Police Interviews

 

Police Interviews

 

Tape Recording or Visual Recording

With the Visual recoding side to interviews, lies under Section 60 and 60(A) with the code of practice being E and F to follow in the Police and Criminal Evidence Act 1984.

Section 60 sets out that it shall be the duty of the Secretary of State to issue a code of practice in connection with the tape-recording of interviews of persons suspected of the commission of criminal offences which are held by police officers at police stations and to make an order requiring the tape-recording of interviews of persons suspected of the commission of criminal offences, or of such descriptions of criminal offences as may be specified in the order, which are so held, in accordance with the code as it has effect for the time being.

An order shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Section 60(A) states that the Secretary of State shall have power to issue a code of practice for the visual recording of interviews held by police officers at police stations to make an order requiring the visual recording of interviews so held, and requiring the visual recording to be in accordance with the code for the time being in force under this section.

A requirement imposed by an order under this section may be imposed in relation to such cases or police stations in such areas, or both, as may be specified or described in the order.

Orders made shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.  In this section references to any interview are references to an interview of a person suspected of a criminal offence and references to a visual recording include references to a visual recording in which an audio recording is comprised.

Rights of an Interviewee

The police may question you about the crime you’re suspected of committing, this will be recorded visually or verbally under Code of practice E and F. The suspect does not have to answer the questions but there could be consequences if they do not. The police must explain this to you by reading you the police caution of:

“You do not have to say anything. However, 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”

Appropriate adult

This section relates to suspects under the age of 18, and their evidence being destroyed if they are not convicted this section lies under Section 64ZE, 64ZF, 64ZG, 64ZH and 64ZI. With the Code of Practice being code C.

This section applies to material relating to a person who has no previous convictions or only one exempt conviction, is arrested for or charged with a recordable offence other than a qualifying offence, and is 18 or under at the time of the alleged offence.

Material falls within this subsection if it is the fingerprints or impressions of footwear taken from the person in connection with the investigation of the offence, or a DNA profile derived from a DNA sample so taken.

The material must be destroyed if the case of fingerprints or impressions of footwear, before the end of the period of 3 years beginning with the date on which the fingerprints or impressions were taken, in the case of a DNA profile, before the end of the period of 3 years beginning with the date on which the DNA sample from which the profile was derived was taken (or, if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken).

However if, before the material is required to be destroyed by virtue of this section, the person is arrested for or charged with a recordable offence where the person is aged 18 or over at the time of the alleged offence, the material may be further retained until the end of the period of 6 years beginning with the date of the arrest or charge, where the alleged offence is not a qualifying offence, and the person is aged under 18 at the time of the alleged offence, the material may be further retained until the end of the period of 3 years beginning with the date of the arrest or charge,

Where the alleged offence is a qualifying offence, and the person is aged under 16 at the time of the alleged offence, the material may be further retained until the end of the period of 3 years beginning with the date of the arrest or charge, where the alleged offence is a qualifying offence, and the person is aged 16 or 17 at the time of the alleged offence.

The material may be further retained until the end of the period of 6 years beginning with the date of the arrest or charge, in the case of the person is convicted of the offence or the offence is not a qualifying offence, if the person is aged under 18 at the time of the offence, and the person has no previous convictions the material may be further retained until the end of the period of 5 years beginning with the date of the arrest or charge.

This section ceases to have effect in relation to the material if, before the material is required to be destroyed by virtue of this section, if the person is convicted of a recordable offence and is aged 18 or over at the time of the offence and is convicted of a qualifying offence, or having a previous exempt conviction, is convicted of a recordable offence.

This section applies to material falling within subsection above relating to a person who has no previous convictions or only one exempt conviction and is arrested for or charged with a qualifying offence, and is aged under 16 at the time of the alleged offence.

Material falls within this subsection if it is fingerprints or impressions of footwear taken from the person in connection with the investigation of the offence, or a DNA profile derived from a DNA sample so taken.

