Interviews Flashcards
Who Will Give
Consent?
Adults aged 18 or over - the suspect
Turned 14
but still under 18 - Both
the suspect
and
their parent or guardian.
Under 14 - Parent or guardian
only.
INTERVIEWS IN A NUTSHELL
- The questioning of a person
regarding their:
*Involvement;
*Suspected involvement; - In a criminal offence(s) that
must be carried out under
caution.
Failure to caution — exclusion likely
Basis Of Suspicion?
Suspicion must be based on
objective facts
Fox v United Kingdom
Suspicion cannot be based
upon a hunch
Batley v DPP
TIMING OF ADMINISTERING A CAUTION
UPON SUSPICION
Once a suspicion arises the cautioning must take place before any questions are put to the suspect in respect of the offence.
It is necessary to administer a caution before asking any further questions once there are grounds to suspect that a person has committed an offence.
The point of forming the suspicion is key - up until the point of suspicion there is no need to administer a caution prior to asking questions.
REASONABLE SUSPICION
AN OBJECTIVE TEST
The case of Fox v United Kingdom [1990] 13 EHRR 157, which stated that the formulation of a reasonable suspicion must be based upon objective facts or information that would lead an observer to conclude that the person may have committed the offence.
The case of R v Smith [2001] 1 WLR 1031, reaffirmed the decision in Fox confirming that establishing a reasonable suspicion is an objective test and that an honest belief by a constable was of itself insufficient.
A mere hunch will also be insufficient to form the basis of suspicion - Batley v DPP [1998] The Times 5th March.
ALCOHOL ON A DRIVER’S BREATH AND REASONABLE SUSPICION
FOCUS ON THE POINT AT WHICH SUSPICION ARISES - FOLLOWING THE RESULT OF A POSITIVE PRELIMINARY BREATH TEST
In the case of Ridehalgh v DPP [2005] EWHC 1100 (Admin), a BTP officer had driven to a police station whilst on duty.
Upon arrival the Custody Officer smelt alcohol on his breath. Ridehalgh was asked to confirm whether he had been drinking and whether he had driven to the police station.
At trial the issue arose as to whether he should have been cautioned prior to asking the questions.
The Administrative Court concluded that during questioning persons, there reaches a point that it may be apparent that an offence may have been committed.
However, an officer may have to pose further questions before a genuine suspicion arises that an offence has been committed – it is only once the point of actual suspicion is reached that it will be necessary to administer a caution.
At the point of posing the questions the only evidence against Ridehalgh was the smell of alcohol on his breath - there was no evidence of the volume of alcohol in his system, or indeed how he had got to the station.
Only after the preliminary breath test proved positive was there adequate evidence to form a suspicion that the offence had been committed and therefore it was only at this point that a caution needed to be administered.
WHAT EFFECT WILL A FAILURE TO CAUTION POST SUSPICION HAVE ON THE ADMISSIBILITY OF ANY SUBSEQUENT CONFESSION THAT IS MADE DURING INTERVIEW?
ANSWER:
The confession must be excluded at trial in a voire dire under section 76(2)(b) PACE 1984 - as there will have been something done (i.e. - an omission to caution) - that will have rendered the confession unreliable.
Not necessary to caution?
Situation 1
Solely to establish their
>identity; or
>ownership of any vehicle
Situation 2
In furtherance of the proper and effective conduct of a search:
>To determine the need to search;
>To seek co-operation in carrying out the search
Situation 3
To seek verification of written record in relation to an unsolicited comment
Checks Of Vehicles?
*R v McGuinness
*R v Miller
Cautions?
Standard
“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.
Modified
*You do not have to say
anything…
…but anything you do
say may be given in
evidence.
Cautions?
Standard
Caution
Always —
unless it is
not
possible to
draw
adverse
inferences
Modified
Caution
>Incommunicado delay to legal
advice
>Urgent interviews in the absence of
solicitor requested.
>Interviews in relation to the contents of
statement by another which takes
place after either:
*Charge. or
*The detainee being informed that they
will be reported for an offence.
Cautions & Appropriate Adults?
