Still be questioned without a solicitor?

Question

In the United Kingdom, England and Wales jurisdiction, when someone is arrested they are read a caution.

If at that moment, the person declines to give a statement, and then asks for a solicitor, can the police continue asking questions?

Would they be allowed to use the suspects 'no comment' answers, as they have not yet spoken to a solicitor, against them?

The above scenario applies before they reach the police station and are provided with legal advice by a solicitor.

Answer 1

england-and-wales

Re:

If at that moment, the person declines to give a statement, and then asks for a solicitor, can the police continue asking questions?

It doesn't work that way.

The caution given on arrest does not ask for, nor require, the suspect "to give a statement" at that time. It says:

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.

Unless there is a genuine and urgent necessity (see below), there is to be no questioning about the suspected offence until they are booked in to Custody, which when they are informed of their rights; including their entitlement to free and independent legal advice (FILA) under s.58(1) Police and Criminal Evidence Act 1984 (PACE).

That said, there are two occasions when someone under arrest can be (lawfully) asked questions before being booked in to Custody:

• The first is when an Urgent Interview is necessary. See Paragraph 11.1 PACE Code C:

11.1 Following a decision to arrest a suspect, they must not be interviewed about the relevant offence except at a police station or other authorised place of detention, unless the consequent delay would be likely to:

(a) lead to:

interference with, or harm to, evidence connected with an offence;

interference with, or physical harm to, other people; or

serious loss of, or damage to, property;

(b) lead to alerting other people suspected of committing an offence but not yet arrested for it; or

(c) hinder the recovery of property obtained in consequence of the commission of an offence.

Interviewing in any of these circumstances shall cease once the relevant risk has been averted or the necessary questions have been put in order to attempt to avert that risk.

• The other is incidental questions that are not about the suspected offence. e.g. for public safety or officer welfare, or to facilitate a proportionate search - "Before I search you, do you have any weapons or needles on you?" Or "Which is your bedroom?"

Any questioning outside of these could be ruled as a significant or substantial breach of PACE so may be excluded following a defence application under s.78 of PACE, and the officer would undoubtedly have to answer for their actions at e.g. a misconduct hearing.