Can assumptions and questions be repeated in a police interview? And what are the dangers to submitt
There are set policies from which the interviewing officer follows in order to obtain information from suspects. The following principles are set by the Metropolitan Police Policy Statement, which is aimed to gather accurate information from suspects, witnesses and victims. Each of the following principles will be given its own principle number for further discussion below;
1 - The aim of investigative interviewing is to obtain accurate and reliable accounts from victims, witnesses or suspects about matters under police investigation.
2 - When conducting an interview, investigators are free to ask a wide range of questions in order to obtain material, which may assist an investigation. They are not limited to asking questions aimed at gathering evidence but they should ensure that the questions asked are appropriate to the case and can be justified to others.
3 - Investigators will not know whether a suspect is guilty of an offence. They have a responsibility, however, to provide them with an opportunity to give an account, which may include a voluntary admission of guilt.
4 - Investigators are not bound to accept the first answer given. Questioning is not unfair merely because it is persistent.[1]
When the OIC wished to repeat his questions that he has already posed, even if the wording of the question has changed, he must explain his reason for doing so. The main reason why the OIC should repeat already posed questions is to clarify their response given to the particular questions.[2]
Code C 11.6(a) of the Police and Criminal Evidence Act 1984 Codes of Practice mentions that the interview must stop when the OIC is satisfied that all relevant information has been obtained accurately and reliably. It states;
11.6 - The interview or further interview of a person about an offence with which that person has not been charged or for which they have not been informed they may be prosecuted, must cease when:
(a) the officer in charge of the investigation is satisfied all the questions they consider relevant to obtaining accurate and reliable information about the offence have been put to the suspect, this includes allowing the suspect an opportunity to give an innocent explanation and asking questions to test if the explanation is accurate and reliable, e.g. to clear up ambiguities or clarify what the suspect said
In relation principle 1, mentioned above, the OIC from the current hypothetical thought it is necessary, in order to clarify the suspects account, to pose questions which had already been asked. Is it right to argue that the OIC thought it was necessary to do so, in order to obtain and accurate and reliable account from the suspect? Yes it is.
In relation to principle 2, mentioned above, the OIC is free to ask a wide range of questions in order to obtain material, which may to insist in the investigation. He is not limited, also, to asking questions, which is aimed to gather evidence providing they are appropriate to the case. Is it right to argue that the OIC repeated questions already posed to the suspect because he thought it may insist in the investigation, and thought it was appropriate to do so? Yes it is.
In relation to principle 3, mentioned above, the OIC has a responsibility to provide the suspect with an opportunity to give an account. Is it right to argue that the OIC repeated his questions, to prove the suspect another opportunity to give an account? Yes it is.
In relation to principle 4, mentioned above, the OIC is bound not to accept the first answer given. This principle also states that questioning is not unfair merely because it is persistent. Is it right to argue that the OIC repeated his questions fairly, and because he is bound not to accept the first answer given? Yes it is.
If the OIC is satisfied that all information relevant to the investigation has been obtained accurately and reliably, as mentioned in Code C 11.6 (a) above, then the interview must stop.
Questions, which the OIC wish to repeat, are fare when they are not repeated unnecessarily, however questioning is merely persistent; and it is necessary in order to clarify accounts.
What at the dangers for the defence in submitting pre-prepared statements?
During a re-commencement of the interview, the solicitor reads out a pre-prepared statement. Although this prevents the likeliness for the prosecution drawing an adverse inference, there are risks to doing this. However, there is no telling from the facts given in the current hypothetical that the suspect has lied in his pre-prepared statement. It will be assumed, however, that the suspect did not answer any questions during the interview but just submitted a pre-prepared statement. This argument will not base on any assumption that the suspect has lied, just merely the dangers of submitting a pre-prepared statement.
Section 34 of the Criminal Justice and Public Order Act 1994 allows an adverse inference to be drawn from failure to mention facts in a police interview. Section 34 (1) and (2) of the Criminal Justice and Public Order Act 1994 states;
(1) Where, in any proceedings against a person for an offence, evidence is given that the accused—
(a) questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings;
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies—
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.