If the cautioning of either a:
Juvenile
Mentally
disordered
person
Mentally
vulnerable
person
…takes place in the absence of their appropriate
adult - the caution must subsequently be
repeated in the presence of the appropriate
adult once they are in attendance.
CAUTIONS - ADDITIONAL GUIDANCE
IS IT EVER PERMISSIBLE TO DEVIATE FROM THE EXACT WORDING OF THE CAUTION?
It is worth noting that minor deviations from the exact wording will not constitute a breach of the code – provided the sense of the caution is preserved.
CONTRASTING CAUTIONING AND SPECIAL WARNINGS
THOSE WHO REQUIRE AN APPROPRIATE ADULT
It is permissible to caution a juvenile (now under 18) or mentally disordered or vulnerable individual prior to the arrival of an appropriate adult - but that the caution must be re-administered in the presence of the appropriate adult upon their arrival.
Contrast this with the position regarding administering special warnings prior to asking a person arrested to account for the presence of objects, substances, marks or marks on an object, or for their presence at a place at or about the time of the offence for the purposes of generating adverse inferences from silence in response under sections 36 and 37 of the CJPOA 1994 (see later).
A special warning must not be administered to a juvenile or mentally disordered individual unless the appropriate adult is present.
REPEATING THE CAUTION FOLLOWING A BREAK IN INTERVIEWING
OPTIONS AVAILABLE FOLLOWING A BREAK IN INTERVIEWING
After any break in questioning under caution - the interviewing officer must when the interview resumes:
- Either remind the suspect that they remain under caution, or if in doubt – re-administer the caution in full;
- Summarise the reason for the break;
- Confirm the reason with the suspect; and
- Remind the suspect of their right to legal advice.
REPEATING THE CAUTION FOLLOWING A BREAK IN INTERVIEWING
OPTIONS AVAILABLE FOLLOWING A BREAK IN INTERVIEWING
After any break in questioning under caution - the interviewing officer must when the interview resumes:
- Either remind the suspect that they remain under caution, or if in doubt – re-administer the caution in full;
- Summarise the reason for the break;
- Confirm the reason with the suspect; and
- Remind the suspect of their right to legal advice.
RECORDING THE CAUTION
WHERE WILL THE RECORD BE MADE?
A record must be made of any caution administered in either:
- The interview record; or
- The interviewer’s pocket book.
CONFIDENTIALITY OF STATEMENTS MADE UNDER CAUTION
GENERAL RULE
The contents should only be used for the purposes of a criminal investigation and are confidential.
EXCEPTION
The contents will not be confidential when they are already in the public domain.
CAUTIONING - RECAP QUESTION 1
Will it be necessary to administer a caution to a person prior to asking a question solely to establish their identity or ownership of any vehicle?
ANSWER:
No.
CAUTIONING - RECAP QUESTION 2
Will it be to necessary administer a caution to a person prior to asking them a question that will determine whether there is any need to search them or to seek their co-operation in searching them?
ANSWER:
No.
CAUTIONING - RECAP QUESTION 3
Will it be necessary to administer a caution to a person prior to their making an unsolicited comment?
ANSWER:
No - as no suspicion will have arisen at the point at which the unsolicited comment is made, it will be unnecessary to caution at this juncture.
CAUTIONING - RECAP QUESTION 4
Which caution will be administered when interviewing a person arrested prior to charge in the presence of a solicitor requested?
ANSWER:
The standard caution:
“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.”
CAUTIONING - RECAP QUESTION 5
Which caution will be administered when interviewing a person arrested prior to charge - if they have been offered the opportunity to obtain legal advice but have declined the offer of their own volition?
ANSWER:
The standard caution.
They key point is that the suspect has been afforded the opportunity to obtain legal advice – see Murray v UK [1996] 22 EHRR 29.
If they have declined the offer of legal advice of their own free will - then the standard caution can be administered and adverse inferences can be generated in respect of silences at interview.
CAUTIONING - RECAP QUESTION 6
Which caution will be administered when interviewing a person arrested prior to charge if their right to make a telephone call to their friend has been delayed under the incommunicado provisions of Code Annex B of PACE 1984?
ANSWER:
The standard caution.
