Interview

Question 1

what are possible interview tactics?

Answer 1

Answer All Questions
No Comment Interview
Selective Silence

Question 2

what are the advantages of answering all the questions?

Answer 2

o S can put their version of events on the record straight away. Important if they want to raise a specific defence which imposes an evidential burden (i.e. alibi or self-defence)
o If the defence is strong, this may dissuade the police from charging
o Even if charged, S’s credibility is bolstered if they remain consistent
o Jury is unlikely to draw adverse inferences at trial
o If S is guilty, answering questions may urge police to issue a caution rather than charge (if S has no pre-cons or cautions) or, if they are charged, this can be mitigation at sentencing

Question 2

what are the disadvantages of answering all the questions?

Answer 2

o Ss can often incriminate themselves, undermine their credibility or come across badly (interview transcripts can be used at trial)
o Solicitor must consider if IO has shared enough info as police may withhold information and then divulge it in the interview in the hope to catch S out
o Police’s questioning may lead S to attack the character of another. This would then enable the CPS to raise evidence of S’s pre-cons at trail

Question 3

when may the solicitor advise no comment?

Answer 3

o S admits their guilty to the solicitor or denies any involvement and the police case is weak / they do not have sufficient evidence
 Because it is ‘no comment’ this would not mean the solicitor is a party to the client lying to the police
o IO has not provided adequate disclosure and so the solicitor cannot properly advise the client as to the strength of the case
o Solicitor thinks the police may try to ambush S in the interview
o S is physically/mentally unfit to interview (i.e. withdrawal from drugs, emotional, distressed or fatigued)
o S is likely to perform badly due to: age, lack of maturity, vulnerability, previous inexperience of police detention/questioning
o Facts are complex or relate to matters long ago
o S does not have a viable case or defence
o S has personal reasons to remain silent i.e. extreme embarrassment

Question 4

if S admits their guilt, is it professional misconduct to advise them to answer no comment?

Answer 4

no, because it is ‘no comment’ this would not mean the solicitor is a party to the client lying to the police

Question 5

if the solicitor advises no comment, what must they inform the client?

Answer 5

• The solicitor must explain inferences can be drawn and take a full written note if this is advised as this may be of evidential value at trial

Question 6

advantages of no comment interview?

Answer 6

o No danger of self-incrimination
o If the case is weak, the police will not obtain sufficient information to charge

Question 7

disadvantages of no comment interview?

Answer 7

o Mags/jury can draw inferences in some instances (s34, 36, 37 CJPOA)

Question 8

what is common when giving a no comment interview?

Answer 8

giving a prepared written statement

Question 9

when is it advisable to prepare a written statement?

Answer 9

• Advisable where S needs to place their version of events on record to prevent an adverse inference being drawn and S would interview poorly

Question 10

what should be included in the written statement?

Answer 10

o Must include all facts S will rely upon at trial to prevent any adverse inferences being drawn under s34
o Should try to cover matters the solicitor anticipates the police will interview about to prevent inferences being drawn under s36 and s37
o Should not say more than necessary to prevent inferences being drawn
o Will be drafted by the solicitor but in the client’s words

Question 11

when may the statement be given to the police?

Answer 11

o During the interview (usually at the beginning) & then given to the police;
o After the interview but prior to being charged (if they think the case is weak);
o Not disclose and keep the statement on S’s file  done where the solicitor thinks S’s account may change/would not stand up to scrutiny.

Question 12

if the statement is not given to the police at the time, why might is be disclosed later?

Answer 12

 The solicitor may (if appropriate i.e. S’s account is consistent) disclose it later on to prevent inferences being drawn that the defence was fabricated after S left the station, but this will not prevent other inferences being drawn (i.e. S was not sufficiently confident in their defence)

Question 13

when is selective silence advised?

Answer 13

• Generally not advisable as it does not look good at trial

Question 14

how is the interview recorded?

Answer 14

Interview will be recorded as a digital recording or 2/3 tapes/discs, if the latter:
o Master copy is sealed in the presence of S and the seal is only broken if there is a dispute about what was said
o One copy for IO to prepare a summary transcript if S is charged
o A third copy may be given to S

Question 14

what must the interview comply with?

