If opening your morning mail fills you with dread, then imagine finding a letter among all your unwanted bills, stamped ‘Interview Under Caution‘, inviting you to be interrogated about a criminal offence at a local government office as a precursor to a potential prosecution. The sort of invite that would make your electric bill look appealing by comparison.
Thousands of people receive these ‘Interview under caution letters‘ every year, sent by the police, HM Revenue and Customs, the Health & Safety Executive and the Department for Work & Pensions. The most prolific source of these letters seem to be the Department for Work & Pensions, who send them to people they suspect of benefit fraud.
Most people who receive these letters are given the impression that they are the prime suspects of a criminal investigation. They then panic and hit up Google to find out just how worried they should be. If they are unlucky they will end up on some of the more prominent charity based ‘legal advice’ websites who insist that these letters must be taken very seriously, solicitors sought and full co-operation given to the requesting authority; in other words advice that clearly tackles the issue from the perspective of the investigators.
One of the worst offenders of such slanted advice is the AdviceNow website who host an article entitled “How to deal with an Interview Under Caution” ; although in fairness equally appalling advice has been published on Rightsnet and Money Saving Expert. All of these sites show a limited understanding of the various laws surrounding cautioned interviews, the right not to self-incriminate and the associated rights to silence.
Why formal interviews benefit nobody but the investigator
Firstly it’s important to understand what the purpose of these interviews are and why they use terms like ‘caution’, ‘prosecution’ and ‘PACE interview’.
In short, the authority in question believes you may have committed a criminal offence, often fraud, and they are considering furthering a prosecution. Before they do, they need to gather evidence, which clearly they haven’t got enough of, because if they had, you would have been arrested by the police already. This is where you come in. By inviting you to their offices they will sit you down in front of a tape recorder (or transcriber), in the hope you will tell them everything they need to nail you with. You will first be cautioned with the words: “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.” This caution is a statutory requirement to remind you of your rights, so the subsequent interview is not in danger of being thrown out of court, should the matter get that far.
All of these interviews are supposed to be conducted professionally, with full respect to the interviewee’s rights as set out in the Police and Criminal Evidence Codes hence why they are known as PACE interviews. As these interviews are mostly conducted by council desk jockeys, you can be sure that many of the safeguards set out in PACE will be roundly ignored.
Make no mistake, caution under interview is an evidence gathering exercise purely to the benefit of the investigator. But here’s what Rightsnet has to say about attending such interviews:
“You do not have to go to the Interview Under Caution, but if you don’t, it may make it more difficult to explain facts and defend yourself if you are prosecuted.”
That sentence seems to be a crude allusion to the fact that in some narrow instances your silence could be used against you in court. This is known as the rule of ‘adverse inference‘ that appears within s34 – s38 of the Criminal Justice and Public Order Act, which in effect places restrictions on your right to silence. I won’t expand on these rules for one simple reason:
This failure to explain yourself only applies during questioning.
Both the caution (“…if you do not mention when questioned” )and section 34 of the CJPOA (“Effect of accused’s failure to mention facts when questioned”) clearly specify that this rule only applies to questions asked.
If you do not attend a voluntary interview then no questions can be put to you. If no questions are put to you then your refusal to answer does not meet the requirements of section 34. Should the matter find its way into court, no adverse inference can be drawn from your silence. As R v Johnson : R v Hind  demonstrates…
No adverse inference can be drawn from an answer that was not given to a question that was never asked.
In short, this means that refusing to attend these voluntary interviews would actually afford you more personal protection, than if you attended. The very worst you could do is to follow this suggestion offered by Advicenow:
“If you are unsure about anything they ask you, or about what you want to say, don’t be afraid to say ‘no comment’ or explain that you want to get advice before you answer.”
Offering a selective no comment interview is probably the worst move you could make under a cautioned interview. You either ‘no comment’ throughout the entire interview, or respond to every question asked. Selectively answering questions and ignoring others will potentially put you at the full mercy of section 34 as well as possibly incriminating yourself with the answers you do provide.
But by far, the worst piece of advice offered by Advicenow is this:
“If you have other things that may back up your version of what happened, such as letters from your doctor, statements from ‘witnesses’, or proof that your boyfriend pays rent somewhere else (and therefore doesn’t live with you), you should collect them too. If you need time to get this information (for example if your doctor is away, or you can’t get an appointment at the advice centre straight away), ask them to delay the interview. Take all this information with you to the interview. It will help you to answer their questions and remember what you want to tell them.”
In effect, Advicenow are suggesting you don’t just bring a blabbing mouth to the interview, you gather together any paperwork that will help further the investigation and bring that along too. This is insane advice. The investigator is not your defence solicitor. They are not there to ‘eliminate you from their enquiries’. They are attempting to prosecute you. Advicenow doesn’t even consider the very obvious possibility that the interviewer will make copies of these documents and pore over them at their leisure to see what incriminating evidence they might yield. If they want to see your financial records or your ‘boyfriend’s personal data’ then let them get the necessary court order to obtain them.
To be fair Advicenow pretty much gives the game away that they are prejudiced in favour of the authorities with this eye opener:-
“If you don’t go to the interview, and the fraud section doesn’t have enough information to decide if you committed fraud, it could mean that they have to drop the case against you. On the other hand, the DWP and the council say that it’s in your best interests to attend, and some other advisers agree. “
Well of course the DWP and the council say it’s in your best interests to attend. Because it’s in THEIR best interests! How else are they going to prosecute you if you don’t help them? Who these ‘other advisers’ are that ‘agree’ to such partisan advice is anyone’s guess. Perhaps the sort of advisers that donate substantial funds to Advicenow so they can continue to advise the public in a manner that is befitting of prosecuting authorities.
Of course, if the authority decide to drop their criminal investigation, because the ‘suspect’ refuses to attend the interview and the authority are unable to gather enough evidence, they may find some other way of penalising the ‘suspect’. In the case of the DWP for instance, they might just cut off whatever benefits that person is in receipt of and insist they apply all over again. But what’s interesting is that they cannot threaten to do this as a way of forcing the ‘suspect’ to attend a criminal investigation interview against that persons will.
Forcing somebody to answer questions under threat of penalty would constitute a forced confession. This is prohibited under section 76(2)a of the Police and Criminal Evidence Act whereby incriminating admissions obtained via oppressive means become inadmissible in court. Therefore any interviewer who threatens to cancel benefits or further a prosecution if the ‘suspect’ fails to attend a cautioned interview would be breaking the law. It is also a breach of Article 6 of the Human Rights Act as demonstrated in Sanders v UK, where it was shown that any penalty attached to an accused’s silence infringes that person’s right not to self incriminate.
So if you are ever invited to a cautioned interview at an office of the government’s choosing you should decline. It is one of the rare occasions where you have an unconditional right to silence. You also have a fundamental human right to a presumption of innocence. The burden is upon the investigators and the prosecutors to prove that you did the thing they are accusing you of, it is not your job to prove to THEM that you did not.
Refusing to attend an interview under caution wouldn’t just ensure you prevent incriminating yourself (or others), it would also mean that your silence could not be used against you in court, should any subsequent proceedings be brought.