Interview under caution question

Discussion in 'Disputes & Prosecutions' started by Saperstein, 7 Jun 2019.

  1. Saperstein

    Saperstein Member

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    Hi,

    Just wondered if someone is “Interviewed under caution” on the railway is it similar to a police interview you see on the telly and they are told “it may harm your defence if you do not mention” ect?

    Just wondered that’s all.
     
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  3. AlterEgo

    AlterEgo Veteran Member

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    Yes, you are read the same rights - that's the caution.
     
  4. Saperstein

    Saperstein Member

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    What are those rights?
     
  5. AlterEgo

    AlterEgo Veteran Member

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    The right not to say anything and the right against self-incrimination. It also contains an explanation that choosing not to answer may harm your defence in court.

    “You do not have to say anything. But, it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.”
     
  6. Salesy

    Salesy Member

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    Basically there is three parts to the caution:

    “You do not have to say anything”

    This is self-explanatory, you have a right to silence.

    “But it may harm your defence if you do not mention when questioned something you later rely on in court”

    This is the tricky bit. Basically, a court can’t just draw an inference from your silence (unless a special warning is used in interview).

    But if you raise a defence in court and you could reasonably have given the account in interview then the court may draw an inference from your failure to mention it in interview. (S.34 Criminal Justice and Public Order Act 1994).

    “Anything you do say may be given in evidence”

    The interview will be recorded, either via audio/video recording or via contemporaneous notes. The record or a transcript thereof can be produced as evidence at court.
     
  7. Salesy

    Salesy Member

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    My advice would be to speak to a criminal law solicitor prior to attending an interview under caution.
     
  8. Haywain

    Haywain Established Member

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    Best hope there’s one standing at the gate line then!
     
  9. Salesy

    Salesy Member

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    Lol, that’s a fair point. Under those circumstances I would explain that you wish to speak to a solicitor prior to the interview and arrange a date to re-attend.

    Refuse to be interviewed until you have sought legal advice.
     
  10. Hadders

    Hadders Established Member

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    Being put under caution is extremely intimidating and you need to be very careful that you don't inadvertently incriminate yourself.

    I would say something like 'I wish to co-operate with your investigation but before I answer your questions I wish to seek legal advice'.

    That way you're not point blank refusing to co-operate but you do get to buy some time to think about what you're going to say.
     
  11. Stigy

    Stigy Established Member

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    Not possible usually. You’re told as part of the caution that you’re not under arrest and are free to leave at any time, therefore there’s no specific right to legal advice and if you don’t want to answer any questions, simply walk away.

    If a suspect is arrested, obviously it’s a different matter.
     
  12. Stigy

    Stigy Established Member

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    That usually won’t be entertained as the suspect is not under arrest. I’d make notes to the effect of what has been said by the suspect, but chances are they wouldn’t be contacted again to give fuller version of events which lead to them being investigated. It’ll simply be progressed regardless in the same way as any other similar occurrence whereby a person doesn’t want to answer questions.

    The whole idea of questioning a suspect at the time is so they don’t get chance to “buy some time to think about what you’re going to say”, and get a real-time version of events. It’s a chance for the person to be thoroughly questioned and as much chance for them to plead their innocence as anything else.
     
  13. Salesy

    Salesy Member

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    It’s up to them if they allow you to re-attend or not, but I for one would not attend an interview without legal advice. There is no benefit to the suspect to be interviewed without legal advice.

    The courts cannot draw the inferences from questioning if the suspect is not questioned.
     
  14. Stigy

    Stigy Established Member

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    Unless they’re questioned and answer “no comment”.

    You’re correct, but as you no doubt know, one can still be prosecuted without being questioned. Therefore it’s a risky game. With that in mind, I’d say there most certain IS a benefit to being interviewed, even without legal advice.
     
  15. Salesy

    Salesy Member

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    You can indeed, but the whole purpose of an interview is evidence gathering. I’d suggest that if they have the evidence to prosecute you regardless of what you say then the interview is still of no real use.

    Nine times out of ten, being interviewed without first seeking legal advice is likely to offer no benefit to the suspect, and possibly considerable benefit to the investigator.

    Seeking legal advice before interview is my second-most top bit of advice, after running away in the first instance.

    Edit: I want to caveat that the main benefit to being interviewed is the possibility of an out-of-court disposal (for which a clear and reliable admission is usually required).

    Any reasonable investigator will allow you to seek legal advice prior to a voluntary interview as per Code C PACE.
     
  16. Stigy

    Stigy Established Member

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    Nine times out of ten the suspect also believes they’ve done nothing wrong. If that’s the case, surely they’d want to put their side across?

    What will legal advice even achieve? A solicitor telling them to answer “No comment”. Pointless in itself because it’ll be a voluntary interview so defeats the object. Then you have the fact that the majority of criminal lawyers don’t understand railway law...
     
  17. Salesy

    Salesy Member

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    Nine times out of ten the suspect has little clue about where they actually stand legally.

    Solicitors often get given a lot more information about the available evidence prior to interview.

    They will have a better knowledge of the offences in question and the points to prove.

    They have a better knowledge of the legal defences to the offences, and mitigating factors for court.

    They will be able to get an indication of disposal options, and will have a good idea of the potential sentence at court.

    They will know when is best to admit involvement (and exactly what to admit to) or to put the investigator to proof. Solicitors don’t always advise their clients to make no comment. They often advise them to admit it where advantageous to do so, and they are best placed to make that call.

    I also don’t follow how a voluntary interview makes legal advice irrelevant? A PACE interview is a PACE interview irrespective of whether the suspect is under arrest or attending voluntarily.
     
