SPEAKING TO THE POLICE; MILITARY AND CIVILIAN

At some point in your career you may find that the service or civilian police want to talk to you about more than the weather. In this article we tell you what to expect and what might happen. Every case is different, and you should take legal advice about the specific situation you find yourself in, but these are the basics you need to know.

Why do the Police want to talk to me?

This is the first question to ask, and it is an extremely important one.  The police might want to speak to you as a potential witness to a crime or a death, or they may want to interview you as a suspect.  The way they approach you does not always make this clear.  The fact that the police have called you, or visited you at work, does not mean that you are not a suspect.  Hearing the phrase that they would like you to ‘just pop in for a chat’ can still mean that they would like to interview you as you are under suspicion of committing an offence.

The best way to work out the reason for the meeting is to ask them directly – am I under suspicion?  If you are not comfortable doing this and would prefer someone else to do the leg work, you can contact a Solicitor.

The Police have said that they want to speak to me as a witness or a victim.  Do I have to speak to them?

You may be happy to be a witness and go to Court, but it can feel daunting if a meeting has been set up for you with the police and you are told to go, and you may want some advice before you do so.  You can speak to an independent Solicitor before deciding whether to meet them and give a statement. 

Does instructing a Solicitor make it look like I have something to hide?

In a word, no. The police are used to dealing with Solicitors, whether they are instructed on behalf of witnesses or suspects. The military and civilian police will automatically offer you access to a Solicitor if you are a suspect, it is against the law for them not to. When police officers are interviewed as suspects, they are always represented by specialist lawyers. This is a good example of why you should be, too.

How much does it cost?

If you are being interviewed as a suspect, whether attending voluntarily or under arrest, it is free under the Criminal Legal Aid scheme and the Armed Forces Legal Aid scheme.  It is not means assessed, so representation is free even if you are a millionaire. 

If you are being spoken to as a witness, then this is different and there may well be a charge.  You should ask the Solicitor about this before you commit to using them.  They should be clear and upfront about any cost to you.

What is the difference between a voluntary police interview and an interview under arrest?

In terms of the content and structure there is no difference, besides the fact that a voluntary interview takes place at a time and date suitable to you and the police.  If you have a Solicitor, they will organise this with the police on your behalf.  A voluntary interview means that you can leave the station at any time and unless something goes terribly wrong, you will be going home at the end of the interview to await the results of any further investigation into your case, and a final prosecution decision.

If you have been arrested, the police will ask you if you would like to be represented by a Solicitor.  Both military and civilian police have access to something called the ‘Duty Solicitor Scheme’.  This is an arrangement with local criminal defence firms based near your barracks where appropriately qualified legal aid lawyers take turns on a rota to ensure your barracks, and local police stations, are covered 24/7 by someone who can come and advise you at short notice.

If you are deployed on exercise or operationally, the military police will delay interviewing you until a Solicitor has been provided to you.  Solicitors have been flown out to Africa and Afghanistan for this purpose, so it does not matter where you are.  Arrangements can be made.

It doesn’t matter whether the interview is voluntary or under arrest, you have an unassailable right to be represented by a Solicitor. 

Should I use the duty solicitor scheme, or someone else? How do I know who to pick?

Police Station Accredited Duty Solicitors have taken extra exams compared to normal Solicitors.  This means they are experts at giving legal advice in police interviews.  Firms based near your barracks are likely to be familiar with military criminal law, the military environment, military procedures, and the potential impact of a conviction upon your career.  You will have the opportunity to speak to your Solicitor on the phone before they attend in person.  Use this opportunity to ask them about their experience.  If you are not happy, or you would prefer to choose your own, you can ask a family member to do some research on your behalf and contact a specialist military criminal defence Solicitor.  There are firms who specialise in defending service personnel.  If you have already had your interview, it is not too late to change your Solicitor, or to instruct one from scratch.

Should I just go in on my own to get it over with, and answer questions?

No.  Going into an interview without a Solicitor is like going into battle without any ammo. You are putting yourself in a position where you are more likely to be prosecuted than if you had taken legal advice and dealt with the interview in a different way.

The law says that the police must provide you, or if you are represented your Solicitor, with some information before you are interviewed.  We call this ‘disclosure’.  This disclosure includes the offence(s) you are suspected of committing and why you are suspected.  In other words, the evidence they have against you.  They should give you information that undermines the case against you, too.  In other words, evidence or facts that help you.  In our experience, if you have no Solicitor you are likely to be given very little, if any of this information.  Having a Solicitor present will ensure this information is obtained, and if the police do not provide enough disclosure, your Solicitor will advise how this affects your approach to the interview.

What will the Solicitor do that I cannot do myself?

Besides obtaining disclosure and relaying it to you, a Solicitor will advise you what the offences mean, how serious they are, the defences available for the offence, how long the investigation is likely to take and your options in the case, including any potential non-prosecution disposals available to you.  

