EHJ April 2005, pages 28

This month, Julie Barratt explains why carrying out an interview under caution should only be done when it's really necessary

Why do you carry out an interview under caution? Not for the entertainment value it affords certainly, and there is no evidence that I know of that doing so makes you a better person.

The reason for the question? I was talking with some EHPs recently and they told me that as a requirement of their enforcement policy they always carry out IUCs. Under vigorous cross examination they advised that they carry out an IUC even if they already have all the evidence they need to sustain a prosecution.

Given that IUCs are governed by the rigorous requirements of the Police and Criminal Evidence Act code of practice B1 and that even for the simplest of cases they need considerable preparation and engage considerable resources, such a requirement is, putting it politely, seemingly difficult to justify.

An IUC should fill gaps in the inquiry

A prosecutor carries out an IUC when he has prima facie evidence to suggest that an offence has been committed and that the interviewee is either the sole accused, or has played a part in a multi-handed offence. It is not a fishing expedition. Some evidence to justify the interview must exist, and that evidence should show a clear connection between the interviewee and the offence. Conducted properly, an IUC should fill gaps in the inquiry by establishing the role of the accused. It should also provide the interviewer with details not known at the time of the offence, or, in some cases, allow the interviewee to exculpate himself and eliminate himself from the inquiry.

Finding or establishing the missing element

For an IUC to have any value, the prosecutor must need to know something. Some vital piece of evidence or link or connection must remain unfound or unmade, and the purpose of the IUC is to find or establish that missing element. The IUC should be targeted at discovering the missing element.

If it is successful, the prosecutor will be in possession of admissible evidence that will allow him to advance the case either by proceeding to litigation or at the very least making further, better informed inquiries. If it fails, the prosecutor should review the case to determine whether there is any merit in proceeding with the investigation. Applying a straightforward cost-benefit analysis, tangible benefit accrues to the prosecutor in either event.

Assuming that all of the elements of an offence have been properly identified and the facts of the case as known are such that the offence against a named defendant is made out, what possible benefit can accrue for the carrying out of an IUC? Nothing remains to be discovered, there is no possible gain for the prosecutor. At best it is a waste of time and resources, at worst it is oppressive behaviour.

An IUC is a prosecution tool

An IUC carried out by a prosecutor already in possession of all the facts could certainly be the subject of an application to disallow that part of the claim for costs to which it related as being costs unnecessarily incurred. Such an application made in open court hardly reflects well on the prosecutor, hinting as it does of heavy-handed tactics.

An unnecessary IUC is the exception to the rule that says that you cannot be too cautious. The advanced justification that such an IUC allows you to get some idea of what the mitigation to be advanced in court will be is not a good reason for undertaking one. An IUC is a prosecution tool. As with all tools its use is optional and should only be used when its use is necessary. The fact that you can carry out an IUC does not mean that you must

Julie Barratt is director of CIEH Wales

1 Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, made under PACE 1984