They key point is whether the suspect has been afforded the opportunity to obtain legal advice – (see Murray v UK [1996] 22 EHRR 29).
Legal advice is one of 4 rights that can be delayed under the incommunicado provisions along with the right to have somebody informed of the detainee’s whereabouts, the right to a telephone call and the right to respond to queries as to a detainee’s whereabouts - see the Detention & Treatment Of Persons module for further details.
It will it not be possible to draw an adverse inference from any silence exercised during the course of an interview when the right to legal advice is delayed and the modified caution should be administered in such circumstances.
In this scenario - one of the other rights was delayed and therefore adverse inferences can still be generated from silence and consequently the standard caution should be administered.
CAUTIONING - RECAP QUESTION 7
Which caution will be administered when interviewing a person arrested prior to charge - if their right to legal advice has been overridden under the urgent interview provisions?
ANSWER:
The modified caution.
They key point is that the suspect has not been afforded the opportunity to obtain legal advice – see Murray v UK [1996] 22 EHRR 29.
It will it not be possible to draw an adverse inference from any silence exercised during the course of an interview when the right to legal advice has been overridden in circumstances of urgency.
Consequently, the modified caution should be administered in such circumstances.
CAUTIONING - RECAP QUESTION 8
Will the standard caution be administered when a person is interviewed following charge in the presence of a solicitor?
ANSWER:
No - the modified caution will always be administered at the commencement of post charge interviews - as it will not be possible to generate an adverse inference from any silence exercised by a detainee during the course of a post charge interview.
This will be the case irrespective of whether or not a solicitor is present.
There are only 3 narrow necessity grounds under which post charge interviews will be permitted - they are covered later in the playlist.
CAUTIONING VOLUNTEERS
WHAT INFORMATION MUST BE SUPPLIED WHEN CAUTIONING A VOLUNTEER?
When a person who is not under arrest (i.e. a volunteer) is either:
* Initially cautioned; or
* Reminded that they are under caution
…the volunteer must at the same time be informed:
* That they are not under arrest;
* That they need to agree to be interviewed;
* How they obtain legal advice;
* Of the other rights and entitlements that now apply to volunteer interviews.
Cautioning Upon Arrest?
Step 1
Inform the p«son arrested
At the time; or
ASAP thereafter that both
They are under arrest;
The grounds for their
arrest.
Step 2
Caution them unless:
They have already bee
cautioned
immediately prior to
their arrest; or
It is impracticable to do
so because of their:
* Condition; or
* Behaviour.
Setting The Context?
The suspect must be informed of
the nature of either:
The offence.
Any further
offences that
come to light
during questioning.
Unsolicited
Comments
Step 1
The officer must make a written record sure
of the unsolicited comments.
Step 2
The officer must ensure the record is both:
Timed; and
Signed.
Step 3
Where practicable, the suspect must
be given the opportunity to:
> Read the record, and either.
* Sign the record as correct: or
* Indicate how they consider the
record to be inaccurate and sign.
Step 4
If suspect
refuses to sign
- the officer must
record their
refusal.
Timing Of The
Endorsement?
No time limit
Next day OK
Bately v DPP
INFORMATION TO BE SUPPLIED TO PERSONS UPON ARREST
WHAT INFORMATION SHALL BE SUPPLIED UPON ARREST?
It is important that you do not confuse the separate rules regarding the obligation to inform a person that they are under arrest and the obligation to caution upon arrest.
ACTION 1 - THE OBLIGATION TO INFORM THE PERSON THAT THEY ARE UNDER ARREST
The person arrested must be informed either:
* At the time of their arrest; or
* As soon as practicable thereafter
…both:
* That they are under arrest; and
* The grounds for their arrest.
NB - the only exception is when they are escaping.
ACTION 2 - THE OBLIGATION TO CAUTION
The person arrested must also be cautioned unless:
* They have already been cautioned immediately prior to their arrest; or
* It is impracticable to do so because of their condition or behaviour.
INFORMING PERSONS THEY ARE UNDER ARREST - RECAP QUESTION 1
Must a person arrested always be informed at the time of their arrest or as soon as practicable thereafter that they are under arrest and the grounds for their arrest?
