04 January 2021
Not reviewed after the date of publication
On a number of occasions I have received questions relating to the use of voluntary interviews on suspects who are currently on an ABP. The voluntary interview is arranged for a number of reasons, including at the suspect’s or solicitor’s request or by arrangement by the OIC.
Is this practice a breach of PACE, to interview any suspect currently on bail must they be booked back into custody? I cannot find any definitive case law and would welcome any observations or advice.
PACE Code of Practice G requires officers to consider whether the suspect’s voluntary attendance is a practical alternative to arrest, please see the ACPO position statement on voluntary interview for information on this.
Should an officer determine that arrest is necessary, as opposed to dealing with the suspect under the voluntary attendance procedure, and go on to arrest the suspect, dealing with the suspect on a voluntary basis, is no longer an option that is available to them. PACE and the PACE codes of practice govern the way in which a suspect is to be dealt with following arrest and should the police not follow these provisions, this may be deemed a breach. The relevant provision for granting bail after arrest is section 47 of PACE. Detention and bail of a suspect following arrest is covered in part 4 of PACE. The questioning of a suspect following arrest is covered in part 5 of PACE; PACE Code C provides guidance on detention and questioning.
Should an officer determine that the best way to initially deal with the suspect (prior to an arrest being made) is by offering the suspect the option of attending the police station under the voluntary attendance procedure, then a voluntary interview can be undertaken. A suspect in a VA interview has the same rights and entitlements as they would have in an interview conducted in police detention under arrest, the difference is that the suspect in a VA interview has the right to leave. The suspect must also be advised of the additional rights, entitlements and safeguards set out in para 3.21A PACE Code C that apply to voluntary interviews. Section 29 of PACE provides that where a person voluntarily attends a police station or other place without having been arrested, for the purposes of assisting with an investigation, he shall:
be entitled to leave at will unless he is placed under arrest
be informed at once that he is under arrest if a decision is taken by a constable to prevent him from leaving at will
Should arrest be deemed necessary at this point, PACE then governs the way in which the suspect is to be dealt with following that arrest.
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