging with them.
What is the role of the solicitor when preparing the client for interview?
Preparing Client for Interview: Solicitors must prepare the client for interview.
(1) Informing Rights: Clients should be advised on their interview rights, such as legal advice breaks.
(2) Informing Components: Clients should be informed of interview components, such as recording, cautions etc.
(3) Advising Safest Option: Clients should be advised on their ‘safest option’, namely:
No Comment: Whether it is appropriate to answer no questions (usually due to unstable client).
Answer All: Whether it is appropriate to answer all questions (to establish early defence).
What is the role of the solicitor in an interview?
Role in Interview: The solicitor has a significant role to play in the interview itself.
(1) Interventions: Solicitors may intervene as necessary to seek clarification, challenge improper questions, advise clients not to respond, or provide further advice (C 6D).
(2) Seating: Solicitors should be seated next to the client and able to make direct eye contact with them.
When may a solicitor be excluded from an interview?
Exclusion of Solicitor: Solicitors may be removed from the interview if they are engaging in unacceptable conduct (C 6.9).
(1) Unacceptable Conduct: Conduct which prevents the interviewer from properly questioning the suspect, such as answering on their behalf, providing them with written answers, or threatening the client.
(2) Removal Process: Police will pause the interview. An officer ranking superintendent must decide whether to proceed with that solicitor, or provide an opportunity for a new solicitor to be instructed (C 6.10).
What needs to happen at the start of the interview?
Start of Interview: The interview begins once parties are seated and recording is initiated.
(1) Caution: Investigating officer cautions suspect at start of each interview, including alerting them to adverse inferences. Special cautions are imposed when questioning about certain evidence (see rules of evidence).
‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’
(2) Right to Legal Advice: Suspects are reminded of their continuing right to legal advice, even if a solicitor is present (C 11.2).
(3) Solicitor’s Opening Statement: Solicitors make an opening statement, explaining their role and rights.
What are the rules regarding significant statements and silences in the interview?
Significant Statements and Silences: Investigating officer must put any significant statement or silence made by the suspect to the suspect at the start of the interview (C 11.4).
(1) Purpose: Suspects are invited to confirm, deny, or contribute further. Failure to put the evidence to the suspect is strong grounds to challenge its admissibility at trial (s78 PACE).
(2) Significant Statement: A statement made in the presence of a police officer prior to interview capable of being used in evidence against the suspect, such as an admission of guilt (C 11.4A).
(3) Significant Silence: A failure or refusal to satisfactorily answer a question whilst under caution, which can give rise to adverse inferences at trial (C 11.4A).
When should a suspect be advised to be selectively silent?
Never.
Selective Silence: Answering questions selectively comes across poorly at trial, as it can appear secretive and evasive.
When should a client be advised to answer all questions?
Answer All Questions: The client may honestly answer all questions put to them.
(1) Advantages: a) Places all events on record; b) provides early consistent defence; c) avoids adverse inferences; d) cooperation may reduce sentence if pleading guilty.
(2) Disadvantages: a) Risks accidental incrimination/contradiction; b) risks provocation or confusion; c) may be caught out by evidence not previously disclosed; d) risks an accidental attack on character (see bad character).
When should a client be told to answer no comment in an interview?
No Comment: The client may answer ‘no comment’ to all questions, or remain silent.
(1) Advantages: Avoids: a) incidental incrimination; b) incidental disclosure of evidence.
(2) Disadvantages: Allows adverse inferences to be drawn.
(3) In Practice: Common where: a) police case is weak; b) police have not fully disclosed evidence; c) client is unfit or vulnerable; d) case is complex; e) events happened years ago; f) client has no defence; f) personal embarrassment (i.e. would reveal an affair).
