Police Interviews Flashcards
What is the solicitor’s key role at the police station?
To protect and advance the legal rights of their client
Who are the key three people that the solicitor will speak to, and in what order, to determine the facts surrounding the arrest?
Custody officer
Investigating officer
Client (arrested suspect)
What information will the solicitor seek from the custody officer?
(a) the alleged offence(s) for which the client has been arrested;
(b) the time at which the custody officer authorised the client’s detention and the reason such authorisation was given
(c) any significant comments made by the client whilst at the police station (for example, an admission of guilt) (Code C, para 3.4);
(d) any samples, fingerprints or impressions of footwear which may already have been taken from the client;
(e) any identification procedure which may already have taken place;
(f) any interview which may already have taken place at the police station;
(g) whether the client is under any form of physical or mental disability, or requires the attendance of an appropriate adult;
(h) any illness, vulnerability, effect of drink/drugs or required medical treatment
(i) any significant items found as a result of a search either of the client’s person, or of any premises owned, used or occupied by the client or premises where the client was arrested (for example, items it is alleged the client has stolen or used in the commission of the offence); and
(j) if the client has already been at the police station for six hours or more, details of any detention reviews which have been carried out and the reason why the client’s continued detention has been authorised
What information will the solicitor seek from the investigating officer?
1) Disclosure (facts of the offence and evidence supporting those facts)
- Likely to give a written disclosure statement summarising the evidence they have (witness statements etc)
- Solicitor should push for as much information about their case against the client as possible -do they have forensic evidence, CCTV, physical evidence
- IO must give sufficient details on the nature of the offence and why S is suspected of doing it, but they don’t have to disclose too many further details if they don’t wish to - requirements wouldn’t change for juvenile suspect
- Solicitor should state that this makes it difficult to properly advise and may affect their advice to client re whether/how to answer interview questions
2) Significant statements
- Has the client made any admissions or had a period of significant silence in the presence of a police officer prior to their arrival at the PS?
3) The next steps the IO proposes to take
- Will they interview client, take part in an identification procedure, provide fingerprints etc?
- Ask IO about views on bail
What will the solicitor discuss with the client?
1) Emphasise that their advice is free and independent and what the client tells them is kept confidential
2) Solicitor should give client details about what the offence they’re being investigated for
- Client needs a clear picture of what solicitor was told by CO and IO
- Solicitor should advise them of the relevant substantive law and what the police need to prove to obtain a conviction for the offence
3) After telling the client the police case, solicitor should get the client’s version of events
- Solicitors should make a note recording their client’s full instructions and the advice that had been given on essential issues
- Solicitor should advise client on next step; majority of times, this will be an audibly recorded interview
Prepare the client for interview, which involves:
- (i) advising the client on whether or not to answer questions put to them in the interview (ie advising the client what is the ‘safest option’ in the interview);
- (ii) preparing a written statement on the client’s behalf if the client is to give a ‘no comment’ interview, but hand the statement to the police so that their defence is put ‘on record’;
- (iii) advising the client how the interview will be conducted by the police; and
- (iv) advising the client what role the solicitor will play in the interview
If the CO has authorised detention to enable collection of evidence through an interview with the suspect, what options will the suspect have in relation to answering questions?
How will the client make this decision?
1) Answer all questions
2) Remaining silent
3) Selective silence - makes it seem like the client has something to hide
4) Making a prepared written statement, in addition to a ‘no comment’ interview
Client will likely follow solicitor’s advice, so solicitor must ensure they make an accurate note of the advice given to the client and the reasons for giving such advice
A detainee can only be interviewed after being charged in exceptional circumstances.
What are these exceptional circumstances?
- To prevent or minimise harm;
- To clear up ambiguity in a previous answer or statement; or
- In the interests of justice to put to the detainee information that has come to light since the detainee was charged.
What are the advantages of the suspect of answering all questions in interview?
1) Allows client to put their version of events on record straight away, which is useful for raising a defence with an evidential burden (self-defence/alibi)
- Strong defence put across well here can cause police to drop the case
- Client’s credibility improved if they put the defence forward at the earliest opportunity and has remained consistent throughout
2) Answering all questions is likely to ensure that the court or jury at trial will not be allowed to draw adverse inferences against the client
3) If client is admitting guilt, doing so at the earliest opportunity may result in a caution, rather than conviction, or may result in a reduced sentence, as the court may consider if D should have indicated a willingness to plead guilty earlier when considering what reduction to give
What are the disadvantages of the suspect answering all questions in interview?
1) Police are adept at tripping up clients, so they may give contradictory information or admit their involvement unwittingly
- If they do so and plead not guilty, the interview or transcript will be used in court and will undermine client’s credibility
- Vulnerable clients may come across badly, even if they are able to provide a clean version of events to solicitor
2) If the solicitor does not think the IO made a full disclosure of the case, the police might catch the client out by raising something they didn’t raise with the solicitor
3) If the client attacks another person’s character in interview and is then prosecuted, CPS may raise previous convictions of the client as evidence in trial
What are the advantages of the suspect remaining silent in interview?
Client cannot incriminate themselves by saying ‘no comment’ to everything
If the case against the client is weak, a ‘no comment’ interview may leave the police with insufficient evidence to enable them to charge the client with the offence and the client may be released without charge
What are the disadvantages of the suspect remaining silent in interview?
If the client is later charged and pleads not guilty, the magistrates or jury may in certain circumstances draw an adverse inference from the client’s silence in interview
If the client raises a defence at trial where those details could have provided at interview, the court are entitled to conclude the defence is a sham
What must the solicitor inform the client in relation to remaining silent?
