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Tape Recorded Interviews

Content

This guidance sets out the policy and procedure that applies to suspects' tape recorded interviews and whether any record of interview is required.

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Key Points

PACE Code E applies to audio interviews of suspects.

The Director's Guidance on Charging, 5th Edition and The National File Standard (May 2015) set out arrangements for the joint working of police officers and prosecutors during the investigation and prosecution of criminal cases and includes the file requirements for records of interview.

Criminal Procedure Rules can be accessed here.

Criminal Practice Directions can be accessed here. When they come into force they will appear here.

The Criminal Practice Directions Amendment No. 3 [2015] EWCA Crim 430 can be accessed here. Paragraph 27C provides guidance on the use of audio and video recorded interviews in Crown Court proceedings and is of assistance in the magistrates' court.

An Effective Trial Preparation Form (ETPF) is to be completed for case management in the magistrates' court.

A Plea and Trial Preparation Form (PTPF) is to be completed for case management in the Crown Court.

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Overview

A police interview recorded on tape is real evidence of the fact of the interview and what was said in it. If it is sought to introduce the interview as evidence of the truth of the contents, it is hearsay evidence, and will only be admissible if the evidence satisfies one of the routes to admissibility in Section 114 CJA 2003.

An interview is likely to contain either a confession, statements that are adverse or partly adverse to the defendant, statements that are wholly exculpatory or there will be no comment made. A confession is defined by Section 82(1) Police and Criminal Evidence Act 1984 (PACE), as "a statement that is wholly or partly adverse to the person who made it".

If the interview is a confession as defined by section 82 PACE, admissibility will be by way of Sections 114(1)(a) CJA 2003 (statutory provision) and 114(1)(b) CJA 2003 (preserved rule of law). The relevant statutory provision is section 76 PACE. If the interview contains partly exculpatory statements and partly adverse statements, the whole of the statement will be admissible under sections 114(1) (a) and (b) CJA 2003 as a confession.

If the interview is wholly exculpatory and therefore purely self-serving, it may not be admissible. Unless the parties agree, a wholly exculpatory interview may only become admissible at the trial, depending upon the evidence given by the defendant, as a previous inconsistent or consistent statement. Previous inconsistent and consistent statements are dealt with in sections 119 and 120 CJA 2003. Since the circumstances allowing for admissibility under sections 119 and 120 CJA 2003 will only become apparent at trial, no advance notice can be given.

The House of Lords in R v Sharp (1988) 86 Cr. App. R. 274 approved the comment in R v Duncan (1981) 73 Cr. App. R. 359 that "Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies".

Prosecutors should be aware of guidance from R v David Anthony Pearce (1979) 69 Cr. App. R. 365:

  1. A statement which contains an admission is always admissible as a declaration against interest and is evidence of the facts admitted. With this exception a statement made by an accused person is never evidence of the facts in the statement.
  2. A statement that is not an admission is admissible to show the attitude of the accused at the time when he made it. This, however, is not to be limited to a statement made on the first encounter with the police. The longer the time that has elapsed after the first encounter, the less the weight which will be attached to the denial. The judge is able to direct the jury about the value of such statements.
  3. A statement that is not in itself an admission is admissible if it is made in the same context as an admission, whether in the course of an interview, or in the form of a voluntary statement. It would be unfair to admit only the statements against interest while excluding part of the same interview or series of interviews. It is the duty of the prosecution to present the case fairly to the jury; to exclude answers which are favourable to the accused, while admitting those unfavourable would be misleading.
  4. The prosecution may wish to draw attention to inconsistent denials. A denial does not become an admission because it is inconsistent with another denial. There may be many cases, however, where convictions have resulted from such inconsistencies between two denials.
  5. Although, in practice, most statements are given in evidence even when they are largely self-serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to it being made part of the prosecution evidence. The trial judge would exclude such a statement as being inadmissible.

Prepared defence statements that do not contain any kind of admission are not part of the prosecution case. They should not be recorded in the summary or be included in its presentation. However, the fact that a prepared statement has been made should be mentioned in the summary of the case. A copy of any statement provided by the defence should be retained (as unused material) for the purposes of cross examination, in the event of an alternative explanation being offered at trial.

However a statement which is not an admission can be admissible to show the attitude of the defendant at the time that it was made, based on a test of spontaneity, relevance and whether the statement adds any weight to other evidence in the case: R v Tooke (1990) 90 Cr. App. R. 417. The Prosecution cannot be required to adduce an exculpatory statement which does not satisfy this test as part of their evidence. A mixed statement can be admissible Gonzales v Folkestone Magistrates' Court [2010] EWHC 3428 (Admin).

Prosecutors should also refer to the guidance on Adverse Inferences. In preparing for trial, a prosecutor should be aware of all pre-interview disclosure that takes place, in order to assess whether an adverse inference may properly be drawn at trial and to anticipate, and prepare for, any defence arguments on the point.

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Procedure

Upon being charged, a Defendant, or his representative should be provided with a notice explaining how they can obtain access to the tape or CD recording of the interview - see PACE Code E, at paragraph 4.19. The National File Standard does not require that the prosecution supply the Defence with a copy of the tape or CD and defence practitioners should seek this directly from the police, should they wish. For the purposes of case preparation, the prosecution (and the court and defence) will rely initially on a written record of interview, as provided by the police.

A written record of an audibly recorded interview should be made in accordance with national guidelines approved by the Secretary of State, and with regard to the advice contained in the Manual of Guidance for the preparation, processing and submission of prosecution files (Note for Guidance to Code E at 5A).

