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  • Outstanding practitioner Robert Brown is characterised as reassuring and knowledgeable. Commentators report that “he has a great reputation for snuffing out prosecutions before they even begin. He possesses mature judgement and vast experience in all types of criminal cases.”

    Chambers UK 2015

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    Legal 500 2012

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Interviews under caution

Interviews under caution are a common feature of virtually all criminal investigations, no matter how serious or trivial the offence being investigated. How the interviewee responds to questions in the caution interview will invariably have a profound impact on the future course of an investigation, including the likelihood of the interviewee being prosecuted. At Corker Binning we have many years’ experience of advising clients how best to prepare for caution interviews with the police, SFO, FCA, HMRC, CMA and other law enforcement authorities. Our objective in preparing clients for caution interviews is to reduce, to the extent possible, the likelihood that they will be prosecuted.

Caution interviews are fundamentally different from interviews of witnesses. In a caution interview, anything the interviewee says can be used as evidence against him (and potentially others) in a criminal trial. Conversely, if the interviewee refuses to answer questions, his silence can, in certain circumstances, be used against him. It is therefore vitally important that the right strategy is adopted before, during and after the caution interview.

Interviews must only be conducted under caution where an investigating authority has grounds to suspect that the interviewee has committed a criminal offence. Sometimes this evidential threshold will not be satisfied but the authority will indicate that it wishes to proceed with a caution interview regardless. In these circumstances it is important to understand how the authority can be challenged about the lawfulness of the interview. Sometimes it may be possible to persuade an authority that an interview should not be conducted under caution and that the person should be re-designated as a witness rather than a suspect.

A caution interview can occur immediately after those suspected of committing criminal offences are arrested. But on other occasions a suspect can be invited to attend a caution interview. In the latter scenario, it is important to seek to persuade the authority that it is unnecessary to arrest the suspect. Recent case law provides assistance in this respect. An arrest allows the authority to impose potentially punitive bail conditions which may affect a person’s freedom of movement. An arrest may also have an adverse impact on a person’s ability to enter certain countries or may trigger disclosure obligations if a person works in a regulated industry. It is important that a person who has been arrested takes advice about these collateral issues so as to avoid the risk of being investigated for further criminal or regulatory offences.

A person faced with a caution interview has three main choices: to answer all questions; to answer no questions; or to read from a prepared statement. The most advisable course of action will depend on factors specific to the particular case, including the complexity of the allegations and supporting documentation; the extent to which the authority is prepared to provide disclosure concerning the allegations; and whether the client’s instructions disclose a defence or provide an alternative basis for persuading the authority not to prosecute. A fundamental question will be whether the disclosure provided by the authority is sufficient that a Court in any future trial would be permitted to draw an adverse inference if the interviewee refused to answer questions. This is rarely a straightforward issue. At Corker Binning our lawyers have the judgment and experience to know how to protect interviewees from the damaging consequences of an adverse inference being drawn against them.

It is a misconception that the purpose of a caution interview is to afford interviewees the opportunity to cooperate with an investigating authority by answering questions. Whilst answering questions may be the wisest choice in certain cases, it is rarely so in a complex investigation where the authority has refused to provide meaningful disclosure. It is therefore important to adopt a rounded view of the purpose of a caution interview. It is, firstly, an opportunity for a suspect, through his lawyer, to understand the offences being investigated and the material that allegedly evidences the commission of these offences. Moreover, it is an opportunity for a suspect to protect his position by laying down a framework for representations that he should not be prosecuted – either because the evidence does not support a realistic prospect of a conviction, or because there is no public interest in his being prosecuted, or because a step short of prosecution would best serve the interests of justice.

At Corker Binning we recognise that no two caution interviews are the same. We have acted for clients interviewed under caution in all types of criminal investigations. Our advice is tailored to the facts of each case and is designed to ensure that each client achieves through the caution interview the best possible framework for avoiding prosecution.

If you would like to speak about an interview under caution which you attended or have been invited to attend, please call us on 020 7353 6000 and ask to speak to one of our partners.