Police interviews and your right to silence

What you must give police, and what you do not

The line is narrower than most people think, and it is worth knowing exactly where it sits before you are standing in a watch house.

• Your correct name and address. Required, and refusing is itself an offence under section 791 of the Police Powers and Responsibilities Act.
• Evidence of identity in a traffic matter. A driver must produce a licence when required.
• A breath or saliva specimen. Required under the Transport Operations (Road Use Management) Act where lawfully requested. Refusing carries its own penalty, often worse than the original charge.
• Your version of events. Not required. This is the part people give away.
• Access to your phone. Police need a warrant or an order. Do not hand over a PIN because you were asked.

If you are unsure which category a question falls into, the safe answer is that you would like to speak to a lawyer first. That request is not an admission and cannot be used against you.

Why "no comment" is usually the right answer

People agree to interviews because they believe explaining themselves will make the problem go away. Occasionally it does. Far more often the interview supplies the element of the offence the prosecution could not otherwise prove.

The reason is structural. At the point you are interviewed you have not seen the brief of evidence. You do not know what the witnesses said, what the CCTV shows, or which element the prosecution is short on. The interviewing officer knows all of it. You are being asked to give an account, under pressure and without preparation, against someone who has read the file.

A denial that turns out to be wrong on a small detail becomes a lie that is put to you at trial. An admission to something that felt minor becomes the proof of intent. An account that conflicts with a friend’s account becomes a credibility problem for both of you.

None of this means you are guilty and none of it means you will not eventually give your version. It means the version should be given once, in writing, after you and your lawyer have seen what the prosecution actually has.

What actually happens in a record of interview

A record of interview is a formal, recorded questioning, usually on video at a police station or watch house. You will be cautioned, the recording will be started, and your answers become evidence.

1. You are told you are being questioned about a specific offence, and cautioned that you do not have to say anything.
2. You are asked whether you agree to be interviewed. This is the decision point. You can decline.
3. If you take part, questions are asked and recorded. You can stop at any time, though stopping midway is usually worse than never starting.
4. You are given a copy of the recording, or details of how to obtain one.

If you have been arrested rather than invited, you are entitled under section 418 of the Police Powers and Responsibilities Act to speak to a lawyer, and to have police delay questioning for a reasonable time so you can do so. Ask for that. It is not a favour, it is a statutory right.

If police have contacted you and you have not been charged

A phone call asking you to "come in for a chat" is not an informal conversation. It is an invitation to a record of interview, and the fact you have not been charged is not a reason to relax. It usually means the investigation is not yet complete and the interview is intended to complete it.

You can decline to attend. You can also attend, decline the interview, and leave, if you are not under arrest. Neither is obstruction and neither makes you look guilty in any way that matters legally.

Call us before you respond. There is often something useful to be done at this stage, including making written representations, that becomes unavailable once you have been interviewed.

If you have already been interviewed

It is not necessarily fatal. Get a copy of the recording, and get advice quickly. What was said may be less damaging than you fear, and there are circumstances where an interview is excluded: where the caution was not properly given, where you were not afforded the right to contact a lawyer, where the questioning was oppressive, or where the recording requirements in the Act were not met.

Bring us the recording and the charge, and we will tell you honestly whether there is an argument to run.