The pre-charge report or Police Report forms the basis of the National File Standard for the first court hearing. The Manual advises that the content, including the case and interview summaries, should be objective, fair, balanced and of the highest quality "because all the stakeholders (e.g. prosecutors, court and defence) rely upon its contents. A poor quality summary of facts is likely to lead to wasted time, increased costs and delayed proceedings". A Police Supervisor must certify that the information is an accurate summary of the available evidence in the case.

Whether a brief interview summary, a longer description or a full transcript is required depends on the seriousness of the case. It also depends on the role and importance of the interview in relation to the facts to be proved, or inferences to be made.

When deciding on charge, the duty prosecutor makes an initial decision as to whether the interview will be relied upon as part of the prosecution case. This decision is recorded in accordance with the National File Standard (May 2015).

Initial Details of The Prosecution Case (IDPC) will be served on the defence, as set out in Part 8 of the Criminal Procedure Rules 2015. The tape of interview tape is not part of the IDPC but should be obtained by the defendant or defence solicitor from the police before the first hearing in accordance with Code E of the Police and Criminal Evidence Act 1984 (PACE). (Code E of the Police and Criminal Evidence Act (PACE) 1984 is the relevant code for the Tape Recording of Interviews with Suspects. It provides (at 4.19 and 7.13) that the suspect shall be handed a notice which explains how the audio recording will be used, the arrangements for access to it, that if the person is charged or informed they will be prosecuted, a copy of the audio recording will be supplied as soon as practicable or as otherwise agreed between the suspect and the police or on the order of a court.) An interview that is not to be used as part of the prosecution case is unused material and falls to be disclosed to the defence if it meets the CPIA test for disclosure. An unused summary will already be disclosed to the defence. If the tape appears on the Streamlined Disclosure Certificate (SDC) or unused material schedule, it should be marked, 'previously disclosed/disclosable under PACE'.

If a defendant pleads not guilty at the first hearing in the Magistrates' Court, the record of interview should be provided as part of the statement of facts, unless the case is serious or complex, and a Record of Taped Interview has been compiled.

The statement of facts will contain a short descriptive note (SDN) of what was said by the defendant in an interview. It can also be included in a witness statement of a police officer. The prosecutor will generally seek to use the SDN where the interview is a part of the prosecution case. A SDN can include:

  1. Admissions, which prove 'the elements of the offence', written in direct speech. It is not sufficient to say 'the defendant fully admitted the offence';
  2. The defendant's version of events where this is disputed, specific denials and any explanation for committing the offence(s);
  3. Any mitigating circumstances given, including any expressions of remorse;
  4. Anything said by the defendant in relation to aggravating factors: premeditation, admission of prior knowledge of vulnerability of the victim, lack of remorse shown.

Rule 3.3 of the Criminal Procedure Rules 2015 imposes an explicit duty on the parties to every case to communicate with each other, to find out whether the defendant is likely to plead guilty or not guilty; what is agreed and what is likely to be disputed; what information, or other material, is required by one party of another, and why; and what is to be done, by whom, and when.

If the prosecution wishes to rely on the defendant's interview in evidence, the prosecution should seek to agree the summary of interview with the defence. The Prosecution has a duty to ensure that any summary of interview presented is accurate and fair. The Defence should have received a copy of the audio or video recording, and can check the record against the recording, if they cannot accept the summary by way of admission. The record should be edited if inadmissible matters are included within it and, in particular if the interview is lengthy, the prosecution should seek to shorten it by editing or summary - 27C Criminal Practice Directions Amendment No. 3 [2015] EWCA Crim 430.

In furtherance of the overriding objective of the Criminal Procedure Rules, both parties must aim to have presented to the court an accurate summary of what was said; to ensure that this is presented in the shortest possible way and not to expect the court to have to listen to lengthy recorded interviews as much of this could be completely irrelevant and inadmissible.

During a case management hearing, the court may seek to ascertain that the correct legal principles have been applied. The Prosecution should be able to inform the court whether the interview provides more than the detail of a pre-prepared statement, and that the interview summary provided is accurate. Directions may be made for the defence to submit to the Prosecution, any edits or amendments, within a specified timeframe, for the prosecution to consider whether they more accurately reflect what was said. The police should be notified of any such directions and the timeframe for an agreed summary to be provided.

Where a defendant is unrepresented he should be asked to look at the summary or have it read out to him to determine whether he recollects whether he said anything else in interview that ought to be included. If possible, this should be agreed at the first hearing.

When carrying out an initial review of a file for summary trial which contains a summary or record of interview, prosecutors do not need to listen to the tape before a plea is taken, provided there is sufficient evidence to enable them to apply the test set out in the Code for Crown Prosecutors and the summary or record of interview appears to be adequate. The prosecutor must check to ensure that the 'Supervisor's Certificate' has been completed. This certifies that the information provided is an accurate summary of the available evidence in the case. It also ensures that the file has been built to the required standard.

If a guilty plea is entered, the case may be finalised without the tape being listened to.

A prosecutor preparing for trial should listen to the interview tape if it is going to be played at trial.

Further guidance of particular relevance to the Crown Court but applicable to the Magistrates' Court is set out in 27C Criminal Practice Directions Amendment No. 3 [2015] EWCA Crim 430.

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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 if it contains sensitive material.

If the case is to be tried in the Crown Court, any question of editing the tape or the transcript should be dealt with between the 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.

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