POLICE INTERROGATIONS

Individuals charged with a serious indictable offence may lose their right to silence. However, for all other offences, they retain the right to remain silent when questioned by police regarding their alleged involvement in criminal activity. In such cases, the prosecution in a criminal trial is generally prohibited from introducing evidence of a suspect’s failure to respond to questions or representations during official questioning, where an unfavourable inference could be drawn.

Most police interviews with suspects are recorded via audio/video electronic means (ERISP – Electronic Recording of Suspected Persons). Interviews concerning indictable offences are inadmissible unless electronically recorded. However, recording is not required in the following circumstances:

• Mechanical failure of recording equipment;
• The suspect refuses to allow the interview to be recorded;
• No recording equipment is available.

Advantages and Disadvantages of Participating in a Recorded Interview

Disadvantages

• Without comprehensive knowledge of the police case, a suspect may struggle to understand the significance of the questions and their responses.
• The suspect may inadvertently provide the police with incriminating evidence they would not otherwise have had.
• Police often decide to proceed with charges before the interview, rendering any statements by the suspect unlikely to influence that decision.
• Most individuals lack a detailed understanding of the legal elements required to prove criminal offences, and legal practitioners have limited ability to intervene during questioning.
• Selectively answering questions may result in the entire interview being admissible, including responses to which the suspect has remained silent.
• Providing false, misleading, or evasive answers may impact the suspect’s credibility if they later testify in court.
• Lies told during an interview may be presented at trial as evidence of a consciousness of guilt.

Advantages

• Where independent incriminating evidence exists, full admissions to police may demonstrate contrition and remorse, potentially leading to sentencing benefits.
• If the case is straightforward and the suspect has a valid defence, articulating that defence at the earliest opportunity may assist in presenting a consistent argument at trial.
• A suspect’s recorded statement may be read to the jury as an affirmation of innocence and defence, potentially negating the need for them to testify.
• Notice of specific defences, such as alibi evidence, only needs to be raised in accordance with court rules.

About Post Author

Mark Racca

Principal Solicitor & Director
LLB, GradDipLegPrac, MPA

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