Preparing for and conducting a lawful interview

An interview is questioning about a person's involvement or suspected involvement in an offence which must be conducted under caution. Calling it a “chat” or moving it to a corridor does not remove that character. Administrative identification questions and questions arising under particular statutory duties must be distinguished from evidential questioning about involvement. After a decision to arrest, offence questioning should ordinarily take place at a police station or another authorised place of detention. Urgent questioning elsewhere is confined to the paragraph 11.1 risks, such as harm to evidence, injury, serious property loss, alerting a suspect or hindering recovery; it must end once the relevant risk has been addressed. Authority: Code C, paragraphs 10.1, 11.1 and 11.1A.

A lawful interview requires the following gates to be satisfied. Some remain under review throughout the interview: a valid start does not authorise questioning after the person becomes unfit, asks for legal advice or loses required communication support.

1. Lawful status and authority

For a detainee, arrest and continued detention must remain lawful and the custody officer must decide that the person can be delivered for interview. Record any transfer of responsibility and return to custody. A voluntary suspect must understand that they are not under arrest, remain free to leave and need to agree to the interview. The fact that a detained person does not agree to questioning does not create the same freedom to leave; equally, lawful detention does not oblige them to answer offence questions. Authority: PACE, sections 29, 37 and 39; Code C, paragraphs 3.21 and 12.1–12.5.

2. The caution

The ordinary pre-charge caution is: “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.” It communicates three ideas: no obligation to answer; a controlled risk concerning omitted later-relied-on facts; and possible evidential use of what is said. Explain it in plain language if understanding is doubtful. It is not a statement that silence proves guilt, nor a promise that every answer must be accepted. Authority: Code C, paragraphs 10.5–10.7.

After a break or at a later interview, remind the suspect of the caution and give it again where there is doubt about understanding. Repeat it when the required appropriate adult arrives. Where the law prevents the relevant inference—for example, questioning at an authorised place of detention before the required opportunity to obtain requested legal advice—use the modified caution, without the adverse-inference limb. At charge and during exceptional post-charge questioning there are distinct rules, explained in section 9. Authority: Code C, paragraphs 10.6, 10.8, 10.12 and Annex C.

3. Sufficient information before interview

Before interview, the suspect and solicitor must receive sufficient information to understand the nature of the offence and why the person is suspected, enabling effective exercise of defence rights. This normally means a factual description, including the relevant time and place. Police need not reveal details whose disclosure would prejudice the investigation. The officer responsible must consider what can properly be disclosed and record what was provided and when. An offence name alone may be insufficient; there is no automatic entitlement at this stage to every witness statement, unused document or later trial exhibit. Authority: Code C, paragraph 11.1A and Note 11ZA.

Ask for enough detail to advise about the actual allegation: alleged conduct and role, relevant transaction or event, timing, nature of the material said to implicate the client and known issues affecting participation. Identify each unanswered request and why it matters. Do not assume that incomplete disclosure makes any future silence inference impossible: assess what the client nevertheless knows and what facts could reasonably be mentioned. Authority: Code C, paragraph 11.1A; CJPOA, section 34(1); R v Argent [1997] 2 Cr App R 27.

4. Legal advice and participation safeguards

Immediately before interview or re-interview, remind the suspect of free legal advice and the ability to delay interview to obtain it, subject to the precise lawful exceptions. Put the required solicitor, appropriate adult, interpreter and communication support in place. Confirm fitness, medication, rest and planned breaks. An exception allowing interview before advice does not automatically authorise interview without an appropriate adult or interpreter: each missing safeguard needs its own lawful basis. Authority: Code C, paragraphs 6.6–6.8, 11.2, 11.15–11.20 and 12.2–12.3; section 13.

5. Proper conduct and a complete record

Identify the people present. At the beginning, put any earlier significant statement or significant silence not already put, and invite the suspect to confirm, deny or add to it. A significant statement is one appearing capable of use in evidence against the suspect, such as a direct admission; recording and putting it allows the suspect to dispute its words or context. Do not conceal an earlier statement by saying it was “off the record”. Authority: Code C, paragraphs 11.4–11.4A and 11.13.

Interviewers must not use oppression, which includes torture, inhuman or degrading treatment and the use or threat of violence, or offer an improper conditional advantage or disadvantage for answering, making a statement or remaining silent. They can put relevant questions and test the accuracy of an innocent explanation; firm questioning is not automatically oppression. The solicitor should intervene where a question misstates disclosure, assumes an unproved admission, combines confusing propositions, ignores communication needs or becomes improperly repetitive. Request clarification, a pause or private advice without answering for the client or preventing proper questions. Authority: PACE, section 76(8); Code C, paragraph 11.5, paragraphs 6.9–6.10 and Note 6D.

An accurate record is mandatory. It identifies the place, start and end times, breaks, participants and changes of personnel, and records relevant complaints and decisions. Where written recording is lawfully used, it should be verbatim where practicable and otherwise an accurate account, prepared contemporaneously so far as practicable. Provide the required opportunity to check and correct it and record a refusal to sign rather than treating refusal as confirmation. Authority: Code C, paragraphs 11.7–11.14 and 12.9.

Code E 2018 ordinarily requires audio recording of cautioned interviews about summary as well as indictable offences where an authorised working device and suitable location are available. Record the whole interview, not a selected admission. Written recording requires a specified exception and the relevant officer's decision—for example, qualifying equipment or location unavailability where interview should not be delayed, an objection considered under the Code, or a properly authorised cell interview where equipment cannot safely be used. Record the grounds and decision-maker; a bare assertion that recording is inconvenient is insufficient. Authority: Code E, paragraphs 2.1–2.5; Code C, paragraphs 11.7–11.14.

For a detainee at a station, the relevant officer for the principal Code E exception decisions is the custody officer. The authorisation arrangements differ for voluntary or non-station interviews, including distinctions between summary and indictable offences; identify the paragraph 2.4 category rather than assuming the interviewer can always dispense with recording. Where visual recording with sound is used, Code F governs it; there is not a general rule that every ordinary interview must be video-recorded. Preserve the secure master and working-copy arrangements applicable to the recording system. Any remote monitoring must be disclosed as required and must not intercept private legal consultation. Authority: Code E, paragraphs 2.4–2.6 and sections 3–4; Code F, paragraphs 1.1–1.3 and section 2.

Complaints about Code compliance or improper treatment must be recorded and referred to the custody officer. Where new disclosure changes the advice, request a private break, take instructions and revise the strategy. Record the precise new information and timing. The interviewer must stop when all relevant questions designed to obtain accurate, reliable information have been put, other available evidence considered, and the applicable realistic-prospect threshold reached. An interview cannot be prolonged merely to seek repeated agreement once its lawful purpose is complete. Authority: Code C, paragraphs 11.6 and 12.9; section 6.

Questioner and purpose. Check whether the questioner is a constable, a designated person or another investigator and identify the applicable powers and safeguards; do not assume that non-constable questioning falls outside all PACE safeguards. Genuine questions solely for an administrative purpose, such as establishing identity, are distinct from offence-related questioning. Calling questions “details only” does not change their actual purpose. Authority: Code C, paragraphs 1.13 and 10.1.