ANSWER:
GENERAL RULE - Yes.
EXCEPTION - The one narrow caveat where it will be unnecessary to inform them that they are under arrest is where they are escaping.
CAUTIONING PERSONS ARRESTED - RECAP QUESTION 1
Must a person arrested always be cautioned immediately after their arrest?
ANSWER:
No - whilst as a general rule a person must be cautioned upon arrest - there are 2 caveats where there is no need to caution following arrest if either:
* They have already been cautioned immediately prior to their arrest; or
It is impracticable to do so because of their condition or behaviour.
NEW OFFENCES - RECAP QUESTION 1
If new offences come to light following arrest and prior to interview or during the course of the interview - should the suspect be informed that this is the case prior to posing questions?
ANSWER:
Yes - a failure to do so could lead to the exclusion at trial of any confession obtained as a consequence under section 76(2)(b) PACE 1984 - (see the Exclusion of Evidence module).
UNSOLICITED COMMENTS - RECAP QUESTION 1
Where practicable should the suspect be afforded the opportunity to endorse the written record of an unsolicited comment which has already been timed and signed by an officer?
ANSWER:
Yes - where practicable, the suspect must be given the opportunity to read the record and either:
* Sign the record as correct; or
Indicate how they consider the record to be inaccurate and sign.
UNSOLICITED COMMENTS - RECAP QUESTION 2
Will an unsolicited comment become inadmissible if the suspect refuses to endorse the record of their comments?
ANSWER:
No - provided the officer records the suspect’s refusal to endorse - the unsolicited comment will remain admissible trial.
ADVERSE INFERENCES FROM SILENCE AT INTERVIEW
Section 34
Fails to mention facts at
interview which they later
rely upon in their defence
at trial which they could
reasonably have been
expected to have mentioned
at the time of the
interview.
Section 35
Without good cause either:
Fails to take the stand in
their defence at trial; or
Selectively answers
questions whilst on the
stand.
Section 36
Fails to account for the
presence of either
Objects;
Substances;
Marks;
Marks on an object
Section 37
Fails to account for
presence at a place at or
about the time of the
commission of the offence.
When Inferences Cannot
Be Drawn?
No opportunity for
legal advice
Murray v UK
Modified caution
Section 34
The court may draw such inferences as appear proper if
when a suspect is questioned under caution either.
Before they
are charged
On being officially
informed they may be prosecuted
Upon being charged
…during the interview:
Fails to mention a fact
…which in the circumstances existing at the
time of the interview they should reasonably
have been expected to have mentioned
…and they later rely on that fact in their defence at trial.
Comments At Interview
Reasonable
Defence Run At Trial
Factor 1
Whether the suspect was fit for
interview? - R v Argent
Factor 2
Whether the suspect could be
reasonably be expected to
immediately recollect the fact
at the time of the interview?
Factor 3
Whether there has been adequate
disclosure for the solicitor and the
suspect to understand the
significant of fact? - R v Roble
Written statement
Defence Run At Trial
Nature Of The
Section 34 Adverse
Inference?
Subsequent
fabrication
Section 36
A constable
arrests a
person…
who at the time of their
arrest has either…
- Object
- Substance
- Mark
- Mark on an object
- On their person
- In or on their clothing or footwear
- In their possession
- In any place where they are at the
time of their arrest
The interviewing constable
reasonably believes that:
* The presence of the object,
substance or mark, or mark on
the object;
* May be attributable to the
suspect’s participation in a
crime; and
The interviewing constable:
* Informs the suspect of their belief;
* Asks the suspect to account for the
presence of the object, substance or mark;
* Provides the suspect with a special
warning; and
* The suspect fails to account for the
presence of the object, substance or mark.
Section 37
A person is
found by a
constable
Not by a
member of
the public
At a place
at or about
the time the’
offence was
committed…
Who Must Arrest?
The
constable
who found
them.
The interviewing constable
reasonably believes that:
* The presence of the person at
the place at that time;
* May be attributable to the
suspect’s participation in a
crime; and…
The interviewing constable:
* Informs the suspect of their belief;
* Asks the suspect to account for their presence:
* At that place;
* At that time;
* Provides the suspect with a special warning;
and
* The suspect fails to account for their
presence at that place at that time.
