Interviews Flashcards
What Should Be Disclosed to the Solicitor Before Interview?
It is important not to confuse the duty of disclosure to a person once charged with the need to disclose evidence to suspects before interviewing them. After a person has been charged, and before trial, the rules of disclosure are clear (see chapter 1.11) and almost all material must be disclosed to the defence.
Prior to charge, Code C, para. 11.1A provides that some disclosure must be given before a person is interviewed in order to allow for the effective exercise of the rights of the defence. What is sufficient will depend on the circumstances of the case, but it should normally include, as a minimum, a description of the facts relating to the suspected offence that are known to the officer, including the time and place in question; additionally, the custody record must be provided. In respect of the provision of a copy of the ‘first description’ of a suspect, it should be noted that Code D (para. 3.1) states that a copy of the ‘first description’ shall, where practicable, be given to the suspect or his/her solicitor before any procedures under paras 3.5 to 3.10, 3.21 or 3.23 are carried out. In other words, the disclosure requirement is that a copy of the ‘first description’ shall, where practicable, be given to the suspect or his/her solicitor before a video identification, an identification parade, a group identification or confrontation takes place. Therefore, an officer disclosing information to a solicitor at the interview stage (which is taking place in advance of any identification procedures) need not provide the ‘first description’ of a suspect at that time.
Further, there is nothing within the Criminal Justice and Public Order Act 1994 that states that information must be disclosed before an inference from silence can be made. Indeed, in R v Imran [1997] Crim LR 754, the court held that it is totally wrong to submit that a defendant should be prevented from lying by being presented with the whole of the evidence against him/her prior to the interview.
It was not uncommon in the past for solicitors to advise on no comment interviews and this has been relied on by defendants to avoid adverse inferences being drawn from their silence. In R v Morgan [2001] EWCA Crim 445, the Court of Appeal stated that a court was entitled to assume that a solicitor would advise his/her client about the adverse inferences rule. In R v Ali [2001] EWCA Crim 683, the court stated that the question was not whether the advice to remain silent was good advice but whether it provided an adequate reason for failing to answer questions.
There is a balance to be struck between providing the solicitor with enough information to understand the nature of the case against his/her client and keeping back material which, if disclosed, may allow the suspect the opportunity to avoid implicating him/herself. For instance in R v Thirlwell [2002] EWCA Crim 286, the Court of Appeal agreed that the solicitor had not been entitled to provisional medical evidence as to possible causes of death in a murder case.
Useful guidance is provided in the College of Policing Investigative Interviewing APP; this can be found at https://www.app.college.police.uk/app-content/investigations/investigative-interviewing/#pre-interview-briefings.
R v Argent [1997]
In R v Argent [1997] Crim LR 346, the court dismissed the argument that an inference could not be drawn under s. 34 of the Criminal Justice and Public Order Act 1994 because there had not been full disclosure at the interview. However, the court did recognise that it may be a factor to take into account for the jury to decide whether the failure to answer questions was reasonable (see para. 1.9.2.3 regarding s. 34 of the Criminal Justice and Public Order Act 1994).
Black v R [2020]
In Black v R [2020] EWCA Crim 915, the court confirmed ‘that an inference should only be drawn under section 34 of the CJPOA 1994 if the prosecution case at the time of the interview is so strong as to justify an answer…. [I]f nothing has been said or shown to the defendant at the police interview to call for an answer from the defendant, it would be wrong to draw an inference against the defendant for a failure to provide such an answer. It is also established that the strength or weakness of the prosecution case at interview may be a relevant circumstance for the jury to consider under section 34 of the CJPOA 1994.’
R v Roble [1997]
In R v Roble [1997] Crim LR 449, the court suggested that an inference would not be drawn where a solicitor gave advice to remain silent where, for example, the interviewing officer had disclosed too little of the case for the solicitor usefully to advise his/her client, or where the nature of the offence, or the material in the hands of the police, was so complex or related to matters so long ago that no sensible immediate response was feasible.
