interviewing suspects 2 procedure and law - me | tformal interview (i.e. not in a tape recorded...

Lesson 099

Metropolitan Police ServiceDirectorate of Training and Development

Police Constable Foundation Course

Interviewing Suspects2

Procedure and Law

Protective Marking RestrictedPublication Scheme Y/N NTitle Interviewing suspects 2 - Procedure and LawVersion 3Summary Recruit Lesson NoteBranch/OCU HR3(7)Author Mick EnglishDate created 28th January 2010Review date 28th January 2013

CST Police Constable Foundation TrainingInterviewing Suspects 2 - Procedure and Law/099 © Metropolitan Police Authority 28.01.10

Contents

Objectives ................................................................ 3

(1) The Caution and Inferences from a

Suspect’s Silence ................................................... 4

The Caution ............................................................. 4

When to Caution ..................................................... 5

Administering the Caution ..................................... 5

Explaining the Caution ........................................... 6

(2) Significant Statements (or Silences) and/or

Comments Relevant to the Offence ...................... 9

(3) Special Warnings and Inferences from

Suspects Silence, etc. ............................................ 11

The Right of Silence and the Provision of an

Account .................................................................... 12

Special Warnings under Sec. 36 and 37 of the

Act - When to Consider .......................................... 12

Specifying the Offence being Investigated .......... 19

Describing the ‘Fact’ in an Interview .................... 19

Separate Warning for each ‘Fact’ .......................... 19

Need to give Special Warning (Discretion)........... 20

© 2010 Metropolitan Police Authority.

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Subject to Crown Copyright. Enquiries telephone 020 8358 1668.

Lesson verified by The Crime Academy (SCD20) - January 2010.

CST Police Constable Foundation TrainingInterviewing Suspects 2 - Procedure and Law/099© Metropolitan Police Authority 28.01.10

This part of your Investigative Interviewing training examines variousaspects of the law and procedure relating to suspect interviews. Thislesson will focus on the rights of a suspect during interview. It isessential that you understand these, because if you don’t, the integrity ofany interview evidence gained, particularly confession evidence, will beundermined - as will your effectiveness as an investigator.

This lesson is divided into three parts:-

Part 1. The Caution and inferences from a suspect’s silence.

Part 2. Significant Statements and/or Relevent comments relating tothe offence.

Part 3. Special Warnings and Inferences from a suspect’s silence.

Objectives

After you have studied and understood this written lesson, you should beable to:-

Part 1.1. State the wording of the caution.

2. State five examples when a caution need not be given.

3. Explain the circumstances (conditions) when a court may drawinferences from a suspect’s failure to answer questions.

Part 2.1. Explain the term ‘significant statement’.

2. Explain the term ‘relevant comment’.

3. Explain the procedure for putting a significant statement or relevantcomment to a suspect during a tape recorded interview.

Part 3.1. Explain the elements of Sec 36 CJPO Act 1994.

2. Explain the elements of Sec 37 CJPO Act 1994.

3. Explain which five elements must be included in special warnings toenable inferences to be drawn.

When you have achieved the objectives listed above, and after yourtrainer has provided suitable learning experiences, you should be ableto:-

1. Complete an interview with a suspect.


Part 1.

The Caution and Inferences from a suspect's silence

Section 34, Criminal Justice and Public Order Act, 1994

When you were first introduced the Caution earlier in the Course(Prisoners 2 - Detention, Treatment and Questioning), the content wasin respect of:-

(a) arresting suspects, and, to a limited extent,

(b) questioning suspects who were not under arrest.

In this part of the course, the context is primarily in respect ofinterviewing suspects who have been arrested and detained at a policestation. Only the context has changed, not the words or meaning of thecaution, and as you will see, a person’s fundamental right of silence hasnot been removed.

This part of the lesson focuses on ensuring that a suspect beinginterviewed at a police station understands what the caution means, andthe possible consequences of not giving an explanation when asked.

The CJ and PO Act 1994 did not remove the right of silence, butintroduced Section 34. This allows a court to draw certain inferenceswhere a suspect is being questioned under caution, or on being chargedwith or formally reported for an offence, and they fail to mention anyfact which they later rely on in their defence during court proceedings;providing certain conditions (explained later) are complied with.

