Advising clients at the police station - Procedure for inter...

Learning Outcomes

This article explains the procedure for interviewing a suspect at the police station under the Police and Criminal Evidence Act 1984 (PACE 1984), with a strong emphasis on Code C, and sets out how a solicitor’s role interacts with statutory and practical requirements before and during interview. The key legal and procedural protections for suspects' rights—including access to legal advice, fitness to be interviewed, the issue of voluntary statements and confessions, management of vulnerable individuals, and safeguards regarding significant statements—are clarified. The content also explores how a solicitor can evaluate and advise on the most appropriate response to police questioning, including remaining silent, making a prepared statement, or fully answering questions, always taking into account the possibility of adverse inferences at trial. This places particular focus on defence solicitor responsibilities in advising and safeguarding clients at each step, and the range of interventions possible to prevent procedural abuse or a breach of the client’s rights. Understanding these core principles will ensure a sound ability to address SQE2 scenario tasks involving police station interviews and suspect rights.

SQE2 Syllabus

For SQE2, you are required to understand and apply the statutory procedure for police station interviews under PACE 1984 and Code C, the solicitor’s role before and during interview, and the core rights and safeguards available to suspects, with a focus on the following syllabus points:

• the statutory procedure and proper conduct of police interviews under PACE 1984 and Code C
• all procedural requirements before a suspect is questioned, including confirmation of fitness to be interviewed and assessment of vulnerability
• application and timing of the formal police caution, and when significant statements or silences must be addressed
• the right of access to legal advice, and correct procedures for requesting, delaying, or waiving this right
• solicitor obligations and permissible conduct before and during interview, including intervening in cases of improper pressure or unfair police tactics
• identification and management of vulnerable suspects, including the presence and duties of an appropriate adult
• analysis of the right to silence, potential for adverse inferences, and the use of prepared statements in interview
• correct record-keeping, audio recording protocols, and implications of breaches for evidential admissibility
• advice to clients on how to exercise their procedural rights or raise a defence, including conduct during questioning and consequences of different tactical choices

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the main steps that must be followed before police begin an interview with a detained suspect at the station?
2. At what stage must the police caution be given during the interview procedure, and what is its purpose?
3. Who is responsible for checking and recording a suspect’s fitness to be interviewed, and what should happen if there are concerns?
4. What actions can a solicitor take if improper questioning occurs during a police interview?

Introduction

When the police detain a suspect for questioning regarding a criminal offence, the entire process is governed by a detailed statutory framework—primarily PACE 1984 and associated Codes. This structure aims to ensure that suspects' rights and the integrity of the evidence are protected at every stage. Effective legal representation at the police station is therefore not limited to advising on substantive law but involves ensuring procedural safeguards are observed and improper conduct is challenged. For the SQE2, a thorough understanding and ability to apply these safeguards in practice—including those related to fitness, legal advice, and evidential consequences—is essential.

Key Term: police interview
The formal questioning of a suspect regarding their involvement or suspected involvement in a criminal offence. Under PACE 1984, only questioning under caution about a criminal offence or offences is treated as an interview. Such interviews must be audibly recorded (unless impracticable), with the standard procedures and safeguards for conduct meticulously observed.

The Role of the Custody Officer and Arrangements Upon Arrival

Upon arrest, a suspect must be taken to the police station as soon as practicable, where they will be presented to the custody officer. The custody officer, usually of at least the rank of sergeant, is responsible for making the initial decision on detention and safeguarding the suspect’s welfare during their time in custody.

Key Term: custody officer
An officer at least of sergeant rank, independent of the investigation, responsible for decisions regarding detention, ensuring rights and welfare of detainees, authorising interviews, and managing the custody record.

Key Term: custody record
An electronic or written document opened at the time of booking-in at the police station. It records arrest details, times, grounds for detention, reviews, all significant events (including requests for legal advice), health and welfare checks, and any representations by or on behalf of the suspect. It acts as a central evidential and procedural record for the entire period of detention.