An adverse inference cannot be drawn if a pre-prepared statement has been given to the OIC during the interview and then the accused wishes exercise his right to silence.[3] In R v Knight,[4] the defendant handed a pre-prepared statement at a police interview then refused to answer any questions posed by the police in that interview. The Judge in that case directed the jury that an adverse inference can be drawn from the refusal to answer questions. It was held in that case, however, allowing the appeal, no adverse inference can be drawn from his refusal to answer further questions regarding the incident.
An adverse inference, however, can be drawn if the suspect gives evidence that is inconsistent with the pre-prepared statement.[5] This means that it is possible than an adverse inference can be drawn from a pre-prepared statement. In R v Knight,[6] Laws LJ stated; ‘We wish to make it crystal clear that of itself the making of a pre-prepared statement gives no automatic immunity against adverse inferences under section 34.’
In R v Turner,[7] the appellant appealed against his conviction for wounding with intent to cause grievous bodily harm. During most of the questioning in his interview, he answered “no comment”. His solicitor then submitted a pre-prepared statement. The appeal was allowed and it was held that the judge should have compared the appellants evidence at trial with his prepared statement to see if he had relied on any fact not mentioned in his statement, then an adverse inference could have been drawn, then the judge should direct the jury about it.
Although there may be an advantage of submitting a pre-prepared statement, there is a risk of doing so. Because it is assumed that the suspect did not answer any questions in the interview, failure to mention facts is a risk to the defence and may effect the outcome of a trial. One of the risks of submitting a pre-prepared statement is that the prosecution can draw an adverse inference if the suspect mentions any fact that is not presented in his pre-prepared statement, which would have been reasonable to include in the pre-prepared statement during the time of the interview. [8] Questions are posed to the suspect to give them an opportunity to give an account of the incident at issue, even when the right of silence is being exercised and a pre-prepared statement has been submitted. The suspect should take full consideration of this opportunity, and should be aware that the danger of not mentioning facts in the interview may lead the jury, if taken to trial, to draw an adverse inference of this.
Bibliography
Books
Ord B, Shaw G, and Green T, Investigative Interviewing Explained (3rd, LexisNexis Butterworths, Chatswood, N.S.W. 2011)
Ozin P, Norton H and Spivey P, PACE: A Practical Guide to the Police and Criminal Evidence Act 1984 (3rd, Oxford University Press, Oxford 2013)
Cases
R v Emmerson (1990) 92 Cr App R 284
R v Fulling [1987] QB 426
R v Knight [2003] EWCA Crim 1977
R v Samuel [1988] 1 QB 615
R v Turner [2003] EWCA Crim 3108
Documents
Police and Criminal Evidence Act 1984 Codes of Practice
Legislation
Police and Criminal Evidence Act 1984
Theft Act 1968
Websites
http://www.cps.gov.uk/legal/a_to_c/adverse_inferences/#a11
http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/robbery/
http://www.cps.gov.uk/publications/docs/best_evidence_in_criminal_proceedings.pdf
http://www.hrcr.org/safrica/arrested_rights/R_Samuel.htm
http://www.legislation.gov.uk/ukpga/1984/60/data.pdf
http://www.met.police.uk/foi/pdfs/policies/investigative_interviewing_policy2012.pdf
https://www.app.college.police.uk/app-content/investigations/investigative-interviewing/
https://www.app.college.police.uk/app-content/investigations/investigative-interviewing/#section-34
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/293597/Interviewing_suspects_v3.0_EXT.pdf
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/364708/PaceCodeC2014Print.pdf
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/265200/oeachapter38__1_.pdf
References
[1] Crime Academy and Review Group, 'Investigative Interviewing Policy' (Metropolitan Police 2012) <http://www.met.police.uk/foi/pdfs/policies/investigative_interviewing_policy2012.pdf> accessed 25/04/2015
[2] Ministry of Justice, 'Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures' (Crown Prosecution Service 2011) <http://www.cps.gov.uk/publications/docs/best_evidence_in_criminal_proceedings.pdf> accessed 25/04/2015
[3] R v Knight [2003] EWCA Crim 1977
[4] [2003] EWCA Crim 1977
[5] R v Knight [2003] EWCA Crim 1977
[6] [2003] EWCA Crim 1977
[7] [2003] EWCA Crim 3108
[8] R v Turner [2003] EWCA Crim 3108