Answer 14

• Must comply with Codes C & E. If there is a breach of Code C the court may rule any admission or confession in the interview is inadmissible
• Interview must be carried out under caution

Question 15

when should the interview not be carried out?

Answer 15

The interview should not be carried out if, at the time, S appears unable to:
o Appreciate the significance of the questions or answers; or
o Understand what is happened because of the effects of drinks, drugs, illness, ailment or condition (exceptions to this i.e. if the matter is urgent)

Question 16

what are the stages to the interview?

Answer 16

3 elements to beginning of interview: caution, right to legal advice, significant statements

then substantive questioning

Question 17

can S be interviewed without legal advice they have requested?

Answer 17

yes, but only in exceptional circumstances

Question 18

in what circumstances can an interview take place before S has had requested legal advice?

Answer 18

a) If the police have delayed the right to legal advice (s58)
b) The requested solicitor cannot be contacted or declined to attend and S declines the duty solicitor
c) S asked for legal advice and changes their mind, provided that:
 Inspector or above ascertains reasons for this from S and authorises it is reasonable to proceed in the circumstances in writing
* The custody record must record the authority or the date and time of authority and where the written authority can be found
 Reasonable efforts are made to contact the solicitor to inform them
 The reasons and attempts to contact the solicitor are recorded on the custody record
 S confirms this in writing and signs the custody record

Question 19

where S requested legal advice but has changed their mind, what must be done before the interview takes place?

Answer 19

 Inspector or above ascertains reasons for this from S and authorises it is reasonable to proceed in the circumstances in writing
* The custody record must record the authority or the date and time of authority and where the written authority can be found
 Reasonable efforts are made to contact the solicitor to inform them
 The reasons and attempts to contact the solicitor are recorded on the custody record
 S confirms this in writing and signs the custody record

Question 20

what happens if S refused legal advice but changes their mind in the interview?

Answer 20

• If S did not want legal advice but changes their mind in the interview, the interview should be paused for them to take legal advice

Question 21

what is the standard caution?

Answer 21

• Standard (also used at arrest)  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.

o This is because S has right to silence but inferences can be drawn

Question 22

what caution is given when the interview is taking place without legal advice because it has been delayed or the solicitor cannot attend and they have declined the duty solicitor?

Answer 22

• S is being interviewed without receiving legal advice in a situation described at a) or b)  ‘You do not have to say anything, but anything you do say may be given in evidence.’

o No adverse inferences can be drawn as legal advice was restricted

Question 23

when is the non-standard caution given?

Answer 23

when the interview is taking place without legal advice because it has been delayed or the solicitor cannot attend and they have declined the duty solicitor

Question 24

explain the ‘right to legal advice’ stage at the bringing of the interview

Answer 24

• The interviewing officer must tell S they are entitled to free independent legal advice, even if their solicitor is present
• Where S has changed their mind about legal advice as per d), the following must be recorded in the interview record:
  o Confirmation S changed their mind and the reasons;
  o Confirmation authority to proceed has been given;
  o If the solicitor arrives before the interview is completed S will be informed immediately and a break will be taken to allow them to speak to their solicitor if they wish (unless a) applies); &
  o S can ask for legal advice at any point during the interview and a break will be taken (unless a), b) or c) applies)

Question 25

what must be recorded in the interview record when S wanted legal advice but changed their mind?

Answer 25

o Confirmation S changed their mind and the reasons;
o Confirmation authority to proceed has been given;
o If the solicitor arrives before the interview is completed S will be informed immediately and a break will be taken to allow them to speak to their solicitor if they wish (unless a) applies); &
o S can ask for legal advice at any point during the interview and a break will be taken (unless a), b) or c) applies)

Question 26

what will S be asked regarding significant statements?

Answer 26

• S will be asked to confirm, deny or if they have anything to add in relation to an earlier significant statement/silence which occurred in the presence of a police officer/staff (i.e. the statement could have been made to someone else, but if the officer heard it, this would be sufficient)

Question 27

what is a significant statement?

Answer 27

a statement which appears capable of being used in evidence against S at trial i.e. an admission of guilt

Question 28

what is a significant silence?