Before an interview is authorised, the custody officer must review the status and initial treatment of the suspect by:

• confirming their identity and conducting a basic risk and welfare assessment
• informing the suspect of their key rights: to have someone informed of their arrest, to consult the Codes of Practice, and most notably, to consult a solicitor privately at any time (PACE s.58)
• recording all rights-giving, requests, and refusals in the custody record
• providing access to legal advice and communications as soon as practicable
• assessing at all times whether detention remains necessary and proportionate according to continued review requirements

Before the Interview: Key Steps

1. Confirming Fitness to be Interviewed

The custody officer must assess whether the suspect is fit to be interviewed. A suspect is unfit for interview if they are unable to understand the significance of questions and answers or what is happening, whether through illness, mental health, intoxication, or any medical condition. Where there is any doubt, a healthcare professional must conduct a formal assessment and their opinion sought. Fitness must be reviewed throughout detention: if a suspect becomes unfit during the interview (e.g. due to fatigue, distress, illness), the interview must be suspended.

Key Term: fitness to be interviewed
The requirement that a suspect must be able to understand and competently engage with the interview process. If the suspect cannot appreciate the questions, the purpose of the interview, or the significance of responses, or due to influence of drink, drugs or illness, the interview should not proceed unless or until fitness is confirmed by a competent medical professional.

This duty extends to recording concerns and decisions in the custody record, with continuing assessment as necessary.

2. Rights: Legal Advice and Notification

The suspect must be reminded, before any interview, of their right to legal advice (PACE s.58; Code C, para 6). The right to consult a solicitor is ongoing and can be exercised at any stage before or during an interview. The custody officer is responsible for explaining and enabling this right and for ensuring its exercise is not delayed except for tightly circumscribed statutory reasons.

Key Term: right to silence
A core procedural protection: a suspect has the right not to answer police questions—a privilege against self-incrimination. Exercising this right may, however, have evidential consequences (adverse inferences), especially if a fact is relied upon at trial that could reasonably have been mentioned earlier.

Legal advice is available to all suspects (with only minor exceptions for certain non-imprisonable offences). If this is declined, the refusal—and the reasons, if given—must be recorded in the custody record.

The right to inform someone of arrest (usually via a telephone call) applies as soon as practicable following arrest and may only be delayed for an indictable offence, by a senior officer, and for clear and recorded reasons (e.g., risk of harm, interference with evidence, alerting co-suspects).

3. Presence of Legal Representative and Appropriate Adult

If the suspect is a child or young person (under 18), or a vulnerable adult (e.g., learning disability or mental health condition affecting understanding or communication), an appropriate adult must be present during interview.

Key Term: appropriate adult
A person who safeguards the rights, welfare, and dignity of detained juveniles or vulnerable adults during police procedures, assisting with communication and ensuring fair treatment. May be a parent, guardian, social worker or other responsible adult not involved in the investigation. A solicitor cannot serve as both the legal representative and appropriate adult in the same case.

The solicitor must also be present if the right to legal advice has been requested, unless in rare cases where a statutory power to delay applies. If attendance by the solicitor is delayed beyond a reasonable time and this would impede the investigation, careful additional procedural steps must be observed (Code C, para 6.6).

4. Procedure for Checking and Recording Significant Statements

Before an interview, police must identify if the suspect made any significant statement (such as an admission or equivocal comment) or significant silence in the presence of an officer before the tape-recorded interview commenced. These must be put to the suspect at the start of the formal interview, so they may confirm, deny, or explain.

Key Term: significant statement or silence
A statement (admission, relevant denial, or ambiguous comment) or unexplained refusal to answer an important question, made outside the recorded interview but in the presence and hearing of a constable, potentially relevant as evidence. Police must put these to the suspect at the formal interview’s commencement for a response.

If the police fail to do so, there is a risk that the statement or silence will later be excluded from the evidence at trial.

Commencement of the Interview

Once the above prerequisites are met, the interview can begin—but only after the following procedural steps:

• The interviewer reminds the suspect that they are entitled to free legal advice (even if a solicitor or appropriate adult is present).
• The interviewing officer issues the formal police caution. The standard wording under Code C, para 10.2 is:
  "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."
• The officer explains the caution in clear, simple language, ensuring the suspect understands its effect.
• All interviews must be audio recorded (Code E: tape, disc, or digital); proper recording procedures must be strictly followed.
• The custody officer must record the time, location, and names of all persons present at interview, including the suspect, solicitor, and appropriate adult.
• Any objections concerning recording or conduct must be noted on the record.

