Our experts provide advice and assistance to businesses and individuals subject to investigation and interview by a variety of regulators including the Health and Safety Executive (HSE), Environment Agency, Trading Standards, CQC, NHS counter-fraud and Local Authorities.
Who can carry out an interview under caution interview?
Whilst most people may think of the police when they hear the words “interview under caution”, the fact is that, as well as the police, there are many other regulators and law enforcement agencies who have the power to conduct criminal investigations and interview suspects under caution, including the HSE; Environment Agency; Trading Standards; CQC and local authorities.
The Police and Criminal Evidence Act 1984 (PACE) and its various Codes of Practice sets out the powers and duties of the police when it comes to the investigation of offences, as well as the arrest and treatment of suspects. It also, sets out the rights of suspects and addresses key points around the admissibility of evidence.
Those authorities and individuals, other than the police, who are involved with investigating offences or charging offenders, ought to have regard to PACE and the relevant Codes of Practice therefore, if you or anyone within your business is invited to attend an interview under caution you should seek independent legal advice from the experts at Olliers.
For more information on what to do if you have been arrested or interviewed by the police please see here.
Why am I being interviewed?
In simple terms, if the police or another regulatory body or relevant authority want to interview you under caution, it means that you and/or the company are suspected of having committed an offence and a decision needs to be taken as to what, if any, enforcement action ought to be taken.
There is actually no requirement under PACE that someone suspected of having committed an offence must be interviewed under caution before a decision about whether or not to prosecute is taken.
In practice, however, suspects are more often than not interviewed following arrest or as a volunteer. On occasion, particularly in the wake of the Covid-19 pandemic, some regulators including the HSE and Trading Standards, may be willing to issue questions in writing which can be beneficial to the investigators and suspects alike as it allows for a fuller consideration of the issues and proper preparation of the responses to the concerns and allegations raised.
What is the purpose of an interview under caution?
Whilst there is no express legal requirement for the authorities to conduct an interview under caution with those suspected of having committed an offence there is, however, a duty to afford a suspect the opportunity to respond to the allegations made and to put forward their own account prior to any decision on prosecution being made. To that end an interview under caution can have a significant bearing on not only the course of the investigation but also the outcome.
As part of the process we can assist you with:
- Obtaining initial disclosure of the information which the investigators have in relation to the allegations which you or the company face;
- Preparing your own documentation and supporting information in rebuttal of the allegations;
- Identifying alternative lines of enquiry which the investigators may not be aware of or may not have considered.
Even in situations where the authorities may have overwhelming evidence against you or the company, the importance of proper legal advice and assistance cannot and should not be underestimated. Sometimes, laying the foundations of solid, evidence based mitigation can mean the difference between a business surviving and a business going under, particularly in health and safety cases where the fines are unlimited and often eye-wateringly high.
What if it is the company that is invited for an interview under caution?
In the event of it being the company or organisation that is suspected of committing an offence, it will be asked to nominate an individual to attend the interview under caution to answer questions on its behalf.
It is equally important, if not even more so, to have legal representation in these circumstances because often such interviews can stray into personal questions of the individual director or senior manager in attendance and they can find themselves subject to investigation where before there was no indication or likelihood of the same.
Clearly there may be circumstances where both the company and individual directors or senior managers are suspects. It is important, however, to ensure that both you and the investigators know which capacity questions are being asked of you and indeed answered by you (if you so choose). A failure to do so could lead to all sorts of confusion if the matter were to progress, including issues around admissibility of evidence.
What to expect in an interview under caution?
Before the interview commences both you and your legal representative will have been afforded sufficient time to discuss the allegations and decide on the most appropriate approach to the interview itself. When you attend for the interview, there will be relatively standard introductions of all those present and the reasons why the interview is taking place. As part of this process, you will also be formally cautioned and this should happen before any questions about the allegations are put to you- if not then there could be issues as to admissibility about anything you say, if the matter were to proceed.
What is the caution?
The 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.”
It is generally broken down into 3 parts.
- You do not have to say anything: Put simply, those being interviewed cannot be forced to answer questions and can, if they want, make no comment throughout.
