A practical guide to protecting your position before and during questioning
Being asked to attend a police interview can be unsettling, particularly when you have never dealt with the police before. You may be worried about what will happen, what the officers already know and whether asking for a solicitor will make you appear guilty. You may also be receiving conflicting advice from friends, family or the internet about whether you should answer every question or say “no comment”.
There is no single approach that is right for every case. A police interview is an important stage of a criminal investigation, and the best way to deal with it depends on the allegation, the evidence available to the police and the account you are able to give. What you say can help bring an investigation to an end, but an inaccurate or poorly considered answer can also create difficulties that last throughout the case.
Understanding the process, and obtaining proper advice before questioning begins, gives you the best chance of making a calm and informed decision.
A police interview is not an informal conversation
However friendly or conversational the officers may appear, an interview under caution is a formal evidence-gathering exercise. The police will use it to ask about the allegation, test your account and look for evidence that may support a charge. The questions may also be designed to explore inconsistencies, challenge an explanation or establish facts that the police cannot otherwise prove.
The interview is also your opportunity to put forward information that may assist you. That might include an alibi, an innocent explanation, a misunderstanding or details of evidence the police have not yet obtained. In the right case, a clear and properly prepared account can lead investigators to make further enquiries or decide that no charge should be brought.
Interviews are normally audio recorded and may also be video recorded. The recording can later be provided to the Crown Prosecution Service and played in court. This is why something said casually, or while tired and under pressure, can become important months later.
What does the police caution mean?
Before questioning begins, the officer will give the familiar caution: “You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
The caution contains two messages that pull in different directions. You have a right to remain silent, but there can sometimes be consequences if you later rely on an explanation that you could reasonably have given during interview. At the same time, anything you do say can be used as evidence and compared with the account you give at trial.
This is precisely why the decision cannot sensibly be reduced to “always answer” or “always say no comment”. The correct approach depends on the evidence and the circumstances in which the interview is taking place.
You are entitled to legal advice
Anyone interviewed by the police is entitled to independent legal advice. At the police station, free advice is available through the duty solicitor scheme, and you may also ask for a solicitor of your choice. Chetwode Criminal Defence Solicitors acts for privately paying clients who want their case prepared and handled by a specialist solicitor from the outset.
Asking for legal advice does not make you look guilty. Experienced police officers expect suspects to speak to a solicitor, and the decision to obtain advice should not be held against you. In practice, refusing legal advice is often a far greater risk than requesting it.
Your solicitor should speak to the investigating officer before the interview and obtain as much disclosure as the police are prepared to provide. That may include the nature of the allegation, a summary of the evidence and the main issues the officers intend to raise. The police do not have to disclose their entire case at this stage, and they may deliberately hold back information so that they can test whether your account is genuine. Even limited disclosure, however, can make a substantial difference to the advice you receive.
What happens before the questions begin?
Once the available information has been obtained, your solicitor will discuss the allegation with you in private. This is the opportunity to explain what happened, identify anything you are unsure about and consider whether documents, messages, witnesses or other evidence may support your account.
Your solicitor will then assess the apparent strength of the police evidence and advise on how the interview should be approached. That advice is not based on a formula. It should take account of what the police can currently prove, what you are able to say, whether your account can safely be tested in questioning and whether there are important facts that ought to be placed on record immediately.
Should you answer the police questions?
Sometimes the best course is to answer questions fully. This may be appropriate where you have a clear and consistent explanation, where the allegation arises from an obvious misunderstanding or where an important defence needs to be raised at the earliest opportunity. It may also be sensible where you accept responsibility and carefully advised admissions could affect how the case is dealt with later.
Answering questions allows the police to hear your account straight away and may prompt them to investigate matters that support you. It is not risk-free, however. A person who is anxious, exhausted or angry may guess at details, use imprecise language or agree with a misleading suggestion. A poorly expressed answer can appear inconsistent when it is compared with later evidence, even where the person was trying to be honest.
When might a prepared statement be used?
