Before the interview takes place, you will have the opportunity to speak – free of charge – to a solicitor who will explain your rights and the interview process, and will be allowed to accompany you to the interview.
In serious cases, the police can make you wait for legal advice, but only if a senior officer agrees. The maximum time you can be made to wait before getting legal advice is 36 hours after arriving at the police station (or 48 hours if you’re suspected of terrorism offences).
Once you’ve requested legal advice, the police must not usually question you until you have spoken to a solicitor.
You will be cautioned before the interview takes place which outlines that anything you say can be used in evidence against you and that you have a right to remain silent in the interview (ie, refuse to answer any or all questions). However, the caution makes it clear that if you fail to mention something when interviewed which you later rely on in court, this may harm your defence; the court may be allowed to draw adverse inferences from your earlier silence under ss 34-37 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994).
In R v Argent (1997), Lord Bingham outlined the six conditions that must be satisfied before an adverse inference can be drawn from a defendant’s silence. These are:
- there must be proceedings against you 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 happened during questioning under caution;
- the aim of the questioning must have been to try to find out whether the alleged offence was committed and by whom;
- your alleged failure must have been to mention any fact relied on in your defence in those proceedings;
- the alleged failure must have been to mention something which in the circumstances you could reasonably have been expected to mention when questioned. In R v Howell (2003), the court ruled that ‘in the circumstances’ includes the time of day, a defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice offered.
Under s 38(3) of CJPOA 1994, you cannot be convicted solely on the basis of an adverse inference drawn from a silence. There must be a prima facie case against you (R v Cowan (1996)).
Your solicitor, therefore, may advise you to remain silent in interview if:
- there is not sufficient evidence for the police to prosecute you;
- there was inadequate disclosure made to you (eg, not being told the nature of the offence your suspected of);
- you feel your answers might be misconstrued or inadvertently damaging to your case;
- you feel you could also lose control over what information you are disclosing;
- you feel you may incriminate yourself by answering questions.
The advantage in answering questions is that you may persuade the police not to charge you with the offence and you will avoid adverse inferences if you are later charged. If you cooperate with the police this may also be seen as a positive point and may be raised as a mitigation point in relation to your case.
Another option is to hand in a prepared written statement before your interview. The interview would still take place but you would be advised to remain silent or to say‘no comment’ in reply to questions. This option is appropriate if you are psychically unstable or you have problems with your concentration or expressions which would make a bad impression on the police. It also allows you to defend yourself but also control how much information you will disclose to the police. It could protect you from self-incrimination and you would not create any damaging account of yourself. The disadvantage is that you may not mention all the facts in your statements and this could lead to adverse inferences being made anyway.
The role of a solicitor at the interview
A solicitor’s role is to advance the best interests of their clients. A solicitor may intervene at any stage of the interview to seek clarification of the question or may stop improper questions given to you. They may also advise you how or whether to answer the particular question. If you’re drunk or incapable of giving proper answers at the interview, the solicitor should intervene and make sure the interview is delayed until you sober up. A solicitor may in some circumstances be excluded from the interview by a senior officer if his/her behavior is improper.