Answer 28

failure/refusal to answer a question or, answer satisfactorily when under caution which might allow the court to draw inferences

Question 29

what happens if significant statements are not put to S?

Answer 29

• Failure to put this to S means it may be inadmissible at trail under s78

Question 30

how often must there be a break?

Answer 30

• Breaks at meal times and refreshment breaks every 2 hours
• If the interview takes place over more than 1 day, S must be given a continuous period of 8 hours rest (free from questioning or other interruption in connection with the case) in any 24hr period

Question 31

how can police not obtain answers?

Answer 31

• Police cannot elicit an answer through oppression or offer of inducement

Question 32

give examples of oppression

Answer 32

raising their voice at S; threatening gestures; getting in S’s face; standing over or behind; threatening to detain unless S confesses

Question 33

give examples of inducements

Answer 33

“you will be released quicker if you admit”

Question 34

what opportunity should S be given?

Answer 34

• S should be given the chance to provide an explanation/clear up ambiguity

Question 35

what should the solicitor tell S before the interview?

Answer 35

o It will be audibly recorded and parties will be asked to identify themselves
o S can stop the interview at any time to request legal advice. This can also be suggested by the solicitor.
o Solicitor will intervene if questioning becomes inappropriate
o Solicitor is there to protect client’s interests
o ‘no comment’ to be said if remaining silent and consequences of this
o Warn S of police tactics i.e. suggesting legal advice is incorrect
o Remain calm and not be hostile or abusive as this may affect credibility
o Warned against making a personal attack on others

Question 36

where should the solicitor be positioned during the interview?

Answer 36

• The solicitor should be allowed to sit next to S
• The police cannot stop solicitor from having eye contract with S

Question 37

what will the solicitor typically do at the beginning of the interview?

Answer 37

• Standard practice for the solicitor to give an opening statement

Question 38

what is the typical opening statement the solicitor would give?

Answer 38

o I am [name], a solicitor/accredited or probationary representative with [firm name]. I am now required to explain my role. My role is to advance and protect my client’s rights. I shall continue to advise my client throughout the interview and if necessary I shall ask that the interview be stopped in order to allow me to advise my client in private.
o I shall intervene in the interview if legal advice is required, questioning or behaviour is inappropriate, new evidence is disclosed or for clarification
o After receiving legal advice, my client has decided [to exercise right to silence] or [to answer questions

Question 39

when would be it appropriate for a solicitor to intervene?

Answer 39

(non-exhaustive):
o To seek clarification
o Issues with the seating arrangement
o The police are being oppressive
o The police are making threats/advice about the consequences of silence
o The police are offering inducements
o There are references to S’s pre-cons
o New information is introduced that wasn’t disclosed earlier
o The police ask S if they would engage in further investigative procedures before the solicitor has been able to give advice on this
o The solicitor is concerned about S’s conduct or behaviour or they are saying things which may have adverse consequences
o There is already sufficient evidence to charge
o A break is required
o Suggesting a break to give the client further legal advice
o Advising the client not to answer
o The police are asking inappropriate questions because they are:
 Irrelevant / hypothetical questions
 Making a statement/asserting facts
 Misrepresenting the law or the case against the client
 Putting words in S’s mouth

Question 40

when can the solicitor be removed?

Answer 40

• Can be excluded if their conduct means questions cannot be properly put to S, i.e.: answering questions on S behalf/writing answers for S to read out

Question 41

what happens if the solicitor is removed?

Answer 41

• If the solicitor is removed, S must be allowed to consult a new solicitor

Question 42

what is the process for removing the solicitor?

Answer 42

• Interviewer must stop the interview and consult superintendent or above who will then speak to the solicitor to determine if the interview can continue

Question 43

re: interviewing Js & MHS

when must they be cautioned?

Answer 43

• S must be cautioned in the presence of the AA

Question 44

re: interviewing Js & MHS

what is the position regarding the interview / signing documents?

Answer 44

S must be not be interviewed or asked to sign a written statement under caution or record of interview on the absence of AA, unless:
o It is urgent; approved by superintendent or above; and won’t harm S
o Delay would lead to interference with evidence, others property or others who have not yet been arrested being alerted

Question 45

re: interviewing Js & MHS

what must the interviewing officer do?

