Being interviewed as a suspect in any criminal investigation is a very stressful experience. Freemans specialist Police Station team have a well-deserved reputation for the highest standards of expertise in putting you at ease at such a stressful time, protecting your rights and achieving the best outcomes. The tactical decisions made at interview will be vital to maximising the prospects of avoiding the case going to court or avoiding conviction if your case does proceed to trial.
There is a myth that attending an interview with a lawyer somehow makes you look guilty. That is not the case, and the Police or the Courts do not draw that conclusion. On the other hand the presence of a lawyer ensures you receive expert advice on frequently complex issues of criminal law and on the tactical considerations involved. For example, in deciding whether to answer police questions at all and what aspects of your defence case it is in your best interest to disclose to the Police at which point of the case. We will initially seek to avoid your being arrested by advocating to the Police that an interview be conducted on a voluntary basis, and we will also negotiate to maximise Police disclosure of the evidence in your case before you are interviewed. A voluntary interview means there will be no bail conditions or automatic police entitlement to take your fingerprints, DNA, and photograph.
The process of attending an interview with you involves initially obtaining disclosure from the investigators whether they be Police Officers or from Government Departments. The next stage is to meet with you in private and explain the legal issues that arise out of this disclosure including the law relating to any possible offence being investigated. We then obtain your account of events. The crucial decision next is whether your best interests are served by answering police questions, providing your account by a written statement or simply exercising your right of silence by giving a “no comment” interview. Throughout the interview itself we will be proactive. This might include objecting to inappropriate questioning and tactics, to your being questioned about significant matters that were not disclosed before interview and ensuring both that the Police do not prevent you from putting forward what we decided that you wanted to say in interview and ensuring you do not forget to advance anything important.
Throughout our dealings with the investigators, we will be making representations as appropriate to persuade them that there is insufficient evidence to take the matter to Court and to avoid the Police recommending bail be refused or the imposition of inappropriate bail conditions.
For offences that are regarded as relatively minor, the Police decide themselves if the case goes to Court. However, for anything regarded as serious or complex the decision is referred to a Prosecution Solicitor at the CPS for a decision. This applies ,for example, to any allegation involving sexual offences, serious violence or large financial loss. Allegations that may not necessarily be serious in terms of likely sentence are referred to the CPS if they are deemed sensitive such as all cases of alleged domestic violence or racial aggravation. The legal test the Police or CPS must apply before taking a case to Court is that a Court correctly applying the laws of evidence is more likely than not to find the person guilty. All of our legal and tactical advice is designed firstly with a view to ensuring as far as possible this test is not met.
The only practical difference in your rights to being interviewed as a suspect by the Police or another investigating agency is that free representation under legal aid is only automatically available if a Police Officer is present. The location of the interview itself is irrelevant to the availability of free advice as is your income, nationality or whether you are under arrest or attend voluntarily. There is a growing tendency for example for Police to interview people at their homes but that has no effect on your right to a lawyer of your own choice attending the interview on legal aid.
Legal Aid is unlikely to be available if you are interviewed solely as a witness but you are still entitled to a lawyer present at your own expense. There is a scheme for those in receipt of very low incomes to receive legal aid at interviews where the Police are not present conducted by government or council departments such as the Department of Work and Pensions, Environmental Health, Trading Standards or Housing Enforcement. Freemans Solicitors Criminal Defence team are experts at representing people at these interviews under privately paying terms.
A lawyer at the police station can negotiate with the investigator to maximise disclosure of the evidence in your case before the interview. Your right to legal advice becomes less meaningful if your lawyer is not provided with sufficient information to advise you properly and we negotiate with the Police on the basis that your being denied the right to sufficient legal advice will be criticised by any Court.
Your legal advisor will take a full note of your version of events and any facts that you may wish to rely on in your defence. If it is decided for tactical reasons that you do not answer police questions, your lawyer’s notes can potentially be used in Court as evidence that you did not make up your version of events after the interview.
Freemans Solicitors at the police station will always consider first whether the evidence the Police have is legally sufficient for you to respond to it in an interview, to prevent any risk of your inadvertently assisting the case against you. A classic example is an unrepresented person stating in interview that they were acting in self-defence. We would have first established that the Police have sufficient evidence that they have correctly identified you as the person involved in the incident. The laws for identification evidence to be used in Court are complex but stating you acted in self-defence makes proof of correct identification irrelevant. If the Police do not have any correctly obtained identification evidence, the case ends against you.
