Police station representation and advice

A lawyer 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 legal representative is not provided with sufficient information to advise you properly and we negotiate 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 the investigator’s 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.

We will always consider first whether the evidence the investigators 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.

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 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. 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 investigator understands your defence and communicates it accurately to the Prosecutor 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 prosecutors no real option but to charge you to attend Court. We have 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.

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:

(a)anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below—

(i) for use as evidence at a trial for an offence; or

(ii) for forensic examination or for investigation in connection with an offence; and

(b) anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.

(3) Nothing seized on the ground that it may be used—

(a) to cause physical injury to any person;

(b) to damage property;

(c) to interfere with evidence; or

(d) to assist in escape from police detention or lawful custody,

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.

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 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 investigators and/or prosecutors 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

If you need help with an interview, please call our 24/7 number 0797 325 9382