Questioning of suspects

This is the first in a series of articles that relate to the questioning of suspects by the police.

Summary

The questioning of persons assumes such importance in the detection of crime and the proper conviction of offenders that special provisions govern it in PACE (ss 76-78) and have been developed in the Code of Practice C (Code C) additionally, in respect of terrorist offences, Code H. Breach of these provisions is more likely and more regularly to be met with the exclusion of evidence than in any other area of police powers. There are two overriding, but difficult, principles to apply. First, as soon as an officer has grounds to suspect that a person has committed an offence and wishes to question him, he must caution that person if the answers or failure to answer may be given in evidence to a court in a prosecution. Second, an interview with a suspect, which is questioning after caution about involvement in an offence, will normally take place in a police station after arrest where the suspect will have all the protections of the PACE Act and Codes, including access to legal advice and the recording by video or taped form of the interview. Thus the situation in which an officer suspects D of an offence and eventually arrests him and takes him to a police station may be charted as follows:

(1)Suspicion.

(2) Caution.

(3)Questioning is an interview if the answers or failure to answer may be given in evidence in a prosecutio.

(4)Reasonable suspicion after the decision to arrest on interview unless Code C. 11.1 applies.

(5) Police detention interview in accordance with Code C 11and Codes E and F.

There are four important stages leading up to an arrest:

(1) Police suspicion of a person, D.

(2)The cautioning of D.

(3)The questioning of D.

(4)D’s arrest if the suspicion is confirmed and has a reasonable basis.

If D is caught red-handed, all four will coincide. If D is stopped, questioned and arrested in the street (or attends the police station voluntarily, is questioned and then arrested), the sequence will be (1), (3), (2) and (4). The difference between (2) and (3) can be narrow and difficult to distinguish. For example, if a police officer does not suspect D and merely asks him what he saw or knows of an incident, neither (2) nor (3) applies. If anything, D is only a potential witness. If then the constable suspects that D was involved and asks him questions about his suspected involvement, (2) and (3) arise, an ‘interview’ develops (see below), and it must be recorded. If the officer begins to suspect that D is involved, (2) also arises. It will be readily appreciated that such analysis, of what may be a rapidly developing conversation, is far easier to conduct on paper than in the street. However, the point is important in practice for Code C contains frequent references to both principles (2) and (3), whilst the courts have been concerned to prevent circumvention of the intended framework for questioning with its built-in safeguards and particularly energetic in requiring the proper recording of interviews, which Code C requires ‘whether or not the interview takes place at a police station’ (C 11.7).

The requirement in Code C 10.1 that ‘a person whom there are grounds to suspect of an offence must be cautioned before any questions… are put to him regarding his involvement or suspected involvement in that offence if his answers or his silence… may be given in evidence to a court in a prosecution’, together with the definition of an interview by Code C 11.1A as ‘the questioning of a person with regard to his involvement or suspected involvement in a criminal offence which, under para 10.1 of Code C, must be carried out under caution’, together with the requirement in Code 11.1 that ‘Following a decision to arrest a suspect must not be interviewed about the relevant offence except at a police station or other authorised place of detention