An interview under caution is not a preliminary chat. It is a recorded procedure in which questions and answers may later become part of the evidential record. The practical question before any interview is narrower: has the suspect been told enough to make the caution intelligible in the real facts of the case?
That is the function of pre-interview disclosure. Before questioning begins, the investigator must identify the allegation and the basis of suspicion with enough clarity for advice to be real rather than speculative.
The problem is not usually that nothing is provided. It is that the information provided may be too general to test, advise on, or answer. Sometimes the document labelled as disclosure does little more than state the suspected offence and a broad date range. That may tell the suspect the topic of the interview, but not the case being put. That is not a sound basis on which to begin.
What disclosure is for
Paragraph 11.1A of PACE Code C requires advance disclosure of enough information about both the alleged offence and the grounds of suspicion. The duty is practical: the suspect and adviser must be able to understand what case is being put before answers are sought.
Compliance is not achieved by attaching the word “disclosure” to any short summary. The question is whether the material supplied permits informed advice.
If the intended questions depend on particular documents, images, messages, account entries, or other records, the adviser should usually see the relevant material itself or a clear extract from it. A description may be enough for some allegations. It will not be enough where the interviewee is expected to comment on the content, timing, authorship, meaning, or context of specific material.
This matters because advice on participation cannot be separated from the material being put. A suspect may be able to answer one allegation safely, need to correct another in writing, and be unable to deal fairly with a third at all. The adviser needs to know not just the label of the allegation, but the particulars: who says what, when, by reference to which material, and what inference the investigator appears to draw.
What to ask for
My first task is to convert the officer’s summary into particulars. If a fact is going to be used in questioning, I want to know its source before the interview starts.
The request will usually cover:
- Source material for any assertion to be put in interview, including witness accounts, notes, transcripts, or extracts relied on by the investigator.
- Copies or extracts of any communications, account entries, device material, CCTV, photographs, or other records that will be shown, quoted, or summarised.
- The dates, locations, transactions, meetings, messages, or events said to place the interviewee within the allegation.
- The identity of the complainant or source, unless there is a properly evidenced reason for withholding it.
- The proposed scope of questioning, especially where the request may be one interview in a wider investigation.
That request should be made in writing before the interview begins. The point is not delay for its own sake. It is to ensure that any interview that proceeds is one in which the suspect knows the case being put and the officer’s questions can be answered, challenged, or declined on a proper footing.
What happens if disclosure is refused
Investigators may have legitimate reasons for withholding some information, for example to protect a witness, avoid contaminating an account, or preserve an active line of enquiry. Those reasons should be identified, not assumed.
A poor disclosure decision should be recorded at the time. Later, it may be relevant to whether the interview was fair and whether the resulting answers ought to be admitted under section 78 of the Police and Criminal Evidence Act 1984.
The immediate decision is whether the defect can be cured before questioning starts. If it cannot, the adviser may need to record the objection and advise that the suspect should not be drawn into answering questions on an undisclosed case.
There is no mechanical answer. The adviser has to weigh the gap in disclosure, the likely adverse inference issue, the urgency of putting forward any account, and the client’s instructions.
Voluntary interviews
In a voluntary interview the suspect attends without arrest, but the interview remains a formal interview under caution. The absence of arrest does not reduce the need for proper disclosure, careful advice, or a clear record of the basis on which the interview proceeds.
A request to attend voluntarily should therefore be treated as the start of the interview process, not as an informal appointment to be dealt with on the day. Before a date is agreed, the adviser should ask for the allegation, the legal basis of suspicion, the proposed topics, and the material on which those topics depend.
That correspondence matters. It fixes what was requested, what was provided, and what was refused. If there is later a dispute about the fairness of the interview, the record should not depend on memory.
Direct instruction
Public Access can be suitable where the immediate need is advice from counsel before an interview under caution. Where the case is suitable, counsel can review the proposed interview, correspond about disclosure, and advise on the proper course before the first answer is given.
Direct instruction is not appropriate in every case. If the case requires litigation support beyond counsel’s Public Access role, for example urgent solicitor-led work, extensive evidence management, or coordination with other proceedings, counsel should identify that promptly and recommend that a solicitor be instructed.
The value is front-loaded: disclosure can be challenged, the interview plan can be tested, and the client can be advised before the recorded interview begins.