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.
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’.
Kim Evans has spent 31 years working at the sharp end of the criminal justice system - the last ten years in the cells of East Sussex police stations defending people in custody. ‘I'd guesstimate that 90% of my clients have a personality disorder, mental health issues, and, or, serious substance addiction be it drugs or alcohol,’ she says. Kim started her career at the Metropolitan Police as a uniformed officer in 1979.