Can Inferences
Alone Prove Guilt?
No
THE EXTENT OF PRE-INTERVIEW DISCLOSURE
MINIMUM DISCLOSURE REQUIREMENTS - LEGAL UPDATE
Now, as a minimum requirement - only the custody record must be disclosed to the defence prior to interview.
Code C Paragraph 11.1A states that before a person is interviewed both the suspect and their solicitor (if legally represented) - must be given sufficient information to enable them to understand both:
* The nature of the offence; and
* Why they are suspected of having committed the offence
…in order to allow the effective exercise of their rights to a defence.
WHAT NEED NOT BE DISCLOSED?
There is no need to disclose details which at the time might prejudice the investigation.
FIRST DESCRIPTIONS OF IDENTIFICATION WITNESSES
Code D Paragraph 3.1 states that a copy of the ‘first description’ shall, where practicable, be given to the suspect or their solicitor before any known suspect identification procedure takes place.
There is no reference to obliging the supply of the first description prior to an interview procedure.
So an officer engaging in pre-interview disclosure which takes place in advance of any identification procedures need not provide the ‘first description’ of a suspect to their solicitor at that time.
FULL DISCLOSURE IS UNNECESSARY
The case of R v Argent [1997] 2 Cr App R 27 established that it is not necessary for there to be full disclosure by the investigating officer and it will be possible for an adverse inference to be drawn when there has not been full disclosure by the investigating officer.
THE KEY POINT REGARDING THE EXTENT OF DISCLOSURE REQUIRED
The case of R v Argent [1997] 2 Cr App R 27 also acknowledged that the extent of disclosure would be a factor that the court would consider in determining whether the failure to mention a fact was reasonable.
The case of R v Roble [1997] Crim LR 449 established that a solicitor will act reasonably in advising silence and no adverse inferences will be drawn where there is so little disclosure that the solicitor is unable to advise the suspect as they do not understand the significance of the fact in the context of the investigation.
Therefore, in the event of partial disclosure, provided the investigating officer discloses adequate information to enable the suspect to understand the significance of the fact in the context of the investigation – adverse inferences can still be drawn
WILL REMAINING SILENT ON THE BASIS OF LEGAL ADVICE PREVENT THE DRAWING OF ADVERSE INFERENCES?
NO - THERE IS NO BLANKET PROTECTION GENERATED BY RELIANCE UPON LEGAL ADVICE
Genuine reliance upon the advice of a solicitor to remain silent will not provide a blanket protection against the drawing of adverse inferences - this will be the case even if the solicitor’s advice was erroneous.
The case of R v Ali [2001] EWCA Crim 683 established that it is irrelevant whether the advice to remain silent is either poor or genuinely relied upon by the suspect.
What mattered is whether the solicitor was reasonable in advising their client to remain silent.
The cases of R v Beckles [2005] 1 All ER 705 and R v Bresa [2005] EWCA Crim 1414 established that the fundamental question is whether the defendant remained silent not because of the legal advice to do so, but because there was no satisfactory explanation to provide.
The case of R v Hoare [2004] EWCA Crim 784 established that if the investigating officer has put an allegation to the suspect under caution at interview and the suspect has a valid explanation to hand - it will not be reasonable for them to remain silent upon the advice of their solicitor. In such circumstances adverse inferences will be drawn if they fail to mention the fact during interview and later rely upon the fact in their defence at trial.
ADVERSE INFERENCES - RECAP QUESTION 1
Will it be possible to generate an adverse inference from a suspect’s silence at interview when their right to legal advice has been withheld against their wishes?
ANSWER:
No - the modified caution must be administered in such circumstances.
In the case of Murray v UK [1996] 22 EHRR 29 - the European Court of Human Rights established that it will not be possible to draw an inference until the suspect in police detention has been afforded the opportunity to consult a solicitor.
ADVERSE INFERENCES - RECAP QUESTION 2
Will it be possible to generate an adverse inference from a suspect’s silence at interview in the event of a failure to caution at the commencement of an interview?
