1. The Police and Criminal Evidence Act 1984 (“PACE”) is primarily concerned with the powers and duties of the police, the rights of suspects and the admissibility of evidence. Seven Codes of Practice have been adopted under this Act, including Code C - Requirements for the detention, treatment and questioning of suspects not related to terrorism in police custody, and Code E - Revised code of practice on audio recording interviews with suspects.1Section 67(9) of PACE places a duty on persons other than police officers "who are charged with the duty of investigating offences or charging offenders" to have regard to any relevant provisions of the Codes of Practice.2 You should be familiar with the provisions of the Codes, and follow them when you are questioning suspects.3
2. There is no express legal requirement that a person suspected of having committed an offence must be interviewed under caution before any decision as to whether to prosecute is taken. However, it is desirable that persons who are suspected of committing offences are interviewed under caution because:
3. In the light of the above, you should generally interview suspects under caution unless there are good reasons for not doing so, such as the suspect refusing to attend. Even in a case where you feel that the evidence you have collected in the course of an investigation is sufficient to provide a realistic prospect of conviction, you may still carry out an interview under caution.5 In any event, in health and safety investigations, it will generally be appropriate to question the suspect about the reasonable practicability of steps that were or were not taken. This is likely to be difficult to ascertain without an interview. You may also wish to give the suspect the opportunity to comment on the matters you have uncovered in your investigation and to put forward any points that they consider to be relevant.
4. Once a person has been charged (served with a summons) or informed that they will be prosecuted, you should not question them further in relation to the offence, unless such questions are absolutely necessary:
Before any such questions are put to a person, they should be cautioned again. They should also be reminded that they have a right to seek legal advice 6.
5. When setting up an interview under caution, a letter should be sent inviting the person, or an authorised representative in the case of a company (see below), to attend an interview under caution at an HSE office.
6. If a suspect declines the opportunity to attend or you do not conduct an interview under caution for any other reason, you will not be able to verbally ask the suspect for their representations. You should normally write to the suspect, inviting him/her to make any written representations relating to the investigation or the prospect of prosecution. See also Views of the potential defendant and Interview by letter/correspondence below.
7. A suspect is not obliged to accept your invitation and may therefore refuse to attend. If they do so, this can be brought to the court’s attention at the time of sentencing (if they plead guilty or are convicted at trial), as the extent to which they co-operated with the investigation is relevant at that stage.
8. If you receive no response to your invitation, it may be appropriate to attempt to write to the suspect again, providing a final deadline for a response.
9. You should make sure you have the correct address. If absolutely necessary, you can telephone the suspect to check their address only.
10. In the event that a body corporate (e.g. a company) is invited to attend an interview under caution, you should ask the body corporate to nominate a person to attend the interview under caution to answer questions on its behalf.
11. It sometimes happens that a company (or other body corporate) that is invited to nominate a representative to attend an interview under caution nominates a person who you suspect may have committed an offence in their individual capacity (e.g. as a director or senior manager pursuant to HSWA section 37) and who you may therefore intend to interview under caution as an individual. Where this happens, the company should be asked if there is anyone else who they can nominate to attend instead to speak as the company’s nominated representative.
12. If the company cannot nominate a different person (e.g. because there is only one director), there should be two separate interviews under caution, one of the company (through its nominated representative) and one of the same individual in their personal capacity. The order in which the interviews are conducted will depend on the circumstances of the investigation. You must never conduct just one interview where the individual is asked to answer questions both on his/her behalf and on behalf of the company – it would be impossible to identify which answers are admissible against each and the entire interview is likely to be inadmissible in any later court proceedings.
13. Where two interviews are to take place, it may be possible to conduct both interviews on the same day for the convenience of all concerned, but this may not be possible in more complex cases. It should always be made clear in advance in which capacity a person is being interviewed, either in his/her capacity as an individual or as the company’s nominated representative. Where both interviews are being conducted on the same day, it should be absolutely clear that you are conducting two separate interviews. A separate set of tapes/CDs should be used for each interview. You should make it completely clear, when cautioning at the start of each interview, in what capacity the person is being interviewed.
