Interview under caution - what it means, your rights and why silence is strategic

For most of us, the thought of being interviewed under caution at a police station is a scary prospect and while it will hopefully never happen to you, it’s never a bad thing to be armed with the best advice if the worst should happen. 

Mike Hayward, Woodfines’ Equity Partner & Head of Regulatory & Dispute Resolution, Criminal Law, Regulatory Matters, Road Traffic Offences, Road Transport & Logistics, answers some of the most common questions we get asked when people are facing a police interview. 

• Will I look guilty if I ask for a Lawyer?

No. There is an absolute misconception that having a solicitor makes you look guilty. The most important thing to establish from the very outset is what you are being accused of and whether there is sufficient evidence to merit you answering questions from the Police. The experience of a lawyer in this situation is vital in getting to the bottom of the accusations and the evidence that they have.

In many cases, the police may suggest that a lawyer will slow things down, but this tactic can speed up a process that shouldn’t be rushed. We often hear from clients that officers have said, “Don’t bother with a solicitor, it’ll be all right,” which in most cases is very misleading.

• How can a solicitor help?

Without legal representation, you might inadvertently admit to an offence that is far more serious than what actually happened. For example, in the case of an assault, a police officer will bring you in and deal with the case at the highest level – meaning you will face the highest allegation. However, a lawyer might look at the facts and say, “Actually, the injuries aren’t ‘Grievous’ (GBH), they’re ‘Actual’ (ABH) and are of a lesser degree.” It’s essential that if you admit to something, it’s to the correct piece of law.

• What’s the difference between a voluntary interview and an interview under arrest?

Whether the police kick in your door or leave a business card in your letterbox, the legal weight of the interview is the same.

• • Under arrest – You’re detained, held in a cell, and often feel an intense pressure to “just get it over with” so that you can go home. People think waiting for a lawyer will delay the process, but this is totally wrong. You might get the interview done in 30 minutes and still spend 12 hours in a cell. Get it right, rather than trying to get it over with as quickly as possible.
  • Voluntary interview – These are often used for business professionals in employment law cases or accountants, for example, in the case of fraud. If that card lands, you need to phone us. We take control, contact the police officer and request pre-interview disclosure so we can give you informed expert advice before you say a word.
    

• What is ‘disclosure’ and why does it matter?

Disclosure is the information the police provide about the case against you. Managing disclosure is one of the most important roles a solicitor plays in an interview under caution and legal advice when it comes to disclosure can make the difference between you facing criminal charges or not. 

There is mandatory pre-interview disclosure, however this can sometimes only be a couple of lines and if you don’t have a lawyer you won’t always get it! The police might say that they’ll give it to you as they ask questions, but we always demand it beforehand – if the disclosure is insufficient, for example, if there’s no victim statement or no CCTV, we may advise you not to say anything at all during your interview.

• Won’t a ‘No Comment’ interview reflect badly on me?

‘No Comment’ is a fundamental legal right, and not the sign of a career criminal or indicative of guilt. You have a right to silence. It’s equally attributable to being innocent as it is to being guilty. However, there is a risk that if you stay silent about something you later rely on in court, a Judge or jury might wonder why you didn’t mention it sooner – this is known as the ‘Adverse Inference’, namely that a Court MAY draw an adverse inference.

To navigate this, we often use a Prepared Statement, which allows you to put your version of events on the record without being prodded into a response by police that could be aggressive or emotional in the heat of the moment. The Prepared Statement also ensures that there’s context, for example, being threatened or acting under duress, and that this is documented from the start.

• What’s the difference between a duty solicitor and private representation?

A duty solicitor provides free legal advice, which everyone is entitled to, however the most valuable support will only be possible with private, specialist representation and is particularly important in complex or high-profile cases.

Woodfines stopped offering Legal Aid a decade ago because we weren’t able to provide the continuity and high level of service that we pride ourselves on delivering. By offering early intervention and continuous private legal advice, we can secure 999 recordings before they’re deleted, find witnesses the police might have overlooked and engage with the prosecution early, to hopefully end the case before it reaches court.

• Why is discretion important?

For business leaders and high-profile individuals, the reputational damage of an arrest can be more devastating than the legal outcome. We operate very discreetly. The goal of early intervention is often to handle matters so quietly that the public and even the press never know they happened. That discretion is priceless.

Do you need advice from our criminal law solicitors? 

Whether you’ve been invited for a voluntary interview or are facing an interview under arrest, the decisions you make in the first few hours will dictate the future of your reputation and your freedom.

The cost of expert private representation is a small price to pay to ensure you’re treated fairly, your statement is strategic, and your professional standing remains intact.