The process of an arrest and interview is one that has a basic set of principles all specialist murder lawyers will understand. They apply to all criminal cases in the police station but when the allegation is one of murder their use becomes more important. The same applies to the lengths the police will go to in order to squeeze information from a suspect - as we will see later on this even goes as far as the police tricking someone into providing information without telling them that they are suspect.
When a person is arrested, he or she will usually be cautioned. This is repeated in the recorded interview at the police station. The caution is said by the police and it tells the person that he or she has a right to be silent, but that if he or she does not mention when questioned something which is later relied on in court, it may be held against him or her. The person is also told that what is said by him or her may appear as evidence against them in any legal case.
The fact that that a suspect does not have to say anything is the main message of the caution. There is of course the possibility that a failure to say something might be held against a suspect at a later stage. What is meant by that is that if the case goes to trial a jury might be asked to consider whether a person's failure to say something on arrest makes it more likely that he or she is guilty.
It is worth bearing in mind that it is always better to remain silent than to say something which you may not stand by later on. Unless you are certain that, no matter what other evidence comes out, you will not change your story, it is best to remain silent.
Juries are often understanding of a defendant who remains silent on arrest and do not generally take it as an indication of guilt. This can usually be dealt with properly by a good defence barrister. It is therefore almost always better to remain silent or just say ‘I have nothing to say at this time'.
Significant witness interviews
Sometimes, the police use ‘significant witness' interviews as a way to get a first account from a suspect without giving the suspect the rights afforded under PACE (The Police and Criminal Evidence Act 1984 is the set of rules governing police practice and the rights afforded to suspects in the police station).
The advantage to the police is that the person is likely to speak freely without knowing that they have a right to silence or legal advice, or that they are being tricked and the police already see them as a suspect.
The police may start by politely inviting someone for a significant witness interview, but may then become more become aggressive if the person asks if the interview is mandatory. This could be a clue that the police are actually treating the person as a suspect but pretending that he or she is not.
This means that if you are asked to attend a significant witness interview then you should approach it with extreme caution and always seek the advice of a specialist murder lawyer before attending. The consequences of being naive about this can be devastating.
The police approach in a murder interview
The main difference between a suspect interview in a murder investigation and an interview for a less serious offence is that there is usually no leeway or goodwill in the police's approach to the suspect. The police will generally only cooperate with the suspect's rights while in custody to the absolute minimum required under the law. They may be obstructive when it comes to providing access to a lawyer. Things said by the suspect or the specialist murder lawyer outside the interview will be recorded, and sometimes misrepresented by officers. Officers may use intimidation tactics or try to have inappropriate conversations with suspects in the cell area without a lawyer present.
Sadly, police sometimes try to befriend the suspect, gaining his or her confidence in order to get an admission of participation in or even knowledge of the circumstances of the death.
The police investigation team
In most cities, the police officers conducting a murder investigation are part of a dedicated murder team focused on the investigation of one murder at a time. This team will involve a number of specialist trained detectives. The Detective Inspector will have a hands-on role in the management of the team. If there is more than one suspect in custody, separate teams of detectives will interview the suspects at the same time so that there is no possibility of collusion in interviews.
Disclosure before a murder interview
One of the basic principles of police procedure before an interview is that the officer should provide information to the specialist murder lawyer about what questions will be asked in the interview. This does not mean that the officer must give advance notice of the questions. It also doesn't mean that the officer has to give all of the disclosure that he or she intends to. It is usual practice for officers to give a taste of the questions which will be asked, usually by saying what some of the events leading up to the suspect's arrest have been, but not providing detail as to the actual evidence against them.
This means that the client is in a position where he or she is being asked to provide an explanation without knowing the full facts. His or her specialist murder lawyer cannot give proper advice about the evidence if part of it is being held back. This makes trusting the police and answering their questions in interview a highly dangerous game.
The police approach in a murder interview is, first of all, to hold back key evidence, hoping that the suspect will provide a full account during the interview, only to then put to the suspect new evidence which contradicts that account. This can destroy the client's chances at trial before he or she is even out of the police station. The answer is to say nothing, or if anything has to be put on record, keep it limited to areas the client is very confident about, and in the form of a written statement rather than answering open questions.
In many murder cases, the police will still be waiting for forensic evidence at the time of the interviews. This evidence may come to light after the interview, and may not be available to the defence for several weeks, or even months later. This means that it is nearly always a bad idea to provide an account at interview which could be affected by this evidence. If the suspect wants to give an account of his or her whereabouts at or around the time of the murder, it should only ever be done when the full results of all the forensic investigations are known. Forensic evidence which may be relevant includes mobile phone location evidence (cell site evidence), call records, number plate recognition evidence from cameras positioned on the road, CCTV evidence, fingerprints, DNA, and fibre traces.
‘Drip feed' disclosure in a murder interview
One strategy that the police use in interviews is to provide one layer of disclosure, take the response provided by the client, and then pause the interview, either to gather more evidence or compare the accounts given by other suspects in interviews going on at the same time, and then return with more pre-interview disclosure. Murder lawyers and clients should be very wary of agreeing to take part in this process. Where the pre-interview disclosure is not full, as it almost never is, the safest path is to make no comment.
The need to select the right murder lawyers
When it comes to having a lawyer, a person who faces a murder investigation, arrest or interview at the police station has three choices:
1. Do I need a lawyer at the police station?
The first is whether to go without a lawyer at all. This at first may seem tempting. The police may present themselves as neutral, and a suspect may want to be seen to be cooperating with the investigation and not appearing obstructive by having a solicitor in the way.
This is a bad idea. The British legal system is adversarial - us vs them. The police will only arrest if they already suspect that the person in question has committed the offence. They have, to this extent, made up their mind already. Trusting the police in a situation where they are already at least partially prejudiced is very unwise. The pressure is on the police at this stage for a conviction, and it is sadly too common for the police to break the rules at the police station in order to get a conviction, even if the suspect is innocent. The stakes in a murder interview are so high that specialist murder lawyers are a necessity.
2. Duty solicitor or own solicitor?
If someone is arrested, the custody sergeant at the police station will ask if he or she wants a solicitor. That solicitor can be a duty solicitor allocated as part of a rota system that the police can access, or it can be a solicitor that the client chooses. It is perfectly possible that the duty solicitor will be competent and experienced in serious cases. However, it is perhaps more likely that the duty lawyer will be junior or comparatively inexperienced for the seriousness of the case. By picking a murder lawyer who is a proven specialist in serious cases, the chances of avoiding either a charge or a conviction is greatly increased.
3. Can the family of a suspect instruct a lawyer on his or her behalf?
When somebody is arrested for murder, he or she will often not know which lawyer to choose and may stick with the duty solicitor. However, if the family of the suspect have spoken to a lawyer and would like the suspect to be made aware that this lawyer is available to help, it is generally accepted that the police have a duty to inform the person who is being held and ask whether they want to take the recommendation made by the family. Family members should not be shy of taking this interest. It is often harder to get permission to change solicitors if the case reaches court.
How long can a person be held in police custody for murder without charge?
When a person is arrested, the general rule is that there is a 96 hour maximum limit to the time that a suspect can be held without charge. However, for a suspect to be in custody this long, the police need to ask permission at a magistrates court for the custody to be extended beyond 24 hours to either 36 or 96