14. Where investigators suspect a partnership (as opposed to an LLP) of an offence in circumstances where criminal liability may attach to the partnership itself and the individual partners it should always be made clear in advance in which capacity a person is being interviewed, either in his/her capacity as an individual or as the partnership’s nominated representative. Where both interviews are being conducted on the same day, it should be absolutely clear that you are conducting two separate interviews. A separate set of tapes/CDs should be used for each interview. You should make it completely clear, when cautioning at the start of each interview in what capacity the person is being interviewed. Where the legal status of the partnership is in issue inspectors should refer to HSE’s Legal Adviser’s Office for further advice.
15. When there are grounds to suspect that a person has committed an offence, you must caution them before any questions about it are put to them to ensure that the answers (or any failure to answer) are capable of being admissible in evidence in a prosecution.
16. If you put further questions to a person at a later time you must caution again.
17. "Grounds for suspicion" are more than vague unsubstantiated feelings or a hunch; they require some basis, but this can be less than evidence supportive of a prima facie case. 8
18. A caution is not necessary when you are asking questions for other purposes (for example, solely to establish someone's identity or their ownership of a certain vehicle). You should remember, however, that what starts out as exploratory questioning may, as a result of the answer given to preliminary questions, become questioning about a person’s involvement or suspected involvement in a criminal offence. You must then immediately issue a caution and comply with the other relevant provisions of Code C. 9
19. The caution must be in the following terms:
"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."
20. You should ensure that the person understands the caution. You should be prepared to explain what the caution means if the suspect is unclear. At the same time as the caution, you should say that the person is not under arrest or obliged to remain, and may obtain legal advice.
21. An "interview" is defined by Code C 10 as the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences. Such an interview must always be carried out under caution. Therefore, whenever you caution someone and question them about their involvement in an offence, you are conducting an interview under caution within the meaning of Code C.
22. The suspect’s responses to questions put to him/her during an interview under caution conducted in accordance with Code C may be used as evidence against him/her in any subsequent criminal proceedings. This is explained to the suspect by the caution. Evidence obtained during the interview can only be used against the person being questioned; it cannot be used in evidence against another person (for example, a co-defendant), although it may suggest additional lines of enquiry.
23. You should note that an informal discussion can be an "interview" within the meaning of Code C 11. A conversation will constitute an interview if a suspect is being asked to incriminate himself 12. Also, since Code C refers to "any questioning", a single question can amount to an interview 13.
24. If you fail to caution a person but still question them about their involvement/suspected involvement in an offence, this is still an "interview". However, any evidence contained in the interview may not be admissible.
25. An interview under caution should always be audio-recorded (see below).
26. If a specialist inspector is to attend an interview under caution, the fact of his/her specialist expertise should be disclosed to the suspect and legal adviser. Generally, a specialist who has been appointed to act as an expert in any potential prosecution (or who is intended to fulfil that role) should not attend an interview under caution as this may compromise his/her independence. See Expert evidence - The expert for further guidance.
27. An accurate record must be made of every interview with a person suspected of an offence (i.e. every interview under caution) 14.
28. The record must state the place of the interview, the time it begins and ends, the time the record is made (if different), any breaks in the interview and the names of all those present. The record must be made on forms provided for this purpose or in the investigator’s note book, or in accordance with the code of practice for the audio recording of interviews with suspects (Code E) 15.
29. Persons being interviewed in connection with offences have a right to consult privately with a solicitor. They can choose to do so in person or by telephone. You should inform the suspect of this right when you arrange the interview and before the interview starts.
30. Suspects who are not interviewed at a police station are not entitled to free legal advice under the ‘duty solicitor’ scheme. If the witness asks for legal advice, however, an interview may not continue until it has been obtained.
31. Where a solicitor has been consulted and is available, s/he must be allowed to be present at the interview.
32. The interview should be conducted sitting down and as far as possible in comfort, with proper breaks for refreshment (normal meal breaks and at least 15 minutes every two hours). 17 The interview should take place in an adequately heated, lit and ventilated room. Before the start of the interview, it is advisable to ensure that all persons present have switched off mobile telephones, pagers etc to avoid interruptions.
33. At the beginning of the interview, having first cautioned the suspect, you should put to them any significant statement(s) or silence(s) which occurred in your presence or of any other interviewing inspector before the interview and which have not been put before the suspect in a previous interview. You should ask the suspect whether they confirm or deny that earlier statement or silence and if they wish to add anything.