  18. Silverdale

    Silverdale Member

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    But in how many times out of ten does the suspect know the laws and byelaws?

    If they don't and when questioned - believing they have done nothing wrong - they may well say; "well, all I did was...", thereby admitting to committing an offence.
     
  19. farleigh

    farleigh Member

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    Absolutely NEVER attend an interview under caution without taking legal advice.

    EVER.

    That is my two-penneth and based on considerable experience.
     
  20. Stigy

    Stigy Established Member

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    Maybe I used the wrong terminology? A voluntary interview doesn’t necessarily make legal advice irrelevant, however we (staff/TOC etc.) don’t have to allow someone to enlist legal advice. If they don’t want to be questioned, walk away (same as any interview where a suspect is reported rather than arrested). If a suspect is arrested, they have a right to have legal representation because they’re going to be be questioned whether they like it or not.

    All I’m saying is that it matters not if a person stays or goes (at best it means the evidence will likely only prove a Byelaw offence, but it’s an offence nonetheless).

    If I caution someone and they say they won’t answer questions without legal advice, I’ll make notes to that effect and remind them that that are not under arrest etc, but I certainly won’t be hanging around for them to obtain said advice because it’s not practical. If they stick around I’ll ask questions and see how it goes.
     
  21. AlterEgo

    AlterEgo Veteran Member

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    So you would run away from a revenue protection officer when read the caution?
     
  22. farleigh

    farleigh Member

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    Well maybe walk away but that is definitely a viable option as there is no obligation to stay.

    However, I was referring to voluntary interviews mainly.
     
  23. AlterEgo

    AlterEgo Veteran Member

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    You can, in theory anyway, be detained if you try to do so.
     
  24. cactustwirly

    cactustwirly Established Member

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    Surely the evidence would be inadmissible in court if the defendant didn't have access to legal advice
     
  25. Salesy

    Salesy Member

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    Only by a constable, surely?

    There’s no specific power of arrest or detention in the Byelaws to my knowledge. The ‘any person’ power of arrest (S.24A PACE) can’t be used for summary-only offences.

    Therefore, the only power I could think that would exist is the constables’ general arrest power under s.24 PACE.
     
  26. ForTheLoveOf

    ForTheLoveOf Established Member

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    No, not in the Byelaws. But, unfortunately, there is in RoRA. This applies where someone refuses to show a ticket showing "[their] fare is paid", or to pay their fare, or to give their name and address, "until [they] can be conveniently brought before some justice or otherwise discharged by due course of law."

    Fortunately, most companies instruct their staff not to use this power, and one is not obliged to provide anything more than one's name and address for the right of detention to cease to exist. It's not clear to me whether staff would be legally justified in detaining someone who showed a ticket which they said covered their journey, but which (as in this case) the staff thought didn't.
     
  27. Salesy

    Salesy Member

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    Interesting, you are entirely correct, I eat my words.

    The wording seems quite black and white, if the person produces a ticket ‘showing that his fare is paid’ then the power of detention is not available. There doesn’t appear to be the benefit of being able to use mere suspicion, as constables do.

    This seems like a risky power to use, get it wrong and you face a lawsuit for false imprisonment.

    I seem to have strayed slightly off topic, but coming back to interviews, if you were detained/arrested under any lawful power and forced to submit to an interview then you must be allowed legal advice if you so wish.
     
  28. randyrippley

    randyrippley Established Member

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    All this adds up to the best thing to do is to say you don't understand or accept the caution, refuse the interview and walk away.
    If you have a valid ticket then any subsequent action by the questioner to stop you is likely to be either illegal arrest or assault
     
  29. Fare-Cop

    Fare-Cop Member

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    Yes, that's perfectly permissible.

    Given that before cautioning someone the RPI will ask some questions, such as

    'Where have you travelled from?' and 'Will you show me your ticket please?'

    and if the traveller does not have one 'Why do you not have a ticket?'

    If no reasonable excuse is given and facilities had been available to the traveller, then the RPI can ask:

    'Please give me your name and address?'

    In the circumstances described, failing to comply can make the matter more serious a refusal is an offence contrary to National Rail Byelaw 23 (2005).

    Only once that is done is the RPI likely to consider cautioning the traveller

    If the traveller now exercises their right to silence and simply walks away, that does not mean the RPI cannot proceed and they may write a report along the following lines:

    ' The traveller I now know as M. XXXX XXXXXXX came from a train that had just arrived and showed no valid ticket when asked. I am aware that full pre-purchase facilities had been available to them before departure from their declared station and that there was a staff member on the train to whom a fare could have been paid. I asked M. XXXX XXXXXXX why no ticket was purchased but no satisfactory answer was given. S/he said...………….'

    I cautioned M. XXXX XXXXXXX and asked if this was understood. M. XXXX XXXXXXX said 'I don’t want to be questioned' and walked away at XX.XX hours, thereby making off without payment of the fare due from XXXXXXXX to XXXXXXX'


    Clearly the report will be more detailed than that skeleton, but it will be up to the TOC prosecution manager to determine how they might proceed once the report is received. It may be that there is a supporting statement from other staff, i.e; the station at which M. XXXX XXXXXXX boarded, a statement from the guard on train.....there are a lot of variables.
     
  30. randyrippley

    randyrippley Established Member

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    But based on previous posts, if you simply present your ticket and offer no further comment then they have no case?
     
  31. ForTheLoveOf

    ForTheLoveOf Established Member

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    They may have other evidence upon which to bring a prosecution.
     

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