Part 2 · Chapter 5
Voluntary Interviews Under Caution
Choosing and preparing the response before a formal evidential record is created
A voluntary interview is voluntary as to attendance and remaining, but formal as to evidence. The interview is conducted under caution and may later be used by investigators, prosecutors and a court. Its convenience should never be confused with informality.
Status → Disclosure → Account → Response → Conduct → Review
1. Clarify status and arrangements
A voluntary attendee is not under arrest and is free to leave unless arrested. That does not make departure a consequence-free tactic: it may prompt a fresh assessment of whether arrest has become necessary. Before attendance, clarify the suspected offence, interview status, location, timing, expected duration, investigating body, legal-advice arrangements and whether any immediate arrest risk has been identified.
2. Understand the purpose
The interview may seek an explanation, test an account, establish attribution, fill a gap, obtain admissions or preserve the suspect’s position for later comparison. The client’s wish to ‘tell my side’ is not yet a strategy. The question is what reliable account can safely be given now, against what disclosure and for what evidential purpose.
3. Disclosure: sufficient, not complete
Pre-interview disclosure should provide sufficient information to enable the suspect and solicitor to understand the nature of the suspected offence and why the person is suspected. It is not advance service of the prosecution case. Disclosure may be staged or limited to protect legitimate investigative aims.
Read it for what it states, what it assumes and what it omits. Identify the legal element, the apparent evidence, unresolved attribution, the chronology and any exhibit that cannot safely be addressed without inspection.
4. Prepare a reliable account
Preparation tests memory rather than rehearsing performance. Separate recollection from assumption; identify documents used to refresh memory; record uncertainty; confront adverse facts; and avoid precision unsupported by a reliable source. A plausible account that cannot survive later records may do more harm than carefully bounded answers.
5. Choose the response strategy
| Strategy | Potential value | Principal risk |
|---|---|---|
| Answer questions | Places a full account on record and permits challenge to be met | Errors, speculation or admissions may create evidence and close gaps |
| No comment | Avoids creating an unreliable account where disclosure or preparation is inadequate | Later reliance on omitted facts may engage section 34 where its conditions are met |
| Prepared statement, then no comment | Records defined facts while limiting uncontrolled questioning | The statement is evidence; omissions, drafting and later inconsistency remain significant |
| Prepared statement, then answers | Provides structure while retaining the ability to respond | The protective value of the statement may disappear if answers become speculative or uncontrolled |
Selective answering is rarely a stable middle course. It can create an adverse contrast between questions answered and avoided. Any limited approach requires a principled boundary that can be explained and maintained.
6. Silence and adverse inference
Silence is neither automatically safe nor automatically damaging. Section 34 of the Criminal Justice and Public Order Act 1994 may permit an inference where, when questioned under caution or on charge, the accused failed to mention a fact later relied upon in the defence and the statutory conditions are satisfied. An inference is not a substitute for a prosecution case and cannot alone establish guilt.
Legal advice is relevant to fairness and explanation but does not provide an automatic shield. The real decision is comparative: can the client give a reliable, legally relevant account now, and what risk is created by giving it or withholding it?
7. Conduct during the interview
- Listen to the whole question and separate fact from characterisation.
- Do not guess, adopt an interviewer’s language or agree merely to end repetition.
- Ask to see an exhibit before answering questions dependent upon it.
- Use private consultation when disclosure changes, the client’s condition deteriorates or the chosen strategy is failing.
- Keep fitness, vulnerability and effective participation under review.
- Remember that an apparently harmless answer may prove possession, authorship, knowledge or control.
8. The second audience
The immediate audience is the interviewer. The second audience may be a prosecutor deciding charge or an advocate cross-examining months later with disclosure and preparation unavailable to the client at interview. Every answer should therefore be tested for its future use: what proposition does it admit, what precision does it commit to and what contradiction could later be alleged?
9. After the interview
Record disclosure, advice, the strategy adopted, significant questions and answers, exhibits shown, interventions, breaks, changes in condition and any correction required. Identify new enquiries, preservation steps and the next decision. Supplying material afterwards is a separate deployment decision, not an automatic attempt to improve an imperfect interview.
The interview is not a test of confidence or cooperation. It is evidence creation under caution. The correct strategy is the one that produces the most reliable and defensible record on the information then available.
Related Guidance
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This material provides general information and is not a substitute for advice about a specific investigation or case.
Craig provides legal services exclusively through Forbes Solicitors. To make an initial enquiry, contact Craig at:
craig.mackenzie@forbessolicitors.co.uk
An enquiry does not constitute an instruction. Forbes Solicitors must confirm in writing that it has accepted the matter before any solicitor–client relationship arises.