The Arrest
The first knowledge you may have of any investigation may come from an unexpected ‘dawn raid’ and arrest. Alternatively, the police may make contact with you by telephone where an officer will ask you to come down to the station ‘for a chat’. The police may try to put you at ease by saying they simply want to clear up some confusion. This can be even more dangerous to an accused person because the suspect may attend the station unprepared and without a solicitor.
If you are attending a police station it is advisable to have your own specialist solicitor attend with you. Although the police will offer you access to a ‘duty solicitor’ (a scheme that allows anyone attending the police station to speak to a solicitor), you cannot be certain of the quality, experience and knowledge of the person who will provide advice to you or attend the station to represent you. In our experience, the most senior solicitors specialising in sexual offence law do not work as duty solicitors. Requesting a specialist solicitor at an early stage (and not a duty solicitor) may result in the interview process being less harmful to you and may even lead to the proposed charge/s being dropped and without the need to attend court.
The police interview and the need for legal advice
If you attend the police station on your own, the police will ask you whether you want a solicitor when you arrive at the police station. Some pressure may be placed on you not to do so. For example, the police officer may inform you that the interview is just a formality and should be over in a few minutes, whereas if you want a solicitor present there may be a wait of 2-3 hours. Of course, if you are able to contact us before attending the station we will be able to attend with you – and be with you at every stage of the case.
A decision you will need to make prior to interview is whether to answer questions. Police officers investigating sexual offences are often highly trained with specialist interviewing techniques. The police may have already formed an opinion, even before meeting you, that you are guilty and, therefore, their goal is to gather evidence to convict you and not to get to the truth. The police are likely to hold back certain information and therefore not disclose evidence to you prior to interview. