Are contemporaneous interviews still permitted for traffic matters?

16 September 2020

Not reviewed after the date of publication

Question: 

Please can you confirm the latest position in relation to conducting written interviews, away from the police station, on persons not under arrest.

Have changes to Code E meant that written interviews under caution for traffic matters are now no longer viable / legal?

Answer:

The changes to Code of Practice E related to all types of offences for all types of suspects, whether or not arrested. However, this change should not affect officers dealing with many minor street offences or road traffic offences as most of these types of offence are generally proved by the officer's own observations and any questions are usually only to establish a person's identity or offer them the chance to provide mitigation.

Officers need to be confident as to what constitutes an interview and when to administer the caution. Paragraph 11.1A Code of Practice C, defines an interview as 'the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under paragraph 10.1, must be carried out under caution.' If you are not asking questions in order to prove the offence, you don't need to caution at that stage and a recording will not be required. Should the decision be made to arrest the suspect, charge them or inform them that they may be prosecuted, then they must be cautioned. A caution is generally not required when questions are asked:

Solely to establish their identity.

To establish the owner of a vehicle.

To obtain information in accordance with a statutory requirement (e.g. the power to require a driver to state their date of birth).

To determine the need to search or to seek co-operation while carrying out a search.

To seek verification of a written record (e.g. notes taken by the officer).

In relation to procedures under section 7 of the Road Traffic Act 1988.

Paragraph 2 of Code of Practice E outlines the requirement to use an audio-recording device for an interview.

'2.1 Subject to paragraph 2.3, if an authorised recording device (see paragraph 1.6(a)) in working order and an interview room or other location (see Note 1A) suitable for that device to be used, are available, then that device shall be used to record the following matters:

a) any interview with a person cautioned in accordance with Code C, section 10 in respect of any summary offence or any indictable offence, which includes any offence triable

either way, when:

(i) that person (the suspect) is questioned about their involvement or suspected involvement in that offence and they have not been charged or informed they may be prosecuted for that offence; and

(ii) exceptionally, further questions are put to a person about any offence after they have been charged with, or told they may be prosecuted for, that offence (see Code C, paragraph 16.5 and Note 2C).

b) when a person who has been charged with, or informed they may be prosecuted for, any offence, is told about any written statement or interview with another person and they are handed a true copy of the written statement or the content of the interview record is brought to their attention in accordance with Code C, paragraph 16.4 and Note 2D.'

Paragraph 2.3 outlines the circumstances when a written record may be made of an interview instead of an audio record.

'2.3 A written record of the matters described in paragraph 2.1(a) and (b) shall be made in accordance with Code C, section 11, only if,

a) an authorised recording device (see paragraph 1.6(a)) in working order is not available; or

b) such a device is available but a location suitable for using that device to make the audio recording of the matter in question is not available; and

c) the 'relevant officer' described in paragraph 2.4 considers on reasonable grounds, that the proposed interview or (as the case may be) continuation of the interview or other action, should not be delayed until an authorised recording device in working order and a suitable interview room or other location become available (see Note 2E) and decides that a written record shall be made;

d) if in accordance with paragraph 3.9, the suspect or the appropriate adult on their behalf, objects to the interview being audibly recorded and the 'relevant officer' described in paragraph 2.4, after having regard to the nature and circumstances of the objections (see Note 2F), decides that a written record shall be made;

e) in the case of a detainee who refuses to go into or remain in a suitable interview room and in accordance with Code C paragraphs 12.5 and 12.11, the custody officer directs that interview be conducted in a cell and considers that an authorised recording device cannot be safely used in the cell.'

The decision to interview a suspect is a decision to be taken by the officer dealing with the case, based on the full facts of the situation before them. Interviewing is part of the investigative process and is for the purpose of obtaining accurate and reliable accounts from suspects (witnesses and victims also) about matters that are under police investigation.

Providing the requirements in 2.3 above are met, a written record may be made. Duties of the relevant officer and the interviewer in such instances are outlined in paragraph 2.5:

'2.5 When, in accordance with paragraph 2.3, a written record is made:

a) the relevant officer must:

(i) record the reasons for not making an audio recording and the date and time the decision in paragraph 2.3(c) or (as applicable) paragraph 2.3(d) was made; and

(ii) ensure that the suspect is informed that a written record will be made;

b) the interviewer must ensure that the written record includes:

(i) the date and time the decision in paragraph 2.3(c) or (as applicable) paragraph 2.3(d) was made, who made it and where the decision is recorded, and

(ii) the fact that the suspect was informed.

c) the written record shall be made in accordance with Code C, section 11;'

Nonetheless, a decision made in accordance with paragraph 2.3 not to audio-record an interview may be challenged and, if brought into question, the relevant officer responsible should be prepared to justify that decision

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