ANSWER:
No - remember - no caution - no inference!
ADVERSE INFERENCES - RECAP QUESTION 3
Is it possible to generate either a section 36 or section 37 CJPOA 1994 adverse inference from the silence of a volunteer at interview - (i.e. a person not under arrest)?
ANSWER:
No - section 36 or section 37 CJPOA 1994 adverse inferences only apply to silence in respect of interviews conducted following arrest.
ADVERSE INFERENCES - RECAP QUESTION 4
Does the accused have to take the stand in their own defence at trial?
ANSWER:
No – they have the discretion to do so.
Section 35(4) CJPOA 1994 states that the accused is not compellable to give evidence on their own behalf, and shall not be guilty of contempt of court if they exercise their discretion not to take the stand.
Put simply, the accused can never be forced by the prosecution to take the stand - they merely have the discretion to take the stand to give evidence for their own defence.
However, if the accused without good cause exercises their discretion not to take the stand at trial - such inferences as appear proper will be drawn under the first limb of section 35 CJPOA 1994.
If the accused decides to take the stand but then without good cause refuses to answer questions once sworn - then such adverse inferences as appear proper will be generated under the second limb of section 35 CJPOA 1994.
ADVERSE INFERENCES - RECAP QUESTION 5
Will a section 34 CJPOA 1994 adverse inference be generated if the defence runs the same story at trial as they did previously at interview?
ANSWER:
No - a section 34 CJPOA 1994 adverse inference will not be generated when the story provided at the time of the interview mirrors that run at trial.
it is only when the story diverges by virtue of either adding new facts or changing the story at trial will a section 34 inference potentially be generated.
If the story does diverge - it must still be established that in the circumstances existing at the time of the interview the suspect could reasonably have been expected to have mentioned the said fact.
If it would have been reasonable to have mentioned the fact at the time of the interview - an inference will be generated.
ADVERSE INFERENCES - RECAP QUESTION 6
What factors will influence whether in the circumstances existing at the time of the interview a suspect could reasonably be expected to mention facts?
ANSWER:
Factors include:
* The suspect’s fitness;
* Whether the suspect could be expected to immediately recollect the fact; and
* The adequacy of disclosure.
Poor legal advice will NOT prevent the drawing of an adverse inference from silence.
ADVERSE INFERENCES - RECAP QUESTION 7
In order to generate a section 37 CJPOA 1994 adverse inference - the suspect having been arrested must, after a special warning, fail to account for their presence at a place at or about the time of the commission of an offence.
Who must have seen them at that place?
The arresting officer must have seen the person arrested at the scene with their own two eyes.
ADVERSE INFERENCES - RECAP QUESTION 8
What things can a suspect be special warned in respect of under section 36 CJPOA 1994?
ANSWER:
The presence of either an:
* Object;
* Substance;
* Mark; or
* Mark on an object
…located either:
* On their person;
* In or on their clothing or footwear;
* In their possession; or
In any place where they are at the time of their arrest.
ADVERSE INFERENCES - RECAP QUESTION 9
Can an adverse inference from silence alone of itself prove guilt?
ANSWER:
No - corroboration will be required in order to prove the case beyond reasonable doubt.
ACTION TO BE TAKEN PRIOR TO THE INTERVIEW
- Rest periods;
- Risk assessments;
- Transferring responsibility for the suspect at interview;
- Pre interview disclosure;
- Appropriate adults at interview;
- Pre interview checks; and
- Dealing with objections raised by suspects to conducting an interview.
Calculating The Rest Period
The detainee in any 24 hour period - must be allowed a
continuous period Of at least 8 hours rest free from either:
* Questioning;
* Travel; or
* Interruption.
When Should The Rest Period Take Place?
The rest period should normally be either:
* At night; or
* Other appropriate time - that takes into account of
when the suspect last slept or rested.
Interrupting Or Delaying The Rest
Period
3 grounds
Affects whether there is a fresh rest period.
Ground 1 — Fresh Rest Period
When there are reasonable grounds for believing that delaying
or interrupting the rest period would either:
* Involve a risk of harm to people;
* Involve a risk of serious loss or damage to property;
* Delay unnecessarily the person’s release from custody; or
* Otherwise prejudice the outcome of the investigation.
