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F.A.Q.

ANSWERS EVERYWHERE

General Questions

When are you entitled to legal representation at an interview by Police or another investigating body?

The primary distinction in your entitlement to legal representation during an interview with the Police or another investigative agency lies in the automatic availability of free legal aid if a Police Officer is present. The interview location holds no bearing on the accessibility of free advice, irrespective of factors such as income, nationality, or voluntary attendance. While it's becoming more common for the Police to conduct interviews at people's homes, this doesn't impact your right to have a lawyer of your choice attend the interview on legal aid.

Legal Aid is typically not available if you're interviewed solely as a witness, but you still have the right to a lawyer at your own expense. Individuals with very low incomes may qualify for legal aid during interviews conducted by government or council departments like the Department of Work and Pensions, Environmental Health, Trading Standards, or Housing Enforcement, where the Police are not present. The CIA team excels in representing individuals at these interviews under privately paying terms.

A legal representative at the police station can engage in negotiations with the investigator to ensure maximum disclosure of evidence in your case before the interview. The significance of your right to legal advice diminishes if your lawyer lacks sufficient information to provide proper guidance. We negotiate with the Police under the premise that any denial of your right to adequate legal advice will face criticism from the Court.

Your legal advisor will meticulously document your version of events and any pertinent facts for your defense. If, for tactical reasons, it is decided that you won't answer police questions, your lawyer's notes may serve as evidence in Court, indicating that your version of events wasn't concocted post-interview.

CIA, when present at the police station, prioritizes assessing whether the evidence the Police possess is legally adequate for you to respond to during an interview, mitigating the risk of inadvertently assisting the case against you. For instance, if an unrepresented person claims self-defense in an interview, we would have first established whether the Police have sufficient evidence correctly identifying them as the person involved in the incident. Identification evidence rules for Court are intricate, and asserting self-defense renders the proof of correct identification irrelevant. If the Police lack appropriately obtained identification evidence, the case against you falls apart.

The primary advantage lies in the seniority of the individual providing advice during the interview. We are renowned for delivering the highest standard of advice during interviews. Under the Aid scheme, our highly skilled experts offer representation at a subsidized cost. For those willing to pay privately, a higher level of experience is accessible, with the interview attended by individuals boasting 20+ years of experience or senior cyber experts.

The Police can only arrest you if a necessity test is passed. This is found at s24 Police and Criminal Evidence Act 1984. This states that it must be necessary :

(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain the person’s name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);

(b) correspondingly as regards the person’s address;

(c) to prevent the person in question—

(i) causing physical injury to himself or any other person;

(ii) suffering physical injury;

(iii)causing loss of or damage to property;

(iv) committing an offence against public decency (subject to subsection (6)); or

(v) causing an unlawful obstruction of the highway;

(d) to protect a child or other vulnerable person from the person in question;

(e )to allow the prompt and effective investigation of the offence or of the conduct of the person in question;

(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

The majority of arrests occur promptly and effectively when a person is suspected to have been caught by the Police in the act of committing an offense or shortly thereafter. However, if the alleged offense took place in the past, we always aim to eliminate the legal requirement for an arrest. For instance, we may persuade the Police that you will voluntarily attend an interview, and there are no grounds for imposing any bail conditions on you.

Upon your arrival at the Police Station, the Inquiry Officer (I.O.) will determine whether it is necessary for you to stay at the Police Station for an interview. If contacted at this stage, CIA advisor will strive to influence this decision in your favor. The Custody Sergeant has the authority to approve your detention for a maximum of 6 hours. Subsequently, the Inspector reviews the legality of your continued detention and can authorize an additional 9 hours. At each stage of this process, you and your lawyer are entitled to make representations. After 15 hours, the Inspector can authorize a further 9 hours, and after 24 hours, the Superintendent in charge of the Police Station can authorize an additional 12 hours for more serious allegations. Beyond 36 hours, only the Court has the authority to extend your detention, typically for exceptionally serious allegations like murder. The Court can, in practice, authorize a maximum of 96 hours from your arrival at the Police Station for any criminal allegation. However, this does not apply to terrorism allegations, which are subject to different rules.

Specific Questions

According to Code C, Paragraph 11.1A of the Police and Criminal Evidence Act 1984:

"Before a person is interviewed, they and, if they are represented, their solicitor must be given sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it, in order to allow for the effective exercise of the rights of the defense. However, whilst the information must always be sufficient for the person to understand the nature of any offence, this does not require the disclosure of details at a time which might prejudice the criminal investigation. The decision about what needs to be disclosed for the purpose of this requirement, therefore, rests with the investigating officer who has sufficient knowledge of the case to make that decision. The officer who discloses the information shall make a record of the information disclosed and when it was disclosed. This record may be made in the interview record, in the officer’s report book or other form provided for this purpose."

These criteria are vague, and expert legal advice is essential to make representations to the police when the disclosure provided does not allow for the effective exercise of your rights, particularly for meaningful legal advice.

The investigator will inform an unrepresented person during the interview that they can choose whether to answer the questions or not. However, these are not the only options available, and we will actively consider providing a written prepared statement to the police. This statement can be given instead of answering questions or in addition to answering them.

Initially, we will assess whether there is a case for you to answer, requiring expert knowledge of criminal law. If there is no evidence, there is often no need to say anything. However, when evidence demands a response, a written statement can be just as effective as answering questions. A statement is preferable to picking and choosing which questions to answer or to limit the issues in the case. If the stress of the situation makes effective communication challenging, providing a written statement, either instead of or in addition to answering questions, is often the best approach. The written statement is also highly effective in ensuring the police understand your defense and accurately communicate it to the CPS. It can be used in conjunction with answering questions.