- But it may harm your defence if you do not mention when questioned something which you later rely on in court: This is perhaps the most important part of the caution as it is effectively a warning with regards to the approach that you take in the interview. As such it also serves as a reminder as to why it is so important that you seek legal advice and assistance when being investigated and subject to an interview under caution whether in your personal capacity or on behalf of a company or organisation.
- Anything you do say may be given in evidence: The interview will be audio recorded and in certain circumstances will also be video recorded. If the matter proceeds to court, the recording can be referred to during the proceedings and very often a transcript is produced.
Our expert lawyers at Olliers have considerable experience dealing with the full spectrum of investigations and indeed investigators and the various tactics they deploy during interview. We will ensure that you are not subject repetitive or oppressive questioning and will actively object to irrelevant or inappropriate questions on your behalf.
Whilst we appreciate that an interview is rarely going to be a pleasant experience for our clients, it is our job and our intention to make it as straightforward and stress-free as possible.
What happens after an interview under caution?
Following an interview under caution, you may be told that the matter is at an end and no further action will follow. It is, however, more often the case that the investigator(s) need to continue their enquiries including following up on points arising from the interview. In some cases, you may be told that you will be reported for a charge to be considered against you.
You could be requested to consent to taking part in an identification process, or to voluntarily surrender items such as an electronic device for forensic analysis. Such requests tend to be more common in purely criminal and police led investigations, as opposed to regulatory matters, although Trading Standards can often have a keen interest in website profiles, customer accounts and banking documentation whilst the HSE inevitably want to see evidence of workplace health and safety policies and procedures, so again it is absolutely critical that you seek legal advice and assistance at the earliest opportunity.
Will there be a prosecution?
For you to be prosecuted the relevant authorities need to be satisfied that firstly there is a realistic prospect of a conviction based upon the evidence. Secondly, a prosecution has to be in the public interest.
Engaging the team at Olliers could be the difference between you and/or your company being prosecuted and no further action being taken or possibly some other form of out of court disposal.
We recognise the potentially far-reaching consequences an investigation and worse still a prosecution can have on you and your business, particularly those within the Small and Medium –sized Enterprises (SME) sector.
We know that such circumstances can undermine the confidence that customers and staff have in you and the business; we understand the potential reputational and financial consequences including reduced work and increased insurance premiums, not to mention the potential costs in fines/compensation, if convicted.
It is for these reasons that, unlike many, we take such a pro-active approach to engaging not only with our clients but the investigators to achieve the best possible outcome, no matter what the circumstances may be.
Recent Cases
- Represented a health and safety consultant subject to investigation following the death of an employee at a haulage yard where the consultant had conducted a risk assessment. Drafted written submissions to the HSE who subsequently decided not to take any further action against the consultant.
- Represented the owner of a house in multiple occupation (HMO) following a fire at their property. Attended the interview under caution with the local Fire Authority which was followed up by written submissions and resulted in the matter being dealt with by way of a caution.
- Olliers represented a substantial IT part seller with a multimillion pound turnover. The company was subject to a Trading Standards investigation into the authenticity of computer accessories. A significant number of items were seized and notices were served under schedule 5 of the Consumer Rights Act 2015. This was a complex investigation which subsequently focused on General Product Safety Regulations 2005. Following a lengthy and protracted dialogue with the Trading Standards Team and the Local Authority Legal Department the investigation came to an amicable conclusion with our clients not even being interviewed under caution.
- Represented the owner of a takeaway under investigation following serious concerns raised during an environmental health inspection. Matter dealt with by way of a caution following representations.
- Olliers represented a substantial IT part seller with a multimillion pound turnover. The company was subject to a Trading Standards investigation into the authenticity of computer accessories. A significant number of items were seized and notices were served under schedule 5 of the Consumer Rights Act 2015. This was a complex investigation which subsequently focused on General Product Safety Regulations 2005. Following a lengthy and protracted dialogue with the Trading Standards Team and the Local Authority Legal Department the investigation came to an amicable conclusion with our clients not even being interviewed under caution.
- Representation of general manager of leisure company following death at holiday camp
If you have been asked to attend an interview under caution or respond in writing to allegations of regulatory misconduct or wrongdoing, please contact us on 0161 8341515 (Manchester) or 020 3883 6790 (London) or email info@olliers.com to arrange representation.
