Interview Under Caution

A police interview under caution is an interview that is conducted in accordance with the Police and Criminal Evidence Act. The caution is administered at the start of the interview and must be given if you are being asked questions where it is suspected that you have committed an offence.

The purpose of the caution is to warn you that although you have a right to remain silent, if you do so a jury may draw what is known as an “adverse inference” at any later trial.

Increasingly, the police are turning to interviews by invitation rather than arresting individuals in order to interview them. This doesn’t necessarily mean the police think you’re guilty and will automatically prosecute you; it means that the evidence they have obtained to date indicates that you may be involved in the offence, and so able to assist with their enquiries.

Alternatively, it may be that they know that their investigation is likely to be lengthy and they wish to avoid the obligations placed upon them when dealing with individuals under arrest.

Other agencies, such as the DWP do not have powers of arrest. Therefore, they can only interview you if you give consent, although if you refuse to attend an interview voluntarily they may pass their investigation over to the police to pursue.

As you are not under arrest, you are free to stop and leave the interview at any time. However, in some circumstances, attempting to do so may lead to you being arrested.

Unlike if you were under arrest you will not have your photograph and other forensic samples taken from you and you will not have to spend any time in police custody. The interview will, however, be recorded and you are entitled to have a solicitor present.

“PACE” stands for the Police and Criminal Evidence Act, which was enacted in 1984 following a number of high-profile miscarriages of justice, and doubtless numerous others. The PACE Act applies to all agencies that investigate criminal offences, such as the Health & Safety Executive, City Councils, the UK Border Agency, the DVSA, and many others. It contains various Codes, which set out how the police must deal with suspects and others. This gives rise to the term “PACE interview”. It is what they do in The Bill, but usually with less shouting.

Importantly, PACE gives you the right to have a solicitor present in your interview, and there is no charge for this. This means that if there is a breach of the PACE codes or some other irregularity, we are able to intervene on your behalf.

You should always have a solicitor present in an interview under caution. The solicitor is your representative and is there to safeguard your interests. He or she will discuss the case with you, analyse the disclosure given by the investigators and ask you about your potential responses. The interview procedure is perhaps the most important stage of any criminal investigation. It is at that crucial early stage before the views of the investigator are fully formed, that you can influence the course of the investigation to your benefit. However, anything that you say could be used as evidence against you at trial.

It may be that you can provide an explanation that satisfies the investigator that no offence has been committed or you may be able to present facts that will later form the basis of your defence at trial. It may be that you choose to exercise your right to silence – you do not have to say anything in answer to any of the questions.

Making the right decision at this early stage is crucial to your case, and our expert legal advisers can advise you as to the right course of action for you.

When you arrive, the officer might well try to arrest you. An arrest is something that often leads to intimate samples being taken, or drugs tests being conducted. In certain circumstances, it is possible to argue against this. It is important that it is done correctly, otherwise, any later argument that your records ought to be destroyed can be undermined.

If you are arrested, you will be put before a Custody Sergeant, who will ‘book you in’ and ensure that your rights are complied with. Representations about anything you or your solicitor are unhappy with can be made at that point.

You should note that not all investigating agencies have the power of arrest. We can advise you about this in advance of an interview.

Once inside, your solicitor will be given disclosure by the officers. This is a formal indication of what they suspect, and what offence they think this amounts to. This important step in the process only applies if you have a solicitor. The main advantage for you is that it helps to minimise the chance of being taken by surprise in your interview.

After this, there is a chance to have a consultation with your solicitor. This is a confidential conversation that the police are forbidden to listen to. Your solicitor will tell you what the allegation is, and the relevant law. They will take your instructions and advise you as to the best approach in an interview; whether to answer questions, “go ‘no comment’”, or submit a prepared statement. Each of these has its advantages, but choosing the wrong one can have very damaging long term consequences.

In your interview, the officers will ask you questions about the offence. A solicitor will stop any questions that are ambiguous, unfair, unduly leading, oppressive, too intimate, or irrelevant. It is notoriously difficult for an unrepresented suspect to do this.

After this, you would usually be either bailed or sent away until a decision is made.

A Caution Plus 3 Interview is a formal interview normally conducted by the police, at the police station, under what is known as the Caution. This type of interview may often be called a ‘Voluntary Police Interview’.

The Caution Plus 3 Interview has 3 main elements:

1. It is conducted under the Police Caution

The Police Caution states: “You don’t have to say anything, but it may harm your defence if you don’t mention now, something which you later rely on in Court and – anything you do say – may be given in evidence”.

2. You are entitled to free legal advice

This is your right and you have to be told this by the police – this will apply even if they may not want to offer you free legal advice or tell you that you don’t require free legal advice.

3. You are free to leave the police station – at any stage – as you are there voluntarily

However, if you do attempt to leave, the police may then decide to arrest you.