11 Interviews - general

11.1 An interview in this Code is the questioning of a person arrested on suspicion of being a terrorist which, under paragraph 10.1, must be carried out under caution.

11.1 A A terrorist offender on licence arrested under section 43B TACT will not have been arrested on suspicion of committing an offence and so will not be interviewed under caution. Whenever a person is interviewed they and their solicitor must be informed of the grounds for arrest, and given sufficient information to enable them to understand the nature of their suspected involvement in the commission, preparation or instigation of acts of terrorism (see paragraph 3.4(a)) in order to allow for the effective exercise of the rights of the defence. However, whilst the information must always be sufficient information for the person to understand the nature of their suspected involvement in the commission, preparation or instigation of acts of terrorism, this does not require the disclosure of details at a time which might prejudice the terrorism investigation (see Note 3G). The decision about what needs to be disclosed for the purpose of this requirement therefore rests with the investigating officer who has sufficient knowledge of the case to make that decision. The officer who discloses the information shall make a record of the information disclosed and when it was disclosed. This record may be made in the interview record, in the officer’s report book or other form provided for this purpose. See Note 11ZA.

11.2 Following the arrest of a person under section 41 TACT, that person must not be interviewed about the relevant offence except at a place designated for detention under paragraph 1 of Schedule 8 to the Terrorism Act 2000, unless the consequent delay would be likely to:

(a) lead to:

interference with, or harm to, evidence connected with an offence;

interference with, or physical harm to, other people; or

serious loss of, or damage to, property;

(b) lead to alerting other people suspected of committing an offence but not yet arrested for it; or

(c) hinder the recovery of property obtained in consequence of the commission of an offence.

Interviewing in any of these circumstances shall cease once the relevant risk has been averted or the necessary questions have been put in order to attempt to avert that risk.

11.3 Immediately prior to the commencement or re-commencement of any interview at a designated place of detention, the interviewer should remind the suspect of their entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained, unless one of the exceptions in paragraph 6.7 applies. It is the interviewer’s responsibility to make sure all reminders are recorded in the interview record.

11.4 At the beginning of an interview the interviewer, after cautioning the suspect, see section 10, shall put to them any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff before the start of the interview and which have not been put to the suspect in the course of a previous interview. See Note 11A. The interviewer shall ask the suspect whether they confirm or deny that earlier statement or silence and if they want to add anything.

11.5 A significant statement is one which appears capable of being used in evidence against the suspect, in particular a direct admission of guilt. A significant silence is a failure or refusal to answer a question or answer satisfactorily when under caution, which might, allowing for the restriction on drawing adverse inferences from silence, see Annex C, give rise to an inference under the Criminal Justice and Public Order Act 1994, Part III.

11.6 No interviewer may try to obtain answers or elicit a statement by the use of oppression. Except as in paragraph 10.9, no interviewer shall indicate, except to answer a direct question, what action will be taken by the police if the person being questioned answers questions, makes a statement or refuses to do either. If the person asks directly what action will be taken if they answer questions, make a statement or refuse to do either, the interviewer may inform them what action the police propose to take provided that action is itself proper and warranted.

11.7 The interview or further interview of a person about an offence with which that person has not been charged or for which they have not been informed they may be prosecuted, must cease when:

(a) the officer in charge of the investigation is satisfied all the questions they consider relevant to obtaining accurate and reliable information about the offence have been put to the suspect, this includes allowing the suspect an opportunity to give an innocent explanation and asking questions to test if the explanation is accurate and reliable, e.g. to clear up ambiguities or clarify what the suspect said;

(b) the officer in charge of the investigation has taken account of any other available evidence; and

(c) the officer in charge of the investigation, or in the case of a detained suspect, the custody officer, see PACE Code C paragraph 16.1, reasonably believes there is sufficient evidence to provide a realistic prospect of conviction for that offence. See Note 11B.

11.8 Interviews of a person detained under section 41 of, or Schedule 8 to, TACT must be video recorded with sound in accordance with the Code of Practice issued under paragraph 3 of Schedule 8 to the Terrorism Act 2000, or in the case of post-charge questioning authorised under section 22 of the Counter-Terrorism Act 2008, the Code of Practice issued under section 25 of that Act.

11.8A A written record shall be made of any comments made by a suspect, including unsolicited comments, which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. When practicable the suspect shall be given the opportunity to read that record and to sign it as correct or to indicate how they consider it inaccurate. See Note 11E.

11.8 B Paragraph 3 of Schedule 8 to the Terrorism Act 2000 does not apply to a terrorist offender on licence detained under section 43B of TACT because such a person has not been arrested on suspicion of having committed a criminal offence and so will not be interviewed by a constable in a police station on this basis. However, a written record shall be made of any comments made by the individual, including unsolicited comments, which are outside the context of an interview but which might be relevant to an offence. Any such record must be timed and signed by the maker. When practicable the individual shall be given the opportunity to read that record and to sign it as correct or to indicate how they consider it inaccurate.

