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4 October 2012

Police interviews – when can ’emergency provisions’ be invoked?

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Police investigating the disappearance of April Jones from Machynlleth, Powys, on Monday evening have refused to confirm whether a man arrested in connection with the investigation had been interviewed in the absence of a legal adviser under what are sometimes described as “emergency provisions”.  In what circumstances can an individual who has requested legal advice be interviewed by police before receiving such advice, and what are the implications of the police conducting an interview in this way?

All persons arrested and held in custody at a police station have a statutory right to consult a solicitor.  This is in accordance with the rights guaranteed by Article 6 of the European Convention on Human Rights.  The Police and Criminal Evidence Act 1984 (PACE) provides that once a request for legal advice has been made by the detained person, he must not be interviewed or continue to be interviewed until he has received legal advice unless certain specified circumstances exist.  One such ground is where an officer of the rank of superintendant or above has reasonable grounds for believing that delay might lead to interference with, or harm to, evidence connected with an offence or lead to interference or physical harm to other people.  Even in these circumstances, the questioning must cease as soon as sufficient information to avert the risk has been identified.

There are no published statistics for the number of interviews conducted by police each year in circumstances where a detained person has been deprived of prior legal advice.  Experience suggests that this power is rarely invoked.  Such powers should be used rarely because an individual undergoing an interview without the benefit of legal advice might be placed at a significant disadvantage.  Many detained persons will not have any understanding of the criminal law, and may answer questions in such a way as to incriminate themselves even where no offence has in fact been committed.

However, there are crucial protections available to a person interviewed without the benefit of legal advice.  No adverse inferences arising from a decision to remain silent during an interview may be drawn at a later trial.  To reflect this, an amended caution (‘You do not have to say anything, but anything you do say will be given in evidence’) must also be read to the detained person at the beginning of any interview.  This caution makes it clear in simple terms that the detained person has the right to remain silent and may exercise this right without fear of adverse consequences in any subsequent trial.

Corker Binning is a law firm specialising in fraud, regulatory and general criminal work of all types. For more information about how we can help you, please call us on 0207 353 6000.

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