Answer 45

Interviewing officer must inform AA during the interview that they are there to:
o Assist S, observe whether the interview is being conducted fairly and facilitate communication

Question 46

re: interviewing Js & MHS

when may AA be required to leave?

Answer 46

AA may be required to leave the interview if their conduct is such that the interviewer cannot properly put questions to S

Question 47

re: interviewing Js & MHS

what is the process to exclude AA?

Answer 47

o Interview is paused & the officer consults with superintendent or above not connected with the investigation (if not available, then at least an inspector)
o The superintendent (or other) will the consult with the AA and decide if the interview can continue. If not, then another AA must be obtained before the interview can continue, unless urgent.

Question 48

re: interviewing Js & MHS

what happens if AA is removed?

Answer 48

If not, then another AA must be obtained before the interview can continue, unless urgent.

Question 49

re: professional conduct issues

what issues may arise?

Answer 49

Client Admits Guilt
Conflict of Interest
Disclosing Client’s Case to a 3rd Party
Duty of Disclosure
Withdrawing from Acting

Question 50

re: professional conduct issues

what happens if the client admits their guilt to the solicitor?

Answer 50

• Client admits guilt to solicitor but wants to deny offence  solicitor cannot act unless they client is giving a no comment interview.
• If the client insists on giving false information to the police, the solicitor must try to dissuade them and if they cannot, cease to act

Question 51

re: professional conduct issues

who decides if there is a COI?

Answer 51

• CO may suggest there is a COI, but this is the solicitor’s decision

Question 52

re: professional conduct issues

can the solicitor act for two joint-S?

Answer 52

Yes, if there is no COI but they must remain alert to a potential COI arising in the future

Question 53

re: professional conduct issues

how should the solicitor assess whether there is a COI?

Answer 53

• The solicitor should speak to one S first. If there is a COI, they must decline to act for the 2nd S and tell the police they will need separate legal advice.

Question 54

re: professional conduct issues

what happens if the COI doesn’t become apparent until they have spoke to the second S?

Answer 54

• If a COI arises after speaking to the 2nd S, the solicitor must withdraw from the case. They may be able to act for the first S if they can act without putting their duty of confidentiality (DOC) to the 2nd at risk (unlikely)

Question 55

re: professional conduct issues

where the solicitor is acting for two Ss, can they relay information between them?

Answer 55

The solicitor must not relay information between Ss due to DOC unless:
 (ideally) written consent has been provided;
 Both clients are putting forward consistent instructions; and
 It is in the client’s best interests

the solicitor must also be alert to attempts by Ss to fabricate a defence

Question 56

re: professional conduct issues

how can the solicitor safeguard against attempts by joint-Ss to fabricate a defence?

Answer 56

they should safeguard against attempts by the Ss to pass information to fabricate a defence - before relaying information to S1, they should get an account from S2 to check it is consistent. If not, the solicitor should withdraw.

Question 57

re: professional conduct issues

what should the solicitor do if the solicitor for the co-accused asks for information?

Answer 57

• This should only be divulged where: it is in the client’s best interests; this has been explained to the client and they have given (ideally written) authority

Question 58

re: professional conduct issues

explain the duty of disclosure

Answer 58

Solicitor must make client aware of all information they are aware of, except:
o Where disclosure is prohibited by national security or prevention of crime;
o Client gives informed written consent to information not being disclosed;
o Solicitor has reason to believe disclosure will lead to physical or mental injury to the client or another; or
o The info came from a privileged document that was mistakenly disclosed

Question 59

re: professional conduct issues

when does the duty of disclosure not apply

Answer 59

o Where disclosure is prohibited by national security or prevention of crime;
o Client gives informed written consent to information not being disclosed;
o Solicitor has reason to believe disclosure will lead to physical or mental injury to the client or another; or
o The info came from a privileged document that was mistakenly disclosed

Question 60

re: professional conduct issues

what must the solicitor do if they must withdraw from acting?

Answer 60

o Explain why to the client and that they are entitled to free legal advice from another solicitor;
o That a duty of confidentiality is still owed; and
o Tell the CO they are no longer act for ‘professional reasons’