Interviews under caution
Interviews under criminal caution are a common feature of almost all criminal investigations, no matter how serious or trivial the offence being investigated. The question of whether and how to respond to questions in the interview will invariably have a profound impact on the future course of an investigation, including the likelihood of prosecution. At Reynolds Dawson we have a wealth of experience in advising clients how best to prepare for such interviews whether with the police, IPCC, Military police, or other agencies and authorities. Our aim in preparing clients for interview is to reduce the risk of prosecution or alternatively in certain circumstances to seek to mitigate the position.
Interviews should only be conducted under criminal caution where the investigator has grounds to suspect the commission of a criminal offence by the person being interviewed. There is a requirement that details should be disclosed sufficient to enable the individual suspected to understand why they are suspected of the particular offence alleged.
In an interview under criminal caution anything the interviewee says can be used as evidence against them in a criminal trial, however if the interviewee declines to answer questions, that silence can in certain circumstances be used as evidence. The question of whether an ‘adverse inference’ should be drawn will be a decision for a Court or Panel on a later date (if the case proceeds further) after hearing evidence and representations as to the relevant circumstances.
The options in responding are threefold; either to answer all questions, not to answer any questions, or to respond by way of a prepared response. It is important to take the right approach at interview, and the advice in each case will be tailored to the unique circumstances, instructions, and other relevant factors then known. Similarly, advising as to what should be included in a prepared response involves experience, judgement, and skill.
Interviews commonly occur following an arrest; alternatively an interviewee can be invited to attend for an interview. Some investigations are more protracted and complex than others and there may be a series of interviews. Ultimately there is a decision as to whether the case should proceed further.
Some cases can only be decided at the Magistrates’ Court, these are known as ‘summary only’ offences; some must be heard at the Crown Court, these are ‘indictable only’, and some can be heard at either the Magistrates’ or Crown Court depending upon the circumstances, these are known as ‘either way’ offences. As you may expect the more serious allegations are indictable only offences and can only be decided in the Crown Court. In relation to both summary only and either way offences alleged, you will first be asked at the Magistrates’ Court what your plea is. This is obviously a vitally important decision. You are entitled to advance information from the Prosecution before entering a plea.
If a not guilty plea is entered, the next question for summary only offences is when the trial should be and the completion of a pre-trial hearing form. This requires amongst other details, an outline of your defence and any witnesses you intend to reply upon.
If the alleged offence is either way the next issue is where the case should be heard – Crown Court or Magistrates’ Court. At this point the Court hears representations from prosecution and defence and initially decides whether to accept jurisdiction. If the Court accepts jurisdiction and is therefore of the view that the case can be heard in the Magistrates’ Court the question will then be asked as to whether you agree to the Magistrates’ Court deciding the case or whether you wish to elect to have the case decided by a jury at the Crown Court. If however the Magistrates decline jurisdiction there is no choice offered and the case is sent to the Crown Court.
Indictable only cases will still require an initial appearance before the Magistrates’ Court who will then send the case to the Crown Court.
There are sometimes a number of evidential and tactical points to consider and discuss from an early stage. Indeed, in many cases the strategy starts at the interview stage.