11.9 A juvenile or vulnerable person must not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult unless paragraphs 11.2 or 11.11 to 11.13 apply. See Note 11C.

11.10 If an appropriate adult is present at an interview, they shall be informed:

that they are not expected to act simply as an observer; and

that the purpose of their presence is to:

advise the person being interviewed;

observe whether the interview is being conducted properly and fairly;

facilitate communication with the person being interviewed.

See paragraph 1.13A.

11.10 A The appropriate adult may be required to leave the interview if their conduct is such that the interviewer is unable properly to put questions to the suspect. This will include situations where the appropriate adult’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or the suspect’s responses being recorded (see Note 11F). If the interviewer considers an appropriate adult is acting in such a way, they will stop the interview and consult an officer not below superintendent rank, if one is readily available, and otherwise an officer not below inspector rank not connected with the investigation. After speaking to the appropriate adult, the officer consulted must remind the adult that their role under paragraph 11.10 does not allow them to obstruct proper questioning and give the adult an opportunity to respond. The officer consulted will then decide if the interview should continue without the attendance of that appropriate adult. If they decide it should, another appropriate adult must be obtained before the interview continues, unless the provisions of paragraph 11.11 below apply.

11.11 The following interviews may take place only if an officer of superintendent rank or above considers delaying the interview will lead to the consequences in paragraph 11.2(a) to (c), and is satisfied the interview would not significantly harm the person’s physical or mental state (see Annex G):

(a) an interview of a detained juvenile or vulnerable person without the appropriate adult being present (see Note 11C);

(b) an interview of anyone other than in (a) who appears unable to:

appreciate the significance of questions and their answers; or

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

(c) an interview without an interpreter having been arranged, of a detained person whom the custody officer has determined requires an interpreter (see paragraphs 3.5(c)(ii) and 3.14) which is carried out by an interviewer speaking the suspect’s own language or (as the case may be) otherwise establishing effective communication which is sufficient to enable the necessary questions to be asked and answered in order to avert the consequences. See paragraphs 13.2 and 13.5.

11.12 These interviews may not continue once sufficient information has been obtained to avert the consequences in paragraph 11.2(a) to (c).

11.13 A record shall be made of the grounds for any decision to interview a person under paragraph 11.11.

11ZA The requirement in paragraph 11.1A for a suspect to be given sufficient information about the nature of their suspected involvement in the commission, preparation or instigation of acts of terrorism applies prior to the interview and whether or not they are legally represented. What is sufficient will depend on the circumstances of the case, but it should normally include, as a minimum, a description of the facts relating to the suspected involvement that are known to the officer, including the time and place in question. This aims to avoid suspects being confused or unclear about what they are supposed to have done and to help an innocent suspect to clear the matter up more quickly.

11A Paragraph 11.4 does not prevent the interviewer from putting significant statements and silences to a suspect again at a later stage or a further interview.

11B The Criminal Procedure and Investigations Act 1996 Code of Practice, paragraph 3.4 states ‘In conducting an investigation, the investigator should pursue all reasonable lines of enquiry, whether these point towards or away from the suspect. What is reasonable will depend on the particular circumstances.’ Interviewers should keep this in mind when deciding what questions to ask in an interview.

11C Although juveniles or vulnerable persons are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances to providing information that may be unreliable, misleading or self- incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person’s age, mental state or capacity. Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted whenever possible. Because of the risks, which the presence of the appropriate adult is intended to minimise, officers of superintendent rank or above should exercise their discretion under paragraph 11.11(a) to authorise the commencement of an interview in the appropriate adult’s absence only in exceptional cases, if it is necessary to avert one or more of the specified risks in paragraph 11.2.

11D Consideration should be given to the effect of extended detention on a detainee and any subsequent information they provide, especially if it relates to information on matters that they have failed to provide previously in response to similar questioning (see Annex G).

11E Significant statements described in paragraph 11.4 will always be relevant to the offence and must be recorded. When a suspect agrees to read records of interviews and other comments and sign them as correct, they should be asked to endorse the record with, e.g. ‘I agree that this is a correct record of what was said’ and add their signature. If the suspect does not agree with the record, the interviewer should record the details of any disagreement and ask the suspect to read these details and sign them to the effect that they accurately reflect their disagreement. Any refusal to sign should be recorded.

11F The appropriate adult may intervene if they consider it is necessary to help the suspect understand any question asked and to help the suspect to answer any question. Paragraph 11.10A only applies if the appropriate adult’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or the suspect’s response being recorded. Examples of unacceptable conduct include answering questions on a suspect’s behalf or providing written replies for the suspect to quote. An officer who takes the decision to exclude an appropriate adult must be in a position to satisfy the court the decision was properly made. In order to do this they may need to witness what is happening and give the suspect’s solicitor (if they have one) who witnessed what happened, an opportunity to comment