A prepared statement is a written account drafted with the assistance of a solicitor and read or handed to the police at the start of the interview. It can be useful when there are particular facts that need to be recorded clearly, but answering a long series of questions would create an unnecessary risk.
The statement may set out the central explanation, identify an alibi, deny specific allegations or direct the police towards evidence that should be obtained. After it has been provided, the usual approach is to answer “no comment” to further questions, although there are cases in which a solicitor may advise a client to answer selected questions.
A prepared statement must be approached carefully. If it is too vague, it may not protect the position it was intended to address. If it contains unnecessary detail, it may create new issues. Its value lies in placing the right information on record in a controlled and accurate form.
When might a no-comment interview be appropriate?
A no-comment interview is not an admission of guilt. It is the exercise of a legal right and may be appropriate where the police have disclosed very little, where their evidence is weak or where answering questions is more likely to strengthen the case against you than assist your defence.
It may also be the safest course where you are too distressed, unwell or vulnerable to provide a reliable account, or where the questions are asking you to speculate about matters you cannot properly remember. In some investigations, the police are hoping the interview will fill gaps in their evidence. Giving answers without understanding those gaps can unintentionally provide the missing link.
That does not mean that silence is automatically the safest option. A no-comment interview can create difficulties if you later rely on an account that could reasonably have been given at the time. The decision therefore needs to be made after careful advice, not as a reflex.
Why answering some questions and refusing others can be risky
People sometimes assume they can answer the easy questions and say “no comment” whenever a difficult point arises. Although that approach is legally possible, it can look selective and may suggest that questions were avoided because there was no convincing answer.
There are unusual cases in which a mixed approach is justified, but it should not be adopted casually. A consistent strategy is usually easier to explain and less likely to create an unfavourable impression.
Can silence be used against you?
In some circumstances, a court may be invited to draw an adverse inference where a defendant relies at trial on a fact that was not mentioned when questioned. In everyday terms, the prosecution may argue that the later account was invented after the defendant had seen the evidence.
Silence does not prove guilt and cannot by itself justify a conviction. The prosecution must still prove the case beyond reasonable doubt. The court will also need to consider why the person remained silent and what advice was given. Even so, the possibility of an adverse inference is one of the reasons why interview strategy needs careful thought.
What if you intend to plead guilty?
Legal advice remains important even when you accept that you have committed an offence. The police may be investigating a more serious allegation than the facts support, or questioning may move into areas that expose you to additional charges. Trying to be helpful without understanding the legal significance of an answer can make the position worse.
A solicitor can advise whether admissions should be made, how far they should go and whether further information is needed before any decision is taken. An early admission may sometimes improve the eventual outcome, but it should be an informed admission to the correct offence rather than a rushed response to pressure.
Small mistakes in interview can become major issues later
Many damaging interview answers are not deliberate lies. People guess because they feel they ought to know the answer, agree with a date they have not checked or try to fill a gap in their memory. Others become defensive, angry or overly eager to explain. Some answer a question they have misunderstood and do not realise the problem until they later see the interview transcript.
Months later, the prosecution may compare those answers with phone records, CCTV, witness evidence or the account given at trial. A minor discrepancy at the police station can then be presented as evidence that the defendant is unreliable or has changed their story.
The safest course is to listen carefully, avoid guessing and take time before answering. A solicitor can ask for a question to be clarified, advise you during a break and intervene if questioning becomes unfair or confusing.
How Chetwode can help
A police interview can shape the direction of an investigation long before anybody enters a courtroom. Early advice allows the evidence to be considered before important decisions are made and gives you the opportunity to approach questioning with a clear strategy rather than reacting under pressure.
At Chetwode Criminal Defence Solicitors, we represent privately paying clients in police interviews involving allegations ranging from motoring offences and fraud to sexual offences and other serious criminal investigations. We obtain the available disclosure, discuss your account in confidence and advise whether you should answer questions, provide a prepared statement or exercise your right to silence. Where further evidence may assist, we also identify the enquiries that should be made and the material that should be preserved.