Study Notes · 75 sections
The police interview is often the most significant event in a criminal case. What your client says (or does not say) during the interview can determine whether they are charged, whether the case reaches court, and whether they are ultimately convicted. Your role as the solicitor is to advise your client on whether to answer questions and to protect their rights throughout the process. Getting this wrong can have devastating consequences.
The right to silence and the rules on police interviews are governed by PACE (particularly Code C), the Criminal Justice and Public Order Act 1994 (CJPOA), and the Human Rights Act 1998 (Article 6). Code C sets out the procedures for conducting interviews, while the CJPOA introduced the concept of adverse inferences from silence. Understanding how these pieces of legislation interact is essential for giving proper advice.
At common law, a person has the right to remain silent when questioned by the police. This means they cannot be compelled to answer questions, and the prosecution cannot comment on their silence at trial. This right has been part of English law for centuries and reflects the principle that the burden of proof lies on the prosecution - the defendant does not have to prove their innocence.
The right to silence still exists, but it has been significantly modified by the Criminal Justice and Public Order Act 1994. Under the CJPOA, a court or jury can draw adverse inferences from a suspect's failure to mention facts when questioned under caution, or from their failure to give evidence at trial. This does not mean the right to silence has been abolished, but it does mean that remaining silent can now carry consequences.
Where, in any proceedings against a person for an offence, evidence is given that the accused was, at any time before being charged, questioned under caution by a constable trying to discover whether or by whom the offence had been committed, the court may draw such inferences as appear proper from the failure of the accused to mention any fact relied on in his defence.
It is important to understand that the right to silence still exists - your client cannot be forced to answer questions. But remaining silent is no longer a safe option in all cases. If your client has a defence that they could reasonably have mentioned at the police station but chose not to, the court may draw adverse inferences. You must consider this when advising your client.
An adverse inference is a conclusion that the court or jury may draw from a person's silence. For example, if the defendant stays silent at the police station but then gives an alibi at trial, the court may infer that the alibi was made up after the event. The inference is not mandatory - the court is not required to draw it - but it is a possibility that the jury will be directed to consider.
The CJPOA 1994 created three separate provisions about adverse inferences: s.34 covers silence when questioned under caution before charge, s.35 covers failure to give evidence at trial, and s.36 covers failure to account for objects, marks, or substances found on the suspect. For police station advice, s.34 is the most relevant. Each section has its own conditions and limitations.
The key question is whether the suspect could "reasonably be expected" to mention the fact. The court will consider all the circumstances, including the suspect's age, experience, mental state, whether they had legal advice, and whether they had been properly cautioned. If the suspect was not given legal advice, or was denied access to a solicitor, it is much harder for the prosecution to argue that they should have spoken.
The suspect does not have to tell the police everything. They only need to mention facts that they intend to rely on in their defence. If the suspect does not intend to run an alibi, they do not need to give one at the police station. The key is to give enough information to prevent adverse inferences being drawn, without volunteering unnecessary details that could be used against them.
Under s.36 CJPOA, if a suspect is found with an object, mark, or substance on their person, clothing, or in their possession, and they fail to account for it when questioned, the court may draw adverse inferences. The police must have informed the suspect of the object, mark, or substance and given them an opportunity to explain it. This is particularly relevant in drugs and weapons cases.
One of the most important decisions you will make when advising a client at the police station is whether they should answer the police's questions. This is never a straightforward decision and depends on many factors. You must weigh the risk of adverse inferences from silence against the risk of the client incriminating themselves by answering. There is no one-size-fits-all answer.
It is not always a binary choice between answering everything and saying nothing. In many cases, the best approach is for the client to answer some questions (particularly those that establish a defence or explain innocent facts) while declining to answer others. This can reduce the risk of adverse inferences while minimising the risk of self-incrimination. You should discuss this strategy with your client and agree which topics they will address and which they will decline to answer.
Always make a careful note of the advice you give your client about whether to answer questions. If adverse inferences are later drawn at trial, you need to be able to explain what advice was given and why. Record the client's instructions, the factors you considered, and the reasons for your recommendation. This protects both you and your client.
Before the interview begins, the police should ensure that the suspect has been cautioned, has had access to legal advice, is fit to be interviewed, and has had adequate food, drink, and rest. The solicitor should be present (unless the suspect has waived their right). An appropriate adult must be present if the suspect is vulnerable. The interview room should be private and free from interruptions.
Before any interview, the suspect must be cautioned. The standard caution is: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." The caution must be given in language the suspect understands. If the suspect does not understand, the interviewer must explain it further.
