Prelimenaries to Prosecution 2

Interview

Questioning a person regarding their involvement or suspected involvement in a criminal offence (COP C, para 11.1A).

Caution (words)

“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 caution not required

(a) establishing identity/vehicle ownership, (b) obtaining info under statutory duty (e.g. driver’s details), (c) during a lawful search, (d) verifying record of comments made outside interview.

Location of interview (general rule)

At a police station or authorised place of detention.

Location of interview (exceptions)

If delay would risk (a) interference with/harm to evidence or persons or property, (b) alerting other suspects, or (c) hindering recovery of stolen property.

Significant statement

Any statement by suspect that appears capable of being used in evidence, especially direct admissions of guilt. Must be put to suspect at start of interview (after caution).

Police restrictions in interview

Officers must not suggest what will happen if suspect answers/refuses to answer questions (except if directly asked).

Recording interviews (general rule)

All interviews must be contemporaneously recorded.

Recording interviews (indictable offences)

Must be audio recorded.

Recording interviews (exception)

For some minor offences, if interview is outside police station with an unarrested person, written record is allowed.

Interview restrictions (fitness)

No interview if suspect cannot understand significance of questions due to drink, drugs, illness or condition, unless authorised by Superintendent.

Role of solicitor at police station

To protect and advance the client’s legal rights (COP C, Note 6D).

Active defence

Solicitor actively defends and promotes client’s interests: obtain info from police, advise client fully, advise on samples/bail/detention, attend and advise during interview.

Not the solicitor’s role

To be passive or just take notes.

Practical aspects of active defence

Know PACE and Codes, note breaches, ask custody officer to record refusals, avoid confrontation, take time to advise client.

Note-taking

Solicitor must keep detailed contemporaneous records for possible use in later proceedings.

Vulnerable suspects

Clients with mental health conditions or disorders who may struggle to understand procedures, become confused, or give unreliable information.

Who is not vulnerable

Generally, intoxicated persons are not automatically treated as vulnerable.

COP C 1.13(d) definition

Vulnerable if: difficulty understanding, confused, misled, easily influenced, or agrees readily without protest.

Custody officer’s duty

At detention start, must assess vulnerability and appoint an appropriate adult if needed.

Suspecting vulnerability

must treat person as vulnerable unless clear evidence shows otherwise, and record findings.

Sources of vulnerability info

Person’s behaviour, self-report, records, health/social care professionals.

Role of appropriate adult

Ensure suspect understands process, support and advise, observe fairness, assist communication, protect rights.

Who cannot be appropriate adult

Solicitor for suspect, anyone under 18, police/staff, suspect/victim/witness in case, investigator, someone who heard admissions, low IQ person, estranged parent objected to.

Who can be appropriate adult

Parent, guardian, relative, or experienced adult (18+).

Interviewing without appropriate adult

Normally prohibited; exception if Superintendent authorises urgent interview to prevent harm, interference, loss/damage, alerting suspects, or hindering recovery of property.

Urgent interview limits

Only to avert risk, must stop once sufficient info gathered, and grounds must be recorded.

Solicitor representing vulnerable clients

Ensure adult appointed, request medical assessment if needed, take time for clear advice, explain role, process, interview approach, and next steps.

In interview with vulnerable client

Request breaks, monitor language/tone of officers, intervene if necessary.

Private consultation

Lawyer must meet client in private; instructions must come from client or authorised person only.

Lawyer’s role

Be supportive, explain role, assess fitness for interview, advise on legal position, explain interview options and consequences.

Client’s account

Ask whether client admits involvement or has a legal defence (e.g. self-defence).

Three interview options

Answer questions; go “no comment”; hand in prepared written statement and go “no comment.”

Risk of silence

Client may face adverse inferences drawn by the court.

Adverse inference

A common-sense conclusion harmful to the suspect (e.g. man with gun near gunshot victim).

Prepared statement

Written defence handed in at start of interview; avoids some risks but cannot prevent all adverse inferences.

Prepared statement limits

Still must go “no comment” to questions; difficult to include all facts; not a “best of both worlds” option.

Mixed interview

Not advised; “no comment” to some and answers to others risks confusion, looks bad to jury, and allows police pressure.

Factors in deciding to answer

Amount of disclosure, admissibility/strength of evidence, client’s account, client’s condition, significant statements, risk of inferences.

Disclosure requirement

Police must provide sufficient info (Code C 11.1A). If little is disclosed, solicitor may advise silence.

