Can A Suspect Be Interviewed Without Legal Representation?

A suspect is in custody for robbery and the OIC wants to interview him as soon as possible without legal representation. The custody officer declines this request and a solicitor is brought to the police station. During questioning, it became necessary, in order to clarify the interviewee’s account, to pose questions which had already been asked. The solicitor argued that this is not permitted. There is then a break in the interview and when it is re-commenced the solicitor reads out a pre-prepared statement.

Consider the above paragraph and paying particular regard to legislation, case law and the PACE Codes of Practice comment and critically evaluate under what circumstances can a suspect be interviewed when legal representation has been withheld. Secondly whether the solicitor is correct in his assumption that questions which have already been posed cannot be repeated. Thirdly the dangers for the defence in submitting a pre-prepared statements.

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Circumstances under which a suspect can be interviewed when access to legal advice is withheld:

In order to look into circumstances in which a suspect can be interviewed in the midst of delayed legal advice access, the criteria which must be met to make this delay must first be explored. The relevant legislation which governs the delay of legal advice comes from s.58 of the Police and Criminal Evidence Act 1984(PACE), in particular part (6) of the section, which states;

‘Delay in compliance with a request is only permitted –

(a) in the case of a person who is in police detention for a serious arrestable offence; and

(b) if an officer of at least the rank of superintendent authorises it.’

The request, for the purposes of this section, is a request to have legal access delayed for the suspect. The legislation is succinct; however, the codes of practise which need to be followed in order to successfully prevent legal advice from attending the interview, presents an officer of rank equal to or higher than superintendant, with a number of criteria which must be fulfilled before the delay is granted. Failure to follow these codes could bring the relevant officers up for disciplinary proceedings. Such failure occurred in the case of R v McGovern [] , where the defendant was of limited intelligence and was unable to understand the caution. She was denied legal advice, and as such the subsequent confession she made was not admissable in court. Following from this breach of s.58 PACE, the second interview in which she was granted legal advice resulted in a confession. However, the conduct in the first interview was deemed to have tainted the second, and so this confession was also denied.

Delay can only be made for a time period of up to 36 hours, after which legal advice must be granted, regardless of circumstances. [] 

Under Annex B(Para.1) of PACE, there are 4 criteria from which an officer must find good reason to request a delay;

Failing to exercise the delay would:

‘(i) lead to:

• interference with, or harm to, evidence connected with an indictable

offence; or

• interference with, or physical harm to, other people; or

(ii) lead to alerting other people suspected of having committed an indictable offence

but not yet arrested for it; or

(iii) hinder the recovery of property obtained in consequence of the commission of

such an offence’ [] 

Specific circumstances must be in place to delay access to a solicitor, and there must be clear evidence that the solicitor’s presence will result in one of the four criteria above occurring. This was the case in R v James & Ors [] , where confessions were obtained whilst in the absence of legal advice. The court heard that there was no specific evidence with regards to the unlawful conduct under part (ii) (above), of the individual solicitor, and that, with regards to the decision making process in passing this delay ‘the number of times that a police officer could genuinely be in that state of belief will be rare’.

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Furthermore, the suspect must not have been charged with the offence [] , before the delay can be enforced. This was the case in R v Samuel [] , where the original conviction was quashed on the basis that at the time of the interview of the defendant, at which the presence of a solicitor was denied, there had already been a charge of the offence. In addition to this, and in relation to the criteria above, it was deemed that access to a solicitor could not be denied simply by the belief that access might lead to other suspects in connection with the offence being alerted; the probability had to be high. A well-referenced quote was made in this case, from Hodgson LJ, which stated that entitlement to free legal representation was ‘one of the most important and fundamental rights of a citizen’.

Equally, a breach of s.58 PACE does not always result in a quashed conviction. In R v Alliadice [] , the grounds for refusal of legal advice for an interview included the worry that the solicitor may inadvertently warn other persons linked with the offence. The appeal against conviction was refused, as although there was a poor decision on the part of the officer for delaying advice, it was at the judge’s discretion to reverse the conviction. The judge decided against excluding the evidence under s.78 PACE, as the defendant was aware of his rights, exercised them (including the right to silence), and as such the presence of legal advice would not have changed the outcome of the interview.

Finally, the offence with which the suspect is under question for must be a serious arrestable offence. S.116(1) of PACE lists the offences which fall under this category, and any factors which may cause a normal arrestable offence to become a serious one. Robbery is not normally an arrestable offence, and so for the delay in legal advice to be allowed, there must be exceptional circumstances as detailed in the section. [] 

Providing that these criteria have been met, and that correct evidence is present, a suspect interview is permitted to be conducted under Code C (para 6.6) of PACE, a part of the code which otherwise would prevent such interviews from taking place.

Is repeating questions previously posed, permissible?

There is no mention of limits on repeating questions in the PACE codes of conduct; However, guidelines on the subject of investigative interview aims and techniques were published by the Home Office in 1992. Amongst these guidelines were the seven principles of investigative interviewing. [] Following these guidelines, which were devised with existing Human Rights legislation in mind [] , interviewing officers have a framework within which they can work without overstepping the line with regards to the treatment of suspects. In particular, there is one guideline which influences how repeat questioning can be posed.

Principle number 4 states;

‘Investigators are not bound to accept the first answer given. Questioning is not unfair

merely because it is persistent.’