34. A significant statement is one which appears capable of being used in evidence against the suspect (e.g. an unsolicited comment relevant to the offence, such as an admission of guilt). A significant silence is a failure or refusal to answer a question satisfactorily when under caution (e.g. during a previous interview), which might give rise to an inference under the Criminal Justice and Public Order Act 1994 18. Also see Inferences From Silence.
35. If a suspected person makes unsolicited comments outside the context of an interview but which might be relevant to the offence, you should make a written record of the comments. You should sign the record and record the time the comment(s) were made.
36. You should also give the suspect the opportunity, where practicable, to read the record and sign it as correct or to indicate the respects in which they consider it inaccurate. If the suspect agrees the record is correct, they should be asked to endorse the record with, for example, 'I agree this is a correct record of what was said’ and add their signature. Where the suspect disagrees with the record, you should record the details of any disagreement and ask the suspect to read these details and sign them to the effect that they accurately reflect their disagreement. Any refusal to sign should also be recorded 19.
37. You must not try to obtain answers by the use of oppression. Such an approach is likely to mean that any evidence obtained is inadmissible.
38. You must not indicate, except in answer to a direct question from the person being interviewed, what action HSE will take against them if they answer questions or refuse to do so 21. To do so could be seen as an oppressive approach.
39. You should not leave the suspect unattended during an interview. If you take a short break and all parties remain in the room, it is not necessary to switch off the recorder. However, if you do take a break during the interview at which the audio recording is stopped, you must always announce that a break is to be taken and give the reason for it and the time, before switching off the recorder.
40. If the suspect is to leave the room during a break, you must take the tape/CD out of the recorder and seal it as if it were the end of the interview. You should continue the interview on a new tape/CD following the same procedure.
41. You should resume by announcing on record that the interview is continuing after a break, repeat the reason why the break was taken and again give the time. You should make it clear when you re-start that the suspect is still under caution and, if there is any doubt, you should give the caution again.
42. The interview (or further interview) of a suspect must cease when:
43. The purpose of audio recording an interview under caution is to ensure that the most accurate record possible can easily be made. Audibly recorded interviews are the best way to ensure that admissible evidence is collected from suspects who are interviewed. Interviews with suspects should therefore always be audio recorded. 22
44. You should have regard to Code E the revised Code of Practice on Audio Recording Interviews with Suspects, as well as Code C on the Questioning and Treatment of Persons. 23 If interviews with suspects are audio recorded, the court may exclude evidence of the interview if a relevant provision of the Code is not followed.
45. Code of Practice E provides for recording using any removable, physical audio recording medium that can be played and copied or on a secure digital network. In HSE, interviews under caution are recorded on tape or CD. Guidance on tape recording and the equipment is available in each operational office. You should read the guidance thoroughly and clarify any matters, including the operation of the machine, before arranging the interview. Only the main points are dealt with here. The equipment consists of:
46. The tapes or CDs should be unwrapped and loaded into the machine in the sight of the suspect. 24 After the interview, one of the tapes/CDs will be sealed in the presence of the suspect and normally only opened in court.25 This is the master recording. The second recording will be used as a working copy. Where a third CD is produced, this may be given to the suspect if requested. Each office will have arrangements for tape/CD security.
47. If, during an interview, the recorder indicates the media only have a short time left, you should inform the suspect that the recording is ending and round off that part of the interview. You should unwrap and load the next set of tapes/CDs into the machine in the presence of the suspect.26
48. At the start of an audio-recorded interview, you should give the place of interview, the date and time, and then introduce yourself by giving your name and post. All other persons present in the room should be asked to introduce themselves so that their voices may be identified on the recording.27
49. You should inform the suspect that, at the conclusion of the interview, you will hand them a notice explaining what will happen to the recording.
50. You should then caution the suspect, state that you are not using your s.20 powers and that the suspect is not under arrest and free to leave. You should remind the suspect of the right to seek legal advice if there is no solicitor present at the interview.28
51. The interviewee should be asked to give their full name, address, date of birth and, where the suspect is an individual, National Insurance number (as these details will be required if legal proceedings are subsequently initiated).
