John Dyne, Director Interviews under Caution
We have encountered numerous occasions where people have attended interviews under caution without their Solicitor. For the most part they assumed they could handle the interview because they were innocent and had nothing to fear or perhaps being accompanied by a Solicitor implied they had need of legal representation because they had something to hide. Either that or they did not understand the significance of the interview or the potential consequences. After all the letter of request can seem rather innocuous and almost friendly – an invitation to a voluntary interview “to give your side of the story”.
But what exactly is the regulator hoping to achieve though the interview? The interview should not be used as a fishing expedition. This is not the purpose of an interview under caution and suspects have the right not to self-incriminate themselves. Ensuring the suspects’ rights are protected is the primary reason a suspect should always be legally represented at interviews under caution.
Remember when the regulators – that is the Police,
Health & Safety Executive, Tradings Standards, Environment Agency, Natural Resources Wales or DVSA request an interview it is because they are thinking of bringing criminal proceedings against you or your company. Sentences for many road transport and most
environmental and Health & Safety Offences offences carry unlimited fines and environmental offences a custodial sentence of up to 5 years. A single conviction can potentially lead to revocation of your operator licence or environmental permit. As an operator of HGVs or PCVs you have to report health & safety, road transport or environmental convictions to the Office of the Traffic Commissioner. In all cases the message is simply this – see an experienced regulatory Solicitor and if you decide to attend the interview take that Solicitor to the interview with you.
You may be familiar with the words of a caution from crime based television drama but what exactly do those words mean?
“You do not have to say anything.” The person under investigation has the right to remain silent and is entitled to give no comment answers to questions put in interview. However, an adverse inference may be drawn from the refusal to attend an interview or to offer no comment to the questions put at interview because it will be said in reality you had no answer that would stand scrutiny so you stayed away/ relied on your right to silence.
“But it may harm your defence if you do not mention when questioned something which you later rely on in court.” If you rely on anything later at trial that you might reasonably have mentioned earlier at interview an adverse inference could be drawn – that is, you are now making the whole thing up and your defence is fabricated.
“Anything you do say may be given in evidence.” Anything said during an interview can be used in evidence at any subsequent trial.
Alternatively, you can provide a prepared written statement. This statement can be drafted with the help of your Solicitor and can be useful and convenient means of managing and controlling the evidence given at interview and perhaps avoid answering any direct questions without any adverse inferences being drawn.
There is a potential risk of arrest if an individual declines to accept the invitation to attend a voluntary interview. Didn’t it somewhere mention the interview was voluntary?! All offences are potentially arrestable but the lawfulness of an arrest by a police constable for an offence is dependent on the constable having reasonable grounds for believing it is necessary to arrest the person. This may arise when it is thought that unless the suspect is arrested they will not attend the voluntary interview. In my experience of regulatory work in Transport, Health & Safety and Environmental cases the use of the power of arrest or threat of arrest is still comparatively rare and then arrest has only arisen after a threat (of arrest) was first made. Arrest or attempts to arrest have occurred even when a prepared statement had already been provided and even after giving written explanations and an open offer to cooperate with the investigation. It is highly important for any organisation relying on a permit or licence for their business to consider how a refusal to answer questions may look to their regulator (e.g. the Traffic Commissioner or any reviewing panel).
So how should you handle the interview? Give no comment answers? Answer all the questions put to you? Provide a prepared statement – with or without further comment to questions? Go it alone? Instruct a Solicitor?
My advice is never go it alone but instruct a Solicitor with knowledge of all the legal issues at large. The approach to then take at the interview simply depends on the circumstances. All cases are very fact specific. There are no hard and fast rules. A well managed interview needs careful planning, preparation and an early request for pre-interview disclosure. An experienced regulatory solicitor can help you prepare for the interview and if you are a company help decide who best to attend the interview. Remember anything you say can be used against you so a company faced with a choice should always consider who best to represent it. The potential outcomes of a criminal investigation can be catastrophic. Time spent in preparation for interview with an experienced regulatory solicitor is never wasted. Time spent in preparation may enable you to provide an explanation sufficient to dissuade the regulator from prosecuting you or your company – with the regulator taking no further action. From a commercial perspective this would obviously be an attractive outcome as
defending prosecutions can be costly, stressful and very time consuming and nowadays there is limited ability to recover costs even if you win your case.