Interviews under caution in the medical profession – PACE Interviews
The overwhelming majority of individuals suspected of having committed a meaningful criminal offence will be formally interviewed under caution by the police or other investigative body, although for most road traffic offences the investigative process is different- see our separate article on road traffic prosecutions.
The law throughout the United Kingdom is very similar. This article concentrates on the law and procedure of police interviews of suspects, as it applies in England and Wales. Note that if you are a doctor who is being interviewed as a non-suspect, see our separate article: Doctors as Non-Suspects in Police Interviews
Doctors as Suspects
Being under suspicion of a criminal offence or series of criminal offences can be one of the most distressing experiences anyone can face. Within the medical profession, the stakes are invariably very high indeed and there is often much to lose in the event that a suspect is formally prosecuted, and worse still convicted. Cases of this often involve ancillary proceedings conducted by the various governing and regulatory bodies. Even when no proceedings are brought in a criminal court, a medical professional, such as a Doctor, can face proceedings before their governing body. The standard of proof in such proceedings is less onerous than in criminal proceedings where a defendant can ony be convicted beyond any reasonable doubt. In proceedings before a governing body, an individual facing disciplinary proceedings can be found to have committed an offence if he or she is considered more likely than not to have committed the act or acts (on a balance of probabilities).
Every suspect facing a police interview under caution (pursuant to the Police and Criminal Evidence Act 1984 (PACE), as amended, has the right to independent legal advice. Where a suspect is formally arrested, he or she will be taken to the police station for detention and questioning. For the vast majority of offences, the police can hold someone up to 24 hours and only with the more serious offences can that time period be extended up a maximum of 96 hours (subject to extensions of time being initially granted by a Superintendent and thereafter by a Magistrates Court.
Often Asked Questions about Police Interviews
In what circumstances can the police or other investigative body interview such suspects under caution, or request a suspect to attend either the police station or designated place for interview? What is the procedure? What are a suspects rights and entitlements? Does a suspect have to cooperate? What happens before, during and after the process? Is a lawyer needed?
Healthcare and medical professionals (doctors, nurses, paramedics, physiotherapists, and so on) are subject to the same investigative process than anyone else under suspicion. Unless an allegation is of such gravity – such as murder or some of the most serious sexual offences – healthcare professionals are more than likely to be invited to attend the police station or other designated place voluntarily for interview- known as a ‘voluntary interview.’ For allegations of fraud and other matters of financial irregularity, the Counter Fraud Team will invariably conduct the interview. For other matters, it is likely to be the Police.
When the Initial approach is made by the investigative team, the suspect should always be informed of the reason why the interview is required. It is not uncommon, particularly with unrepresented suspects, for nothing more than the bare minimum to be disclosed before interview. Instructing a solicitor to attend with you can ensure that much more information is provided prior to interview. This can really help prepare.
The suspect must also be advised that they are entitled to be represented by a lawyer, and importantly that the suspect has the right to instruct a lawyer of their choice. This is crucial. When it comes to instructing a lawyer, the healthcare professional suspect should carefully choose not just a lawyer who has an extensive knowledge of the criminal law, but a lawyer who has experience of dealing with the types of case that healthcare professionals commonly find themselves involved in.
Once the request to attend for interview has been made, the question often asked is the extent to which the suspect needs to cooperate. There are two aspects to this. Firstly, does the suspect have to agree to attend at all? Secondly, if the suspect attends, does he or she have to say anything. This second question gives rise to some of the most difficult considerations that any suspect and his or her legal advisor has to address during the interview process.
In short, it is never sensible simply to refuse to attend once invited to attend a voluntary interview. To do so, may give rise to formal arrest by the police which will result in the detention at a police station. This seems somewhat odd because although on the one hand a suspect attending a voluntary interview is told that they are not under arrest and that he or she an leave at any time, there is always that underlying acknowledgement that if this occurs, a formal arrest may follow. Undoubtedly, the bigger and more complex of the two issues is the decision that needs to be made as to how to respond in interview to the allegations, if at all.
There is no such thing as an ‘informal’ interview under caution. Investigators can try to make out that there is ‘nothing to worry about’ or that ‘it won’t take long’ but never forget that an allegation has been made alleging that a criminal offence or series of offences has been committed. The advantages of having a Solicitor attend with you for interview far anything in favour of being unrepresented. Interviews under caution can be a very daunting experience.