Where there are possible inferences available under Sec 34, theinvestigating officer is not to use them as part of the evidence whilstpreparing the case file, as such inferences can only arise at courtduring the proceedings.

In other words, correctly record the suspect’s responses, includingsilences, failures, refusals to answer, etc., but, leave it to others to raiseany ‘inference’ issues during the actual court proceedings.

The Caution

Under Section 34, the caution up until charge is:

“You do not have to say anything. But it may harm your defence ifyou do not mention when questioned something which you laterrely on in court. Anything you do say may be given in evidence.”


When to Caution

Code C. 10.1 requires that a person whom there are grounds to suspectof an offence must be cautioned before asking them questions abouttheir involvement or suspected involvement in an offence.

It is not only their answers that may be given in evidence to a court, butin certain circumstances, any silence, refusal or failure to answer aquestion, or failure to answer satisfactorily may also be given inevidence.

Code C. 10.1 also gives specific examples of when a caution need notbe given. This is when the questioning is for the sole purpose of:

• Establishing identity

• Establishing ownership of a vehicle

• A statutory requirement (e.g. provision of name and addressunder the Road Traffic Act).

• The proper and effective conduct of a search.

• Seeking verification of a written record eg. unsolicitedcomments (asdescribed in Code C.11.13)

Administering the Caution

Care should be taken when administering the caution to ensure that thesuspect is not given the impression that they must answer questions.Although minor deviations will not cause a breach of the Codes (C.10.4),it is recommended that the caution is read from the aide memoire(F988B) so that you do not take the risk of misrepresentation. (Form988B assists with the legal requirements of a tape-recorded interview andis further explained and reproduced in lesson notes:- InterviewingSuspects - 3 Tape Recording of Interviews.)

At this stage of an interview it is good practice to ask a suspect whetherthey understand the caution. If the answer is ‘no’, give an explanation inyour own words (Code C. Note 10D), but be careful that what is said isaccurate and cannot be misinterpreted.

It is equally important to check the understanding of a suspect whoindicates he/she understands the caution, by asking them to explain it intheir own words.


A suggested form of words to explain the caution was given. Can youremember it?

There are 3 parts to the caution;

1) “You do not have to say anything.

2) But it may harm your defence if you do not mention whenquestioned something which you later rely on in court.

3) Anything you do say may be given in evidence.”

Explaining the Caution

When explaining the caution in your own words all 3 elements need tobe dealt with to make sure the suspect gets the full message. Thefollowing is a summary of those elements,

1. The Right of Silence

This has not been abolished and a suspect cannot be made toincriminate themself. This means that each time you ask a question, thesuspect does not have to answer or say anything if they don’t want to.In other words, the suspect always has the right to say nothing.

2. Conditions whereby a Court may draw inferences from a failureto answer questions

The fact that a suspect has exercised his/her right to say nothing doesnot, as a matter of course, mean that inferences can or will be drawn.

It is only if certain conditions are met that inferences can be drawnfrom silence which may have the effect of harming the suspect’sdefence.

These conditions, which underpin the caution are:

IF the case goes to court (e.g. as a prosecution),

AND the defence makes use of something which was notmentioned in the interview, i.e., the defence deny theallegation by relying on something which police have notbeen informed of during the interview - an ambushdefence.

AND in the circumstances, the court thinks the suspect shouldhave mentioned it in the interview i.e. the suspect hadbeen given the chance to give his/her own explanationbut chose not to, as is his/her right, and the court can’tsee a good reason for not giving that explanation,


THEN the court can draw its own conclusions about how muchnotice to take of this new information e.g. a court mightperhaps wonder why an apparently innocent explanationwas not given earlier so as to give the police a chance tocheck it at the time, and the court may be less likely tobelieve it because it was withheld.

3. The record which will be made and how it can be used.

This means that if the suspect does answer any questions or sayanything about the offence, the words spoken will be recorded. Therecord of what takes place in the interview may be read out or played incourt.

It must be remembered that - Suspected persons still retain aRight of Silence.


Part 2.

