Tape Recorded Interviews
Principle
Most interviews at police stations with persons suspected of having committed indictable or either way offences should be tape recorded.
Tape recorded interviews need not be conducted in respect of persons suspected of having committed a terrorist offence or offences contrary to the Official Secrets Act 1911.
If a suspect is charged following a tape recorded interview, a Record of Interview will be prepared. This has traditionally been the responsibility of the officer present at the interview, but in some police forces 'tape summarisers' are now used.
The Record of Interview serves a number of purposes:
- To enable the prosecutor to make an informed decision on the basis of what was said at interview;
- To be an exhibit to the officer's statement;
- To enable the prosecutor to comply with advance disclosure; and
- Where it is accepted by the defence, to be used for the conduct of the case by all parties.
Code of Practice (E) issued under Section 60 of the Police and Criminal Evidence Act 1984 contains guidance for the police in relation to the conduct of tape recorded interviews. <Archbold 15-224>
A Practice Direction, 89 Cr App R 132, issued by the Lord Chief Justice gives directions to the prosecution and defence in relation to cases involving Records of Interview and transcripts.
Guidance
After an interview which has been recorded on tape, the police will prepare a Record of Interview.
There is no requirement to prepare a Record of Interview in the following cases:
- The suspect is not charged with an offence;
- The suspect remains silent or answers "no comment" throughout the interview; or
- A full transcript is to be prepared (Transcripts normally need to be authorised by a superintendent and are reserved for grave and complex cases).
The type of Record of Interview to be prepared by the police will depend upon whether the case is complex or straightforward.
Complex cases include:
- Indictable only offences;
- Either way offences likely to be heard in the Crown Court having regard to the National Mode of Trial Guidelines;
- Assault cases; and
- Cases where the suspect is expected to plead not guilty. (This should be assumed in all cases where the suspect has not admitted the offence and its commission was not witnessed by a police officer.)
All other cases are straightforward cases.
The Record of Interview in a complex case should contain not only admissions but also the main salient points verbatim. The main salient points include questions and answers about intent, dishonesty or possible defences etc.
The Record of Interview in a straightforward case will be largely reported in indirect speech. Any admissions and the questions leading up to the admissions must be recorded verbatim.
If the police submit a Record of Interview that is only appropriate for a straightforward case where, applying the criteria, the case is complex you should ask the police to submit a record of interview in proper form.
Listening Policy For Summary Offences
When carrying out an initial review of a file which contains a record of interview, you need not 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, you must listen to the tape unless a full transcript is available.
If having listened to the tape you consider the record of interview to be inadequate you should return it to the police. The police should then amend the record of interview and return it to CPS in an acceptable form.
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 you should ask the officer to consider whether it might be possible to prepare an agreed version of the record of interview.
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 you 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 advance disclosure package.
If the defendant consents to summary trial and pleads not guilty, you should follow the guidance above in this section.
Listening Policy For Cases Committed To The Crown Court For Trial
You 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.
You 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, unless the Record of Interview is virtually a transcript;
- 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 Crown Prosecutor need not listen to the tape or instruct counsel 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 on a counsel-to-counsel basis 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. You 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, you should normally call the officer to give oral evidence. You should warn the officer, 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 in a manner incompatible with the Record of Interview you may need to seek an adjournment to allow the officer to attend.
<See also Warning of Witnesses, elsewhere in this guidance>
Playing Of Tapes In Court
If you decide to play a tape in court as part of the prosecution case you should notify the court and the defence. 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
Crown Court
The procedure for dealing with Records of Interview and the playing of tapes in court is contained in a Practice Direction, 89 Cr App R 132, issued by the Lord Chief Justice on 26 May 1989.
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 or 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 prosecution counsel proposes to play the tape in court, CPS should notify the court within 28 days of the date of committal or 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 Crown Prosecutor to be present at the opening of the master tape if there are proceedings pending.
Useful links
<Archbold 15-224>
Prac.Direction 89 Cr.App.R.132
<Warning of Witnesses, elsewhere in this guidance>