The Initial Contact by the Police and the ‘chat down the station'
When the police are investigating an allegation, they will often contact a suspect on the telephone if they haven't arrested them already and invite them to the Police Station for ‘a chat', often saying things like ‘we need to hear your side of the story' or ‘I'm neutral in this, and I'm just trying to see what has happened'. The fact that the interview is voluntary will be presented as if it's some sort of favour to make you feel at ease, when actually that's the way it happens in most criminal cases. Investigating offers are often trained to use methods like these to put a person off guard so that he or she feels relaxed and cooperates in full with the Police on their terms. Sadly the person often then incriminates himself or herself in the process, without realising what has happened or without requesting a solicitor for police interview.
It is very important to make sure that any communication you ever have with an investigating Police Officer takes place either through a lawyer or in the presence of a lawyer. Even things that you say on the phone to a police officer can sometimes be used in court against you. Sometimes a police officer will not even explain that coming into the station 'for a chat' can mean being interviewed as a suspect, sometimes under arrest. People end up attending the Police Station on this basis, without having had time to organise their own lawyer to go with them. Sometimes it is not even clear to them that they can have a solicitor for police interview. They often then find themselves in court the next morning, having been kept in a cell overnight, with a duty solicitor they didn't choose representing them. The solution is to never discuss anything to do with an allegation directly with a police officer without first having a lawyer there. People are often concerned that they will automatically look guilty in some way if they decide to have a solicitor for police interview. However, a police officer will never have reason to be surprised if they hear from your lawyer and not you at first.
Occasionally, officers have been known to say to suspects that waiting for a solicitor will take longer and if they want a matter dealt with then they can go ahead without one. In some cases, it has been heard that suspects are even told they don't need a lawyer. Under no circumstances should you not have a lawyer during a police station interview, even if you believe you have nothing to hide. The police may put themselves forward as being in a neutral, fact-finding role, but in the context of a police interview, this misrepresents the truth. In England and Wales, the criminal law is based on an adversarial system. That means that it is the police's goal to get a suspect arrested, charged and convicted, and the defence lawyer's job to prevent this. On top of this, the police often face intense pressure from the media and the government to improve arrest and conviction rates for every reported crime, and this can mean that the result they are forced to aim for is not necessarily the truth, but a criminal conviction.
The Police Interview Process 3 stages
The police station interview process occurs in three main stages which all occur during one period of stay at the police station (which can last from a few hours to a few days).
The first stage is called disclosure. This is when information about the allegations is provided by the police to the solicitor, without the client present. There is no duty for the police to provide before or during the interview all the information in any witness statements they have taken. In fact, well trained officers will use this to their advantage, purposely withholding information to ambush the client with new evidence, either later during the recorded interview or afterwards in court. An experienced solicitor for police interviews will try to ask questions of the interviewing officer during disclosure, but will often only be able to get limited information. With this in mind, an attitude of caution should be present in the solicitor's advice to the client about whether to make any comment in interview at all.
The second stage of the interview process consists of the solicitor and client being allowed time in a private consultation room in the police station to discuss what the solicitor knows about the allegations and what the client's answer to the allegations is. This conversation is confidential and does not need to be disclosed to the police. The solicitor cannot advise the client to put forward a false story in the recorded interview with officers, but can advise the client to make no comment, and this is often a good idea (see below). It is during this stage that the solicitor and client will decide whether the client should answer questions during the interview, give a prepared written statement, or make no comment. This is why it is crucial to have a solicitor for police interview rather than trying to decide what to do without any advice.
The third stage is the interview itself. This is tape recorded and takes place with one or two officers, the defence solicitor and the suspect present. First of all, the police should warn the suspect of the right to silence, and that the contents of the interview can be used against him or her as evidence in a criminal court. This introduction is called the Caution, and contains the following information:
You have a right to silence
Whatever you say can be used against you in a criminal case in court
If you don't mention something now which you mention later a court might ask why you didn't mention it at the first opportunity
The police will usually put the main allegations to the suspect in quite a conversational way. There has been a move away from the more aggressive type of interview that was prevalent in the 1970s and 1980s (when suspects would often arrive in court the next morning with physical injuries - a practice that is rarer now) to a more sophisticated type of interview, where a police officer will often attempt to befriend the suspect and encourage him or her to talk.
The suspect will have three options as to how he or she responds to the interview questions. The first, and for serious offences usually the most sensible, is to make no comment. There is a possibility that the defence case may be slightly damaged as a result of making no comment. However, the danger of worse damage being done by answering questions in an interview is often much greater. During interview, the client and solicitor do not usually know the full details of the allegations or the exact evidence in the case, so for the client to chain him or herself down to a story at this stage can be a very bad idea. Even if the client makes an innocent mistake in the interview, this can look like a lie later on in court, and it was all because the client was caught off guard with a question he or she didn't expect.