Significant Statements (or silences) and/or Comments relevant to theoffence.(ificant Statements (or Silces) /or thfence(ificant Statements (or Silces) /or thfence(ificant Statements (or Silces) /or thfence(ificant Statements (or Silces) /or thfence(ificant Statements (or Silces) /or thfence(Code of Practice, C. 11.4, 11.4A, 11.13 and 11E)Often during your investigation, upon arrest, or on the way back to thepolice station in a police vehicle, a suspect may say something whichyou consider to be either significant, in that it could be used in evidenceagainst the suspect, or relevant to the offence generally.

These statements or comments could be crucial to the eventual outcomeof the case, and as they will have been made outside the context of aformal interview (i.e. not in a tape recorded interview room), it isimportant to learn how they should be recorded and preserved asevidence.

(A) Significant Statements

The Codes tell us that a ‘significant’ statement is one which appearscapable of being used in evidence against the suspect, in particular adirect admission of guilt.

For example, if on arresting a suspect for burglary and cautioninghim, the suspects says:

“I’m very sorry. I knowI shouldn’t have done it.”

significant.

Or, on the way back to a police station in the back of a police van, thesuspect says,

“I thought I had got away with it”.

significant, as this is clearly incriminating evidence.

Such statements are capable of being used in evidence against thesuspect. However, the problem is how to record them in such a way asto preserve the reliability/integrity of that bit of evidence for use in anyfuture court proceedings. The answer is quite straight forward, becausein some ways you have been doing it already!

Remember your notes of arrest?


As soon as practicable record what has been said by the suspectincluding the time, the place, persons present, and then ask the suspectto endorse the record with words such as:-

"I agree that this is a correct record of what was said".

The only additional procedure is highlighted in Code C 11.4, which saysthat at the beginning of an interview at the police station, and aftercaution, any such statements should be put to the suspect. You willhave the opportunity to practice this during your suspect interviewpracticals.

Significant statements recorded and preserved in this way are lesscapable of any serious challenge during court proceedings.

(B) Significant Silences

It is important to remember no inference can be drawn on any ‘silence’prior to a person being cautioned.

A ‘silence’ can only be significant if it occurs during an interview aftercaution, which will rarely occur outside a police station.

However, this should not stop you making the fullest possible record ofthe circumstances, which will include where the person does not respondto questions.

(C) Relevant comments, including unsolicited comments.

The final part of this section deals with comments made by a suspectoutside the context of an interview, which whilst not being ‘significant’may nevertheless still be relevant to the offence (e.g. a denial or analibi).

"It wasn’t me, I was with a friend at the time",

or, having arrested a suspect and on going to a police station in a policevan, the suspect, without any prompting/questioning from you (i.e.unsolicited), says,

"Talk to Johnny Speight. He'll be able to help you".

Whilst neither statement can be used in evidence against the suspect atthat time (i.e. not ‘significant’), they are both at least relevant to theoffence, and therefore a written record must be made as previouslydiscussed, and in accordance with Code C. 11.13.

Finally, there will be occasions where what starts out looking merely‘relevant’ later becomes ‘significant’, e.g. an alibi which is later disproved.However, for practical purposes it is recommended that relevant andsignificant information be treated in the same manner.


Part 3.

Special Warnings and Inferences from Suspects silence, etc.gs andSuspectilence,Sections 36 and 37, Criminal Justice and Public Order Act 1994(Codes C 10.10 and 10.11)

Having considered the previous part of this lesson in respect of cautions(Sec. 34), you can probably imagine that it may be compared with ageneral warning to a suspect, which does not remove a person’s right tosilence, but points out that there could be consequences to not offeringan explanation at the time of being asked.

Special Warnings have a similar albeit more precise and immediateeffect, relating specifically to a suspects possession of objects,substances or marks when arrested (Sec. 36), and/or their location onbeing found and arrested (Sec. 37).

The relationship between Sec. 34 and Sec. 36/37 is in the way in whichinferences may be drawn by a court/jury, in the event of a defendantoffering an explanation not previously disclosed during an interview, oron being charged.

With Sec. 34, police are essentially limited to ensuring that any recordsof interview are produced and maintained in accordance with the Codesof Practice, leaving a court or jury to decide whether or how muchweight to give a previously undisclosed explanation.

