How Safe are Safety Interviews?

Paul Mendelle QC and Ali Naseem Bajwa argue that safety interviews should only be conducted when it is absolutely necessary to do so

There is a growing trend in terrorism investigations to conduct one or more interviews with a suspect in circumstances where he does not enjoy his usual minimum statutory rights. These interviews have no formal title and the term “safety interview” does not appear in any Code of Practice. They would be more accurately described as “urgent interviews” but investigators and courts usually refer to interviews conducted in these circumstances as “safety interviews”; accordingly, for the sake of consistency, we too shall use that term.

The practice of conducting safety interviews is controversial and open to abuse. Moreover, there is a degree of uncertainty amongst lawyers, the public and even investigators as to what a safety interview is, what rules govern its conduct and admissibility and the value of such an interview. Each of these issues will be addressed in this article.


What is a “safety interview”?

A safety interview is best defined as an interview conducted with a suspect in the absence of many of his usual pre-interview and interview rights (eg legal advice) on the grounds that there is an urgent “safety” need which requires an interview to be conducted without delay.
A safety interview is permissible in any criminal investigation; however, for obvious reasons, it is most likely to be used in terrorism investigations.

Investigators may conduct a safety interview with a suspect under both Code H (which governs terrorism investigations) and Code C (which governs all other criminal investigations) of the Police and Criminal Evidence Act 1984 (“PACE”) Codes of Practice.
(i) Safety interviews at the point of arrest
Code H: 11.2 and Code C: 11.1 provide that following a decision to arrest a suspect, a safety interview may be conducted at the point of arrest, before arrival at the police station, if the consequent delay would be likely to:

  • lead to interference with, or harm to, evidence connected with an offence or interference with, or physical harm to, other people or serious loss of, or damage to, property; or
  • lead to alerting other people suspected of committing an offence but not yet arrested for it; or
  • hinder the recovery of property obtained in consequence of the commission of an offence.

An interview before arrival at the police station involves a serious infringement of the suspect’s rights, principally, the right to legal advice, the right to have a solicitor present when interviewed and the right to have the interview tape recorded.

The Codes of Practice are silent as to what record must be kept of a safety interview conducted before arrival at the police station, however we are of the opinion that the spirit of the Codes imposes an obligation on an officer to make a verbatim record of the interview, timed and signed and, where practicable, offered to the suspect to agree or not, in the same way as is required when a suspect makes an unsolicited comment.
(ii) Safety interviews at the police station
Code H: 6.7 and C: 6.6 provide that at the police station a suspect who wants legal advice may be subjected to a safety interview before he has received such advice if:

  • he is being held incommunicado in terms of access to a solicitor in accordance with Annex B of the Codes; or
  • an officer of at least the rank of superintendent rank has reasonable grounds for believing that the consequent delay might lead to interference with or harm to evidence, physical harm to other people, serious loss of or damage to property, alerting unarrested suspects or hinder the recovery of property obtained in connection with offence; or
  • awaiting the arrival of the solicitor would cause unreasonable delay to the process of investigation.

Importantly, Codes H and C and Annex C to the Codes state that in these circumstances, no adverse inferences from silence in a police station safety interview will apply because the suspect has been denied his right to legal advice. Accordingly, at the commencement of a safety interview, the suspect must be cautioned in the pre-1994 way, namely “You do not have to say anything, but anything you do say may be given in evidence” (“the old-style caution”).

 

Rules governing conduct

R v Ibrahim [2008] EWCA Crim 880, [2008] 4 All ER 208 is the leading authority on the admissibility of safety interviews (see further “What is a ‘safety interview’?” top right). The case concerned the 21 July 2005 failed London suicide bombings. Following the arrest of the main suspects eight days after the failed attacks, the investigators purported to conduct a number of safety interviews with three of the five principal suspects.

The experience of the main defendant, Muktar-Said Ibrahim, was typical amongst those arrested. A safety interview was carried out with Ibrahim both at the point of arrest and again over five and half hours after he had arrived at the police station, during which time he did not have the consultation with a solicitor that he had requested. To make matters worse, a section 34 adverse inference caution (a reference to s 34 of the Criminal Justice and Public Order Act 1994), instead of the “old-style caution”, was wrongly administered before each interview.