Forensic evidence in serious cases is not usually ready by the time of the interview. If a client makes a comment denying his or her presence at a scene and later in the case DNA evidence comes to light which proves that person was there, then that can seriously damage the client's case. Even if there was another reason that the client lied earlier, a lie which has been exposed can be as damaging as a confession.
In many cases, the police do not even have enough evidence to charge a suspect before the interview, but the suspect fills in the missing pieces and allows the police to charge him or her just by confirming that he was at the scene of the alleged crime. In that situation, if the client simply answered ‘no comment' to all questions, the case may not proceed for lack of evidence. It is this type of issue that make ‘no comment' the advice most often given by good police station solicitors.
Giving a Prepared Statement?
This is an alternative to making no comment in which a client discloses his or her defence without risking being ambushed by a police officer who throws him or her off guard with an unexpected question. This can be useful depending on the circumstances. It is preferable to answering questions as they arise in open interview, but the police can still ambush the client later in the interview with evidence they have withheld which contradicts the client's prepared statement. This means that a prepared statement can be some protection against surprise questions from a police officer, but it is by no means always a safe option. Having an experienced solicitor for police interview means this option can be considered properly, and the statement prepared with the assistance of a professional.
Answering questions as the police officer puts them to you in interview should only be considered in very few circumstances. Where the allegation is very simple, and the client's denial is clear and very obvious, this may be a good idea. But this should be approached with extreme caution, and is not usually a good idea for situations in which there is so much as a grain of truth to the allegations and the client is hoping to plead not guilty. By putting him or herself in the interview and allowing the police to control the situation by asking the questions they choose, the client is playing a dangerous game. The police are trained in interviewing suspects, and are often very skilled at making them make mistakes which convict them in court later.
Where the evidence is absolutely overwhelming, it is sometimes a good idea for the client to answer all questions and admit what has happened. Such occasions are rare, however, because they prevent the defence from seeing if they can negotiate later down the line in court. Even where the evidence is strong, if the prosecution does not have a confession from the client in their papers when the case reaches court, they may often be prepared to do a deal to reduce the charges or the seriousness of the allegations.
How long can the Police keep a suspect in a cell and on what basis?
The maximum period of time that a suspect can be detained at the police station is 24 hours. This period may be extended up to a total of 36 hours if an officer of the rank of superintendent or above authorises it.
In certain circumstances the magistrates' court may extend the detention time to a total of 96 hours.
These circumstances are:
That the detention is necessary to secure or preserve evidence or to obtain evidence by questioning
The person is under arrest for a serious arrestable offence (this may mean, for example, robbery or a serious assault)
That the investigation is being conducted diligently and expeditiously.
At the end of the detention time the person in police detention must be charged or released.
Outcomes at the Police Station - Charged, Bailed, 'RUI', Non-court disposal or No Further Action
There are several different possible outcomes of an interview at the police station:
Charged - Case Goes to Court
A person can be charged (this means the decision has been made to bring them to court) and either taken to a Magistrate's court the next morning or released to attend the Magistrate's court by appointment, usually within a few weeks.
A person can also be bailed to attend again at the police station at a later date. This means they have to come back to the police station to find out if they are going to be charged or not. This is usually called being 'bailed pending further enquiries' because in the meantime the police will make further enquiries, or will wait for the Crown Prosecution Service to decide if the person is going to be charged.
If the police don't think that they will have an answer on whether to charge within a reasonable time, they will release the person under investigation or 'RUI'. It means the investigation continues, but typically at a slow pace.
Non-court options can be considered by the police as an alternative to going to court. They include a caution, which is usually not a good idea if you need to keep your record clean, a community resolution (sometimes called an 'out of court disposal') which may involve a letter of apology or some other agreement which all parties are happy with. A community resolution does not usually show up on a DBS record check. Another outcome is a penalty notice for disorder or PND. These are civil penalties and don't usually show up on a basic DBS check, but MAY be disclosed to employers or other organisations on a standard or enhanced DBS check.
No Further Action means that the case is dropped, because the prosecution doesn't think that they have a strong enough case to convict. This doesn't mean that a charge can't be brought later if more evidence is discovered, but in most cases it's the end of the matter.
When being interviewed and instructing a solicitor for police interview, people will either choose to have free legal advice on legal aid, or alternatively instruct a solicitor on a private basis.