R v Hoare [2004]
In R v Hoare [2004] EWCA Crim 784, the Court of Appeal held that the purpose of s. 34 was to qualify a defendant’s right to silence, rather than to exclude a jury from drawing an adverse inference against a defendant merely because he/she had been advised by his/her solicitor to remain silent, whether or not he/she genuinely or reasonably relied on that advice. Where a defendant had an explanation to give that was consistent with his/her innocence it was not ‘reasonable’, within the meaning of s. 34(1), for him/her to fail to give that explanation in interview even where he/she had been advised by his/her solicitor to remain silent. Legal advice by itself could not preclude the drawing of an adverse inference.
‘Live link’
‘Live link’ means an arrangement by means of which the interviewing officer who is not at the police station is able to see and hear, and to be seen and heard by, the detainee concerned, the detainee’s solicitor, any appropriate adult present and the officer who has custody of that detainee. See paras 13.12 to 13.14 and Annex N for application to live-link interpretation. In considering whether the use of the live link is appropriate in a particular case, the custody officer, in consultation with the interviewer, should make an assessment of the detainee’s ability to understand and take part in the interviewing process and make a record of the outcome. If the suspect has asked for legal advice, their solicitor should be involved in the assessment and in the case of a juvenile or vulnerable person, the appropriate adult should be involved.
The explanation and demonstration of live-link interpretation is intended to help the suspect, solicitor and appropriate adult make an informed decision and to allay any concerns they may have. Factors affecting the arrangements for the interviewer to be physically present will include the location of the police station where the interview would take place and the availability of an interviewer with sufficient knowledge of the investigation who can attend that station and carry out the interview.
Keynote - Restriction on Drawing Adverse Inferences from Silence and Terms of the Caution when the Restriction Applies
The restriction on drawing inferences from silence does not apply to a person who has not been detained and who therefore cannot be prevented from seeking legal advice if he/she wants to (see Code C, paras 10.2 and 3.15).
The following is suggested as a framework to help explain changes in the position on drawing adverse inferences if the restriction on drawing adverse inferences from silence applies. Annex C, para. 2 sets out the alternative terms of the caution to be used when the restriction on drawing adverse inferences from silence applies. The situation is likely to occur during a detainee’s detention where it will be necessary to administer both of these cautions at various times during his/her detention. As there is a significant difference between them in relation to the right to silence, it will be important to make it clear which caution applies to the detainee during any interview or charge procedure. Guidance as to what the detainee should be told is provided by Code C, Annex C, Note C2; this paragraph gives sample explanations that need to be explained to the detainee before the change in caution is given.
Preparation before Interview at Police Station
- Decide where the interview will be conducted. Consider the availability of a room and the timing of the interview.
- The location must have a seat for the person being interviewed (Code C, para. 12.6) and should be adequately lit, heated and ventilated (Code C, para. 12.4). The detained person must also have clothing of a reasonable standard of comfort and cleanliness (Code C, para. 8.5). (It will be a question of fact as to what amounts to adequate clothing and it is suggested that if the clothing is such as to degrade the detained person or make him/her uncomfortable, it may lead to the confession being held to be unreliable.)
- In deciding the timing of the interview, consideration must be given to the detainee’s rest period, which should not be interrupted or delayed unless Code C, para. 12.2 applies. Where the interview goes ahead during the rest period under Code C, para. 12.2(a), a fresh rest period must be allowed. Before a detainee is interviewed, the custody officer, in consultation with the officer in charge of the investigation and appropriate health care professionals as necessary, shall assess whether the detainee is fit enough to be interviewed (Code C, para. 12.3 and Annex G).
- If legal advice has been requested you must arrange for the legal representative to be present at the interview unless Code C, para. 6.6 applies.
