Annex

Paragraph 2.4(c)(iii) – four indictable offence types for which the interviewer may decide to make a written record of a voluntary interview elsewhere than at a police station when an authorised audio recording device cannot be used.

See Notes 2 and 3

1. The first condition is that the indictable offence in respect of which the person has been cautioned is one of the following:

(a) Possession of a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971 if the drug is cannabis as defined by that Act and in a form commonly known as herbal cannabis or cannabis resin (see Note 5);

(b) Possession of a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971 if the drug is khat as defined by that Act (see Note 5);

(c) Retail theft (shoplifting) contrary to section 1 of the Theft Act 1968 (see Note 6); and

(d) Criminal damage to property contrary to section 1(1) of the Criminal Damage Act 1971 (see Note 6),

and in this paragraph, the reference to each of the above offences applies to an attempt to commit that offence as defined by section 1 of the Criminal Attempts Act 1981.

2. The second condition is that:

(a) where the person has been cautioned in respect of an offence described in paragraph 1(a) (Possession of herbal cannabis or cannabis resin) or paragraph 1(b) (Possession of khat), the requirements of paragraphs 3 and 4 are satisfied; or

(b) where the person has been cautioned in respect of an offence described in paragraph 1(c) (Retail theft), the requirements of paragraphs 3 and 5 are satisfied; or

(c) where the person has been cautioned in respect of an offence described in paragraph 1(d) (criminal damage), the requirements of paragraphs 3 and 6 are satisfied.

3. The requirements of this paragraph that apply to all four offences described in paragraph 1 are that:

(i) with regard to the person suspected of committing the offence:

they appear to be aged 18 or over;

there is no reason to suspect that they are a vulnerable person for whom an appropriate adult is required (see paragraph 1.5 of this Code);

they do not appear to be unable to understand what is happening because of the effects of drink, drugs or illness, ailment or condition;

they do not require an interpreter in accordance with Code C section 13; and

in accordance with Code G (Arrest), their arrest is not necessary in order to investigate the offence;

(ii) it appears that the commission of the offence:

has not resulted in any injury to any person;

has not involved any realistic threat or risk of injury to any person; and

has not caused any substantial financial or material loss to the private property of any individual; and

(iii) the person is not being interviewed about any other offence. See Notes 3 and 8.

4. The requirements of this paragraph that apply to the offences described in paragraph 1(a) (possession of herbal cannabis or cannabis resin) and paragraph 1(b) (possession of khat) are that a police officer who is experienced in the recognition of the physical appearance, texture and smell of herbal cannabis, cannabis resin or (as the case may be) khat, is able to say that the substance which has been found in the suspect’s possession by that officer or, as the case may be, by any other officer not so experienced and trained:

(i) is a controlled drug being either herbal cannabis, cannabis resin or khat; and

(ii) the quantity of the substance found is consistent with personal use by the suspect and does not provide any grounds to suspect an intention to supply others.

See Note 5.

5. The requirements of this paragraph that apply to the offence described in paragraph 1(c) (retail theft), are that it appears to the officer:

(i) that the value of the property stolen does not exceed £100 inclusive of VAT;

(ii) that the stolen property has been recovered and remains fit for sale unless the items stolen comprised drink or food and have been consumed; and

(iii) that the person suspected of stealing the property is not employed (whether paid or not) by the person, company or organisation to which the property belongs.

See Note 3.

6. The requirements of this paragraph that apply to the offence described in paragraph 1(d)

(Criminal damage), are that it appears to the officer:

(i) that the value of the criminal damage does not exceed £300; and

(ii) that the person suspected of damaging the property is not employed (whether paid or not) by the person, company or organisation to which the property belongs.

See Note 3.

7. Paragraphs 3.21 to 3.22B of Code C set out the responsibilities of the interviewing officer for ensuring compliance with the provisions of Code C that apply to the conduct and recording of voluntary interviews to which this Annex applies. See Note 7.

8. If it appears to the interviewing officer that before the conclusion of an interview, any of the requirements in paragraphs 3 to 6 of Part 1 that apply to the offence in question described in paragraph 1 of Part 1 have ceased to apply; this Annex shall cease to apply. The person being interviewed must be so informed and a break in the interview must be taken. The reason must be recorded in the written interview record and the continuation of the interview shall be audio recorded in accordance with section 2 of this Code. For the purpose of the continuation, the provisions of paragraphs 3.3 and 4.2 (Commencement of interviews) shall apply. See Note 8.

1 Not used.

2 The purpose of allowing the interviewer to decide that a written record is to be made is to support the policy which gives police in England and Wales options for dealing with low- level offences quickly and non-bureaucratically in a proportionate manner. Guidance for police about these options is available at:

https://www.app.college.police.uk/app-content/prosecution-and-case-management/justice- outcomes/.

3 A decision in relation to a particular indictable offence that the conditions and requirements in this Annex are satisfied is an operational matter for the interviewing officer according to all the particular circumstances of the case. These circumstances include the outcome of the officer’s investigation at that time and any other matters that are relevant to the officer’s consideration as to how to deal with the matter.

4 Not used.

5 Under the Misuse of Drugs Act 1971 as at the date this Code comes into force:

(a) cannabis includes any part of the cannabis plant but not mature stalks and seeds separated from the plant, cannabis resin and cannabis oil, but paragraph 1(a) applies only to the possession of herbal cannabis and cannabis resin; and

(b) khat includes the leaves, stems and shoots of the plant.

6 The power to issue a Penalty Notice for Disorder (PND) for an offence contrary to section 1 of the Theft Act 1968 applies when the value of the goods stolen does not exceed £100 inclusive of VAT. The power to issue a PND for an offence contrary to section 1(1) of the Criminal Damage Act 1971 applies when the value of the damage does not exceed £300.

7 The provisions of Code C that apply to the conduct and recording of voluntary interviews to which this Annex applies are described in paragraphs 3.21 to 3.22B of Code C. They include the suspect’s right to free legal advice, the provision of information about the offence before the interview (see Code C paragraph 11.1A) and the right to interpretation and translation (see Code C section 13). These and other rights and entitlements are summarised in the notice that must be given to the suspect.

8 The requirements in paragraph 3 of Part 1 will cease to apply if, for example during the course of an interview, as a result of what the suspect says or other information which comes to the interviewing officer’s notice:

it appears that the suspect:

is aged under 18;

does require an appropriate adult;

is unable to appreciate the significance of questions and their answers;

is unable to understand what is happening because of the effects of drink, drugs or illness, ailment or condition; or

requires an interpreter; or

the police officer decides that the suspect’s arrest is now necessary (see Code G).