The main benefit will be in terms of the seniority of the person that gives advice at the interview. We have a well-deserved reputation for offering the highest possible standard of advice at interview. Under the Legal Aid scheme, our highly skilled Police Station Advisors will provide free representation at interview. However, a higher level of experience is available for those that pay privately with our co-ordinator having 25 years’ experience or senior police station Solicitors or Barrister attending the interview. Only the private service is available for non-Police interview. The Legal Aid scheme is paid by the government as a fixed fee irrespective of the amount of work involved in any case at the Police Station. Nevertheless, unlike many firms. Freemans Solicitors police station team will always attend an appointment with a Client free of charge. The fixed fee nature of the legal aid scheme does, however, place restrictions on the amount of work it is feasible for a firm to conduct preparing for the interview before attending or how far it is possible to travel geographically. No such restrictions exist for private funding.
The Police can only arrest you if a necessity test is passed. This is found at s24 Police and Criminal Evidence Act 1984. This states that it must be necessary :
Most arrests are conducted under the prompt and effective criteria when the person is suspected to have been discovered by the Police in the process of committing an offence or shortly afterwards. However, when the alleged offence was committed in the past, we will always seek to remove the legal necessity for an arrest by persuading the Police, for example, that you will attend voluntarily at an interview, and there are no reasons for you to be subject to any bail conditions.
When you arrive at the Police Station, the Custody Sergeant will decide whether you need to remain at the Police Station for the purpose of an interview. Freemans Police Station advisor will seek to influence this decision in your favour if contacted at this stage. The Custody Sergeant can authorise your detention for a maximum of 6 hours. Next, the Inspector reviews the legality of your continued detention and can authorise a further 9 hours. You and your lawyer are entitled to make representations at this stage and all stages of this process. The Inspector after 15 hours, can authorise a further 9 hours. After 24 hours, the Superintendent in charge of the Police Station can authorise a further 12 hours for the more serious allegations. After 36 hours, only the Court can extend your detention, but this is in practice only for really serious allegations such as murder. The maximum time the Court can authorise for any criminal allegation is 96 hours from arrival at the Police Station. This does not however apply for terrorism allegations, where the rules are very different.
This is governed by Code C, Paragraph 11.1A of the Police and Criminal Evidence Act 1984:
“Before a person is interviewed, they and, if they are represented, their solicitor must be given sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it, in order to allow for the effective exercise of the rights of the defence. However, whilst the information must always be sufficient for the person to understand the nature of any offence, this does not require the disclosure of details at a time which might prejudice the criminal investigation. The decision about what needs to be disclosed for the purpose of this requirement, therefore, rests with the investigating officer who has sufficient knowledge of the case to make that decision. The officer who discloses the information shall make a record of the information disclosed and when it was disclosed. This record may be made in the interview record, in the officer’s report book or other form provided for this purpose.”
You will see how vague these criteria are and it really does require expert legal advice to make representations to the Police when the disclosure provided does not allow for the effective exercise of your rights, particularly that for meaningful legal advice.
The unrepresented person being interviewed will be made aware by the investigator simply that they can choose to answer or not answer the questions asked of them. However, these are not your only options, and we will always actively consider whether to provide a written prepared statement to the Police. This can either be instead of answering questions or on top of answering questions.
We will assess initially whether there is a case for you to answer. This will invariably require expert knowledge of the criminal law. If there is no evidence, there really is very often no reason to say anything. However, where there is evidence that requires a response, this can be achieved equally well by a written statement as answering questions. The statement is preferable rather than picking and choosing which questions to answer or in order to restrict the issues in the case. If you have difficulty because of the stress of the situation communicating effectively, it is often best to provide a written statement instead of or in addition to answering questions. The written statement is also always an extremely effective way of ensuring the Police understand your defence and communicate it accurately to the CPS and can then be used in addition to answering questions.
The caution states that “it may harm your defence if you do not mention when questioned something which you later rely on in Court.”
It is not relevant whether you mention facts verbally or by a written statement. The potential consequence though of not mentioning at all facts you later rely on in Court is that an “adverse inference” may be drawn against you. The primary purpose of this rule is to stop you ambushing the prosecution at Court. It can be decided at Court if there is no other reasonable explanation that you only made up the fact after the interview and it is therefore not correct. Clearly, there are real benefits in having had legal representation if you were acting on legal advice and/or if your lawyer can produce their notes of your account to them to show it was not made up afterwards. There is also a potential inference that you did not disclose your defence to the investigator to prevent them from checking it when for example events would have been fresher in the minds of potential witnesses or CCTV exists.
In many cases, particularly those where it is one person’s word against another’s, not raising your defence in an interview may if the accusation is credible, give the CPS no real option but to charge you to attend Court. Freemans Solicitors police station team have the expertise and experience to identify when this a risk and where putting forwarding your defence is likely to influence the charge decision in your favour. This can be the case, for example with allegations of a sexual offences.