- If a person has asked for legal advice and an interview is initiated in the absence of a legal adviser (e.g. where the person has agreed to be interviewed without his/her legal adviser being present or because of the urgent need to interview under Code C, para. 11.1), a record must be made in the interview record (Code C, para. 6.17).
- If an appropriate adult should be present, arrange for his/her attendance. (For the definition of appropriate adult, see Code C, para. 1.7.)
- If an interpreter is needed for the interview, arrange for his/her attendance. The provisions of Code C, s. 13 on interpreters for hearing impaired persons or for interviews with suspects who have difficulty understanding English apply to these interviews.
- The reason for the interviewer making a written note of the interview where a person is deaf or has impaired hearing is to give the equivalent rights of access to the full interview record as far as this is possible using audio recording. The interview notes must be in accordance with Code C.
- It is also important to draw up an interview plan and to include any relevant areas that may provide a general or specific defence.
- Look at the evidence available and identify any significant statement or silence by the suspect in order that it can be put to him/her in interview (Code C, para. 11.4).
- In planning for the interview officers should be mindful that a confession can be very damning evidence against a defendant, it is important to provide safeguards that give all suspects the same level of protection. The PACE Codes of Practice recognise certain groups as being in need of additional protection. These groups include juveniles, under 18-year-olds, people who do not speak English, those who are vulnerable and those who are deaf or have a hearing impediment. Such suspects must not be interviewed without the relevant person being present. See Code C, s. 13.
Objections and Complaints by the Suspect
The relevant officer should be aware that a decision to continue recording against the wishes of the suspect may be the subject of comment in court. If the custody officer, or in the case of a person who has not been arrested, a sergeant, is called to deal with the complaint, the recorder should, if possible, be left on until the officer has entered the room and spoken to the person being interviewed. Continuation or termination of the interview should be at the interviewer’s discretion pending action by an inspector under Code C, para. 9.2.
If the complaint is about a matter not connected with this Code or Code C, the decision to continue is at the interviewer’s discretion. When the interviewer decides to continue the interview, they shall tell the suspect that at the conclusion of the interview, the complaint will be brought to the attention of the custody officer, or in the case of a person who has not been arrested, a sergeant. When the interview is concluded the interviewer must, as soon as practicable, inform the custody officer or, as the case may be, the sergeant, about the existence and nature of the complaint made.
Failure of Recording Equipment
Where the interview is being recorded and the media or the recording equipment fails the interviewer should stop the interview immediately. Where part of the interview is unaffected by the error and is still accessible on the media, that part shall be copied and sealed in the suspect’s presence as a master copy and the interview recommenced using new equipment/media as required. Where the content of the interview has been lost in its entirety, the media should be sealed in the suspect’s presence and the interview begun again. If the recording equipment cannot be fixed and no replacement is immediately available, subject to para. 2.3, the interview should be recorded in accordance with Code C, s. 11. Any written record of an audio recorded interview should be made in accordance with current national guidelines for police officers, police staff and CPS prosecutors concerned with the preparation, processing and submission of prosecution files. Master Recording security (paras 3.24 to 3.30).
Master Recording
The master recording must be sealed at the conclusion of the interview. Care must be taken of working copy recordings because their loss or destruction may lead unnecessarily to the need to access master recordings. Breaking master recording seal for criminal proceedings (para. 3.25).
The most common reasons for needing access to master copies that are not required for criminal proceedings arise from civil actions and complaints against police and civil actions between individuals arising out of allegations of crime investigated by police.
Examples of outcomes or likely outcomes of the investigation that might help the officer in charge of the investigation to decide whether a representative of each party needs to be present when the seal is broken and the master recording copied and re-sealed might be: (i) the prosecution of one or more of the original suspects; (ii) the prosecution of someone previously not suspected, including someone who was originally a witness, and (iii) any original suspect being treated as a prosecution witness and when premature disclosure of any police action, particularly through contact with any parties involved, could lead to a real risk of compromising the investigation and endangering witnesses.