Ground 2 — No Fresh Rest Period
At the request of the:
* Detainee;
* Appropriate adult; or
* Legal representative.
Ground 3 — No Fresh Rest Period
When a delay or interruption is necessary to either:
* Comply with the review duties; or
* Take action in accordance with medical advice.
When Does The 24 Hour Period
Start For Volunteers?
The 24 hour period
begins from the
time of arrest
and
not the time of arrival.
Custody Officer’s Obligation
To Conduct A Risk
Assessment Prior To
Transferring The Suspect
Into The Custody Of The
Interviewing Officer
Who Shall Be Consulted?
Prior to transferring responsibility to interview — the Custody
Officer — in consultation With:
* The officer in charge of the investigation * (OIC); and
* Any appropriate health care professionals as necessary
shall assess whether the detainee is fit enough to be
interviewed.
Factors To Be
Considered When
Consulting?
2 Factors Considered?
They will consider both:
* The risks to the detainee’s physical and mental state if the
interview takes place: and
* What safeguards are needed to enable the interview to
proceed.
NB - Vulnerable suspects will always be treated as being at
some risk during interview.
2 Potential Risks If Interviewed?
Risk I - The interview could significantly
harm the detainee’s physical or mental state.
Risk 2 - Anything that they might say at
interview regarding their suspected
involvement in the offence might be considered
unreliable because of their physical or mental
state.
3 Factors To Consider
When Conducting A
Risk Assessment
Factor 1
How the detainee’s physical or mental condition may affect their
ability to understand.
* The nature and purpose of the interview;
* Any questions posed:
* The significance of any answers provided: and
* Make rational decisions whether they want to say anything,
Factor 2
The extent to which
replies are affected
by their condition.
Factor 3
How the probing nature
of the interviewing process
might affect
the detainee’s condition.
The Role Of Any
Health Care
Professional
Consulted
Broad Remit
The health care professional consulted
must not just diagnose their condition
- they should also perform 3 roles.
Role 1
Quantify any risks - informing the Custody Officer:
* Whether any treatment is necessary;
* Whether their condition is likely to improve; and
* How long it will take to improve.
Role 2
Focus on whether, in the light of their condition -
the detainee is fit for interview
i.e. focus on their functional ability.
Role 3
They must also advise on:
* Whether an appropriate adult need be present;
* Whether a further specialized opinion is necessary; and
* Whether a further review of the person’s fitness will be
necessary - after a specified period of interviewing.
Recording Obligations
Any determinations or recommendations
of a health care professional
must be recorded in writing
in the custody record.
Action Taken By The
Custody Officer
Following The
Recommendation Of
Any Health Care
Professional Consulted
Custody Officer’s Decision
Once the recommendation of a health care professional
has been obtained - the Custody Officer must decide both:
* Whether or not to allow the interview to proceed; and
* Whether any safeguards are required to minimize any
risks.
Custody Officer’s Power To
Prevent The Interview?
The Custody Officer shall net allow the interview to
proceed if they consider that it would cause
significant harm to the detainee’s:
* Physical state; or
* Mental state.
TRANSFERRING RESPONSIBILITY FOR THE SUSPECT
The rules governing transferring responsibility for the suspect now differ depending on whether the interview shall be conducted either:
- In person; or
Via a live link.
Differing Rules
The rules relating to transferring responsibility for a suspect
for interview differ depending on whether the interview will be
conducted either:
* In person - where the interviewer and suspect are at the same
police station; or
* Via a live link * where the interviewer is not present at the
same police station as the suspect
Who Must Provide Permission To
Interview A Detainee In Person?
If a police officer wants to conduct either:
* An interview; or
* Enquiries
which require the presence of the detainee the Custody
Officer will be responsible for deciding whether to deliver the
detainee into the Investigating Officer’s custody.
Action Where The Custody
Officer Grants Permission?
The detainee is transferred to the Investigating Officer
who:
* Is given custody of the detainee; and
* Takes over responsibility for their care and safe custody
until they return the detainee to the Custody Officer.
