Preliminaries to prosecution (Interviews) Flashcards
Definition of Interview and Exceptions
‘questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under para. 10.1, must be carried out under caution’.
By para. 10.1, a person whom there are grounds to suspect of an offence ‘must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect’s answers or their silence, (i.e. failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in a prosecution’
caution is not necessary if questions are for other purposes, such as:
(a) solely to establish their identity or ownership of a vehicle;
(b) to obtain information in accordance with a statutory requirement, e.g., under the RTA 1988, s. 165 (note that the statutory drink-driving procedure is not an interview: DPP v D (a Juvenile) (1992) 94 Cr App R 185);
(c) in furtherance of the proper and effective conduct of a search (although if questioning goes further, e.g., to establish whether drugs found were intended to be supplied to another, a caution will be necessary: Langiert [1991] Crim LR 777; Khan [1993] Crim LR 54; Raphaie [1996] Crim LR 812); or
(d) to seek verification of a written record of comments made by the person outside an interview.
Questioning of a person about an offence of which there are grounds to suspect him or her will amount to an interview even if the person has not been arrested and no decision to arrest has been made.
Where an Interview May be Conducted and delays of arrest.
Following a decision to arrest a suspect, he must normally be interviewed only at a police station or other authorised place of detention.
The arrest should not be delayed in order to question the suspect before doing so.
Exception where delay would be likely to:
(a) lead to interference with or harm to evidence connected with an offence, interference with or physical harm to other persons, or serious loss of, or damage to, property; or
(b) lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it; or
(c) hinder the recovery of property obtained in consequence of the commission of an offence (para. 11.1).
Cease once the relevant risk has been averted or the necessary questions have been put to avert the risk.
Cautions and Special Warnings
Caution must be administered at the commencement of an interview whether or not it is conducted at a police station.
The suspect must also be reminded that he or she is under caution at the recommencement of an interview after any break, and if there is any doubt, the caution should be given again in full
Caution must also be given on arrest.
If it appears that the suspect does not understand the caution, the person giving it should explain it in his or her own words
If a suspect is (exceptionally) interviewed after charge or interviewed in circumstances where the suspect has requested a solicitor but has not been permitted to consult with one they are subject to a different caution. Although Code C does not require a caution to be given if a statement is taken after charge, it should be given
‘whom there are grounds to suspect’
There must be ‘some reasonable, objective grounds for the suspicion, based on known facts or information’.
Failure to administer a caution in circumstances where it is required is a significant and substantial breach of Code C, although it will not necessarily result in exclusion of evidence of the interview.
Similarly, giving the wrong caution will not necessarily lead to exclusion.
Whenever a person is interviewed he or she, and solicitor if represented, must be given, before the interview, sufficient information to make it possible to understand the nature of the suspected offence and why the person is suspected of committing it. However, this does not require the disclosure of details which might prejudice the investigation.
The decision on what should be disclosed rests with the investigating officer, who must make a record of what was disclosed and when it was disclosed.
Addition to the caution
where a suspect is interviewed at a police station or other authorized place of detention following arrest and:
(a) is asked to account for any object, mark or substance, or mark on such objects found on his or her person, in or on his or her clothing or footwear, otherwise in his or her possession, or in the place where the arrest took place; or
(b) to account for his or her presence at the place where the arrest took place,
a special warning must be given. Inferences cannot be drawn if the warning is not given
This does not apply where the person who has requested a solicitor is interviewed without having been given an opportunity to consult the solicitor, since inferences from refusal or failure to account cannot be drawn
Information about Legal Advice
Prior to the commencement or recommencement of an interview the interviewing officer must, unless access to a solicitor has been delayed or one of the exceptions applies, remind the suspect of the entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained.
Violations of a suspect’s entitlement to legal advice may lead to the exclusion of evidence.
Significant Statement or Silence
At the beginning of an interview the interviewing officer must, after cautioning the suspect, put to the suspect any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff.
A significant statement is one which appears to be capable of being used in evidence, and in particular a direct admission of guilt. It does not include what a suspect is alleged to have said as part of the conduct constituting the offence
A significant silence is a failure or refusal to answer a question, or answer satisfactorily when under caution which might, allowing for the restrictions on drawing inferences from silence, give rise to an adverse inference
Conduct of the Interview
No police officer or other interviewer may try to obtain answers to questions or to elicit a statement by the use of oppression, nor indicate, except in answer to a direct question, what action the police will take if the suspect answers or refuses to answer questions or make a statement.
