There is a great deal of uncertainty about how to deal with a police interview. Most people I deal with are facing one for the first time in their lives and it can be daunting. Many know the basic choice, either to answer questions or to decline to. That is often described as a “no comment” interview. The decision to answer questions or not is an important one as it can have a huge impact on what comes after. Too often I see recordings of interviews in which suspects have been given simplistic and wrong advice about how to answer questions.
Police often interview drivers when investigating offences of dangerous and careless driving, and drink and drug driving. Sometimes they take place immediately after an incident and at other times much later after other witnesses have been spoken to. There is no “normal”.
All interviews are recorded and so manner and attitude are important. That applies to both the person being interviewed as well as the advising solicitor.
People often ask:
Do I have to be interviewed, and can I refuse?
What do I say?
Do I answer all the questions or just some of them?
What if I incriminate myself?
Can I put in a written statement instead of answering questions?
It is important to understand that the interview is part of a process which may end in court with a recording played in the courtroom. That may happen many months later. My role as solicitor attending an interview is to understand the part it will play in the entire process and to advise on the correct way to approach it. A poorly conducted interview can be very damaging at a later stage. Equally a well conducted interview can limit damage and even lead to a decision not to prosecute in the first place. If a trial does take place at a later stage I can help by making sure everything is said that should be so that it looks its best at trial.
Interviews always take place under caution, but sometimes they follow an arrest and sometimes someone may simply be asked to answer questions as a volunteer where they are not under arrest. If someone refuses to be interviewed police can arrest so generally a refusal isn’t helpful. It doesn’t look good later on.
Whether under arrest or not, the approach needs to be the same.
It is very common to be anxious about answering a question incorrectly, not answering it at all, or not saying enough. Interviews generally take place because police are investigating involvement or suspected involvement in a criminal offence and it is natural to want the interview to show that there really was no involvement, or to show that such involvement wasn’t as bad as the police might thinkbased on what others have said. This is particularly the case with road accidents. Usually police have information from other sources before the interview takes place and people often ask if there is a right to see it. The answer isn’t straightforward.
One of the most frequently asked questions I encounter is whether or not it is worth having a solicitor present during the course of the interview. Having participated in very many over the years I am in no doubt that it can be extremely helpful. Whilst police must follow certain guidelines in order to ensure someone’s rights are fully protected, professional representative can make sure those guidelines are followed. More than that however, I very often help people make sure they don’t forget to say something that might be important. It’s easy to do that when you’re anxious. The officer conducting the interview is unlikely to be the person who decides what action should follow, but he will make a report to the person who does make the decision. Providing information in the correct way can very often have an effect on the way that such a report is prepared.
Some basic principles will help understand the interview framework.
Legislation has long permitted the police/prosecution to invite the court to draw an adverse inference from a refusal to answer questions. However, the difficulty in court is not necessarily created by the failure to answer questions, but by the failure to disclose facts which are later on relied in court. People very often decide that they are not going to answer any questions at all, and that may not be the best approach.
My role is solicitor is to first to find out from my client exactly what they know about a given set of circumstances which usually enables me to quickly understand and anticipate what the police are going to ask. I am usually able to confirm this through the provision by police of what is called “disclosure”.
Police must provide enough information before an interview takes to enable someone to understand what they are supposed to have done. I am able to check there has been enough disclosure. Always better to know as much as possible particularly if police want to limit what they disclose.
I can help decide whether to make a written statement in advance and what it should say. It is a document that can be referred to in interview helping to avoid missing something out or making a mistake.
I can help decide at what stages it might be desirable to have a break and rethink an approach to the interview.
These are all matters of judgment which I can make based on experience. There is no one single answer and each case will be different. Getting the interview right can have a huge impact on anything that comes after.