In each safety interview, Ibrahim lied about a number of matters and failed to mention the defence that he later presented at trial. The trial judge, Mr Justice Fulford, held that, whilst he accepted that Ibrahim had been denied, at the very minimum, a telephone consultation with his solicitor at the police station and had being given the wrong caution, it was not unfair to permit the Crown to adduce the evidence of the safety interviews. Ibrahim was subsequently convicted of conspiracy to murder and he appealed against his conviction.
In rejecting Ibrahim’s appeal against conviction, the Court of Appeal held:

  • there is no basis for the argument that safety interviews should automatically be excluded on the policy grounds that a suspect is more likely to co-operate, and public safety thereby better protected, if evidence gathered in such interviews were never admitted;
  • if the suspect were to be assured in terms that any information provided by him would not be used against him, that would provide a powerful argument under s 78 of the Police and Criminal Evidence Act 1984 (“PACE”) against the admission of incriminating evidence obtained in consequence. Much too may turn on whether the interviews produce evidence directly relevant to the charge which led to the suspect’s original detention or whether the first connection that the prosecution may establish against him with any offence arises directly from his full co-operation with them during the course of the safety interview;
  • the fact that the Codes of Practice state that no s 34 adverse inference may be drawn from a safety interview does not mean that lies told during such an interview were inadmissible; and
  • there was no basis for interfering with the trial judge’s exercise of his discretion under s 78 of PACE to admit the evidence of the safety interviews or faulting his careful directions to the jury as to their approach to the evidence.

 

Safety interviews: good practice

In our view, safety interviews must be conducted only where it is absolutely necessary so to do and with every effort made to compensate for the diminution in a suspect’s usual minimum rights. In particular:

  • officers must be careful always to administer and explain the old style caution,
  • a full and contemporaneous record must be kept of any safety interview conducted at the point of arrest, and
  • the questioning must not trespass beyond the safety issues which necessitated the interview.

Failure of these safeguards creates a danger that, on the one hand, safety interviews at the point of arrest will become the new “verballing” and, on the other hand, that such interviews in the police station, particularly when a suspect is being held incommunicado, may amount to “oppression” within s 76 of PACE.

 

The value of a safety interview

The trial of R v Abdulla & Asha in autumn 2008 at Woolwich Crown Court concerned the failed London and Glasgow Airport car bomb attacks on 29 and 30 June 2007. Dr Mohammed Asha arrived at the police station at 01.00 on 1 July. At 10.15 and 15.35 that day, without awaiting the arrival of Dr Asha’s solicitor, the police conducted two safety interviews. The interviewing officers sought to take advantage of the fact that there was no solicitor present by adopting a hostile and unfair style of questioning by, for example, swearing and ridiculing answers and telling Dr Asha, falsely, that they had new information about him.

At his trial, Dr Asha, far from seeking to exclude the evidence, positively sought the admission of the safety interviews to demonstrate that he had answered questions and set out his defence under the pressure of improper safety interviews and aggressive and misleading questioning.

The trial judge, Mr Justice Mackay, made it clear that if Asha had incriminated himself and sought to exclude the evidence, he would have ruled the evidence inadmissible because of the breaches. He observed: “The seriousness of terrorist offences should never be a reason for anything other than the best of good practice.” During his summing up, Mackay J told the jury, “What this trial may have revealed to you, on this occasion, [is that] Mohammed Asha’s rights were not fully respected.”

 

Impact on fairness

It is clear from Mackay J’s strong comments in R v Abdullah & Asha that in future a trial judge, perhaps faced with a less exceptional set of facts than in Ibrahim, may well come to the view that admission of evidence obtained during a tainted safety interview would have an adverse effect on the fairness of proceedings.

Anything less than “the best of good practice” may mean that incriminating and otherwise admissible evidence is excluded. In that event, public safety, far from being protected, would be compromised.  v

Paul Mendelle QC and Ali Naseem Bajwa are criminal barristers at 25 Bedford Row.


 


 

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Ali Naseem Bajwa

Ali is a barrister at Garden Court Chambers specialising in criminal defence work. He has acted in a number of important homicide and terrorism cases, is an advanced advocacy trainer and Master of Students at Gray’s Inn