If the master recording has been delivered to the Crown Court for their keeping after committal for trial the Crown prosecutor will apply to the chief clerk of the Crown Court centre for the release of the recording for unsealing by the Crown prosecutor. Reference to the CPS or to the Crown prosecutor in this part of the Code should be taken to include any other body or person with a statutory responsibility for the proceedings for which the police-recorded interview is required. Breaking master recording seal: other cases (paras 3.26 to 3.29).
PACE CODE E
The Codes recognise the importance that detained persons are treated in accordance with the Equality Act 2010; section 149, the ‘relevant protected characteristics’ are: age, disability, gender reassignment, pregnancy and maternity, race, religion/belief, and sex and sexual orientation.
It is important to ensure interviews are conducted at appropriate locations; an interviewer who is not sure, or has any doubt, about whether a place or location elsewhere than a police station is suitable for carrying out an interview of a juvenile or vulnerable person, using a particular recording device, should consult an officer of the rank of sergeant or above for advice. See Code C, paras 3.21 and 3.22.
Attention is drawn to the provisions set out in Code C about the matters to be considered when deciding whether a detained person is fit to be interviewed. Anyone who appears to be under 18, shall, in the absence of clear evidence that they are older and subject to Code C, para. 1.5A, be treated as a juvenile for the purposes of this Code.
The reason for the interviewer using his/her warrant number or other identification numbers and the name of his/her police station is to protect those involved in serious organised crime investigations or arrests of particularly violent suspects when there is reliable information that those arrested or their associates may threaten or cause harm to those involved. In cases of doubt, an officer of the rank of inspector or above should be consulted.
Notice given to the suspect
At the conclusion of the interview (see Code E, para. 4.12(b)) should provide a brief explanation of the secure digital network and how access to the recording is strictly limited. The notice should also explain the access rights of the suspect, their legal representative, the police and the prosecutor to the recording of the interview. Space should be provided on the form to insert the date, the identification number, filename or other reference for the interview recording.
Purpose of allowing the interviewer to decide that a written record
is to be made is to support the policy which gives police in England and Wales options for dealing with low level offences quickly and non-bureaucratically in a proportionate manner.
A decision in relation to a particular indictable offence that the conditions and requirements in this Annex are satisfied is an operational matter for the interviewing officer according to all the particular circumstances of the case. These circumstances include the outcome of the officer’s investigation at that time and any other matters that are relevant to the officer’s consideration as to how to deal with the matter. Under the Misuse of Drugs Act 1971 cannabis includes any part of the cannabis plant but not mature stalks and seeds separated from the plant, cannabis resin and cannabis oil, but para. 1(a) applies only to the possession of herbal cannabis and cannabis resin. Khat includes the leaves, stems and shoots of the plant.
The power to issue a Penalty Notice for Disorder (PND) for an offence contrary to s. 1 of the Theft Act 1968 applies when the value of the goods stolen does not exceed £100 inclusive of VAT. The power to issue a PND for an offence contrary to s. 1(1) of the Criminal Damage Act 1971 applies when the value of the damage does not exceed £300.
The provisions of Code C that apply to the conduct and recording of voluntary interviews to which this Annex applies are described in paras 3.21 to 3.22B of Code C. They include the suspect’s right to free legal advice, the provision of information about the offence before the interview (see Code C, para. 11.1A) and the right to interpretation and translation (see Code C, s. 13). These and other rights and entitlements are summarised in the notice that must be given to the suspect.
The requirements in para. 3 will cease to apply if, for example during the course of an interview, as a result of what the suspect says or other information which comes to the interviewing officer’s notice:
- it appears that the suspect:
is aged under 18;
does require an appropriate adult;
is unable to appreciate the significance of questions and their answers;
is unable to understand what is happening because of the effects of drink, drugs or illness, ailment or condition; or
~ requires an interpreter; or - the police officer decides that the suspect’s arrest is now necessary (see Code G).