The material must be destroyed in the case of fingerprints or impressions of footwear, before the end of the period of 3 years beginning with the date on which the fingerprints or impressions were taken and in the case of a DNA profile, before the end of the period of 3 years beginning with the date on which the DNA sample from which the profile was derived was taken (or, if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken).

But if, before the material is required to be destroyed by virtue of this section, the person is arrested for or charged with a recordable offence where the person is aged 18 or over at the time of the alleged offence, the material may be further retained until the end of the period of 6 years beginning with the date of the arrest or charge, where the alleged offence is not a qualifying offence, and the person is aged under 18 at the time of the alleged offence,

The material may be further retained until the end of the period of 3 years beginning with the date of the arrest or charge, where the alleged offence is a qualifying offence, and the person is aged under 16 at the time of the alleged offence, the material may be further retained until the end of the period of 3 years beginning with the date of the arrest or charge, where the alleged offence is a qualifying offence, and the person is aged 16 or 17 at the time of the alleged offence,

The material may be further retained until the end of the period of 6 years beginning with the date of the arrest or charge, where the person is convicted of the offence or the offence is not a qualifying offence, the person is aged under 18 at the time of the offence, and the person has no previous convictions,

Any reference in sections above to a person being charged with an offence includes a reference to a person being informed that he will be reported for an offence.

For the purposes of those sections a person has no previous convictions if the person has not previously been convicted of a recordable offence, and a person has been previously convicted of a recordable offence, the conviction is exempt if it is in respect of a recordable offence other than a qualifying offence, committed when the person is aged under 18.

For the purposes of those sections, a person is to be treated as having been convicted of an offence if he has been given a caution in respect of the offence which, at the time of the caution, he has admitted, or he has been warned or reprimanded under section 65 of the Crime and Disorder Act 1998 for the offence. If a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction for the purpose of any provision of those sections relating to an exempt, first or subsequent conviction.

Subject to the completion of any speculative search that the responsible chief officer of police considers necessary or desirable, material falling within any of sections above must be destroyed immediately if it appears to the chief officer that the arrest was unlawful and taking of the fingerprints, impressions of footwear or DNA sample concerned was unlawful, essentially the arrest was based on mistaken identity, or other circumstances relating to the arrest or the alleged offence mean that it is appropriate to destroy the material.

Rights to Silence

The right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) is violated if the jury improperly draws a conclusion from the fact that a defendant remained silent during his police interview

 Those perceived to be "professional criminals" are more likely to be denied their rights by the police.   If the professional criminal attempts to exercise his rights it is regarded that he is abuse the entitlement to those rights.  The government and establishment appear to believe that such exercising of rights is best cured by passing a law to stop it happening.  This occurred with the curtailment of the right to silence in the Criminal Justice and Public Order Act 1994 (CJPOA), which became known as the “right to silence debate”.

The right to silence when being questioned by the police and the right to silence in a criminal trial is a basic right.  To some extent to talk of the right to silence being removed is erroneous, the suspect/ defendant still has a right to silence; what happened in the CJPOA was that the Act allowed an adverse inferences can be drawn from his silence.  The word “conclusion” is preferred to “inferences”.

The Police and Criminal Evidence Act 1984 under Code C adverse inferences may be drawn in certain circumstances where the accused:

-          Fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention;

-          Fails to give evidence at trial or answer any question;

-          fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; or

-          Fails to account on arrest for his presence at a place.

There may be no conviction based wholly on silence. Where inferences may be drawn from silence, the court must direct the jury as to the limits to the inferences which may properly be drawn from silence. In respect of those questioned by the Serious Fraud Office, the right to silence has been reduced by virtue of Section 2 of the Criminal Justice Act 1987. The right has also been reduced for those accused of terrorist offences.

Under Section 49 and Section 53 of the Regulation of Investigatory Powers Act 2000 (RIPA), it is an offence to fail to disclose when requested the key to encrypted data (with a penalty of two years in prison.

