Tape Recorded Interviews
Principle
Most interviews at police stations with persons suspected of having committed indictable or either way offences should be tape recorded. If a suspect is charged following a tape recorded interview, a record of interview may be required.
The record of interview:
- enables the prosecutor to make a decision informed by what was said at interview;
- is an exhibit to the officer's statement;
- will be used for the conduct of the case by all parties where it is accepted by the defence.
Guidance
Police and Criminal Evidence Act 1984 (PACE) Code of Practice E applies to the audio recording of interviews with suspects.
See Archbold 15 - 226 for the Practice Direction (Criminal Proceedings: Consolidation), para. IV.43 [2002] 1W.L.R. 2870, which sets out the procedure to be adopted where the prosecution proposes to rely upon evidence of the interview.
After an interview has been recorded on tape, the police will prepare a record of interview.
There is, however, no requirement to prepare a record of interview where:
- the suspect is not charged with an offence; or
- the suspect remains silent or answers "no comment" throughout the interview.
Contents of Charging Reports and the National File Standard, attached to the Director's Guidance on Charging 4th Edition at Annex A, sets out when a record of interview - MG15 - is required.
Where a guilty plea is anticipated the requirement for a record of interview is reserved for serious or complex cases, post-charge. The same applies in cases where a not guilty plea is anticipated. An upgrade file for magistrates court trial, committal or sending to the Crown Court will necessitate an MG15 only when it is to be relied upon and the summary contained in the MG5 is deemed insufficient.
Procedures
Listening Policy for Summary Offences
When carrying out an initial review of a file which contains a record of interview prosecutors do not need to listen to the tape before a plea is taken provided that:
- there is sufficient evidence applying the test set out in the Code for Crown Prosecutors; and
- the record of interview appears to be adequate.
If a guilty plea is entered, the case may be finalised without the tape being listened to.
Where the defendant pleads not guilty, prosecutors must listen to the tape unless a full transcript is available.
If having listened to the tape prosecutors consider the record of interview to be inadequate, it should be returned to the police for amendment.
If it is known, that the defence are taking issue with any part of the taped interview, or require amendments to the record of interview the officer should be asked to consider whether it may be possible to prepare an agreed version.
The defence are not entitled to insist on the provision of a full transcript. Any approach to prepare a transcript should be resisted unless the reviewing lawyer considers it to be essential to the proper presentation of the case. If the defence insist that the court should have a transcript, they should prepare it themselves.
Listening Policy for Either Way Offences
At initial review prosecutors should follow the guidelines contained above in this section relating to summary offences listening policy. The record of interview should be served as part of the initial details of prosecution.
Listening Policy for Cases Committed to the Crown Court for Trial
Prosecutors need not listen to the tape prior to committal if:
- there is a transcript available; or
- there is a realistic prospect of conviction disregarding the record of interview; or
- the record of interview appears to be adequate and together with the other evidence there is a realistic prospect of conviction; and
- the defence have given no indication that the record of interview will be challenged.
Prosecutors should listen to the tape before committal if:
- the record of interview appears to be inadequate;
- the record of interview is the only cogent evidence and the case is serious and complex;
- the tape is believed to contain 'sensitive' material; or
- the record of interview is being challenged by the defence.
Post Committal Listening Policy
Where the record of interview contains clear admissions sufficient to prove the offence, the prosecutor need not listen to the case nor instruct the trial advocate to do so.
Editing Tapes
Tape recordings of interviews may contain material which is inadmissible. It is only necessary to consider editing the tape, if the tape is to be played in court or it contains sensitive material.
If the case is to be committed to the Crown Court, any question of editing the tape or the transcript should be dealt with between prosecution and defence advocates with the judge being consulted if necessary.
If the parts of the interview which it is proposed to omit are short, and readily identifiable, the passages may be omitted by running the tape on when it is played. If this is not possible the police should be asked to prepare an edited tape.
Where a tape contains sensitive information, the police should alert CPS to this fact. The prosecutor should listen to the relevant passages before the tape is released to the defence. It may be necessary to ask the police to prepare an edited tape omitting any sensitive parts.
Warning Witnesses
Where the record of interview is adequate and the evidence contained in the interview is central to the prosecution case, the officer should normally be called to give oral evidence even if the defence have not indicated that there is a dispute concerning the record of interview.
If the record of interview does not appear to advance the prosecution case it will normally be appropriate to serve the evidence under the provisions of section 9 of the Criminal Justice Act 1967. Should the defence then seek to challenge the evidence, an adjournment may be needed to allow the officer to attend.
Playing of Tapes in Court
Where it is decided to play a tape in court as part of the prosecution case the court and the defence should be informed. The defence should be supplied with a copy of the tape if they have not already asked for one. If the defence object to any part of the tape being played, and it is not possible to reach agreement, the court should be asked to decide on the admissibility of the disputed parts of the tape.
Procedure in Crown Court
The procedure for dealing with records of interview and the playing of tapes in court is contained in the Practice Direction (Criminal Proceedings: Consolidation) para. IV.43 [2002] 1W.L.R. 2870 - See Archbold 15 - 226.
If the defence are unable to agree a Record of Interview, they should notify CPS not more than 21 days from the date of committal, transfer or service of the prosecution evidence under the provisions of the Crime and Disorder Act 1998 with a view to securing agreement to amend. A copy of the notice should be sent to the court.
If it is not possible to reach agreement and it is proposed that the tape be played in court, the defence should notify CPS within 14 days in order that counsel for the parties may agree those parts of the tape which should not be adduced in evidence. A copy of the notice should be sent to the court. CPS should inform the court immediately of any agreement reached.
If the prosecution proposes to play the tape in court, CPS should notify the court within 28 days of the date of committal, transfer [or service of the prosecution evidence under the provisions of the Crime and Disorder Act 1998]. The defence should notify the court and the prosecution of any objections to the playing of any part of the tape. The prosecution and defence should try to secure agreement on a counsel-to-counsel basis. The court should be informed of any arrangements made.
If it proves impossible to reach agreement, the court should be notified as soon as possible with a view to having the case listed for directions.
Where a tape is to be played in court it should be produced and proved by the interviewing officer or any other officer present when the interview was conducted.
Counsel should indicate to the tape machine operator those parts of the tape which s/he wishes to be played. This will avoid having to listen to lengthy or irrelevant material.
The Practice Direction includes a warning that costs may be awarded against a party which fails to comply with the procedure and thereby necessitates an adjournment to enable a record of interview, transcript or tape to be edited.
Tape Security
Paragraph 6.2 of the Code of Practice (E) deals with the procedure to be adopted when it is necessary to gain access to the master tape. This requires a CPS representative to be present at the opening of the master tape if there are proceedings pending. A police officer has no authority to break the seal on a master copy.