The caution states that “it may harm your defense if you do not mention, when questioned, something which you later rely on in court.”

Whether you mention facts verbally or in a written statement is not relevant. However, not mentioning facts during the interview that you later rely on in court may result in an "adverse inference" being drawn against you. The main purpose of this rule is to prevent ambushes against the prosecution in court. If it is determined in court, with no other reasonable explanation, that you only came up with the fact after the interview, it may be considered incorrect. Having legal representation and producing notes of your account to show it was not made up afterward can be beneficial. There is also a potential inference that you did not disclose your defense to the investigator to prevent them from checking it when, for example, events were fresher in the minds of potential witnesses or CCTV existed.

In many cases, especially those involving conflicting accounts, not raising your defense in an interview may, if the accusation is credible, leave the CPS with no real option but to charge you to attend court. The CIA team has the expertise and experience to identify when this is a risk and when presenting your defense is likely to influence the charge decision in your favor. This is particularly relevant in cases involving allegations of sexual offenses.

The police will always confiscate the mobile phones of individuals arrested and taken to the police station. However, unless there are evidential reasons to download the phone, they can only check to see if it is stolen. Law enforcement can seize and download any electronic device if you are arrested or if they have obtained a search warrant from the court. This requires the material they are seeking to be relevant to the case. For instance, if the police are trying to prove your presence at a specific place and time, they may conduct cell-site analysis. If the police have seized illegal drugs, they will seek evidence of messages related to drug dealing. Many allegations involve contact through email, social media, or telephone. Finally, your phone may be downloaded to establish connections between you and other individuals suspected of involvement in the same offense.

Section 22 of the Police and Criminal Evidence Act 1984 states:

(1) anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below—

(a) for use as evidence at a trial for an offense; or

(b) for forensic examination or for investigation in connection with an offense; and

(2) anything may be retained to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offense.

(3) Nothing seized on the ground that it may be used—

(a) to cause physical injury to any person;

(b) to damage property;

(c) to interfere with evidence; or

(d) to assist in escape from police detention or lawful custody, may be retained when the person from whom it was seized is no longer in police detention or the custody of a court or is in the custody of a court but has been released on bail.

(4) Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose.

Section 22(4) suggests that once the contents of your device have been copied, it should be returned to you. An application can indeed be made to the Magistrates’ Court under the Police Property Act 1897 or to the County Court under Torts (Interference with Goods Act) 1977 for non-police investigations for the return of your property. The police will likely argue that if they find any relevant evidence, the device needs to be retained for any court case. CIA can advise you on whether to make an application to the court.

In April 2017, the Policing and Crime Act 2017 significantly curtailed the practice of the Police bailing individuals during investigations, and, in most instances, they are instead "released under investigation."

The Police can still choose to bail you for your return to the Police Station for the Magistrate to make a decision on your case, with or without bail conditions. The Police can also bail you for further investigation, but this should typically be justified by the need for bail conditions. Strict time limits apply, and the necessity for bail must be demonstrated. An Inspector can authorize bail for 28 days, and a Superintendent can extend it for up to 3 months (with longer limits for particularly complex cases). After 3 months, only the Magistrates' Court can extend your bail. CIA team has achieved notable success in challenging both bail conditions and bail extensions at the Magistrates' Court.

If it is determined that there is insufficient evidence to take a case to court, the matter will be marked as "no further action." It can also be decided that it is not in the public interest to proceed with the case, recorded as "not proceeded with." However, these decisions can be revisited if a complainant appeals against the decision or if new evidence emerges.

Various out-of-court disposals are available for less severe offenses, often when the individual admits guilt. These disposals are more common, though not exclusive, for children and may include triage schemes, cautions, and conditional cautions. Other options encompass community resolution, fixed penalty notices (police-administered fines), and administrative sanctions in non-police investigations. When CIA believes a case can be proven, and the individual admits guilt, the firm will actively seek an appropriate out-of-court disposal, as these do not result in the individual obtaining a criminal record.

This is a novel concept implemented for individuals arrested after April 2017. There is now a legal presumption that police investigations will be conducted without placing you on bail unless it can be demonstrated as necessary. You will receive a formal written notification of the decision, including being charged by post. If the Police discover new evidence, you can be re-interviewed.

We will maintain regular communication with the Police on your behalf, exchanging information on a monthly basis via email regarding the progress of your case. In the event of the Police obtaining new evidence, we will strive to convince them that your arrest is unnecessary and arrange for a further voluntary interview.

Anyone aged 17 or under or diagnosed with a mental illness or learning disability, making them "mentally vulnerable," is entitled to have an Appropriate Adult present to safeguard their rights during an interview by any investigating body. 'Mentally vulnerable' refers to someone who, "because of their mental state or capacity, may not understand the significance of what is said, of questions, or of their replies."

The Appropriate Adult has the right to seek legal advice for the person detained or being interviewed. Typically, the parents or guardian of someone aged 17 or under would serve as the first choice for the Appropriate Adult, with exceptions made if they are potential witnesses in the case. Regardless, the Police are legally obligated to notify the parent of anyone aged 17 or younger about their arrest and the reasons for it.

The Appropriate Adult is authorized to inspect the police custody record and should be present during interviews, charges, identification procedures, and when fingerprints, DNA, photographs, or any other samples are taken.

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