52. In circumstances where you are interviewing a person who has been nominated to speak on behalf of the company (in effect that person is the company for the purposes of the interview under caution), you will wish to satisfy yourself that the person has the authority to answer questions on behalf of the company. That authority can only be granted by the board, and you should ask the person attending to bring written authorisation of such that can be referred to in the interview.
53. If the suspect objects to the interview being recorded, the objection should be recorded on the media. If the objection is recorded on tape/CD or the suspect has refused to have their objections recorded, you may turn the recorder off. If you do this you should tell the suspect and explain your reasons for doing so. You will then have to make a written contemporaneous record of the interview in the manner described below.29 If the suspect objects but you reasonably consider that you can proceed to put questions to the suspect with the recorder still on, you may do so.
54. If the recording equipment fails and no replacement recorder is available, the interview may continue without being audibly recorded 30. In this situation, you will need to make a written record of the interview in the manner described below.
55. At the end of the interview, you must offer the suspect an opportunity to clarify anything that has been said or to add anything. 31 You should then complete the notice to the person whose interview has been audio recorded (Form LP74), give the time and announce that you are now switching off the recorder. The master tape/CD must be sealed and the label signed by you, the suspect and any other persons present.32
56. After you have conducted an audio-recorded interview, you should make a note in your notebook of the fact that an audio interview has taken place, the time, duration and date, and the identification number of the recording.33
57. If it becomes necessary to conduct an interview under caution that is not audio recorded (e.g. where the suspect refuses to allow the interview to be recorded), you should make an accurate record during the course of the interview on form LP77, usually verbatim in question and answer form, but which must in any event accurately reflect what was said.
58. The record must state the place of the interview, the time it began and ended, the time the record was made (if different), any breaks in the interview and the names of all those present 34.
59. The fact that a caution was given, and any further cautions or reminders, should be recorded, as should the fact that the suspect was informed of the right to seek legal advice.
60. At the end of the interview, you, or another inspector who has made the interview record, should sign the record at the bottom of each page. You must also ask the witness to read through the interview record. He/she should then sign each page in the space provided to confirm his/her agreement that it is a correct and accurate record of the interview. Any alleged inaccuracies should be amended by the person interviewed, endorsed with a statement that the amendments accurately reflect the disagreement, and signed. You should record any refusal to read or sign the statement and any other persons present (for example, an appropriate adult or a solicitor) should be asked to read and sign the record instead.
61. Paragraph 12.13 of Code C refers to “written statements made … under caution”. Since interviews under caution in HSE are audio-recorded or (where necessary) contemporaneously recorded, and the written record is signed by the person interviewed, it is normally not necessary for a suspect to be asked to make a written statement under caution. A written statement under caution should normally be taken only at the express wish of a suspect. You may, however, ask if the person wants to make a written statement. 36 Written statements under caution should be made on form LP77. These statements should only be made in person and not in correspondence.
62. Where a suspect has requested to make a written statement under caution, they should always be invited to write down what they want to say 37. Where the person writes their own statement, it should begin:
"I make this statement of my own free will. I understand that I do not have to say anything but that it may harm my defence if I do not mention when questioned something which I later rely on in court. This statement may be given in evidence."
63. You should not prompt a person who is writing their own statement, except to indicate what matters might be material or to question any ambiguity in the statement.
64. If the suspect wishes you to write the statement, you should take down their exact words, without editing or paraphrasing. Any questions that are necessary (e.g. to make the statement more intelligible) and the answers given should be recorded contemporaneously on the statement form. Where you write the statement, you should ask the suspect to sign the following declaration before you begin:
"I wish to make a statement. I want someone to write down what I say. I understand that I do not have to say anything but that it may harm my defence if I do not mention when questioned something which I later rely on in court. This statement may be given in evidence."
65. When you have finished writing the statement, you should ask the suspect to read it and to make any corrections, alterations or additions, and then to sign the following certificate at the end of the statement:
"I have read the above statement, and I have been able to correct, alter or add anything I wish. This statement is true. I have made it of my own free will."
66. If the suspect cannot read or refuses to read or to sign, you should read the statement out and ask for any corrections, alterations or additions. You should certify on the statement what has occurred.
67. Where a person has been interviewed under caution, a written record of the interview should be provided to them if they are prosecuted. You can provide a written report by creating a transcript of the interview or a summary.