When a person is being questioned, or charged, or informed that they may be prosecuted, they must be cautioned in the following terms: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."
The interview must be conducted fairly and the questions must be relevant to the matter being investigated. The suspect should be allowed to respond to each question without being interrupted. The interview must be recorded, either on audio or video tape. The solicitor has the right to intervene during the interview if they believe the police are acting improperly or if they need to consult with their client.
After the interview, the suspect should be given the opportunity to read the interview record (or listen to the recording) and sign it to confirm it is accurate. The solicitor should also check the record. If there are any errors or omissions, these should be noted. The suspect should be asked whether they want to add anything or correct anything in the record. The solicitor should then advise the client on what happens next.
Under PACE s.76, any confession obtained through oppression (torture, inhuman or degrading treatment) or in circumstances likely to render it unreliable is inadmissible. If the police are bullying your client, not allowing breaks, or using improper tactics, you should intervene immediately. Stop the interview, consult with your client, and if necessary, make a formal complaint. Any evidence obtained through oppression can be excluded at trial.
Before the interview, you need to take detailed instructions from your client. Find out what happened, what the client's account is, whether they have any witnesses or evidence to support their version of events, and whether they have any previous convictions or cautions that might be relevant. You also need to assess whether the client is fit to be interviewed and whether they understand the caution.
Before advising your client on whether to answer questions, ask the police what evidence they have. The police are not required to fully disclose their case at this stage, but asking gives you an indication of the strength of their case. If the police have strong evidence, silence may be less helpful. If the police seem to be fishing, silence may be the safer option.
During the interview, your role is to observe and protect your client's interests. You should listen to every question and answer, and note anything that is improper, unfair, or inaccurate. You cannot answer questions on behalf of your client, but you can advise them during breaks whether to continue answering or to remain silent. You should also intervene if the police are bullying, threatening, or misleading your client.
You have the right to consult with your client privately at any time during the interview. This is a crucial safeguard. If your client is unsure how to answer a question, or if a new issue arises that you have not discussed, you can ask for a break and advise your client in private. Do not hesitate to exercise this right - it is there to protect your client.
The solicitor cannot answer questions on behalf of the suspect. Your role is to advise, not to participate. If the client decides to answer questions, they must do so in their own words. You should not speak during the interview unless you are intervening to protect your client's rights or requesting a private consultation.
After the interview, you should check the interview record carefully. Make sure it accurately reflects what was said. If anything has been omitted or misrecorded, you should note this on the record. The client should be given the opportunity to read and sign the record. If the client does not agree with the record, they can refuse to sign it, but the fact that they refused will be noted.
After the interview, you should advise your client on what happens next. The police may charge your client, release them under investigation, or release them on bail. Explain each possibility and what it means. If your client is charged, you should advise them about the first court appearance. If they are released under investigation, explain what this means and what to expect.
An appropriate adult is required whenever the police are interviewing a juvenile (anyone under 18) or a mentally vulnerable adult. The appropriate adult is there to ensure that the interview is conducted fairly and that the suspect understands what is happening. They are not there to give legal advice - that is your role. Their role is complementary to yours, and you should work together to protect the suspect's rights.
An appropriate adult shall be called to assist a juvenile (a person under the age of 18) or a person who is mentally vulnerable whenever that person is to be questioned or asked to provide or sign a written statement, or to participate in an identification procedure. The appropriate adult is in addition to, and not a substitute for, a solicitor.
The appropriate adult's role includes: ensuring the suspect understands the caution and their rights, advising the suspect to get legal advice if they have not already done so, observing the interview and intervening if it is unfair, ensuring the suspect is not being bullied or coerced, helping the suspect communicate if they have difficulty doing so, and ensuring the suspect's welfare is being looked after. They can ask for a break at any time.
If the police interview a vulnerable person without an appropriate adult present, the interview evidence may be excluded under s.78 PACE. The court is likely to find that the absence of an appropriate adult makes the proceedings unfair, particularly for juveniles. If you arrive at the police station and find that an appropriate adult has not been called for a vulnerable client, you must insist that one is arranged before any interview takes place.
The appropriate adult and the solicitor have different roles. The solicitor gives legal advice; the appropriate adult ensures the process is fair and the suspect understands. Both are entitled to be present during the interview. If there is a conflict between the solicitor's advice and the appropriate adult's view, the solicitor's legal advice takes priority on legal matters, but the appropriate adult can still intervene on welfare grounds.