If at any point the suspect requests legal advice, the interview must be paused for them to consult privately in person or by phone, unless very restricted exceptions apply.

Conduct During the Interview

PACE and Code C set clear standards for interrogations, including:

• Prohibiting oppression, threats, or inducement (PACE s.76 and Code C, para 11.5)
• Prohibiting misleading the suspect about the case, evidence, or consequences of answering or refusing to answer
• Requiring rest periods: at least 8 hours' undisrupted rest in every 24-hour period; refreshment breaks at least every 2 hours; breaks at recognized mealtimes
• Requiring medical care if the suspect requests or appears unwell
• Requiring interviews to cease if the suspect becomes unfit, distressed, or unable to concentrate

Key Term: caution
The formal warning issued by police at the start of every interview, advising the suspect of their right to silence and the possible effects at trial if they omit a fact relied on later, as well as the evidential use of anything they say.

The interview must progress fairly, without leading questions, oppressive or prolonged questioning, or improper emotional, psychological, or physical pressure.

Solicitor Duties During Interview

The defence solicitor’s presence is not a passive check: they must actively protect the rights of the client.

• Intervening to request clarification or challenge an improper question, unfair tactic, or oppressive behaviour
• Advising the client on the opportunity to remain silent or to answer questions
• Stopping the interview to consult privately if new issues arise, if the client becomes distressed or unfit, or where further advice is needed
• Challenging insufficient disclosure by the police (and, where appropriate, advising on a 'no comment' interview)
• Monitoring interpreter use or ensuring the appropriate adult is acting effectively if present

The solicitor must not answer questions on the client’s behalf, provide written replies to be quoted by the client, or otherwise act so as to impede the proper conduct of the interview. If a solicitor is perceived as obstructing the interview, the officer may (with authorisation) ask them to leave; the suspect must in that case be allowed to consult another solicitor before continuing.

Suspects may choose to answer all questions, remain silent, or provide a prepared statement. The solicitor must advise about the pros and cons, including the risk of adverse inferences from silence under ss 34–37 Criminal Justice and Public Order Act (CJPOA) 1994.

Key Term: right to silence
The right of a suspect not to answer questions or make statements during police questioning. This right flows from the privilege against self-incrimination, but may result in adverse inferences at trial if facts later relied upon were not mentioned at interview without good reason.

Factors Affecting Advice on Answering Questions

Before and during interview, the defence solicitor must take various factors into account before advising the client on answering questions:

• Strength (and disclosure) of the evidence: weak case or inadequate disclosure may lead to advice not to answer
• Nature of the client: age, vulnerability, mental health, or likely performance under pressure (e.g., young or particularly vulnerable suspects may be advised against open questioning)
• Whether the client can make an exculpatory statement on the record (e.g. solid alibi)
• Tactical consequences such as the possibility of adverse inferences from silence later at trial (s 34 CJPOA 1994)
• Whether there is a reasonable explanation for silence, including acting on solicitor’s advice, vulnerability, or lack of adequate information

Key Term: prepared statement
A written statement drafted in consultation with a solicitor, setting out the suspect's account of events or defence, but typically read to the interviewing officer at the start of the interview, after which the suspect answers 'no comment' to other questions. This can protect the client's position where open questioning may be damaging, whilst still advancing their account at the appropriate time to avoid an adverse inference.

Key Term: adverse inferences
Negative conclusions which the court or jury may draw from a suspect’s silence in interview or at trial under CJPOA 1994 ss.34–37. For instance, failing to mention facts in interview which are later relied on at trial may allow the court to infer that the account was made up afterwards, unless having a good reason.

Special Considerations: Vulnerable Suspects

Juveniles and vulnerable adults must not be interviewed in the absence of an appropriate adult. The appropriate adult's presence is to:

• support and assist the suspect during procedures
• ensure police act fairly and justly
• help facilitate communication and legal advice
• alert police if risk of injustice or miscommunication is perceived

A solicitor representing a juvenile or vulnerable client must be hyper-vigilant for misunderstandings, susceptibility to suggestion, or an increased risk of oppressive tactics or unreliable evidence resulting.

Certain individuals are not suitable as appropriate adults (including police employees, victims/witnesses, or anyone involved in the investigation). The identity of the appropriate adult should be selected in a hierarchy (preferably a parent/guardian, then a social worker, or another responsible adult over 18 not connected with police).

