2 Interviews and other matters to be audio recorded under this Code

2.1 Subject to paragraph 2.3, if an authorised recording device (see paragraph 1.6(a)) in working order and an interview room or other location (see Note 1A) suitable for that device to be used, are available, then that device shall be used to record the following matters:

(a) any interview with a person cautioned in accordance with Code C, section 10 in respect of any summary offence or any indictable offence, which includes any offence triable either way, when:

(i) that person (the suspect) is questioned about their involvement or suspected involvement in that offence and they have not been charged or informed they may be prosecuted for that offence; and

(ii) exceptionally, further questions are put to a person about any offence after they have been charged with, or told they may be prosecuted for, that offence (see Code C, paragraph 16.5 and Note 2C).

(b) when a person who has been charged with, or informed they may be prosecuted for, any offence, is told about any written statement or interview with another person and they are handed a true copy of the written statement or the content of the interview record is brought to their attention in accordance with Code C, paragraph 16.4 and Note 2D.

See Note 2A

2.2 The whole of each of the matters described in paragraph 2.1 shall be audio-recorded, including the taking and reading back of any statement as applicable.

2.3 A written record of the matters described in paragraph 2.1(a) and (b) shall be made in accordance with Code C, section 11, only if,

(a) an authorised recording device (see paragraph 1.6(a)) in working order is not available;

or

(b) such a device is available but a location suitable for using that device to make the audio recording of the matter in question is not available; and

(c) the ‘relevant officer’ described in paragraph 2.4 considers on reasonable grounds, that the proposed interview or (as the case may be) continuation of the interview or other action, should not be delayed until an authorised recording device in working order and a suitable interview room or other location become available (see Note 2E) and decides that a written record shall be made;

(d) if in accordance with paragraph 3.9, the suspect or the appropriate adult on their behalf, objects to the interview being audibly recorded and the ‘relevant officer’ described in paragraph 2.4, after having regard to the nature and circumstances of the objections (see Note 2F), decides that a written record shall be made;

(e) in the case of a detainee who refuses to go into or remain in a suitable interview room and in accordance with Code C paragraphs 12.5 and 12.11, the custody officer directs that interview be conducted in a cell and considers that an authorised recording device cannot be safely used in the cell.

Note: When the suspect appears to have a hearing impediment, this paragraph does not affect the separate requirement in paragraphs 3.7 and 4.4 for the interviewer to make a written note of the interview at the same time as the audio recording.

2.4 In paragraph 2.3(c):

(a) if the person to be interviewed is arrested elsewhere than at a police station for an offence and before they arrive at a police station, an urgent interview in accordance with Code C paragraph 11.1 is necessary to avert one or more of the risks mentioned in sub-paragraphs (a) to (c) of that paragraph, the ‘relevant officer’ means the interviewer, who may or may not be the arresting officer, who must have regard to the time, place and urgency of the proposed interview.

(b) if the person in question has been taken to a police station after being arrested elsewhere for an offence or is arrested for an offence whilst at a police station after attending voluntarily and is detained at that police station or elsewhere in the charge of a constable, the ‘relevant officer’ means the custody officer at the station where the person’s detention was last authorised. The custody officer must have regard to the nature of the investigation and in accordance with Code C paragraph 1.1, ensure that the detainee is dealt with expeditiously, and released as soon as the need for their detention no longer applies.

(c) In the case of a voluntary interview (see Code C paragraph 3.21 to 3.22) which takes place:

(i) E at a police station and the offence in question is an indictable offence, the ‘relevant officer’ means an officer of the rank of sergeant or above, in consultation with the investigating officer;

(ii) at a police station and the offence in question is a summary offence, the ‘relevant officer’ means the interviewer in consultation with the investigating officer if different,

(iii) elsewhere than at a police station and the offence is one of the four indictable offence types which satisfy the conditions in Part 1 of the Annex to this Code, the ‘relevant officer’ means the interviewer in consultation with the investigating officer, if different.

(iv) elsewhere than at a police station and the offence in question is an indictable offence which is not one of the four indictable offence types which satisfy the conditions in Part 1 of the Annex to this Code, the ‘relevant officer’ means an officer of the rank of sergeant or above, in consultation with the investigating officer.

(v) elsewhere than at a police station and the offence in question is a summary only offence, the ‘relevant officer’ means the interviewer in consultation with the investigating officer, if different.