A vulnerable client is one who may have difficulty understanding or participating in the interview process. This includes juveniles, people with mental health conditions, people with learning disabilities, people with physical conditions that affect communication, and people who are intoxicated or withdrawing from substances. The custody officer must assess whether the detainee is vulnerable, and you should independently assess this too.
A vulnerable person means any person who, because of their mental state or the state of their health (whether or not that state is permanent), or because of the nature of the offence, may be at a disadvantage compared with other people being questioned by the police. This includes juveniles and people who are mentally disordered or otherwise mentally vulnerable.
Before any interview, you should assess whether your client is fit to be interviewed. Can they understand the caution? Can they understand the questions? Can they communicate their answers clearly? If you have any doubts about your client's fitness, you should consider asking for a healthcare professional to assess them. If the client is not fit, the interview should not proceed.
If your client is not fit to be interviewed, you must say so clearly and refuse to allow the interview to proceed. The police may try to pressure you, but your duty is to your client. If the interview goes ahead with an unfit client, the evidence is likely to be unreliable and may be excluded at trial. Request a healthcare assessment and document your concerns on the custody record.
Juveniles (under 18) always require an appropriate adult during interview. The interview should be conducted at a pace the juvenile can follow, using language they understand. The police should avoid intimidating or aggressive questioning. Breaks should be more frequent. The juvenile's welfare is paramount, and any concerns about their wellbeing should be raised immediately. The police should not interview a juvenile at night unless absolutely necessary.
If your client does not speak English well enough to understand the caution and the questions, an interpreter must be provided. The interpreter must be independent and not connected with the police. You should check that the interpreter is properly qualified and that your client can communicate effectively with them. If you have concerns about the quality of interpretation, you should raise them before the interview begins.
A voluntary interview (also called a caution plus 3 interview) is an interview conducted under caution where the person has not been arrested. The police invite the person to attend the station for an interview, and the person is free to leave at any time. Voluntary interviews are increasingly common and are often used for less serious offences. The person is entitled to free legal advice in the same way as an arrested person.
The same principles apply to advising a client in a voluntary interview as in a custodial interview. You should still assess the case, advise on whether to answer questions, and be present during the interview. One key difference is that the client can leave at any time, so you should remind them of this. If the client becomes distressed or wants to stop, they can simply walk out.
All interviews must be audio or video recorded. This protects both the suspect and the police by providing an objective record of what was said. The recording must start from the beginning of the interview and run continuously until it ends. If the recording equipment fails, the interview should be suspended and re-started with working equipment. Written notes should only be used as a last resort if recording equipment is genuinely unavailable.
Code C requires that the suspect be offered breaks at reasonable intervals during the interview. This includes breaks for food, drink, rest, and to use the toilet. The interview should not exceed a reasonable length without a break. If the suspect needs legal advice during a break, the interview must not resume until the suspect has had the opportunity to consult with their solicitor.
Interviews should not be conducted during a person's normal sleeping hours unless the interviewee agrees, the nature of the offence or the circumstances of the investigation require it, or the urgency of the case requires the interview to be conducted without delay. If an interview is conducted at night, the reasons must be recorded.
Under PACE s.76, a confession is not admissible if it was obtained through oppression (such as torture or inhuman treatment) or in circumstances that make it unreliable. Oppression includes physical violence, threats, and depriving the suspect of sleep or food. Unreliability can arise from the suspect's mental state, the way the interview was conducted, or the use of improper techniques by the police.
If it appears to the court that the confession was or may have been obtained by oppression, or in consequence of anything said or done which was likely to render it unreliable, the court shall not allow the confession to be given in evidence against the accused unless the prosecution proves beyond reasonable doubt that the confession was not so obtained.
The police must not use trickery, deceit, or psychological pressure to extract a confession. They should not pretend to have evidence they do not have (unless in very limited circumstances), should not make promises or threats, and should not exploit the suspect's vulnerability. If you suspect the police are using improper techniques, you should intervene immediately and make a note of your concerns.
Article 6 of the European Convention on Human Rights (incorporated by the Human Rights Act 1998) guarantees the right to a fair trial. This includes the right to remain silent and the right not to incriminate oneself. In Murray v United Kingdom (1996), the European Court of Human Rights held that drawing adverse inferences from silence does not, in itself, breach Article 6, provided that the right to silence is not undermined in a fundamental way.
If your client was denied access to a solicitor, or was interviewed in oppressive conditions, you may be able to argue that their Article 6 rights were breached. The court will consider whether the overall proceedings were fair. A breach of Code C alone does not automatically mean Article 6 is breached, but it is a factor the court will take into account.