A legitimate contemporaneous interview away from the Police Station must pass the following requirements:
- Be under caution (suspect must be given the standard caution before questioning)
- The suspect needs to be informed that they are not under arrest (if they are arrested then PACE / Codes of Practice kick in and he needs to be interviewed at a Police Station)
- The suspect needs to be informed that they are free to leave at any time (though if they try to they may then be arrested, see 2 above)
- The suspect needs to be informed that they are entitled to free and independent legal advice
- Be signed by the defendant. There seems to be no specific requirement for this but good practice would suggest it should be countersigned by the defendant to ensure accuracy. Also the likelihood of suggesting such an interview would be inadmissible increases if the interview is not countersigned
Codes of Practice – Generally these apply to people being interviewed at Police stations whether there voluntarily or under arrest.
However the following code applies:
(c) Persons attending a police station or elsewhere voluntarily
3.21 Anybody attending a police station or other location (see paragraph 3.22) voluntarily to assist police with the investigation of an offence may leave at will unless arrested. See Note 1K (below). The person may only be prevented from leaving at will if their arrest on suspicion of committing the offence is necessary in accordance with Code G. See Code G Note 2G.
If during an interview it is decided that their arrest is necessary, they must:
- be informed at once that they are under arrest and of the grounds and reasons as required by Code G, and
- be brought before the custody officer at the police station where they are arrested or, as the case may be, at the police station to which they are taken after being arrested elsewhere. The custody officer is then responsible for making sure that a custody record is opened and that they are notified of their rights in the same way as other detainees as required by this Code.
If they are not arrested but are cautioned as in section 10, the person who gives the caution must, at the same time, inform them they are not under arrest, they are not obliged to remain at the station or other location but if they agree to remain, they may obtain free and independent legal advice if they want.
They shall also be given a copy of the notice explaining the arrangements for obtaining legal advice and told that the right to legal advice includes the right to speak with a solicitor on the telephone and be asked if they want advice.
If advice is requested, the interviewer is responsible for securing its provision without delay by contacting the Defence Solicitor Call Centre and for ensuring that the provisions of this Code and Codes E and F concerning the conduct and recording of interviews of suspects are followed insofar as they can be applied to suspects who are not under arrest. See paragraph 3.2 and Note 6B.
3.22 If the other location mentioned in paragraph 3.21 is any place or premises for which the interviewer requires the person’s informed consent to remain, for example, the person’s home, then the references that the person is ‘not obliged to remain’ and that they ‘may leave at will’ mean that the person may also withdraw their consent and require the interviewer to leave.
1K This Code does not affect the principle that all citizens have a duty to help police officers to prevent crime and discover offenders. This is a civic rather than a legal duty; but when police officers are trying to discover whether, or by whom, offences have been committed they are entitled to question any person from whom they think useful information can be obtained, subject to the restrictions imposed by this Code. A person’s declaration that they are unwilling to reply does not alter this entitlement.
The Police seem to be using contemporaneous interviews more often as an effective ‘cost conscious’ method of resolving cases. Sometimes suspects believe pressure is exerted upon them to admit offences to get a ‘slap on the wrist’ only to find themselves summonsed or charged for relatively serious offences.
It is not very clear what entitlement to legal advice a suspect has, if requested. The suggestion that legal advice ‘includes’ telephone advice suggests that an attendance is possible. However practically it seems likely telephone advice may be seen as sufficient.
Also on occasions Police have suggested that such advice is not free. This does seem to be incorrect advice as such advice seems to be covered under the remuneration scheme. The Code of practice above does suggest a suspect has a right to free advice and this should therefore be provided by the Police.
Care needs to be taken when solicitors have clients who have been dealt with like this. Checks need to be made to ensure that the procedure has been done properly and the client agrees with the notes made or not.
If the interview is disputed then the solicitor should apply to the Court under the Provisions of PACE to suggest such evidence is inadmissible. There are 3 potential scenarios:
If the defendant was pressured by the Police to make admissions to get a ‘slap on the wrist’ then an application to exclude can be considered under s76(2) as the result of ‘anything said or done by the Police’.
“Mentally disordered defendant”
If the defendant suffered from a mental disorder at the time of the interview and there was no “independent person” present consideration to exclude can be given under s78 of PACE to exclude the confession. If the evidence is not excluded a warning should be given as seen from under s77 PACE.
“Procedural irregularity or other good reason to exclude”
If the defendant was not contemporaneously interviewed correctly under the provisions of Code C 3.21 or there is another good reason to exclude then an application to exclude the confession can be made under s78 PACE – general powers to exclude.
Likely Success of an Application
Clearly the success of the application depends on the particular circumstances of the case and in particular the scale and degree of any breaches. However if there are issues which raise questions about the admissions it would seem prudent to make the application to exclude the evidence before the trial date.
A suspect who suffers from a severe mental health disorder, where there is no independent person, who is not cautioned or offered access to a solicitor and who does not sign such a contemporaneous interview has a reasonable chance of having admissions excluded from a trial.
A suspect with no mental health issues, who was cautioned and offered access to a solicitor and who signed such an interview is less likely to have any admissions excluded on application.