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Chat – or interview?

Have you ever been invited along to the police station for a chat? Would you think twice if you were? This weeks’ blog is about the police interview, and how calling an interview a ‘chat’ may be completely, and utterly, disingenuous.

If you think I’m referring to simple matters of low level crime like theft, or criminal damage, think again. Two clients with the foresight to take me along with them for their invitation to ‘chew the cud’, both had good reason to be grateful for their foresight. Both ‘chats’ in two totally unrelated cases led to an arrest for manslaughter. For a police officer, playing down the significance of the reason why they want to speak to you is designed in some cases simply to ensure you turn up and sometimes to ensure you turn up without a pesky solicitor in tow.

The present law governing how police interviews are carried out is the Police and Criminal Evidence Act 1984. This Act was introduced as a result of series of notorious miscarriages of justice arising from ‘false confessions’ such as the Guildford Four, Birmingham Six, Stefan Kiszko, and cases involving the West Midlands Serious Crime Squad.

 

Judges’ rules

Prior to that, police officers adhered to a set of rules known as Judges Rules – a system that I as a police officer (in a past life) worked to. This was also prior to interviews being taped or videoed – everything said in that interview was handwritten, (a very laborious task), and as I remember it there were very few solicitors present. Generally, a suspect would be in a smoke-filled room with two officers, the questions and answers would all be recorded in longhand and afterwards each answer initialled and each page signed by the suspect. It is not difficult to see how things could go badly wrong should an officer not feel inclined to play by the rules.

You see, whilst the interview is sold by the authorities as an ‘opportunity for the suspect to tell his side of the story’, it is in reality an evidence seeking exercise. If, as an officer you have a deep belief or strongly-held views as to what ‘really’ happened, it would be very tempting to ask only the questions which tended to prove your theory and ignore, or treat as false, anything to the contrary.

 

So, what is an ‘interview’?

An interview is defined as the questioning of a person regarding their involvement or suspected involvement in a criminal offence. In very basic terms, as soon as an officer has reasonable grounds to suspect that someone has committed an offence, they should be cautioned and any questioning following that caution will amount to an interview. If a person who is suspected of an offence is questioned without having been cautioned, there may be good reasons for excluding any evidence obtained during that questioning at a later trial. It’s worth remembering at this point that questioning amounting to an interview can take place anywhere, not just at a police station – it could be at your place of work, or home, or in the police car – however once a decision to arrest has been made, the interview can only take place at a police station. There is much case law concerning just the points which I have outlined so far, regarding what amounts to reasonable suspicion, what constitutes an interview, and even what is an acceptable form of wording for the caution. It then gets even more complicated due to what are called ‘significant statements’, and (would you believe) ‘significant silences’, and the inferences which can be drawn from them at any subsequent trial.

People who are arrested are often likely to be very upset and quite likely to say things which can be taken out of context or misinterpreted. Something said on arrest can take on an entirely different meaning once a prosecution barrister has had a year to consider, and pick apart words said in the heat of the moment.

So, you may be beginning to think it’s probably best to say nothing at all and wait until you’ve had legal advice.

However, I’ve mainly outlined situations involving an arrest. How about if an officer rings you at home and asks you to pop along for a chat at 7 o’clock that evening concerning something they ‘just want to clear up’? That can’t do any harm can it? Well, actually, it can. I’ve already spoken to you about what happens on arrest in my previous blog.

Chat – or interview?

So, if you do agree to pop along for that ‘chat’ then, if you’re suspected of committing an offence, it is in fact an ‘interview’. You will be cautioned, questioned and everything said recorded on tape. If the ‘necessity test’ is adhered to (and it frequently isn’t) you will be dealt with as a volunteer, if not, you will be arrested. At this point you will be asked if you want a solicitor. If you are still lulled into a false sense of security about what’s going to happen, you may think you don’t need one, or, you may be told that it will take too long to get a solicitor, and you’ll be ‘in and out quicker’ if you don’t have one.

To police officers reading this, please stop screaming at me at this point, you’re hurting my ears. No, it doesn’t happen every time, but it does happen often enough that I need to point it out to unsuspecting members of the public. It happened to the sister of a police officer friend of mine who ended up with a police caution she shouldn’t have (more of which in a later blog).

Bluff and double bluff

So, this is where it gets interesting. The main and most important difference between having legal advice and not, kicks in here, and it’s something that many of you will not have considered.

If you have a solicitor, or accredited police station representative (same thing for the purposes of PACE), that advisor will have been given, prior to your interview, what’s called ‘disclosure’. An interviewing officer does not have to disclose very much at all about why they suspect a person of having committed a crime. They only have to disclose enough that the legal advisor can reasonably advise the suspect as to whether and how they may have committed that offence. Sometimes not even that information is forthcoming. The advisor will hear the disclosure and then probe it, pushing for more disclosure, and testing it for evidence. An experienced advisor can read between the lines, and even tell from the officers’ body language whether or not they have a strong case, or even a case at all.

