Questioning of suspects

Denis Clark continues his series with the third article on interviews.

An interview is defined as follows:

‘An interview is the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offences which, by virtue of paragraph 10.1 of Code C, is required to be carried out under caution.’

At the outset one must be aware that the Code definition, unlike a statutory definition, is merely a guide and the courts will have the last word. There was much criticism by the courts of the previous definition and it would be surprising if the present definition escapes judicial criticism. The importance of determining what is and is not an interview lies in the aim and purpose of Code C, commonly known as the ‘anti-verballing provisions’. In R v Hunt (1992) Steyn J, after outlining the potential scope for miscarriages of justice in the false attribution of incriminating statements to persons in custody and the role of Code C in blocking off loopholes to prevent such verballing, said:

‘The extent to which the provisions [of Code C] are effective will therefore crucially depend on how extensive or restrictive a meaning is given by the courts to the ordinary English word “interview” read in the context of PACE and Code C.’

Clearly the word must be restricted to the context in which it is used — ‘the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offences’. In other words the police must suspect a person and have cautioned him before any questioning of him may become an interview for Code C purposes. Even then not all questioning becomes an interview. Only questions the answers to which (or the failure to answer or satisfactorily answer) may be given in evidence before a court in a prosecution are elevated to the status of an interview. Sometimes it will be clear that questioning is an interview; eg. D is stopped in the street and an offensive weapon is discovered, clearly any questioning about the offence of possession of such a weapon will be an interview (see R v Foster (1987)). This narrows the term down but still permits a very wide interpretation. Thus, in R v Matthews (1990) the Court of Appeal took the view that:

‘Normally any discussion or talk between a suspect or prisoner and a police officer about an alleged crime will amount to an “interview”, whether instigated by the suspect, or prisoner or a police officer.’

See R v Okafor (1994) where customs officers, having found cocaine in a snail stew brought into the UK by D, further questioned him without caution about his acquisition of the stew without telling him that cocaine had been found. This was held to be an interview which should have been excluded. See also R v Rowe (1994) where it was held that three meetings at a prison between police officers and D, a convicted prisoner, at which questions were asked about other offences with which he was later charged, were interviews which should have been contemporaneously recorded or tape recorded.

The case law on the meaning of ‘interview’ has established the following — an interview requires a meeting between an officer and a suspect and the asking of a question or questions, so that a concealed tape-recording of D’s conversations with another person in a police cell or with his family in an interview room will not amount to an interview (see R v Jelen and Katz (1989); R v Shaukit Ali (1991); R v Bailey and Smith (1993) (not unfair to admit the evidence in these cases but cf R v H (1987)); it can take place outside the police station (R v Maguire (1989)); the suspect need not be talking to the investigating officer (R v Sparks (1991)); it can qualify as an interview even if the officer genuinely believes that he is only having an informal chat, ie the conversation is viewed objectively by the court and, if it decides it is an interview, the officer’s belief or motives are irrelevant (R v Sparks (1991) and see R v Weerdestey