The end of the prosecution case in England and Wales is conventionally the moment when the defendant’s interview under caution is adduced in evidence. At the time of the interview the defendant will have been a suspect and it is the opportunity of the police to glean the suspect’s version of events and the opportunity of the suspect to give theirs. Or not give it. I have no idea what the statistics show but many interviews under caution are met with no comment either in response to legal advice given or because the suspect of their own volition has decided it would not be in their interest to answer questions.
The caution is as follows:
"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.”
I’m getting so long in the tooth that when I started practice the interviews were recorded on tape with an annoying backing track to ensure that nobody could interfere with the contents of the recording. They continued to be recorded on tape until remarkably recently, I was given to understand to some degree because the police had one of the largest stockpiles of cassette tapes in the country.
Briefs would come tied up in pink (defence) or white (prosecution) tape with an envelope containing a cassette tape so that the accuracy of the transcript could be checked against the recording. This resulted in a colleague having an absurd experience once when no tape was included in their brief, a request for a copy of the tape prompted a photocopy of the cassette.
The recordings of interviews are almost never played in court before juries. Instead the prosecution barrister and the investigating officer have to engage in a moment of am-dram by reading out the transcript. I say am-dram but ‘doing the voices’ is seriously frowned upon. I only discovered recently that the Southern practice of having the barrister read the defendant’s part and the officer reading the police part is reversed in more Northern parts of the country.
Mercifully the tapes have finally gone the way of fax machines and recordings are now digital and immediately available as digital links. No comment interviews are not adduced in evidence to save juries the brain numbing tedium of having an entire unanswered interview read to them. Instead an agreed fact informs the jury that the defendant made no comment and, where significant questions went unanswered, what they were.
When answers are given the parties have to scrutinise the transcripts to make sure that anything irrelevant, inadmissible or prejudicial gets edited out of the interview: references to previous convictions, the officer’s opinion that the defendant is bang to rights, lengthy discussion about what the defendant had for lunch.
When I started if such edits were not resolved in good time before the trial edits had to be done with Tippex, black marker pen (never desirable) or, especially fiddly, with scissors cutting out the offending passages so that the transcript could be photocopied on top of a blank page. I don’t miss any of it. Now edits are track changed, commented, highlight and implemented at a touch of a button.
However, the transcript reading remains and now that we’re in the digital age it seems to me absurd that juries don’t automatically get to hear the defendant’s own voice and, where video recorded, see their own face in the police interview room. Everybody knows that often in life it’s not what was said but how it was said. It seems to me that if the police interview under caution is of evidential significance, which it obviously is, juries should at the very least actually get the chance to see and hear it.
So many improvements to the criminal justice process require money or complicated reform. This seems to me to be basic and immediately capable of implementation.