Searches

The custody officer at a police station shall ascertain everything which a person has with him when he is brought to the station after being arrested elsewhere or after being committed to custody by an order of sentence of a court; or arrested at the station or detained there, as a person falling within section 34(7), under section 37 above or as a person to whom section applies.

The custody officer may record or cause to be recorded all or any of the things which he ascertains under subsection above In the case of an arrested person, any such record may be made as part of his custody record.

Subject to subsection below, a custody officer may seize and retain any such thing or cause any such thing to be seized and retained. Clothes and personal effects may only be seized if the custody officer believes that the person from whom they are seized may use them to cause physical injury to himself or any other person to damage property to interfere with evidence or to assist him to escape or has reasonable grounds for believing that they may be evidence relating to an offence.

Where anything is seized, the person from whom it is seized shall be told the reason for the seizure unless he is violent or likely to become violent or incapable of understanding what is said to him.

Subject to subsection below, a person may be searched if the custody officer considers it necessary to enable him to carry out his duty under subsection above and to the extent that the custody officer considers necessary for that purpose.

A person who is in custody at a police station or is in police detention otherwise than at a police station may at any time be searched in order to ascertain whether he has with him anything which he could use for any of the purposes specified in subsection above.

Subject to subsection below, a constable may seize and retain, or cause to be seized and retained, anything found on such a search. A constable may only seize clothes and personal effects in the circumstances specified in subsection above. An intimate search may not be conducted under this section. A search under this section shall be carried out by a constable. The constable carrying out a search shall be of the same sex as the person searched.

Fingerprints and body samples

The police sometimes need to take samples and fingerprints as part of the investigation process. There are certain circumstances when the police need to have consent in order to take the fingerprints and some samples, however in other circumstances such consent is not necessary. All those circumstances are considered below.

As in accordance with the Police and Criminal Evidence Act (PACE), and the code of Practice being C, the police are allowed to take the fingerprints if the suspect is detained for a recordable offence. The police do not need to have the consent for the taking of the fingerprints. The taking of footwear impression is also allowed under this Act. It is also allowed to do some other searches including searches by way of X-ray and ultrasound scans for persons in detention although the police must have a reasonable suspicion that the detained may have swallowed a Class A drug and this person had an intention to commit an offence under the Misuse of Drugs Act. Only qualified persons can carry out those types of searches and they must do this with the use of suitable equipment at an appropriate place. If the suspect refuses to give consent for such searches to be carried out, the court may draw adverse inferences against the suspect in relation to this matter. The police are allowed to keep the fingerprints and the samples for the purposes of speculative searches and investigation of any crime.

Tests for alcohol/drugs -

A police officer can require you to supply a specimen of breath for a breath test or undergo other tests if you have been driving, attempting to drive or have been in charge of a motor vehicle and they suspect you:-

• of having alcohol in your body; or
• of having used drugs; or
• have committed a moving traffic offence; or
• Was the driver at the time of a road traffic accident?

A test for alcohol will normally be a breath test. A test for drugs would usually be a preliminary test of any impairment in your physical or cognitive ability. You could also be asked to give a sweat or saliva swab. It is an offence to fail to provide a specimen of breath, sweat or saliva or undergo a test in these circumstances without reasonable excuse.

Fingerprints and DNA samples are forms of identification evidence, which the police may use to link a suspect to a crime or crime scene. However, it is important to be aware of the circumstances in which the police are able to take such evidence.

Fingerprints -

A suspect’s fingerprints may be taken either with or without his consent under section 61 of the Police and Criminal Evidence Act 1984 (PACE); however, if the suspect is at the police station, consent must be given in writing.

Section 61 allows police to take fingerprints from a person who has been detained at the police station for a recordable offence (offences for which convictions, cautions, reprimands and warnings may be recorded in national police records), or charged with or convicted of such an offence. Fingerprints may also be taken from a person who has been given a caution, reprimand or warning for a recordable offence.

Outside the police station, an officer may take a person’s fingerprints if he reasonably suspects that the person is committing or attempting to commit an offence. They can also be taken if the officer suspects that the person has already committed an offence and the name of the person is unknown cannot be ascertained or the officer has reasonable grounds for doubting whether the name provided is real.

