Police and Criminal Evidence Act (PACE) and the Codes
Ref / FS-NFG000
Issue/Revision Date / [Issue/Revision Date] / Review Date / 30/10/2014 / Version / 0.2
Page 2 of 3
Fire Protection - Police and Criminal Evidence Act (PACE) and the Codes
The Police and Criminal Evidence Act 1984 (“PACE”) is primarily concerned with the powers and duties of the police, the rights of suspects and the admissibility of evidence. Seven Codes of Practice have been adopted under this Act, including Code E on the audio recording of interviews with suspects.1 Section 67(9) of PACE places a duty on persons other than police officers "who are charged with the duty of investigating offences or charging offenders" to have regard to any relevant provisions of the Codes of Practice.
When should you conduct an interview under caution?
There is no express legal requirement that a person suspected of having committed an offence must be interviewed under caution before any decision as to whether to prosecute is taken. However, it is desirable that persons who are suspected of committing offences are interviewed under caution because:
· the interview may provide important evidence against the suspect, which you would otherwise be unable to obtain;
· the interview may provide important information revealing further lines of inquiry;
· the interview may provide relevant information to be considered in the prosecution decision;
· it is fair and proper to allow a potential defendant an opportunity to answer the allegations and give their own account;
· an interview under caution will help to satisfy the provisions of the Regulator’s Compliance Code.
In the light of the above, you should generally interview suspects under caution unless there are good reasons for not doing so, such as the suspect refusing to attend. Even in a case where you feel that the evidence you have collected in the course of an investigation is sufficient to provide a realistic prospect of conviction, you may still carry out an interview under caution.
In any event, in health and safety investigations, it will generally be appropriate to question the suspect about the reasonable practicability of steps that were or were not taken. This is likely to be difficult to ascertain without an interview. You may also wish to give the suspect the opportunity to comment on the matters you have uncovered in your investigation and to put forward any points that they consider to be relevant.
Once a person has been charged (served with a summons) or informed that they will be prosecuted, you should not question them further in relation to the offence, unless such questions are absolutely necessary and only then on the instructions of the Authority’s solicitor
When setting up an interview under caution, a letter should be sent inviting the person, or an authorised representative in the case of a company (see below), to attend an interview under caution at an Authority’s Office.
If a suspect declines the opportunity to attend or you do not conduct an interview under caution for any other reason, you will not be able to verbally ask the suspect for their representations. You should normally write to the suspect, inviting him/her to make any written representations relating to the investigation or the prospect of prosecution.
A suspect is not obliged to accept your invitation and may therefore refuse to attend. If they do so, this can be brought to the court’s attention at the time of sentencing (if they plead guilty or are convicted at trial), as the extent to which they co-operated with the investigation is relevant at that stage.
If you receive no response to your invitation, it may be appropriate to attempt to write to the suspect again, providing a final deadline for a response.
You should make sure you have the correct address. If absolutely necessary, you can telephone the suspect to check their address only.
Interviewing a body corporate (e.g. a company)
In the event that a body corporate (e.g. a company) is invited to attend an interview under caution, you should ask the body corporate to nominate a person to attend the interview under caution to answer questions on its behalf.
It sometimes happens that a company (or other body corporate) that is invited to nominate a representative to attend an interview under caution nominates a person who you suspect may have committed an offence in their individual capacity (e.g. as a director or senior manager pursuant to be considered a ‘responsible person’) and who you may therefore intend to interview under caution as an individual. Where this happens, the company should be asked if there is anyone else who they can nominate to attend instead to speak as the company’s nominated representative.
If the company cannot nominate a different person (e.g. because there is only one director), there should be two separate interviews under caution, one of the company (through its nominated representative) and one of the same individual in their personal capacity. The order in which the interviews are conducted will depend on the circumstances of the investigation. You must never conduct just one interview where the individual is asked to answer questions both on his/her behalf and on behalf of the company – it would be impossible to identify which answers are admissible against each and the entire interview is likely to be inadmissible in any later court proceedings.
Where two interviews are to take place, it may be possible to conduct both interviews on the same day for the convenience of all concerned, but this may not be possible in more complex cases. It should always be made clear in advance in which capacity a person is being interviewed, either in his/her capacity as an individual or as the company’s nominated representative. Where both interviews are being conducted on the same day, it should be absolutely clear that you are conducting two separate interviews. A separate set of tapes/CDs should be used for each interview. You should make it completely clear, when cautioning at the start of each interview, in what capacity the person is being interviewed.
Cautions
When there are grounds to suspect that a person has committed an offence, you must caution them before any questions about it are put to them to ensure that the answers (or any failure to answer) are capable of being admissible in evidence in a prosecution.
If you put further questions to a person at a later time you must caution again.
"Grounds for suspicion" are more than vague unsubstantiated feelings or a hunch; they require some basis, but this can be less than evidence supportive of a prima facie case.
A caution is not necessary when you are asking questions for other purposes (for example, solely to establish someone's identity). You should remember, however, that what starts out as exploratory questioning may, as a result of the answer given to preliminary questions, become questioning about a person’s involvement or suspected involvement in a criminal offence. You must then immediately issue a caution and comply with the other relevant provisions of Code C.
The caution must be in the following terms:
"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."
You should ensure that the person understands the caution. You should be prepared to explain what the caution means if the suspect is unclear. At the same time as the caution, you should say that the person is not under arrest or obliged to remain, and may obtain legal advice.
Interviews under caution (commonly known as "PACE interviews")
See Note for Guidance No 36A
Page 2 of 3