Instructing lawyers will mean that a request can be made to the interviewers to provide full disclosure of the allegation(s). This allows an opportunity for open discussion about what is alleged and provides an opportunity to assess how best to respond to the allegation(s) in interview. It allows the lawyer the opportunity to discuss with the suspect in advance of the interview any areas of concern. It allows the lawyer to raise with the suspect the types of question he or she will be faced with in interview.
Most importantly, having a lawyer can enable a full discussion to be had about how best to approach the interview. There are a number of options for a suspect being interviewed, and whether or not a suspect answers questions, exercises his or her right to silence, or advances a response in some other way such as through a pre-prepared written statement addressing the allegations concerned, is the most difficult consideration to address. Without the benefit of a lawyer, a suspect will invariably assume that he or she has to fully cooperate and answer all of the interviewers questions. This is not the case at all. Whether or not to answer questions or respond to the allegation(s) in any way at all is really a decision that can only effectively be made by consulting a specialist lawyer. Instructing a solicitor prior to interview really can make the difference between being formally prosecuted, and no further action being taken.
The specialist criminal defence lawyers at Doctors defence Service have represented medical professionals at every level of the criminal process and on a broad range of alleged criminal conduct, ranging from Fraud, sexual assault and gross negligence manslaughter.
The importance formal interview under caution should never be underestimated. Instructing a lawyer is not to be perceived as an attempt to conceal criminal conduct, but instead nothing more than exercising a basic and fundamental legal privilege. The temptation to assume that having a lawyer will in some way appear uncooperative should be avoided at all costs. There really are a number of cases where not responding to the allegations at all in interview is absolutely the right thing to do. Without a Solicitor there may be the natural urge to answer questions in interview because it is viewed as the right thing to do. However, it is very often the wrong thing to do. The question for the lawyer based on the disclosure provided is to ask whether a case to answer had been disclosed. Even in the cases where there is a perceived case to answer, not volunteering any additional information can be the right response in interview. Equally common is the scenario that the investigators do not appear to know as much about what has occurred than the suspect. Why would a suspect want to incriminate themselves any more than necessary?
Interviews under caution are carried in accordance with the Police & Criminal Evidence Act 1984 and its codes of practice. At the beginning of any interview, and before any questions begin, the interviewing officer(s) are obliged to remind the suspect that the interview is under caution. Its an extremely important part of any interview, arguably the most important. Apart from giving the suspect his general rights and entitlement, the interview officer(s) will remind the suspect that:
“ (1) You do not have to say anything, (2) but it may harm your defence if you do not mention when questioned something which you later rely on in court. (3) Anything you do say may be given in evidence.”
The caution can be broken down in to three parts. (1) The suspect has a legal right not to answer questions. That means simply that. As mentioned above, there are a number of circumstances, too many to list within this article, why it might be prudent not to answer questions. The decision is best made with the benefit of legal advice.
Part (3) of the caution simply reminds the suspect that the interview is being recorded and that any questions and answers can be used in any later proceedings.
Part (2) is the most important and illustrates the importance of having a lawyer. The suspect, although reminded that he or she has the right to remain silent, is equally reminded that in the event that no questions are answered during the interview, any account in response to the allegations later relied upon by the suspect at court may be less open to belief, referred to as drawing an ‘adverse inference.’ This is governed by s.34 – s38 of the Criminal Justice and Public Order Act. This is often misunderstood by investigators themselves, and so it is hardly surprising that suspects find it a difficult concept to fully appreciate. An adverse inference can only be drawn if it relates to a question that was asked, or if is later considered reasonable foe the suspect to have answered the question.
Medical investigations concern a variety of topics. Fraud, prescription abuse, allegations of a sexual nature, allegations relating to patient care (deliberate, reckless or even wilful harm to a patients), and at the top end, gross negligence manslaughter or even murder. Invariably, however, such cases involve a whole lot more than the basic elements of each offence and the suspects whole practice and approach is open to scrutiny. The nature and extent of complaints against Doctors, Nurses and other healthcare professional varies very greatly indeed. The vast majority of criminal defence lawyers conducing day to day criminal cases simply do not possess the necessary experience at all to deal with the many complex factual and legal issues that medical investigations involve.
See also the Home Office Guide to Interviewing Suspects (2020)
If you are a medical doctor seeking legal advice or legal representation in relation to a police interview, give us a call in strict confidence. Interviews can often be arranged by appointment so that your preferred lawyer can attend with you. Doctors Defence Service can introduce you to experienced criminal law lawyers. Call is on 0800 10 88 739