Your Rights In An Interview Under Caution

Your Rights In An Interview Under Caution

Authorities such as the Health and Safety Executive (HSE), Environment Agency (EA), Financial Conduct Authority (FCA) and Serious Fraud Office (SFO) have the power to conduct interviews under caution to obtain information during a regulatory investigation.

Interviews under caution must be taken seriously.  They can only take place if an investigator believes that you or the company has breached your/its regulatory compliance or committed a criminal offence such as fraud.  The chances are that you will have involved an expert legal team well before this stage; however, if you have yet to do so, it is imperative that you instruct an external team who understands regulatory investigations and can support your in-house counsel.

You must prepare in advance for an interview under caution.  What you say will be recorded and can be used as evidence if the matter proceeds to court.  A criminal defence legal team that specialises in corporate crime will ensure they understand your business and industry and help you and other members of the management team prepare consistent and persuasive interview answers.

The structure of an interview under caution

The Police and Criminal Evidence Act 1984 (PACE) states that persons other than police officers "who are charged with the duty of investigating offences or charging offenders" must have regard to any relevant provisions of the codes of practice set out in PACE.  One of the reasons it is crucial to have an experienced criminal defence lawyer present is that if the PACE requirements are not adhered to, the information gathered in an interview under caution may not be admissible in court.

Interviews under caution are voluntary unless you have been arrested.  Therefore, the first consideration is whether or not you should attend at all.  If you do decide to co-operate, the interview will usually be held in the regulator’s office, although you may be able to answer the investigators in writing.

At the start of the interview, you will be given a caution.  Similar to the “you have the right to remain silent…” caution that is given upon arrest, the interviewer will state that whatever comments you make may be used as evidence in court.  Also, if you seek to rely on something in court that you fail to mention in the interview, this failure may undermine the credibility of the evidence presented.  And finally, the prosecution may draw adverse inferences if you choose not to answer certain questions at the interview.

The exact wording of the caution 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 interview will be recorded, and a transcript of the recording can be read out in court.

The record must state the place of the interview, the time it begins and ends, the time the record is made (if different), any breaks in the interview and the names of all those present.

Paragraph 1.6, PACE Code E states that the recording device must be either a removable physical audio recording medium that can be played and copied or a secure digital recording network device.

Can a company be interviewed under caution?

If a company is suspected of committing a criminal offence and invited to attend an interview under caution, it must nominate a person to attend on its behalf.  This is usually a director or senior manager.  Should it transpire that the nominated person is themselves a suspect, someone else will need to be nominated.

In cases where there is only one director, this may not be possible.  Therefore, the sole director can be interviewed as a spokesperson for the company, but a separate interview must be conducted in relation to their suspected wrongdoing in a personal capacity.  Failure to conduct separate interviews is likely to see the evidence deemed inadmissible.

In summary

Interviews under caution are not conducted unless the regulatory investigator has grounds to believe you or the company has committed an offence.  The advantage of having a legal team that understands not only the duties under a PACE interview but also your business and the industry you operate in cannot be underestimated.  It is imperative that you are expertly advised before you attend an interview under caution, as this can make a significant difference in the outcome of the matter.

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