A game of bluff and double-bluff may take place at this point, with the stakes being high where you are concerned, whether you ultimately gain a criminal record or not. They will be looking to see if there are witness statements, or if the witness has refused to tell the police what they saw, if there is identification evidence, describing the suspect, and if that fits the client.

There can be CCTV footage, or the potential for fingerprint or DNA evidence, which may not be available on the day of the interview. Anything already said by the suspect at the time of their arrest has to be considered as to how much that may have already ‘damaged’ their case already. They can also ask what the likely result may be in the event of a confession, i.e that their client has no previous convictions and so is eligible to receive a ‘caution’, more of which later.

A right to silence?

The advisor will then have a private consultation with you in which they will outline what their view of the strength of the evidence against you is, what offences you may have committed, any lawful defences you may have, and most importantly, what you should or should not be saying in interview. All throughout this process, the lawyer will be weighing up the strength of the evidence, and deciding how their client’s case will be best served, whether that be by remaining silent, or by answering questions.

This is a very complicated process, and one which the police often do not fully understand. A person is not under a duty to confess and convict themselves ‘by their own words’, they are entitled to have a case proven against them, and in simple terms that means that if the police do not have enough evidence, there is no reason why a suspect should provide that evidence themselves. None of this vital advice is available to you if you do not have a solicitor, and you can see that there are many, many issues to be considered before an interview even takes place. During the course of my work I speak to experienced Barristers and Queen’s Counsel, all of whom say that trials are often lost or won in the police station. More so than that, frequent minor (if I can use that word) miscarriages of justice take place whilst still in the police station due to people being persuaded in the absence of a solicitor that the police have a strong case, and that they should confess to having committed a crime which they and in some instances the police, do not fully understand.  In my next blog, I will attempt to explain the often misunderstood ‘right to silence’.

 

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  • Peter Jones

    Great post!

    Another disingenuous habit I would highlight is the tactic deployed by police officers when attempting to persuade a suspect who is exercising the right of silence to start ‘singing’. They will frequently say, “This is your interview, your opportunity… etc.” Nothing could be further from the truth. It is always their interview, conducted on their terms with, often times, precious little disclosure of the evidence that has led to the suspect being interviewed.

    • Pjwoody71

      Interesting post. And as a detective I agree with most of what you say. However, we are the ones who have to tell poor misses miggins the hoody who mugged her is back walking the streets because she can’t ID him and his solicitor told him ‘say nothing’. If they have no involvement why not let them explain why they were in the area, where they’d been, who they were with?

      • Kim Gbj

        I think that without being facetious, the answer is probably in the question. If they weren’t involved…. Which just brings us back to the fact that people are entitled to have the case proven against them. That said, it’s a tough and frustrating job you do. You have my empathy.

      • Guest051211

        Slight technical point here (well more of a technical rant here). “hoody’s” don’t mug people. Some people who happen to be wearing hoody’s mug people. Stop lumping everyone into the same category: one of the things I detest about the people who hold the high office of “Constable” these days. Stop with the generalisations.

        I remember being stopped and searched once after someone had reported a drug deal. Their description was one offender was wearing a grey hooded top. I saw the offence take place; neither of the parties were wearing a grey hooded top. People just assume these days that people up to no good are wearing a hooded tops. As I had a grey hooded top I ended up getting stopped and searched under section 23 MDA.

        I’m of the view that the public distrust people with hooded tops so much because the establishment (i.e. police and especially the politicians) keep referring to criminals and troublemakers as “hoody’s” and implying that only people who are up to no good wear such clothing. Pick your words more carefully; they have quite an impact upon public perceptions.

        • Flypie

          They don’t hold the “high office of Constable” they are “Police Constables”. When the office was created they wore a Top hat to signify authority and the tail coat of a servant.

          • Asb747

            The “high office” comment was an ironic one based on the position in which some officers see themselves. Also, all officers, regardless of rank, hold the office of Constable (hence the wording in statute when conferring power upon a police officer; it’s not the case that only a police constable can exercise the power and their superiors cannot).

      • Billy

        I agree, Mrs. Miggins can’t possibly be wrong, why go through the trouble of interviewing the hoody – he’s bound to be guilty of something and shouldn’t be wandering the streets anyway – just slap him about a bit, that will teach him to not be a criminal.

      • Flypie

        The answer to that is simple and one you as a Detective should be well aware of.

        Blackstone’s formulation.

        “It is better that 100 guilty men go free than 1 innocent man suffer.”