If you have been arrested by civilian police they will advise you on your chance of getting bail, and they can argue for bail on your behalf.  No matter whom is interviewing you, they will listen to you and write down your account of what happened.  They may take notes of potential defence witnesses whom they can contact on your behalf afterwards, and they may make notes of locations where evidence such as CCTV can be checked.  They will explain what the caution means, this is a warning given by the police at the beginning of the interview.  Then they will advise you on interview tactics. 

Solicitors will ensure that you only go into an interview if you are fit to be interviewed.  If there are concerns about your mental health, they will ensure that you are assessed by a psychiatrist first.  In some cases, people then go directly to hospital and are not interviewed until they are better.

Interview Strategy

The caution, given by the police at the beginning of the interview, is important.  It shapes the way the Solicitor advises how you deal with the interview.  The caution says ‘you do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later may rely on in Court. Anything you do say may be given in evidence’. 

The Solicitor will tell you what needs to be said in the interview and what does not.  This is because the interview becomes evidence in the case against you.

There are four ways a Solicitor might advise you to approach an interview:

1. They may advise you to refuse the interview altogether, instead making some representations on your behalf to a senior officer that secure your release. 
2. They may listen to what you have to say and advise you that some of what you have to say is not helpful and should not be said to the police, but some of it does need to be said.  The Solicitor is an expert in this sort of tactical analysis.  In that sort of case, they may advise you to put forward a ‘prepared statement’, which they will write with you.  During the interview they may then advise you not to answer any questions, and they will read out your account to the police on your behalf.  Some prepared statements are very short, others might be ten pages long, and contain legal declarations and warnings to the police about their conduct so far.
3. They may advise you not to answer any questions at all, perhaps saying ‘no comment’ or remaining silent.  This might be because there is no evidence you have done anything wrong at all, or there may be insufficient evidence to prosecute you, but if you do say something, you might give them evidence they otherwise didn’t have.  It may also be because you do not have a defence.
4. They may advise you to answer questions.  They will help you prepare for this and explain to you the style and shape a police interview takes, and they may practice with you before you go in so that you are less nervous.

The Solicitor is trained to intervene during the interview so that they can speak to you to discuss the case further with you in private.  This means they can change your strategy dynamically as the interview progresses, and the police reveal more information about their investigation.  They can also intervene to stop the police asking inappropriate and irrelevant questions, repeating themselves, taking too long or behaving in a hostile manner.

What happens afterwards?

Well, it depends if you are being interviewed by service or civilian police.

if Civilian Police, one of the following will happen:

• Released under investigation: this means the police are not ready to finalise the case, you are not being prosecuted, and the case has not been dropped. There may be further interviews.
• Released on bail: this means that you must return on a date and at a time dictated to you by the police (usually made around your work commitments). There may be further interviews.
• Charged and bailed to Court: you must attend the Court stated on the date and at the time stated. You may have been charged with offences that are different to the ones you were arrested for. You should check what you need to do next in our Magistrates’ Court article.
• Charged and remanded to Court: you will be held overnight (over two nights if it is a Saturday night) and your case will be heard by the next available Court. There may be an opportunity for your Solicitor to argue for bail at that Court hearing, depending on the seriousness of your charges.
• Released No Further Action: the case is over and you are not being prosecuted.
• Conditional Caution: this is a formal mark against your name and it stays on your criminal record for the rest of your life. It is ‘conditional’ because there is a condition attached to it, such as taking part in a course, paying money, or returning an item. A caution requires you to accept that you committed the offence, and it shows up on your record with the offence next to it. You are not prosecuted and do not attend Court, unless you fail to comply with the condition(s). You cannot be subject to Major Administrative Action in relation to that incident if you are cautioned.
• Caution: this is a caution without conditions. You are not prosecuted and do not attend Court. It goes on your criminal record forever. Again, you cannot be subject to Major Administrative Action in relation to that incident if you are cautioned.
• Police Disposal: different forces have different names for this, some call it ‘Restorative Justice’. This is an ‘out of Court’ disposal where no entry is left on your criminal record. You are not prosecuted and do not attend Court. This is only usually offered with the agreement of the victim, for low level offences.
• Reporting for Summons: this happens after a voluntary interview. This means that you are not on bail, but you may receive a Postal Requisition telling you to attend Court on a specific date. You must attend as directed. You can check what you need to do next in our ‘Magistrates Court’ article.

Military Police

MP have fewer options but one of these will happen:

• Released under investigation: this means the police are not ready to finalise the case, you are not being prosecuted, and the case has not been dropped.  There may be further interviews.
• Referred for charge and released: this means the police believe there is enough evidence to charge you, Either your CO or the Director Service Prosecutions will then decide if you are to be charged.
• Held in custody without charge: You can be held in custody for a maximum of 96 hours without charge
• Held in custody after charge: You will be held in service custody until you can be brought before a judge advocate (usually via a video link). This can take 24-48 hours.
• Released No Further Action: the case is over and you are not being prosecuted.

In an article to follow, we will explain how long cautions and convictions stay on your criminal record in civvy street, and how they can affect your employment after the military.

This article is commentary and not legal advice. If you have a query relating to a case (or anything else) and require independent advice, you ought to speak to a specialist solicitor or public access barrister.