See Note 2B –Summary table – relevant officer for voluntary interviews

2.5 When, in accordance with paragraph 2.3, a written record is made:

(a) the relevant officer must:

(i) record the reasons for not making an audio recording and the date and time the decision in paragraph 2.3(c) or (as applicable) paragraph 2.3(d) was made; and

(ii) ensure that the suspect is informed that a written record will be made;

(b) the interviewer must ensure that the written record includes:

(i) the date and time the decision in paragraph 2.3(c) or (as applicable) paragraph 2.3(d) was made, who made it and where the decision is recorded, and

(ii) the fact that the suspect was informed.

(c) the written record shall be made in accordance with Code C, section 11;

See Note 2B

2.6 If the interview room or other location where the interview takes place is equipped with facilities that enable audio recorded interviews to be remotely monitored as they take place, the interviewer must ensure that suspects, their legal representatives and any appropriate adults are fully aware of what this means and that there is no possibility of privileged conversations being listened to. With this in mind, the following safeguards should be applied:

(a) The remote monitoring system should only be able to operate when the audio recording device has been turned on.

(b) The equipment should incorporate a light, clearly visible to all in the interview room, which is automatically illuminated as soon as remote monitoring is activated.

(c) Interview rooms and other locations fitted with remote monitoring equipment must contain a notice, prominently displayed, referring to the capacity for remote monitoring and to the fact that the warning light will illuminate whenever monitoring is taking place.

(d) At the beginning of the interview, the interviewer must explain the contents of the notice to the suspect and if present, to the solicitor and appropriate adult and that explanation should itself be audio recorded.

(e) The fact that an interview, or part of an interview, was remotely monitored should be recorded in the suspect’s custody record or, if the suspect is not in detention, the interviewer’s pocket book. That record should include the names of the officers doing the monitoring and the purpose of the monitoring (e.g. for training, to assist with the investigation, etc.)

2.7 Code C paragraphs 12.9A and 12.9B set out the conditions which, if satisfied allow a suspect in police detention to be interviewed using a live link by a police officer who is not present at the police station where the detainee is held. These provisions also set out the duties and responsibilities of the custody officer, the officer having physical custody of the suspect and the interviewer and the modifications that apply to ensure that any such interview is conducted and audio recorded in accordance with this Code or (as the case may be) visually recorded in accordance with Code F.

2A Nothing in this Code is intended to preclude audio-recording at police discretion at police stations or elsewhere when persons are charged with, or told they may be prosecuted for, an offence or they respond after being so charged or informed.

2B A decision made in accordance with paragraph 2.3 not to audio-record an interview for any reason may be the subject of comment in court. The ‘relevant officer’ responsible should be prepared to justify that decision.

Table: Summary of paragraph 2.4(c) – relevant officer for voluntary interviews:

Location of voluntary interview — Offence type — Relevant Officer

(i) — Police station — Any indictable offence. — Sergeant or above+

(ii) — Police station — Any summary only offence — Interviewer+

(iii) — Elsewhere than at a police station — Indictable offence type defined by the Annex. — Interviewer+

(iv) — Elsewhere than at a police station — Indictable offence type not defined by the Annex. — Sergeant or above+

(v) — Elsewhere than at a police station — Summary only. — Interviewer+

”+” = in consultation with the investigating officer.

2C Code C sets out the circumstances in which a suspect may be questioned about an offence after being charged with it.

2D Code C sets out the procedures to be followed when a person’s attention is drawn after charge, to a statement made by another person. One method of bringing the content of an interview with another person to the notice of a suspect may be to play them a recording of that interview. The person may not be questioned about the statement or interview record unless this is allowed in accordance with paragraph 16.5 of Code C.

2E A voluntary interview should be arranged for a time and place when it can be audio recorded and enable the safeguards and requirements set out in Code C paragraphs 3.21 to 3.22B to be implemented. It would normally be reasonable to delay the interview to enable audio recording unless the delay to do so would be likely to compromise the outcome of the interview or investigation, for example if there are grounds to suspect that the suspect would use the delay to fabricate an innocent explanation, influence witnesses or tamper with other material evidence.

2F Objections for the purpose of paragraphs 2.3(d) and 3.9 are meant to apply to objections based on the suspect’s genuine and honestly held beliefs and to allow officers to exercise their discretion to decide that a written interview record is to be made according to the circumstances surrounding the suspect and the investigation. Objections that appear to be frivolous with the intentions of frustrating or delaying the investigation would not be relevant.