  • Dave Thomas

    Great blog Kim. I would never phone a suspect though and invite them for a chat. Always tell them it will be an interview under caution, that way I can arrange for the services such as yourself if the suspect wanted it.

  • Ambush Predator

    “For a police officer, playing down the significance of the reason why they want to speak to you is designed in some cases simply to ensure you turn up and sometimes to ensure you turn up without a pesky solicitor in tow.”

    Bit pointless, though. Since you can ask for one at any time…

    And perhaps if both police AND lawyers saw it as less of a point-scoring ‘game’ of ‘get one over on your opponent’ and more of an attempt to get at the truth, we’d all be better off?

  • Anonymous

    It’s from the US but this is the best case I’ve ever seen made for the right to remain silent.

    “…any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” Robert H Jackson

    http://www.youtube.com/watch?v=6wXkI4t7nuc

    • Joncris

      Annekittenplan

      I have over the last couple of years sent this to as many lawyers that I know It should be compulsory for evrey lawyer

  • http://twitter.com/DrBlighty Stephen

    Thank you.

  • http://twitter.com/DrBlighty Stephen

    Similar invitations for a chat can often often used by employers. The employee is invited for a chat with a manager to which he or she unsuspectingly assents. He or she then finds themselves on the first rung of the disciplinary ladder! I was also advised to take along a trade union representative to these “cosy” chats. Invitations to these chats were usually withdrawn following an employee’s insistence that a trade union rep be present during the interview.

    • Peacocke

      Yes. Very much the reason why I joined a trades union and used it once when my manager in the prison service wanted ‘to clear up one or two things’ and when I asked for the POA rep to be present, the one or two things seemed suddenly to have been cleared up by themselves!

  • MetalSamurai

    And in Scotland, post Cadder?

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  • Thecustodysgt

    Thanks for this post Kim and for recognising that not all officers act in the way you describe. 

    The arrest of a voluntary attender is a good point and one that is finding a lot of officers having to answer some serious questions about the necessity. I look forward to your blog on this point.

    I think it is important to highlight that an arrested person either as above or in the more traditional sense is told during the initial booking into custody of their right to free, independent legal advice. They are also told at the beginning of the interview before any questions are put to them.  If they are in custody long enough they are told at every review and there are posters all over the custody area pointing out this right. In many regards we bend over backwards to point out this right and short of playing a continuous audio loop into the cells I wonder what more we can do?

    The voluntary attender who is interviewed is also told of right to legal advice and also, quite importantly, that they are free to leave at any time.

    You make a point that officers invite people for this “chat” sometimes with the hope that they won’t come with a pesky solicitor in tow. You also suggest that people are told that it’s quicker not to have one.

    The custody suite where I am is on full CCTV and audio. I would rightly expect to be hauled over the coals if I told a DP that a solicitor wasn’t needed and would just slow things down. I would also reprimand any officer who advised a person as such before presenting them in front if me. In many cases, particularly the more serious cases officers would prefer them to have one as it gives transparency to the processes, the interview and ensures the DP acts on best advice and can’t make claims later that they didn’t understand. As Dave points out in the first comment. It makes sense to advise the person before they attend so that solicitors can be arranged. When on traffic mt time was valuable. When time is short and a window to interview and finalise a case  presented itself the last thing I needed was the suspect to turn up, sit down to interview and then ask for a solicitor. It would lead to a rearranged date and slow the process down. I worked on basis that  it was better to have it all in place first time. To that end I think those two points are slightly misleading.

    As you know from one of my previous blogs the vulnerable, frightened and uncertain DP will be asked if they want a solicitor and ask for rmy advice. I cannot advise either way but I may offer non verbal communication that suggests they should. Where I would be open to discipline for telling somebody not to have a solicitor nobody can criticise me for the contrary.

    We obviously see the same issues but from the opposite sides of the desk and I know that not everyone shares my opinions and work ethic.

    I accept that many people fall into the unrepresented trap but in most cases it is all by themselves because they are unfamiliar with the process. That said the police in recent years have seriously abused this when chasing sanctioned detections to satisfy performance indicators. This is wholly unethical but I’m pleased to see this situation is changing. This is in the interests of all.

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  • Clifford Owen Panther

    I have had a police officer come to the door and accused me of 3 counts of fraud on ebay..i did not go with him to the station but i did go on my own to sort it out at the police station later that day..i was released without any charges or bail..but i have had many phone calls demanding that i sign a paper for the police to enter my bank account of witch i refused.this officer has so far said that he has entered my bank account and is going to freeze my account..he has been going around my relatives giving them my personal information off of facebook..i consider him to be harassing me for no reason? can i do anything about him? many thanks.

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