It is important to note that fingerprints taken in these particular circumstances cannot be retained after they have been checked.

The police can, under PACE, use reasonable force if necessary to take a person’s fingerprints without his consent.

Before fingerprints are taken, the suspect must be informed: why the fingerprints are being taken; the grounds relied on if the fingerprints are taken without consent; and that the fingerprints may be retained and made the subject of a speculative search.

DNA samples -

Samples are divided into two types: intimate (such as a dental impression or a sample of blood, semen or urine) and non-intimate (such as hair other than pubic hair, a sample taken from a nail or saliva).

 

Intimate samples -

Intimate samples include blood, urine, pubic hair, tissue fluid, and dental impression, swabs taken from the person’s genitals or from any part of them, from a body orifice except for the mouth. Carrying out of intimate searches is also governed by the statute, namely Police and Criminal Evidence Act. The statute imposes conditions which must be fulfilled before such samples are legally taken, these include that the suspect must consent to the taking of an intimate sample. The taking of such samples must be authorised by the officer with the rank of Inspector and such authority as well as the consent of the suspect must be in writing. The Inspector must be satisfied and must believe that there are reasonable grounds to believe that the suspect may have committed a particular offence and it is essential to take the sample in order to confirm the same. It is the Inspector’s responsibility to inform the suspect that in case of a refusal to give consent to take the sample; such an action can lead to adverse inferences being made against the suspect.

Non-intimate samples -

Non-intimate samples include the samples of hair other than pubic hair, samples from nail or from under the nail, a swab from the suspect’s part of the body other than the one which is intimate. Non-intimate samples include saliva, skin impression etc. A non-intimate sample can be taken even without the consent of the suspect but the suspect must be detained for a recordable offence. The suspect does not need to be charged with any offence or cautioned. In some circumstances the use of reasonable force is allowed too. Samples and fingerprints can be kept by the police for the purposes of future investigations.

Retention of evidence -

Fingerprints or DNA samples may be checked against other fingerprints and DNA samples which the police have obtained during the course of previous investigations to see if the suspect may be linked to other crimes. The police are allowed to retain fingerprints and samples taken during the course of investigation only in certain circumstances, such as when the suspect from whom the sample is taken is subsequently convicted of the offence. If the police are not permitted to retain the samples or fingerprints, then they must be destroyed. 

Search of the suspect -  

Once the suspect is detained the police are allowed to make a further search and seize his possessions. Following the arrest a further search power may arise. The custody officer may seize and retain any items which may represent the danger for the detained and others, which may damage the property or interfere with the evidence. Intimate searches can only be authorised by an Inspector, the authorisation from a custody officer is not enough. The inspector must have reasonable grounds that the suspect is trying to conceal something on his body. The consent from the suspect is not required, if the suspect is concealing something which could endanger his health or cause an injury. Such a search may be carried out by the police officer or a doctor, who should be of the same gender as the suspect. Before such a search is carried out the suspect must be sure that the search is absolutely necessary and cannot be avoided as there may be some items which the suspect is trying to conceal and there is no other way how to reveal this. The written consent is required if the search is for an A class drug. Again, adverse inferences may be drawn if the suspect refuses to give such consent. If the search is non-intimate and authorisation for it was granted, the consent from the detained is not required; all that is required is that all the information must be recorded in the custody record. On the other hand, there is a better protection given to the suspect if the search is an intimate one as an intimate search for a Class A drug requires consent from the suspect and such search must also be carried out at appropriate medical premises. 

Legal Advice -

Everyone is entitled to legal advice and assistance. Some cases are normally referred to CDS Direct which is a call centre where the detained will be able to get legal advice. If the detained wants to speak to a solicitor the police officer must call the centre and the centre will get in touch with the solicitors firm which the suspect asked for or if there were no specifications in relation to a solicitor then the police officer will call a duty solicitor. A solicitor’s fees are normally fixed fees per a case if the case is more complex they charge on an hourly rate.