Solicitor must explain to client that silence won’t necessarily prevent a court from drawing adverse inferences from the silence at any subsequent trial
If a solicitor advises a client to remain silent, they should ensure there is a full written note of the reasons for this advice – may have evidential value at trial
When may a solicitor advise a client to give a ‘no comment’ interview?
When a case against client is weak, to avoid damaging admissions
Where there is lack of disclosure from police, so solicitor cannot properly advise client on the strength of their case – especially important if a co-accused has been arrested and their role/what they said isn’t disclosed
- Lack of disclosure and solicitor fears police may ‘ambush’ client
Client declines involvement and police have insufficient evidence
Client physically or mentally unfit for interview (emotional, distressed or fatigued)
- Relevant where client has been at PS for hours before interview, interview is late at night or there’s been an upsetting incident
Client likely to perform badly in interview due to age, lack of maturity, psychological vulnerability or previous inexperience of police detention and questioning
Complex facts or matters occurred long ago, so answers won’t be immediate or accurate
Client is not guilty, but doesn’t have a viable case/defence
Other personal reason to remain silent (embarrassment at something being disclosed (affair for example))
When might a written statement be used?
Written statement may be used where the client needs to put their version of events on record (for a positive defence like self-defence/alibi), but solicitor concerned they may perform badly in interview (young, emotional, inexperience in police detention)
If the client is to hand in a prepared written statement, solicitor should advise them to answer ‘no comment’ throughout the interview
Written statement will be read out and handed to police during interview or after but before client charged
Who will draft the written statement and what will it contain?
Statement will be drafted by solicitor and allows the client, in their own words, to set out their defence in a clear and logical way
Should set out all facts which C later relies on in their defence – this should avoid the risk of any adverse inferences being drawn at trial
Solicitor should ensure areas where adverse inferences may be drawn are covered
It should say no more than necessary to prevent drawing of adverse inferences
Although the written statement is ordinarily handed in at the start of an interview, when might the solicitor withhold it until a later time?
1) If police case weak, solicitor can wait until police decide to charge but before formal charging to avoid giving any unnecessary additional information which might lead to them charging C
2) Very occasionally, solicitor may taken the written statement from their client and retain it on file, for example if they have doubts as to the accuracy of the instructions they have received, as the facts that C disclosed either won’t stand up to scrutiny or may change later
- Solicitor can present it later to show defence wasn’t recently fabricated, but there may be an adverse inference that C wasn’t sufficiently confident to expose it to police questioning earlier
- Solicitor may keep it on file if the story changes to prevent C from having said one and now saying another
The general position is that a suspect who requires legal advice should not be interviewed or continue to be interviewed.
What are the exceptions to this?
1) Where the police delay legal advice for up to 36 hours, they may want to interview S prior to allowing them access to legal advice
- If this happens, S will receive the following caution, meaning no adverse inferences can be drawn if they are silent
- ‘You do not have to say anything, but anything you do say may be given in evidence’
2) If they can’t contact the solicitor S wants, and they decline duty solicitor
3) Where S asks for legal advice and changes their mind, S may be interviewed where:
- Inspector or above speaks to S about their reasons for changing their mind and tries to find out solicitor ETA
- S’ reason for change of mind and outcome of efforts to contact solicitor above recorded in CR
- S confirms in writing they want to proceed without speaking to solicitor or without a solicitor being present; sign an entry in CR
- Inspector or above satisfied it is proper to proceed and gives written authority in the CR for this
- When interview starts, interviewer must record, in the interview record:
(i) confirmation that the detainee has changed their mind about wanting legal advice or about wanting a solicitor present, and the reasons for it if given;
(ii) the fact that authority for the interview to proceed has been given;
(iii) that if the solicitor arrives at the station before the interview is completed, the detainee will be so informed without delay, and a break will be taken to allow them to speak to the solicitor if they wish
What are some key things that must be discussed at the start of an interview with a suspect?
1) Same caution as 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’
- There may be adverse inferences drawn from silence if they later raise facts of defence which could have been mentioned here
2) S must be reminded they are entitled to free and independent legal advice, even if a solicitor is present
3) Interviewing officer must ask S if they confirm or deny any earlier significant statement of significant silence
- Significant statement - a statement which appears capable of being used in evidence against the suspect at trial, in particular a direct admission of guilt
- Significant silence - a failure or refusal to answer a question or to answer satisfactorily when under caution, which might allow the court to draw adverse inferences from that silence at trial
How must the interview be conducted?
1) Interviewing officer cannot obtain answers by the use of oppression, which includes:
- Shouting/raising voice at S or making threatening gestures, leaning in their face
- Standing over/behind S
- Threatening to detain S indefinitely if they don’t confess
2) They must not offer inducements for S to admit guilt either
3) Interview ceases when all questions relevant to obtaining accurate and reliable information have been put to S or they reasonable believe there is sufficient evidence to provide a realistic prospect of conviction for that offence
What is the role of the solicitor in the suspect’s interview and how should they conduct themselves?
1) They should explain the procedure to S and potential tactics in a ‘no comment’ interview
2) Solicitor should sit beside client for psychological support and so solicitor can see if they are becoming fatigued, emotional etc
3) Solicitor will intervene to seek clarification, challenge an improper question or one asked improperly or to give client further advice. Improper questions may include:
- Irrelevant questions
- Misrepresenting the law or strength of case
- Putting words in client’s mouth
- Hypothetical questions
4) Solicitor should make an opening statement to explain their role, that they may intervene and the client’s position in relation to answering questions
- Gives client important psychological support as they can see solicitor’s competence
5) Solicitor can only be excluded if their conduct prevents proper questioning (where they answer for client/write answers for client to read); if excluded, S must be given the chance to consult another and have them present at the interview