The Police will always seize the mobile telephone of anybody arrested and taken to the Police Station. However, unless there are evidential reasons to download your telephone, they can only check to see if it is stolen. An investigator can seize and download any electronic device if you are arrested, or they have obtained a search warrant from the Court. This requires the material they are seeking to be relevant to the case. For example, if the Police were seeking to prove you were at a specific place at a specific time, they will conduct cell-site analysis. If the Police have seized a quantity of illegal drugs, they will be seeking evidence of messages related to drug dealing. Many allegations themselves involve contact by email, social media or telephone. Finally, your telephone may be downloaded to prove connections between you and other persons suspected of involvement in the same offence.
S22, Police, and Criminal Evidence Act 1984 states:
(3) Nothing seized on the ground that it may be used—
may be retained when the person from whom it was seized is no longer in police detention or the custody of a court or is in the custody of a court but has been released on bail.
(4) Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose.
S22(4) suggests that once the contents of your device have been copied, it should be returned to you. An application can indeed be made to the Magistrates’ Court Act under Police Property Act 1897 or to the County Court under Torts (Interference with Goods Act) 1977 for non-Police investigations for the return of your property. The Police will tend to argue that if they find any relevant evidence, the device needs to be retained for any Court case. Freemans can advise you whether to make an application to the Court.
In April 2017, the Policing and Crime Act 2017, greatly reduced the Police practice of bailing people whilst they conducted investigations and in most cases, they are instead “released under investigation.”
The Police can still bail you to return to the Police Station for the Crown Prosecution Service to make a decision on your case with or without bail conditions. The Police can still bail you to return to the Police Station for further investigation, but this should normally be because bail conditions are required. There are very strict time limits, and it has to be demonstrated that bail is necessary. An Inspector can authorise bail for 28 days and a Superintendent for up to 3 months. (The time limits are longer for rare cases deemed particularly complex). After 3 months only the Magistrates’ Court can extend your bail. Freemans Solicitors police station team have had marked success in both challenging bail conditions and extensions of bail at the Magistrates’ Court.
If it is decided that there is insufficient evidence to take a case to Court, the matter will be “no further action.” It can also be decided that it is not in the public interest to take the case further which is recorded as “not proceeded with.” It does need to be born in mind that these decisions can be revisited if a Complainant appeals against the decision or there is new evidence.
There are a variety of out of court disposals available for more minor offences, usually when you admit your guilt. These are more likely but by no means exclusively for children. There are triage schemes, cautions and conditional cautions for children. Other options available include community resolution, fixed penalty notices (police administered fines) and administrative sanctions in non-Police investigations. Where we consider that a case can be proved and you admit your guilt, Freemans will always seek an out of court disposal as appropriate since these do not result in your obtaining a criminal record.
This is a new concept introduced for those arrested after April 2017. There is now a legal presumption that police investigations will be conducted without your being placed on bail unless bail can be shown to be necessary. You will be notified of a decision formally in writing including being charged by post. If the Police uncover new evidence, you can be re-interviewed.
We will liaise with the Police on your behalf on a monthly basis by email as to the progress of your case. If the Police do obtain new evidence, we will seek to persuade there is no need for your arrest and arrange a further voluntary interview.
Anybody aged 17 or under or diagnosed with a mental illness or learning disability that makes them “mentally vulnerable” is entitled to an Appropriate Adult to protect their rights at interview by any investigating body. ‘Mentally vulnerable’ is defined as somebody that, “because of their mental state or capacity, may not understand the significance of what is said, of questions or of their replies.”
The Appropriate Adult is entitled to seek legal advice for the person detained or being interviewed. The parents or guardian of somebody aged 17 or under would ordinarily be the first choice as Appropriate Adult, but there are exceptions if they are potential witnesses in the case. In any event, the Police are always under a legal obligation to notify the parent of anybody aged 17 or younger of their arrest and the reasons for it.
The Appropriate Adult is entitled to inspect the police custody record and should be present at interview or charge, identification procedures, or when fingerprints, DNA or photographs are taken or any other sample.
There is very limited legal aid funding available outside the actual attendances at the Police Station. However, we can agree fees with you to continue to advance your case and achieve the best outcome. We can, for example, speak to witnesses on your behalf and obtain their statements, attend police interviews with your defence witnesses, employ enquiry agents, seek CCTV or documentary evidence on your behalf or verify alibis. This is with a view to making written representations to the Police and/or CPS not to take your case to Court. Alternatively, if it is felt too soon to disclose particular defence evidence, it can be obtained ready for any trial whilst events are still fresh in witnesses’ memories.
If your case does proceed to Court, there will be a seamless transition to our litigators and advocates.