If the suspect asks the officer directly what action will be taken in any of those events, the officer may inform the suspect of the proposed action. The proposed action must, however, be proper and warranted. The police should not seek a confession by offering a caution.
Code C provides little, if any, guidance on the proper conduct of interviews.
It has been held to be legitimate for police officers to pursue their interrogation of a suspect with a view to eliciting admissions even where the suspect denies involvement in the offence or declines to answer specific questions.
A confession should be excluded where the police falsely informed the suspect that incriminating fingerprints had been found. Not every trick will result in exclusion of evidence.
There is a positive duty on the police not to actively mislead a suspect.
The asking of hypothetical questions is permissible, although it may need to be approached with care.
Police questioning which is carried on after repeated denials or refusals may become oppressive.
Hectoring and bullying throughout an interview has been held to be oppressive.
Whereas questioning that was rude and discourteous, with raised voices and some bad language, was not oppressive.
When Interviews Should Cease
The interview of a person who has not been charged or informed that he or she may be prosecuted must cease when the officer in charge of the investigation is satisfied that all the questions the officer considers relevant to obtaining accurate and reliable information about the offence have been put to the suspect, the officer has taken account of other available evidence, and the officer reasonably believes there is sufficient evidence to provide a realistic prospect of conviction.
This, of course, is subject to the limits imposed by the PACE 1984 on the maximum periods of detention without charge .
Code C, gives the police a large degree of latitude in determining when interviewing should cease since it appears to permit the police to continue questioning beyond the point when they are satisfied that there is sufficient evidence to charge if, e.g., the officer believes that further questions could or should be put to the suspect.
In the case of a detained suspect (presumably, as opposed to a volunteer) it is for the custody officer and not the investigating officer to determine whether there is sufficient evidence to charge.
When the officer in charge of the investigation believes that there is sufficient evidence to provide a realistic prospect of conviction, the suspect must be taken to the custody officer without delay. This is intended to reflect the fact that the custody officer has formal responsibility for making the decision as to whether there is sufficient evidence to charge.
When the officer in charge of the investigation is so satisfied, the suspect must be taken to the custody officer even though the investigating officer still may have further questions to put to the suspect.
Where a person is detained in respect of more than one offence Code C provides that it is permissible to delay informing the custody officer until the conditions are satisfied in respect of each of the offences.
Recording of Interviews
Interviews of suspects, whether or not conducted at a police station, must normally be contemporaneously recorded.
Any comment that might be relevant to the suspected offence made by a suspect outside the context of an interview, including unsolicited comments, must be recorded and, where practicable, the suspect must be given the opportunity to verify the record.
Failure to comply with the recording requirements has led to exclusion of evidence of what was allegedly said but this is not always so.
Interviews conducted under caution whether or not at a police station, must normally be recorded using an authorized recording device.
Special Categories of Persons
A child or young person or a mentally disordered or vulnerable person must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless the conditions for conducting an interview away from a police station are satisfied or the interview is authorised by an officer of the rank of superintendent or above.
A child or young person should be interviewed at his or her place of education only in exceptional circumstances and then only if the principal or principal’s nominee agrees. Efforts should be made to notify parents and the appropriate adult. In cases of necessity, and provided that the school was not the victim of the alleged offence, the principal may act as the appropriate adult
The appropriate adult is to be reminded of his or her functions as adviser and observer as well as that of facilitating communication with the person being interviewed.
A person whom the custody officer has determined requires an interpreter must not be interviewed without an interpreter unless authorised by an officer of the rank of superintendent or above, being satisfied that delaying the interview will lead to the consequences in Code C, para. 11.1(a) to (c), and that the interview would not significantly harm the person’s physical or mental state.
Normally, the interpreter must be physically present, interpretation can be provided by live link if the custody officer or interviewer are satisfied that this would not adversely affect or otherwise undermine or limit the suspect’s ability to communicate confidently and effectively.
Where a suspect cannot read and an interview is recorded in writing, the record must be read over to the suspect who must be asked to verify it.
Intoxicated Persons
Code C para 11.8 prevents the interviewing of any person who is unable to appreciate the significance of questions and their answers, or to understand what is happening because of the effects of drink, drugs or any illness, ailment or condition, unless it is authorised by an officer of the rank of superintendent.