68. If you provide a summary of the interview, you should make an accurate and balanced summary of the relevant parts, with important points recorded verbatim, from the working tape/CD on form LP75. It is important that the summary is fair and balanced as it is desirable that the summary is agreed with the defence for use in court. If such a summary cannot be agreed, you may have to provide a full transcript or play the original recording in court.
69. Even if you have provided a transcript or summary, you should provide a copy of the interview recording to the defence if requested.
70. Master tapes or CDs should be stored securely in accordance with local office arrangements and their movements accounted for on the same basis as other material that may be used for evidential purposes.
71. The investigating inspector has no authority to break the seal on a master recording which is required for criminal proceedings. If it is necessary to gain access to the master recording (e.g. if the working copy becomes faulty), then you should arrange to break the seal in the presence of your Approval Officer. The defendant or their legal advisor should be informed and given an opportunity to be present. If they are present, they should be invited to reseal and sign the master recording. If either refuses or neither is present, this should be done by your Approval Officer. 38
72. Any facts indicating a breach of a PACE code will be considered by the court, which can make a ruling on the admissibility of the evidence. 39 As has been seen above, a breach of a PACE Code may be evidence of oppression or may support a contention of unreliability. 40 It may also lead to evidence of the confession being excluded as a matter of discretion under sections 76 or 78 PACE or the common law.
73. Evidence has been excluded in the following situations: where the police made a note of an incriminating comment by the defendant but failed to show it to him or ask him to sign it; 41 where no appropriate adult was present on questioning a juvenile; 42 and where the suspect was not cautioned. 43 The evidence of a person who is not given an adequate opportunity to consult with a solicitor may be excluded. 44
74. You may receive a request from a suspect's solicitor for disclosure of information prior to the suspect's attendance at an interview under caution. There is no obligation on an investigator to disclose the whole of the evidence against a suspect prior to interview. 45 You have a wide discretion in relation to disclosure of such information. When a request is made, it is appropriate to provide the suspect with some information so that the solicitor is in a position to usefully advise their client in relation to the interview under caution. 46
75 If you receive a request for pre-interview disclosure, you may write a letter to the defence in which you include information on the offence(s) that you suspect may have been committed and a factual summary of the nature of the case against the suspect. You can also include in the letter a broad description of the areas that you intend to cover during the interview under caution. 47
76. You should not disclose, at this stage, copies of witness statements or the names of witnesses. If you refer to the contents of statements in the summary of facts you should say for example, "a number of witnesses saw that...".
77. Sometimes you will receive a request from a defence solicitor for a written list of the questions that you intend to ask at the interview under caution. You should not agree to such a request, as it is highly unlikely that you will be able to provide an exhaustive list; you will wish to react to the answers given in interview by asking further questions. At the most, you should provide a list of the broad areas to be explored in the interview as already mentioned above.
78. You may find that a solicitor acting for a suspect asks you to interview their client under caution by letter (i.e. that you issue the suspect with the caution in writing and then set out in the letter the questions that are to be answered). The suspect will provide answers in a letter in reply. Written answers to questions put to a suspect in a letter (which must include a caution and a recommendation that the suspect seeks legal advice before replying) may be admissible in evidence 48.
79. Generally, however, an interview under caution by letter will not be the most appropriate course of action. You may consider declining such a request for the following reasons:
80. In light of the above, it will only be in very exceptional circumstances that you will conduct an interview under caution by letter. Further advice should be sought if necessary from Legal Adviser’s Office via your legal liaison point.
81. Police officers have a power of arrest without warrant in respect of all offences, including health and safety offences49. All other people, including HSE inspectors, have limited powers to arrest anyone who has committed, or is in the act of committing, an indictable (including an either way) offence, or anyone they have reasonable grounds to suspect is committing (or has committed) such an offence50.
82. The restrictions on when the power of arrest may be used51 make it extremely unlikely that HSE staff will use this power. In addition, the lack of suitable HSE facilities in which to detain suspects, and the fact that you will not have received training in how to ensure your own safety when making an arrest, mean that you should not seek to arrest an individual you suspect of a health and safety offence. Inspectors should continue to use their enforcement powers under HSWA in accordance with the Enforcement Policy Statement. They also have the power to take a police officer with them if they have reasonable cause to apprehend any serious obstruction in carrying out their duties52.