Interviews Flashcards
Where are the procedures for interviews following arrest found?
COP C sections 11 and 12
What is a caution?
Interviews MUST be carried out under caution. A person MUST be cautioned before they are asked any questions about their suspected involvement in the commission of an offence.
A person must be cautioned again at the recommencement of an interview after a break.
What are the words of 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.
When can a suspect be interviewed?
AFTER:
- authorisation of detention of custody officer
- informed of rights
- samples taken
- seen appropriate healthcare professional if necessary
- spoken to a legal rep
THEN INTERVIEWED
Disclosure to a solicitor before interview
There is no right to disclosure except for:
- a significant statement
- the custody record
But COP C also states:
- solicitor must be given sufficient information to enable them to understand the nature of any such offence and why the client is suspected of committing it
What is a significant statement?
A significant statement is one that appears capable of being used in evidence and in particular any direct admission of guilt.
This can be made by the person in the presence of a police officer or member of police staff.
When should significant statements be disclosed?
At the beginning of the interview but after caution.
Recordings
General rule: all interviews myst be contemporaneously recorded.
Interviews under caution for any indictable offence must be audio recorded.
An exception exists and may be recorded in writing where:
- relates to minor offences
- person has not been arrested
- takes place other than at a police station
Fitness for interview
Generally, no person should be interviewed if they are unable to:
- appreciate the significance of the questions asked and their answers; or
- understand what is happening because of the effects of drink, drugs or ay illness ailment or condition.
However, an officer of the rank of least superintendent can authorise an interview in these circumstances.
Features of a properly conducted interview
- takes place in an interview room in a designated police station
- is recorded
- is in the presence of a lawyer (if suspect has decided to exercise their right)
- Gives the client the option to suspend the interview and have further consultations with their solicitor
What should a solicitor do before an interview?
- Obtain pre-interview disclosure
- Have an opportunity for a private consultation with their client to:
- discuss their case; and
- advise the client on their options for the interview
When can a solicitor consider intervening during an interview?
- information or evidence referred to is not disclosed before the interview
- clarification on any matter is required at any time
- there is inappropriate questioning
- inappropriate behaviour
- further advice to client is needed
- a break is required
- anything else in their judgement
Examples of inappropriate questions by the police?
- Misrepresenting information such as upgrading responses, misrepresenting key items of information or inaccurate summarising
- Hypothetical questions
- Repetitive questioning
- Disruptive listening (not listening to response, assuming knowledge, interrupting)
Section 76
Circumstances when a confession can be excluded from evidence as a result of oppression or unreliability.
Only applies to confessions.
Oppression: torture, inhuman or degrading treatment or the use or threat of violence - oppression must have caused the confession.
Unreliability: confession was obtained as the result of something said or done which renders it unreliable (e.g. breaches of PACE) - the thing said or done must have caused the confession’s unreliability.
Section 78
Gives the court discretion to exclude evidence that ‘would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’.
Applies to all types of evidence (including confessions).
Three options for interview
- Answer questions
- Don’t answer questions (no comment)
- Provide a written statement and go no comment
Consequences of going no comment
A court may draw adverse inferences.
A common sense conclusion that is adverse to the interests of a party in proceedings.
Prepared written statement
Sometimes used to try and avoid later adverse inferences.
A statement is handed in at the beginning of the interview which sets out the defence.
Often used where there are facts which will be later relied on in court but the lawyer thinks the client shouldn’t answer questions.
Note: very difficult to avoid adverse inferences when using it. Client still answers no comment to questions put in the interview.
Mixed interview
Answering no comment to some questions and giving answers to others.
Not a good idea.
Transcript is read in court and saying no comment to some may give a poor impression.
May also confuse client in interview and they might say things they were not planning to say.
Should a client answer questions?
Factors to consider:
- amount of disclosure: do we know enough about what the police might have to advise to talk?
- admissibility and strength of evidence: any witness statements? witnesses compellable? any s78 applications need to be made?
Is there any evidence we should wait for? e.g. dna tests that could be incriminating? Silence may be better before denying - client’s account and instructions: waiting until trial to put defence could mean adverse inferences or losing credibility, if has an alibi it would be good to share this.
- state of your client: are they in shock, are they prepared to deal with the police trying to get them to talk
- significant statements: could be relevant
- possible adverse inferences: fact later relied on in court that would be reasonable to mention now, failure to account for mark, failure to account for presence at scene.
Right to Silence
Basic principle that every suspect has a right to silence.
If a suspect exercises their right to silence at interview then inferences may be drawn.
What are the three inferences?
Section 34: if a fact was later relied on at trial and it would have been reasonable to have mentioned it now.
Section 36: If there is a failure to account for a mark, object or substance. This is why careful consideration of the custody record is important so that you are not ambushed in an interview.
Section 37: If there is a failure to account for presence at the scene. Where was the suspect arrested? Can this be linked to their involvement?
Section 38 safeguard
Safeguard that no defendant may be convicted solely based on an adverse inference.
Section 34 Inference
An inference can be drawn by the jury or magistrates in circumstances when the defendant later relied on a fact in their defence that was not offered at the time of questioning.
Court does not have to draw an inference. If does, it must be proper. Inference can range from:
- an acceptance that the defence as presented in court is true but the defendant chose not to reveal it in their interview; to
- an inference that the defendant’s account in court is untrue and they are guilty.
Note: suspect must be cautioned. If not cautioned then no inference can be drawn.
Section 34: reasonable to have mentioned
Reasonable to have mentioned bearing in mind all the circumstances at the time.
R v Argent (should be widely interpreted):
- what disclosure had been made to the suspect or their lawyer by the police
- What information the prosecution can demonstrate the suspect knew at the time of questioning or charge
- The condition and circumstances of the suspect; and
- Any legal advice that the suspect received
What is the effect of an adverse inference
Ultimate effect is that the defendant’s silence at interview undermines their defence.
When the jury or magistrates draw an adverse inference they are effectively saying:
- explanation given at trial has been fabricated since the time of the interview
- defendant withheld their account at interview as they knew it would not stand up to police questioning
- at the time of the interview the defendant had no reasonable explanation which would refute the prosecution case
Section 37
When the suspect fails to account for their presence on arrest at a particular place at or about the time the offence was allegedly committed
E.g. Failing to explain why they were found on a burglary victim’s driveway
Section 36
When the suspect fails to account for an object, substance or mark found on them at the time of arrest.
E.g. Failure to account for bruising or a hammer in the suspect’s backpack.
Section 36 and 37 inferences
Ability to draw inferences under section 36 and 37 arises as soon as there is a failure by the defendant to account for their possession of the object in question or presence.
Not a requirement that there is a failure to mention something later relied on.
Defendant must be given a special warning:
- what offence is being investigated
- what fact they are being asked to account for
- this fact may be due to them taking part in the commission of the offence
- a court may draw a proper inference if they fail or refuse to account for this fact; and
- a record is being made of the interview and it may be given in evidence if they are brought to trial
inferences and legal advice
No adverse inference can be drawn where the suspect has not been allowed access to legal advice (PACE Code C)
No trial and inferences
If there is no trial there will be no inferences.
If the case never gets to trial or your client pleads guilty then adverse inferences are irrelevant.
