Police questioning: to answer or not to answer
One of the biggest problems for our clients are those who instruct us that they want to plead not guilty or advance a special reason but who have made comments during a police interview that are inconsistent with their account to us. This can happen for a variety of reasons but the most common explanation we hear is that “I’ve never been arrested before; I’d spent my first ever night locked in a cell and I just wasn’t thinking straight”. That’s all well and good, but in the cold light of a courtroom previous inconsistent statements make it very hard for a court to believe an account you give at trial. The best advice is not to worry about what the police officers think of what your advice or what your client does in the interview, instead ask yourself “what will a jury think in six months’ time?”
That’s why getting it right in the police interview is so important – in other words: GET A SOLICITOR!
When the solicitor gets to the police station, he or she will speak privately with the police officer to find out what the allegation is about and what evidence they have that they intend to put during the interview. The solicitor can then advise the suspect on the law, evidence as disclosed by the police and whether the suspect should answer questions in interview.
There are five options for the interview:
1. Answer questions;
2. Don’t answer questions;
3. Put forward a prepared statement and then answer questions;
4. Put forward a prepared statement and then answer no comment; and
5. Answer some questions but not others.
We’ll go through each option in a moment but at this stage, it’s worth taking the time to acknowledge that the fifth option is the worst possible approach that no client should ever be told to take. It makes them look as if they either are trying to hide incriminating facts or that they simply don’t have an innocent explanation for the questions they choose not to answer.
How do convictions work?
It’s worth taking a moment to make sure we all understand how people come to be convicted or acquitted of crimes in England and Wales because that should help inform our approach the police interviews.
US attorney Larry L. Archie advertised his business with the slogan “Just because you did it, doesn’t mean you’re guilty”, which is a remarkably succinct summation of both the US and English criminal justice systems.
In law you are guilty if the prosecution can prove that you are guilty. If they can’t prove it then you are not guilty.
Before giving advice, a solicitor should recognise that a conviction in court does not rest upon their client actually being innocent or guilty. It rests upon whether sufficient evidence can be brought to bear that convinces a magistrate or jury that he is guilty. When considering what advice to give, a solicitor should always be asking “how will this approach look to a jury in six months’ time?” Many clients worry about how their approach will look to the police officer sitting in front of them but, with respect to any police officers reading this, that is the wrong way to look at the problem. If the police have sufficient evidence to charge, they will. If they don’t, they won’t. While a police officer may not like you personally, it doesn’t change the test that must be applied when reaching a charging decision.
A remarkable number of convictions in motoring law cases come about because the defendant confesses to the offence, or more commonly, to a key part of the offence that the prosecutor would struggle to prove without that confession. The most common example is where a suspect is arrested outside of his vehicle and hasn’t been seen driving. Without some evidence that a) the vehicle was driven; and b) it was the suspect who drove it, the police will struggle to put a case for drink driving against him unless the suspect confesses to having driven. He may still have a defence, such as post-driving consumption (aka the “hip-flask defence”), but without that confession he would probably never be charged in the first place.
The police interview
We said earlier that during a police interview there are five possible approached. We’ve already eliminated the fifth approach as being too awful to ever contemplate so let’s now explore the remaining four options.
Answering “no comment” to all questions should be the default setting from which you shift only if there are good reasons to move.
The benefit of a no comment interview is that you cannot add to the evidence against you. True a future judge may tell the jury that they can draw a proper inference from your silence but such inferences are not enough to convict a defendant in the absence of other convincing evidence. As we’ve already seen, a surprising number of prosecution cases rely entirely on confession evidence meaning that if those people don’t confess then they can’t be prosecuted.
As well as not increasing the evidence against you, remaining silent will force the police to show their hand. This is particularly useful in serious cases where the police are likely to withhold some facts from the solicitor or may be following a staged disclosure protocol where the interview is stopped every so often for more evidence to be revealed. There are two reasons for doing this: first, to try and catch a dishonest suspect out; and secondly to hide material that weakens their case in the hope that a stronger sounding case will encourage a confession. Examples:
CA was accused of money laundering. Her account was that she lived with her partner, earned her wages and had no other money or property. The police staged disclosure by withholding evidence they had about her ownership of property and bank accounts overseas. This approach caught her in several lies and undermined her account – she was lucky her first trial resulted in a hung jury and she subsequently fled the country before a second jury convicted her.
