Investigation and Interview

Pre-charge investigation and interview

The police call the time immediately after a crime the golden hour, or sometimes day. It is when the evidence is there, witnesses can be traced, and memories are fresh.

There is a “golden time” for the defence too. It is before charge. There is no better way to defeat a criminal prosecution than to stop the case before the client is charged. It is the ultimate success for a committed criminal defence solicitor. The best possible result for the client. Next best is to make sure that the case against the client does not improve, that every step is taken to ensure that the client does not incriminate themselves and where appropriate lays down their markers for the defence.

Prepared statements and the right to silence

The interview is the first point at which most defendants make decisions about how their case is to progress. It is at this point, and preferably before, that legal advice is essential. Criminal law recognises the importance of the interview and by law every defendant is entitled to have a solicitor present at their interview with the police or other investigators. Every defendant also has the right to silence, the right not to incriminate themselves. In effect they can say to the prosecutors if you have evidence I have committed a crime then you prove it.

These robust freedoms have been undermined to some degree. This is because if no answer is made to allegations put in interview then the prosecutors may be able to ask the court to draw an “adverse inference” from the failure to give explanations. As a result, this can be particularly significant where the issues are dishonest intention, self-defence or possession and control.

There is however an answer and that is the preparation of a written statement setting out the basis of any defence. The statement is drafted by the solicitor on the instructions of the defendant. It can then be read out at interview and, on legal advice, no comment made thereafter.

The importance of advice before interview

Everyone facing an interview under caution should receive legal advice before attending. Sometimes that is not possible because the interview follows an arrest. In that case advice must be sought before entering the interview room. This is a crucial stage of the investigation. Unrepresented defendants can make admissions in interview that make their later defence very difficult indeed. The best way to avoid this is to seek advice before attending the police station.

Fraud and dishonesty cases

In almost every fraud case the investigator has information that they have to put to the defendant. There will be documents, bank statements, application forms, company records. They literally hold all the cards. However, your solicitor can really help. Skilful solicitors will obtain written and spoken disclosure from the investigating officer setting out the nature of the allegation and the written and other evidence in support. Sometimes this can be obtained in advance of the interview with obvious benefits for the conduct of the case. The defendant can explain matters to their solicitor before interview, decisions can be taken on how to respond, prepared statements can be drafted, if necessary at some length. It is possible to identify weaknesses in the case and witnesses who may be able to assist. Most importantly it starts the process by which defence solicitors can assess whether this might be a case where representation can be made that no charge should be brought. Alternatively, there are routes to civil settlements without prosecution.

Moss & Co have extensive experience conducting all types of fraud case, including bank fraud conspiracies, high value money laundering cases, substantial benefit frauds, housing tenancy frauds, advance fee fraud cases and every kind of obtaining by deception. Our cases section has many examples.

Assault and sexual offences interviews

Once again legal advice is essential. Assault cases almost always require the alleged victim to give evidence. In some matters, such as domestic violence cases, the alleged victim can change their mind about prosecuting their relative. However, if admissions have been made in interview and there is other corroborating evidence such as medical reports it is now the case, under domestic violence protocols, for the crown to seek to pursue the case even without the victim’s consent and sometimes in direct opposition to their wishes.

In other cases, where assaults are alleged, care must be taken when drafting a prepared statement, or if that is the advice answering questions, because the law is not always straight forward. Solicitors are often told that the defendant was acting in self defence without their understanding that the force used must be proportionate and not unreasonable.

In confused situations at parties or in bars identification can be disputed and timely legal advice can save much heart ache later.

Sexual offences cases are very often one person’s word against another’s. Legal advice is essential in these delicate matters to ensure that the defendants interests are protected in what can be highly emotional and stressful interviews.

What can be done before charge

Prosecutions can only be brought if there is a realistic prospect of conviction and it is in the public interest to do so. The CPS treat this as a two-stage test and the case must pass both stages before a charge can be brought. A “realistic prospect of conviction” means that there must be sufficient reliable evidence such that a court properly directed as to the law is more likely to convict than not. In layman’s terms a better than 50% prospect of conviction. If the case passes that test then the CPS must decide whether it is in the public interest to prosecute this means that they must balance the factors in favour of prosecuting with those against. Some factors for example seriousness or amount will weigh in favour and others such as defendant’s health, age and a previous clean record will weigh against. We have conducted cases where we have succeeded in arguing that the public interest element was not met, even after charges have been brought and the case sent for trial.

In some fraud prosecutions the prospect or fact of repayment may weigh against bringing charges.

What this means is that our solicitors using their skill set acquired from many cases make representations against charge at any stage in the case. It is obviously better done before a decision to charge has been brought.

If you have been asked to attend for interview whether by the police or other investigators call us first. Our fees for advising and attending interview are affordable. It will be the first step to taking control of your case.

Contact Gil Spurling on 0208 986 8336 or use his key contact email