Sec. 36/37 however, provides specific challenges which can be made bypolice whilst interviewing a suspect. In the event of a suspect notproviding an account, as well as forming a part of police evidence, insubsequent court proceedings the prosecution may invite a court/jury todraw their own conclusions as to why an explanation was notforthcoming.

The Special Warning itself is not a set form of words, although specificpoints have to be explained but simply a way of defining the proceduresto be followed, in order to ensure that during an interview a suspect isaware that he needs to consider very carefully the consequences of notanswering particular questions about specific facts.


The Right of Silence and the Provision of an Account

Sections 36 and 37 are all about the Right of Silence which has notbeen removed. The Act provides a right of comment on a suspectssilence in the particular circumstances previously discussed. In effect,they say:

“Whilst you have the right to remain silent and no one can forceyou to speak, in these very narrow circumstances the facts,standing by themselves, potentially point to your involvement or guiltand therefore call for an explanation. If you do not give anexplanation, it is likely to count against you, as the court or jurymay well consider that you did not give an explanation because youhad no innocent explanation you could give.”

That is the essence of the Special Warning and it is structured topersuade someone who is not giving an account to do so in these veryspecific circumstances.

As may be seen later, by ‘account’ we mean a response which is notvague or silly, but is reasonably detailed and appears to provide apossible explanation, whether or not the interviewer personallybelieves it.

If such an account is given, a Special Warning is not relevant as itexists to persuade someone who is not giving an explanation to doso.

Any account given will need to be tested against what the interviewingofficer already knows or what can reasonably be established in order totry to discover the truth.

If the account checks out, or cannot be disproved, it stands. There maybe no need for further questioning, or indeed sometimes, for any otheraction in respect of this suspect. Certainly there is no place for aSpecial Warning. If the account turns out to be false, that in itself willnot make a Special Warning relevant. The account should be probed ina further interview. Thereafter it stands on its own as potentiallyincriminating evidence.

Special Warnings under Sec. 36 and 37 of the Act - When to Consider

When a suspect who is interviewed after arrest fails or refuses tosatisfactorily answer certain questions, after due warning, a court or jurymay draw such inferences as appear proper under Sec. 36 and 37 of theAct.


Sec. 36

This applies when:

“Where a person is arrested by a constable and there is:

(i) on his person; or

(ii) in or on his clothing or footwear; or

(iii) otherwise in his possession; or

(iv) in any place in which he is at the time of his arrest,

any object, substance or mark, or there is any mark on any such object”,and the person fails or refuses to account for the presence of the object,substance, or mark.

Points to consider

The suspect must have been arrested first - what counts is his‘possession’ of objects etc., when arrested.

Object, Substance or Mark

Have their normal dictionary definition, and includes possession of ‘goingequipped’ items, weapons which may have been used to commitoffences, property which represents the proceeds of crime, and controlleddrugs.

Examples could include:

! pliers hidden in sock

! cut to hand

! scratches on face

! tear on trousers

! blood stains on shirt

! fragments of glass in boots

! mud on shoes

! car radio hidden under hedge nearby

! proceeds of crime in a lock up garage


Otherwise in his Possession

We have to be a little cautious here and consider this phrase in thesame light as “possession” for “going equipped/offensive weapon”offences. Effectively this will therefore refer to articles which the suspect“has with them” at the time of arrest.

However, to establish constructive possession when the suspect is foundsome distance away from the object in question, additional evidence maybe required to show a clear incriminating link between the object andthe suspect’s responsibility for, and knowledge of it. Consider thefollowing example:

Bloggs is arrested in the town centre for possession of cannabis.Simultaneously his home is searched and some heroin found and seized.During interview Bloggs fails to account for the heroin.

Now, whilst evidence of Bloggs’s occupation and control of the house isenough to suspect his constructive possession of the heroin, it may notbe enough to show a clear incriminating connection to it. Theevidence links Bloggs to the house but not directly to the heroin.

The absence of further evidence linking him to the heroin may negatethe possibility of giving a valid special warning. In this case theadditional evidence might be an ‘observation log’ which shows that onlyBloggs had access to the house at the material times and that no oneelse could be responsible for the drugs.

A clear incriminating link would now have been established and a specialwarning could fairly be given

Do not forget that a ‘clear incriminating link’ may be established duringthe interview itself. For example, let’s imagine that we haven’t got theluxury of an observation log in the Bloggs case. Going into theinterview, all we have is suspicion that the heroin was ‘otherwise in thepossession’ of Bloggs.