Admissibility issues

Consider witness statements, compellability, unlawful confessions, possible s.78 PACE applications.

Strength of evidence

Weak evidence may support silence, but new evidence could change position later.

Client’s defence

If defence exists, risk of not raising it now: adverse inferences and loss of credibility.

Alibi/self-defence

Better to raise these in interview as they carry evidential burdens.

Client’s state

If ill, intoxicated, confused, or in shock (“Argent factors”), solicitor may advise silence.

Argent factors

From R v Argent [1997]: suspect’s condition may prevent adverse inferences being drawn from silence.

Significant statement

Any statement capable of being used in evidence; must be put to suspect at start of interview (Code C 11.4A).

Adverse inference sections

s.34 CJPOA: failure to mention fact later relied on. s.36: failure to account for mark/object/substance. s.37: failure to account for presence at scene.

Right to silence

Suspects are not obliged to answer police questions, but silence can lead to adverse inferences if statutory conditions are met.

Adverse inference

A common-sense conclusion adverse to the defendant’s interests (e.g. man with gun near gunshot victim).

Section 34 CJPOA 1994

Inference may be drawn if a fact is relied on later at trial but was not mentioned at interview, where it would have been reasonable to mention it.

Caution requirement (s.34)

No inference unless suspect was cautioned (“You do not have to say anything, but it may harm your defence…”).

Reasonableness test (s.34)

Must have been reasonable to mention the fact given the circumstances (R v Argent [1997]).

Effect of s.34 inference

Defence may be undermined; jury may conclude defence fabricated, weak, or an “ambush.”

Section 36 CJPOA 1994

Inference may be drawn if suspect fails to account for an object, substance, or mark (e.g. bruising, hammer in bag).

Section 37 CJPOA 1994

Inference may be drawn if suspect fails to account for presence at or near scene of offence (e.g. burglary driveway).

Special warning requirement (s.36 & s.37)

Suspect must be told: (1) offence investigated, (2) fact to account for, (3) fact may link them to offence, (4) failure may allow inference, (5) record may be used in evidence.

Safeguard: Section 38 CJPOA 1994

No defendant may be convicted solely on an adverse inference.

Safeguard: Legal advice

No inference can be drawn if suspect denied access to legal advice (PACE Code C 6.6 & Annex C).

No trial = no inference

If case does not reach trial or suspect pleads guilty, inferences are irrelevant.

Purpose of identification evidence

Prosecution must prove beyond reasonable doubt that the defendant is the person who committed the crime.

Forms of identification evidence

DNA, fingerprints, phone evidence, witness testimony.

Visual identification

When an eye-witness identifies a suspect either as someone known to them or as someone seen during the offence.

Not visual identification evidence

Mere description of clothing, place connection, or physical description without actual recognition.

Special need for caution

Even confident witnesses can be mistaken; safeguards exist to prevent miscarriages of justice.

Safeguards for ID evidence

At investigation: PACE Code D. At trial: Turnbull guidelines.

Code D (purpose)

Protect innocent suspects from mistaken ID and make identifications challenge-proof.

Duty to hold identification procedure

Required where an offence was witnessed and a witness can or may identify the suspect, and suspect disputes being seen.

When ID procedure not required

Where impracticable or unnecessary (e.g. witness already knows suspect).

Types of ID procedures (if suspect known)

Video identification (VIPER), identification parade, group identification.

ID procedure (if suspect unknown)

Witness shown photographs under Code D Annex E.

Identification officer

Must be at least inspector rank, not involved in investigation, responsible for conduct of procedure.

Video identification (VIPER)

Suspect filmed; placed with at least 8 lookalikes; witnesses told suspect may or may not be present; procedure recorded with sound.

Identification parade

Suspect stands with at least 8 similar people; witness views individually; may ask members to speak/move; must be recorded (photo/video).

Group identification

Witness sees suspect among informal group (e.g. in public setting). Can be with suspect’s consent or covert.

Confrontation by eye-witness

Witness directly confronts suspect (normally at police station). Told suspect may or may not be present.

Formalities before ID procedure

Record first witness description, provide to suspect/solicitor; notify suspect of purpose, rights, legal advice, and consequences of refusal.

Breach of Code D

Defendant may apply to exclude evidence under s.78 PACE if breach causes unfairness.

Effect of Code D breach

Evidence not automatically excluded; judge decides if admission would cause unfair trial.

Rights of defence

Defendant entitled to formal ID procedure; if breaches occur, defence may comment and judge must direct jury to consider impact.