What Is the Law on Police Questioning Suspects?

When a person is suspected of committing an offence in England and Wales, the way in which the police can question them is governed by clear legal rules. These rules are designed to balance effective investigation with the protection of individual rights, ensuring that evidence is admissible in court and that suspects are treated fairly. The primary statutory framework is the Police and Criminal Evidence Act 1984 (PACE) and its associated Codes of Practice, especially Code C, which sets out how suspects may be detained, treated and questioned.

This article explains the law governing police questioning of suspects, including when questioning can take place, what safeguards exist, suspects' rights, and practical implications in criminal investigations.

What Constitutes Questioning a Suspect?

In legal terms, questioning a suspect means asking a person about their involvement or suspected involvement in a criminal offence. Under PACE Code C, an interview is defined as the questioning of a person regarding their suspected involvement in an offence and must be carried out under caution.

Importantly, this covers more than formal sessions at a police station: any questions that go beyond basic identification or welfare and are intended to gather evidence about an offence will usually constitute an interview under the Code of Practice.

When Can Police Question a Suspect?

1. Following Arrest

If the police have arrested a suspect, they can question them about the offence. However, PACE Code C establishes that:

• The suspect must not normally be interviewed about the offence except at a police station or authorised place of detention.
• Exceptions exist where delay would interfere with evidence, risk harm to people, or lead to other suspects being alerted. In those circumstances, limited questioning may take place outside the station to avert harm or risk.

2. Voluntary Attendance

A person may be invited to attend police voluntarily for questioning without being arrested. In such cases, the police should:

• Explain why they want the person to attend.
• Advise that attendance is voluntary.
• Provide safeguards and rights in a manner consistent with the Codes of Practice.
• Obtain the suspect's informed agreement to proceed with the interview.

The Caution: A Core Legal Safeguard

Before any substantive questioning about an offence, the police must give the suspect a formal caution. This is a statutory requirement under PACE and ensures that suspects are informed of their rights and risks associated with answering questions. The standard caution used in England and Wales is:

“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.”

The caution must be given:

• Upon arrest before any questions about the offence are asked.
• At the start of any formal interview under caution, whether at a police station or another authorised location.
• After any significant break in an interview if questioning continues.

Failure to administer the caution at the correct time can mean that statements made in that interview may be excluded from evidence in court, affecting the prosecution's case.

Rights During Police Questioning

Right to Legal Advice

When a suspect is questioned under caution, they are entitled to free and independent legal advice. This includes the right to consult privately with a solicitor, either in person or by telephone, before and during questioning. The police must inform the suspect of this right before the interview begins.

Right to Silence

Suspects have the right not to answer questions during an interview. However, under current law, a court may draw adverse inferences from a suspect's silence in certain circumstances - for example, where a suspect later relies on facts in their defence that they could reasonably have mentioned during questioning. This modification of the traditional right to silence is established by the Criminal Justice and Public Order Act 1994.

Support for Vulnerable Suspects

Police must consider whether a suspect is fit to be interviewed. If a suspect is unable to understand the nature or significance of questions and their answers due to drink, drugs, illness or other conditions, they are generally not to be interviewed until they are fit, except in limited urgent situations.

Appropriate Adult

If a suspect is under 18, or a vulnerable adult, an appropriate adult may be required to be present during questioning to safeguard the suspect's rights and understanding throughout the process. This requirement forms part of safeguards under PACE Codes.

How Questioning Is Conducted

Location and Conditions

Formal interviews usually take place at a police station or other authorised place of detention. There are strict procedural safeguards governing the environment of questioning, including:

• Adequate interview rooms (heated, ventilated, lit).
• Recording of interviews (audio or audio-visual) under Code E of the PACE Codes.
• Proper documentation of persons present, times, breaks, and any safeguards provided.

Conduct of Interviewers

Police interviewers must:

• Identify themselves and all persons present.
• Explain the nature of the offence and why the suspect is suspected in a way the suspect can understand.
• Avoid oppressive or coercive techniques.
• Provide rest breaks and ensure the suspect's health and welfare are maintained.

An unlawful or improperly conducted interview, including one that fails to comply with PACE Codes, can lead to evidence being excluded in court if admitting it would have an adverse effect on the fairness of proceedings.

Time Limits and Custody

When a suspect is in custody, detention without charge is limited:

• A suspect may be detained for up to 24 hours without charge for most offences.
• A superintendent may extend this to 36 hours in specified circumstances.
• A magistrates' court may further extend detention up to 96 hours for serious offences.

During custody, suspects must be allowed a continuous period of at least 8 hours' rest in any 24-hour period free from questioning and other investigation-related activity.

Practical Considerations for Suspects

Attendances and Voluntary Interviews

If police ask a person to attend voluntarily for questioning, it is important to be clear whether attendance is truly voluntary and whether rights and safeguards (including legal advice) have been explained. Voluntary interview questions can still be used as evidence if given under caution and properly recorded.

Legal Representation

Before and during questioning, seeking legal advice can help ensure that a suspect understands their rights and the potential consequences of their answers. A solicitor can also advise on whether an interview is being conducted properly under PACE.

Challenging a Questioning Process

If questioning does not comply with legal requirements - for example, if the caution is not given properly or procedures in Codes of Practice are breached - legal advice should be sought promptly. In some cases, this may lead to evidence being excluded or to complaints against the police.

Key Takeaways

Police questioning of suspects in England and Wales is a regulated process governed by the Police and Criminal Evidence Act 1984 and associated Codes of Practice:

• Police must caution suspects before asking questions about offences.
• Formal interviews must follow detailed procedural safeguards to protect suspects' rights and ensure evidence is admissible.
• Suspects have important rights, including legal advice and the right to silence, with nuanced legal implications.
• Time limits on detention and standards for interviews are strictly defined.

Understanding these rules helps ensure that suspects and their representatives know what to expect during police questioning and how to protect legal rights throughout the criminal process.