Before we can be sure of being able to give a special warning we wouldneed to turn that reasonable suspicion into a clear incriminating link.We could do this by asking Bloggs appropriate questions during theinterview - who has keys to the house, who else has access etc.?Depending on Bloggs’s answers, we may establish the necessary link.


Fingerprints and Scenes of Crime Samples

This type of forensic evidence can be invaluable to your investigation,interview and Special Warnings. However, it is important to rememberthat suspects’ fingerprints may only be used for Sec.36 purposes, if theyare found on objects in a suspect’s possession when arrested, or foundat the place of arrest.

Similarly, samples of a suspect’s blood, semen or hair, if found at theplace of arrest, may be used.

Don’t forget, in particular crimes of violence, not only may such suspectsamples be found on the victim, but the reverse is also true - victim’ssamples ‘on’ suspect.

However, fingerprints or samples left by suspects at scenes of crime donot fall within Sec. 36 if the suspect is arrested elsewhere.

Sec. 37

“Where a person arrested by a constable, was found by him, at aplace, at or about the time the offence for which he was arrested isalleged to have been committed, and the person fails or refuses toaccount for his presence at that place”.

Points to Consider

The arresting officer must be the finding officer, but not necessarily thefirst finding officer.

Don’t get too alarmed by this statement as it is quite possible theremay be more than one ‘finding’ officer.

e.g. You and a colleague attend a ‘suspects on’ call. You go to thefront of the house, your colleague to the rear. You see the suspect runout of the front door.

At this stage, you have ‘found’ the suspect.

The suspect runs down an alleyway at the side of the house and intothe arms of your colleague.

Who has now also ‘found’ the suspect.

No doubt one of you will arrest!

What is important to remember is the location and timing of the ‘finding’.


To be considered ‘found’ the suspect must be found either at the sceneor nearby in the immediate vicinity, and at or about the time of thealleged offence.

Consider the following scenario:-

You see a suspect leaving the scene of a crime at about the time of theoffence (i.e. you have ‘found’ the suspect).

You pursue the suspect for some distance - over walls, fences, hedges,canals etc. Whilst doing this you manage to radio information to yourcolleagues who catch the suspect.

If your colleagues arrest the suspect they would not be considered‘finding’ officers for the purposes of Sec. 37.

If you arrest the suspect, having previously ‘found’ him ‘at the scene, ator about the time’, then Sec. 37 could apply.

At a Place

Sec. 38 of the Act defines a ‘place’ as:

“Including any building or part of a building, any vehicle, vessel, aircraftor hovercraft and any other place whatsoever.”

This covers most eventualities, particularly motor vehicles. Therefore itcould apply to a suspect found in a stolen car well away from the sceneof the actual crime; because in this case the suspect continues tocommit the offence.

Therefore, in such a case, whenever you stop the vehicle, you areconsidered to be ‘finding the suspect at a place at the time of theoffence’.

Arrest follows and Sec. 37 could apply.

“Failure and Refusal”

Remember, Special Warnings under Sec 36/37 can only be used if asuspect fails or refuses to account for the fact about which he is beingquestioned.


The important words are ‘failure’ and ‘refusal’.

So proper inference may be drawn if, after due warning, a suspect:

• fails to answer a certain question or

• refuses to answer certain questions or

• fails to answer them satisfactorily or

• refuses to answer them satisfactorily

Each of those four scenarios equals a failure or refusal to comply with apolice officer’s request to give an account in respect of particular facts.

A complete non-answer is easy to understand. It is the suspectexercising the right of silence and either saying nothing or stating theequivalent of ‘no comment.’

Reference to the unsatisfactory answer emphasises that sometimeswords are said in response to the question (so that there is an answer),but those words do not amount to an account or explanation. So a replywhich is silly or flippant, does not amount to an explanation.

"The stolen property is nothing to do with me. Donald Duckdropped it in my bag just before you arrived"

A reply which never gets beyond the too vague stage, even with furtherquestions, does not amount to an explanation.

"I don’t know how I got it, I’ve had it for ages, I don’t knowhow long, or who I got it from.”

