There has been a substantial culture shift by police since 2014, in particular, towards the use of voluntary interviews of suspects, rather than interviews under arrest, which are necessarily protected by the Police and Criminal Evidence Act 1984 (PACE). There are a number of reasons for the huge increase in the use of these voluntary interviews:
(1) The implementation of Code G of PACE on 12.11.12 which according to ACPO (The Association of Chief Police Officers), requires investigating officers to adopt a more considered approach to the necessity of arresting suspects;
(2) The hard hitting budgetary cuts suffered by the public services, including the police, which were previously cut to the bone are now cutting right through it, have persuaded police that a cheaper option to the costs of arrest and detention would be to focus upon the option of voluntary interviews instead.
It also means that if a particular investigation does not get funding for prosecution during one particular financial year, it can be rolled over onto the next without having to justify why the suspect is on bail for lengthy periods of time. Police are often waiting on forensic tests of computers and phones before they can make a charging decision. Terrorism and sexual abuse allegations take priority in these situations;
(3) The enormous criticism levelled at police when investigating hacking, sexual abuse and serious fraud investigations about the length of bail periods (see above), which attracted critical publicity when it involved individuals in the public eye. The then Home Secretary, Theresa May, was a very vocal critic of lengthy bail periods which led to a 2015 Home Office consultation on the subject;
(4) That Home Office consultation led to bail reform provisions within the Policing and Crime Act (in force as of 03.04.2017), more about these new bail provisions later.
What is a voluntary police interview and what are my rights?
- Let's begin with what should and could happen; You receive a call at work or home from a police officer asking that you attend for a voluntary interview either at a specified police station, or even your home or work place.
- You may panic and ask if you are in serious trouble, should you bring a solicitor with you? You should be advised why they are not arresting you at this stage, that you are entitled to free legal advice (as provided by Legal Aid police station representation). They must not interview you about the allegations/investigation outside the formal interview situation.
- They should assess whether you are vulnerable and if you have any special requirements for interview such as an interpreter or appropriate adult. Perhaps you need need frequent breaks during interview or a hearing loop, for example.
- Police should set out the purpose, aim and objectives of the interview and advise you that you can terminate an interview at any time.
- You can ask for disclosure of information about the allegations and investigation, but that will only be provided to your lawyer. Please also note that there is no strict entitlement to such disclosure.
- You should be told about the nature of the offence which they are investigating and that in order for the allegation to be investigated properly, you must be interviewed under caution.
- They should say that arrest may not be necessary if you attend voluntarily, but if you fail to attend at the agreed time or decide to leave the voluntarily interview then they may arrest you.
- They may also arrest you if new information comes to light, after they have made the initial voluntary arrangements.
- The interview will be recorded, even if taken at home or at work.
- You will be cautioned at the beginning of the interview and that will be repeated during the interview for various reasons.
What may you hear from police instead?
Many of our clients have been told the following:
''It's only a quick interview to hear your side of the story'' ..... ''If you insist upon a lawyer attending, it will take much longer and you are likely to be here all day'' ..... ''Why would you need a lawyer if you have nothing to hide?'' ..... ''We just want you to help us with our enquiries, we are completely impartial''.
We have had any number of clients, including professionals, who have been left with the very firm understanding and impression that police are considering them as potential prosecution witnesses before attending a voluntary interview, only to find themselves served with a summons to attend court as a defendant after the investigation has been completed.
What should you do if you are asked by police to voluntarily attend an interview with them?
- Stop panicking and think clearly, find and instruct a good, genuinely experienced lawyer to assist you. An experienced solicitor will make contact with the officer and clarify the situation about the voluntary aspect of the interview, the agreed location and time. S/he will want to know from them why have they decided not to arrest, the nature of the allegations and ask for written disclosure in advance so that s/he can take instructions from you upon that disclosure.
- They will assess if you have important issues to raise as part of your defence during interview (alibi/witnesses/emails/texts/documents), whether you have any special requirements and whether you should answer questions or draft a 'considered statement' as part of your defence.
- They will explain the police caution and its significance. Only a genuinely experienced, specialist lawyer, with a proven track record, can fully assess the situation and advise upon it.
- The police station interview is the cornerstone of any prosecution and defence, it is therefore vital that you are fully advised before and throughout the interview. It will be very difficult to undo any mistakes that you may make in interview concerning an important detail or aspect of your defence during trial, indeed you will be cross examined about any mistake that you may have made and it will be used against you.
Are there any advantages to a voluntary interview?
In truth there are not many advantages; you are unlikley to be placed in a police cell, if the investigation results in no further action you can answer any DBS check or a question about whether you have ever been arrested for a criminal offence, truthfully. This is very important for those who work in strictly regulated jobs or professions e.g. If you are FCA authorised.
If the police decide you to arrest you wrongfully, once you have been offered a voluntary interview or more recently when they decide to execute a full S.18 search when the voluntary interview was on going, then case law has decided that you will have an actionable cause against them.
A voluntary interview means that there is little control over the progress and length of the investigation, they are often allowed to drift on and on.
After interview police are supposed to inform you that a decision about the case will be made at a later unspecified date.
We have noticed that increasingly young people, and even adults facing very serious allegations of sexual offences, money laundering and serious fraud are now subject to voluntary interviews.
Very often clients are not informed when a decision to take no further action on the investigation is made, or as stated earlier when they suddenly receive a summons to attend criminal proceedings at court. Instructing a pro active solicitor means that s/he can continue to place pressure on police to come to a decision earlier, and that you are fully informed of the progress of the investigation.
If on the other hand you are interviewed after arrest the PACE clock kicks in, which determines how long you can be detained, you come before an experienced Custody Sgt who is responsible for your treatment and welfare. There are a certain number of specified protections enshrined with that statute.
New bail revisions in force
The Policing and Crime Act 2017 brings in new provisions governing police bail but it's our belief that in fact police will increase their dependence upon voluntary interviews because of these new onerous and expensive provisions.
The police must now release an individual without bail unless they believe that bail and conditions are attached to that bail are 'necessary and proportionate'. Those who are bailed are likely to be only bailed for a period of 28 days unless a senior officer agrees to an extension of that period to three months. If they require a further period of three months then they must apply to the Magistrates Court, these are going to be very rare cases.
The FCA and SFO are exempt from these provisions because of the complexity of their often multi jurisdictional investigations and the time that these entail. They can have extensions of up to three months at a time, without a review, and a senior officer can authorise a further period of six months. However, we have noticed that all of our clients currently facing these allegations are not on bail at all.
The police bail provisions and extensions are for police investigation only, and do not apply to the time that the CPS take to consider potential charges.
The Magistrates Court, when seized of an application to extend bail must take the following into consideration:
1. That the investigation and decision to charge is being conducted diligently and expeditiously;
2. That there are reasonable grounds to believe that further time is necessary;
3. That further bail is necessary and proportionate taking into account any bail conditions.