Identification Procedures and Other Procedures After Interview

If there is a potential issue of eyewitness identification, police may require the suspect to participate in a formal identification procedure (video identification, line-up, group ID, or confrontation), governed by PACE Code D. The role of defence legal representatives extends to scrutiny for fairness, ensuring the suspect’s rights are maintained.

After the Interview

At the end of interview:

• The record or transcript is signed, and the suspect is entitled to a copy if charged.
• If the matter proceeds to prosecution, the interview recording forms part of the prosecution's case, and any improper conduct during interview (oppression, failure to caution, failure to respect rights) may be grounds for excluding evidence at trial, either through s.76 or s.78 PACE, as well as under the Human Rights Act 1998 if applicable.
• The solicitor should review the interview to check for any procedural errors or grounds for omitting damaging evidence, and advise the client accordingly.
• Where further interviews are proposed, the procedure repeats—including confirmation of continued fitness and reminders as to legal advice and cautions.

Worked Example 1.1

At the start of an interview, the custody officer is unsure if the suspect, aged 19, is fit to be interviewed due to recent head injury and confusion. What should happen next?

Answer:
The custody officer should postpone the interview and arrange for an urgent medical assessment. An interview may not be conducted unless the suspect’s fitness is confirmed.

Worked Example 1.2

A client tells you that they feel too tired to continue the interview and cannot concentrate. The police want to continue questioning. What should you do as their solicitor?

Answer:
You should intervene immediately, request a break, and, if necessary, require that the interview be suspended until your client is rested or assessed as fit to continue. Continuing the interview could breach PACE Code C.

Worked Example 1.3

Your client, a 17-year-old, is about to be interviewed for robbery. No parent or guardian is available, and the police propose to use a police community support officer as appropriate adult. Is this acceptable?

Answer:
No. An appropriate adult cannot be someone employed by or connected to the police or the investigation. In this scenario, the appropriate adult should be a local authority social worker or a responsible adult unconnected to the case. The interview must not proceed without a suitable appropriate adult present.

Worked Example 1.4

During an interview, your client has just made a partial admission relating to an assault that occurred. The officers wish to continue questioning immediately, but you believe the client was confused and possibly misunderstood the question. What should you do?

Answer:
You should request an immediate break, clarify your client’s understanding, and, if appropriate, ensure the record reflects the context and confusion. If necessary, request a medical assessment or that the interview not continue until fitness is confirmed.

Worked Example 1.5

The police, during an interview, attempt to indicate to the suspect that they will be released sooner if they admit the offence. What should you do as the defence solicitor?

Answer:
You should object and state clearly that any such inducement is improper and contrary to PACE and the Codes. Ensure that the recording and the custody record note this improper conduct and, if it continues, you may withdraw your client from the interview.

Revision Tip

For SQE2 scenarios, ensure precise sequencing of police obligations and the roles of all parties at the police station. Be able to explain the procedural requirements for each interview step and safeguards for different categories of client, with reference to proper terminology and core principles.

Key Point Checklist

This article has covered the following key knowledge points:

• Police interviews must be conducted under PACE 1984 and Code C, with safeguards for residents' rights at every stage.
• Fitness to be interviewed must be confirmed before questioning; interviews are postponed if there is any doubt.
• The suspect must be reminded of their right to legal advice, and may have a solicitor present throughout.
• The formal caution must be issued at the start of every interview, and significant statements must be addressed.
• Interviews must be audibly recorded, and defence solicitors have an active role in protecting clients' interests.
• Inappropriate questioning, lack of breaks, or suspect incapacity may make evidence inadmissible.
• Vulnerable suspects and juveniles may only be interviewed in the presence of an appropriate adult, and the role of appropriate adult is strictly defined.
• Defence solicitors must advise tactically on silence, prepared statements, and responding to police disclosure, with awareness of potential adverse inferences at trial.
• Solicitors must act within professional conduct boundaries, neither misleading the court nor impeding the interview but robustly representing the best interests of their client.

Key Terms and Concepts

• police interview
• custody officer
• custody record
• fitness to be interviewed
• right to silence
• appropriate adult
• caution
• significant statement or silence
• prepared statement
• adverse inferences