We are not talking about an account the interviewer does not believe orthink should be accepted, but a reply which is so meagre it does notbegin to be an account at all.

One way of looking at it is to forget the additional words and justconcentrate on the concepts of ‘failure’ and ‘refusal’ as they relate toother statute, i.e. the Road Traffic Act, 1988, with the offence of failingwithout reasonable excuse to provide a specimen. ‘Fail’ includes‘refuse.’


Giving a Special Warning

Elements to be Included within a Special Warning(Code C 10.11)

For an inference to be drawn from a suspect’s failure or refusal toanswer a question in these circumstances, or to answer it satisfactorily,the interviewing officer must first tell them in ordinary language:

(1) what offence he is investigating;

(2) what fact he is asking the suspect to account for;

(3) that he believes this fact may be due to the suspect’s taking part inthe commission of the offence in question;

(4) that a court may draw a proper inference if he fails or refuse toaccount for the fact about which he is being questioned;

(5) that a record is being made of the interview and that it may begiven in evidence if he is brought to trial.

Some elements of the warning must be given at the start of an interview,in particular element (1) what offence the officer is investigating, andelement (5) that a record is being made of the interview and that it maybe given in evidence if they are brought to trial.

By informing a suspect of these two elements at the start of aninterview, it is only necessary to give the three remaining elements of thespecial warning for each fact about which the court may draw aninference and for which the interviewer requires the suspect to account.

For example:

“This necklace labelled GLC/1 was found in your pocket at the timeof your arrest. I believe your possession of the necklace may bedue to you having taken part in the burglary at 10 The Avenue. Iam going to ask you questions about your possession of thatnecklace. I must warn you that if from now on you fail or refuse toaccount for your possession of the necklace a court may draw theirown conclusions why you have not done so. How did the necklacecome into your possession?”

“You have been arrested on suspicion of having committed aburglary at 10 The Avenue. You were found by the arresting officerin The Avenue about 1 am Tuesday morning shortly after theburglary is alleged to have been committed. I believe you werethere because you may have just taken part in that burglary. I amgoing to ask you some questions about how you came to be thereat that time. I must warn you that if from now on you fail or refuseto account for your presence at that place, a court may draw theirown conclusion. Why were you in 'The Avenue' at that time?”


Specifying the Offence being Investigated

The offence must be described in ordinary language. Consideration mustbe given to those legal terms which might mean something different tothe suspect. For example ‘burglary’ could lead to one charge underS.9.1(a) or separate charges of theft, GBH or criminal damage.

An example of such an explanation could be:

“a burglary in which a house was broken into, one of the occupantsstabbed with a carving knife, and jewellery stolen”

Describing the ‘Fact’ in an Interview

In an interview, objects, marks or substances etc. which are availableshould normally be shown to the suspect if this can be done safely or aphotograph or relevant documentary evidence (e.g. forensic report). Inall cases, circumstances under which the item was found must bedescribed.

In giving the warning there is no need to identify the item as an ‘object’,‘mark’ or ‘substance’

An example could be:

“This green checked jacket labelled JLM/1 with a torn right sleevewas found under your bed”

where the suspect is asked to account for the tear which is believed tohave been caused during an assault.

Separate Warning for each ‘Fact’

As a general rule, warnings should be given for each fact the suspect isasked to account for.

This is to ensure that suspects cannot claim to have misunderstoodwhether the Special Warning applies to the particular fact that they havebeen asked to account for, and to leave no doubt as to which failure/refusal or unsatisfactory answer relates to which fact.


In the case of objects and marks etc., if several different facts relate tothe same offence, those which are similar may be grouped together.e.g. If 10 items were stolen from one premises and are recovered fromthe same location then they could be grouped within one warning.

Interviewing officers must make it clear to suspects that they are beingasked to account for all the specified ‘objects.’

Need to give Special Warning (Discretion)

The existence of facts to which Sec. 36 or Sec. 37 apply does not meanthat a warning must be given in every case as a matter of course whenasking the suspect to explain.

It is for interviewing officers to decide whether, and when, to give thewarning.

Finally, if an account is given by the suspect after a Special Warning, itwill usually entail further probing of that account in accordance with thePEACE model.


End ofLesson

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