One of the most important parts of a criminal trial is the police interview. It often shapes the way that a case is run. We’ve seen this on a hundred TV shows, sometimes the suspect sits there tight-lipped, saying nothing (often accompanied by a lawyer of less than perfect morality), sometimes they break down and confess all, sometimes the police ‘bend the rules’. But how does it actually work.
Before the interview
We have done an overview of what happens on the police station. If the suspect hasn’t requested a lawyer, then the police will probably just take them into an interview room and start. If there is a lawyer, then the police officer will speak to the lawyer first and give them ‘disclosure’. This is a brief (usually very very brief) overview of what evidence the police have. The police are entitled to hold back information and will frequently do so, but they are not allowed to lie to a suspect about the evidence they have.
The lawyer, or legal representative, will then have a private conversation with the suspect. This will be to discuss the case and to give advice as to whether the suspect should answer questions. It is important to note that the lawyer is there to give advice, he cannot tell the suspect what to say, or make up a defence.
All police interviews (with only a few exceptions) are tape recorded (some are now videoed) so that there is no dispute as to what is said.
At the start, the police officer that is leading the investigation will introduce everyone who is there and explain to the suspect what their legal rights are. They will then be ‘cautioned’: “you don’t have to say anything, but it may harm your defence if you fail to mention when questioned something that you later rely on in court. Anything you do say may be given in evidence”. More on that later.
The interview then proceeds with questions and answers. If the suspect is not going to answer questions, then usually they will say ‘no comment’ rather than remaining silent.
At the end of the interview, the police will generally ask if the suspect, or anyone else present, has anything to add. Some interviews last only a few minutes, some can go over the course of days.
The police can be firm with a suspect and are entitled to push a question and don’t have to accept the first answer they get. There are limits to what they can do – obviously violence is unacceptable and unlawful, but if the police are too bullying or oppressive, the Judge at any trial may decide that it is too unfair to allow it to be given in evidence (s76 PACE). The CPS has an overview of when this may be the case.
The Right to Silence?
The idea of the ‘right to silence’ goes back a long time to before the Civil War. Famously, ‘Freeborn John’ Lilburne was arrested in 1638 for pamphleteering and hauled before the Star Chamber. He refused to take the oath and answer the questions put to him on the grounds that one of his ‘Freeborn Rights’ was the right not to incriminate himself. This was the start of a fundamental human right that lasted in English law until 1994.
In s34 Criminal Justice and Public Order Act 1994, the government made an inroad into this. This provides :
“(1)Where, in any proceedings against a person for an offence, evidence is given that the accused—
(a)at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b)on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.”
This has given rise to a huge amount of caselaw, cases where the Court of Appeal have had to rule on the specific directions that a Judge has given, and it is impossible to summarise them all. In essence (although it is a complicated are), if:
- a suspect is in police detention
- has been offered legal advice
- is being questioned and
- fails to mention a fact that he later relies on
- which he could reasonably have been expected to mention at the time
Then the jury (or the magistrates in a Magistrates’ Court) can be invited to draw an ‘adverse inference’ from this failure. They do not have to do so – they may think that there is a good reason (for example, legal advice received) for not answering questions. A good overview is in the Crown Court Bench Book (starting at page 258), but it should be noted that it is a few years ago.
How the interview is presented in court
Whilst the interview tape can be played in court, this is quite unusual. This is because there is often repetition or irrelevant things that it is hard to edit from an audio tape, but easy from a transcript. Also, it is not uncommon for there to be questions and answers that are ‘inadmissible’ – relating to matters which the jury should not hear. Again, this is very easy to edit out from a written transcript.
The Officer in the Case should also be called as a witness (usually the last of the prosecution witnesses). He will read it with the prosecuting lawyer, with the Officer in the Case reading the part of the interviewing police officer(s) and the prosecuting lawyer that of the suspect (and the lawyer, interpreter or appropriate adult if they speak).