Therefore, persistent questioning, considering these guidelines, published under the title of ‘The National Investigative Interviewing Strategy 2009’ [] is permitted. But at what point does persistent questioning become oppressive? Oppressive behaviour can amount to inadmissibility of evidence; examples including confessions [] . In R v Fulling [] , Lord Lane CJ said that oppression occurred following behaviour which included ‘excercise of authority or power in a burdensome, harsh or wrongful manner’ [] . In R v Paris [] , also known as the case of the ‘Cardiff Three’, over the course of 13 hours worth of interview time, a statement was put to the defendant forcefully, along with the question of whether he had committed the offence detailed, over 300 times. Despite no violence being used, this conduct was deemed to be oppressive. Another case which illustrates when questioning becomes beyond what is expected of the police officer, is that of R v Heron [] . In this case persistent badgering and questioning along the lines of getting a confession for the murder of a 7 year old girl resulted in the case being thrown out of court. This was despite the tone of the questioning not being aggressive or harsh; It was merely the style and purpose of the questioning with which the judge took issue. The result of a report into the actions taken during this enquiry found that ‘the line between robust questioning and oppressive questioning was difficult to draw’ [] . However, these are exceptional circumstances in which repeated questioning has been deemed to have gone too far; there are few reported cases. For the main part, the investigative guidelines are the key to allowing repeats of questioning. Code C (para.11.5) of PACE also guides the police officer to not use oppressive behaviour whilst conducting an interview.

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For the PEACE model of investigative interviewing, repeats of questions mentioned previously are a fundamental of the account clarification section of the model. The model is the standard start point from which all policing interviews are carried out in the United Kingdom, and as such, the guidelines must be clear. Without the freedom to ask questions repeatedly which may have either not been answered fully previously or without any conviction, then it becomes harder to ascertain the truth behind events; the main aim of investigative interviewing. Another of the principles of investigative interviewing confirms this;

‘When conducting a suspect interview, police officers are free to ask questions in order to establish the truth’

The Dangers of Submitting Pre-Prepared Statements

The purpose of handing in a pre-prepared statement is to provide a written copy of the details of the case, from the defence’s point of view, usually at the beginning of a suspect interview. If the statement contains adequate levels of detail, and covers any facts which are mentioned in court fully, then it has the power to negate the drawing of adverse inferences. An instance of when such inferences can be drawn can be found under s.34(1)(a) of the Criminal Justice and Public Order Act 1994(CJPOA), which reads;

‘Where, in any proceedings against a person for an offence, evidence is given that the accused-

at any time before he was charged with the offence, on being 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.’

As questioning under caution is mentioned, the statement should be handed in once the caution has been given. But what happens when the statement fails to give sufficient evidential value? Mentioning a fact in court which was not mentioned in the pre-prepared statement, but would have been reasonable to include in such a document, is one danger. In R v McGarry [] , the defendant relied on facts which were not present on the statement which was handed in. There was merely ‘flesh on the bones of that account’, and an adverse inference can be drawn based on the reliance of such evidence in the proceedings, as in s.34(1)(a) CJPOA. Failure to mention basic facts which would have been reasonably expected in a vital piece of evidence is another danger in submitting a pre-prepared statement without thorough planning. Planning can be done prior to any interview in private between defendant and legal advisor, as the pre-prepared statement is a legally privileged document, and as such the police have no right to enforce access to it. In R v Bourgass [] , the appellant had picked up a knife and stabbed 4 officers. He was convicted of murder, and then appealed based on admissibility of evidence. When analysed, the pre-prepared statement which was given at the beginning of the original interview provided no insight as to the reasoning behind why the appellant wished to escape, nor did it try to persuade that the use of the knife was in self-defence. In court the appellant relied solely upon this statement, and gave no other testimony in front of the jury; yet it contained such little in the way of a defence of his actions that the statement proved pointless, and the appellants conviction was held.

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It is not the failure to answer questions which can introduce the possibility of adverse inferences; but rather the failure to provide sufficient answers in the prepared statement, as in R v Knight [] . In this case, despite failing to answer any questions in interview, the defence’s pre-prepared statement was enough to negate any wrong doing under s.34 [] , and so the appeal was allowed and the conviction was overruled. [] However, this ruling came with a warning from the presiding judge;

‘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’ [] 

Adverse inferences can also be avoided providing what is said in the interview is in line with evidence found in the pre-prepared statement, as in R v Ali & Ors [] .

The credibility of the suspect can be put under question if 2 statements which do not match in character and account are put to the court; A pre-prepared statement and an oral statement. Under s.119 of the Criminal Justice Act 2003,

‘(1) If in criminal proceedings a person gives oral evidence and-

(a) he admits making a previous inconsistent statement, or

(b) a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18),

the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.’

This legislation means that both types of statement must be taken into account by the court, and both are admissible when the jury are making their decision. The decision must be made in light of the ruling in R v Argent [] , where 6 guidelines were put in place to decide when an inference could be inferred;

There must be proceedings against a person for an offence;

The alleged failure to mention a fact at trial must have occurred before charge, or on charge;

The alleged failure must have occurred during questioning under caution);

The questioning must have been directed to trying to discover whether or by whom the alleged offence was committed;

The alleged failure of the accused must have been to mention any fact relied on in his defence in those proceedings;

The alleged failure must have been to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned.



R v Argent [1997] 2 Cr.App.R. 27

R v Knight [2003] EWCA 1977 Paragraph 13

R v Ali & Ors [2001] EWCA Crim 683.

R v Knight [2003] EWCA 1977

R v McGarry[1998] EWCA Crim 2364 (16th July, 1998)

R v Bourgass[2005] EWCA Crim 1943 (19 July 2005)

R v Fulling[1987] 2 WLR 923

R v Paris (1993) 97 Cr. App. R. 99

R v George Heron, (November 1993) Unreported

R v Samuel [1988] 1 QB 615

R. v Alladice[1988] Crim. L.R. 608

R v James & Ors [2008] EWCA Crim 1869 (30 July 2008)

R v McGovern(1991) 92 Cr. App. R. 228

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