JA was accused of robbery and confessed in consultation with the solicitor. The evidence was described by police as “DNA” from the scene of the crime. The police refused to reveal where the offence took place. JA was advised to answer no comment to all questions, which he did. The police were forced to show their hand during the interview without extracting a confession. The DNA turned out to be from a cigarette butt found in a cigarette bin outside the block of flats in which JA resided. Without a confession the police were unable to proceed.
Another reason to remain silent is where the evidence supporting you cannot be improved by you answering questions and, if the evidence cannot be improved then all you can do is weaken your case. In one such case, a husband was accused of assaulting his wife causing bruising to her face. The police disclosed that other family members had already given an account saying that there had been no assault and that the “bruising” was in face a skin condition the wife had had for many years. The client remained silent since he could not improve the account in his favour and was released without charge upon conclusion of the interview.
Once you have heard the police set out their stall during the interview you can always decide to issue a prepared statement after the interview. I know police officers hate that and often make a big show of claiming your client has had his opportunity to give his account but, let me be blunt, if they ignore a piece of evidence because they don’t like the timing of it then they are likely to be guilty of professional misconduct and risk jeopardising their entire investigation if a judge hears that they ignored evidence. You can also put the statement as an answer to the charge should the client be charged.
Giving an account
Full comment interviews
Answering all questions has the benefit of putting forward your account early, which may make what you say more credible to a jury. Although, if you later recall something or it emerges you have missed something out then you can expect to be attacked about your change of story by the prosecution at trial. This can be a problem when events happened some time ago or in the heat of the moment when your recollection may not be perfect. It’s also a problem for a lot of people accused of drink driving who have no experience of being arrested, held in a cell and questioned – many report not thinking clearly and not understanding the importance of being precise and clear in their explanations.
Giving your account avoids the risk of an inference against your client being drawn (unless of course he is caught out lying, which would be much worse for him) and it allows him to raise defences that are then for the Crown to disprove.
Solicitors should also remember that if a client instructs that he or she will be pleading guilty at court then making an early admission to the offence is strong mitigation. See “An exception to the rule”, below, for more information.
Prepared statements might just be the most useful tool at a solicitors’ disposal in the police station. It’s already been said that answering some questions and remaining silent on others is a terrible idea, but a good prepared statement allows you to do just that. Prior to interview the police will give the solicitor disclosure about the evidence they have and what they plan to interview about. A solicitor can then use that to craft a prepared statement that deals with the issues raised in disclosure while brushing over any points that might be difficult for the client to handle. A well drafted prepared statement can avoid an inference being drawn at court, show the jury that your client has been telling the same story from the beginning and avoid difficult questions.
Some solicitors will advise the use of a prepared statement then answering questions. There will be very few situations where this is an appropriate approach since anything put in the statement can still be undone by poor answers to questions.
Prepared statements can be useful where a suspect is not up to being interviewed. Solicitors will often come across people who will not be able to stand up to even gentle questioning and are likely to do themselves more harm than good. In those situations, a prepared statement is often the correct approach.
An exception to the rule
The general rule with police interviews is to give a no comment interview unless there’s a good reason to switch. Most of the focus of this post has been about helping a client avoid being charged or convicted but solicitors will frequently face clients who instruct that they are guilty and wish to admit their offence.
As part of the disclosure process, solicitors should always be looking to identify appropriate cases for non-court disposal, i.e. cautions, reprimands, warnings or diversion to the Youth Offending Team. If a solicitor feels the case might be suitable then he or she should raise that with the disclosing officer to see whether, in principle, the officer will agree to such a course of action. The enquiry will nearly always be met with, “it’s not my decision” to which the question, “I understand that but the decision maker will listen to your advice so would you advise a caution if the suspect makes a full confession?” usually results in an answer one way or the other. There is no danger of this question being used against a client as evidence that they are guilty because these questions should be asked before the solicitor meets the client so that the solicitor can properly advise on the likely outcome of the various courses of action.
Where a client is eligible for an out of court disposal then advising them to admit an offence may be the most sensible way forward since it gives them a chance to avoid a criminal conviction. Although, it should be noted (since this is a website about drink driving) that drink driving offences will never be dealt with by an out of court disposal because the police and prosecutor will want to ensure a driving disqualification is imposed.
If you or a loved one has been arrested then you should always seek legal assistance before being interviewed by the police even if you think that you are guilty it may be that the police cannot prove it and so a solicitor may advise you to say nothing and thus avoid a charge.
If you would like to discuss your case, then please feel free to call us on 020 8242 4440 or email us via our contact us page.
 Can I make that point any clearer?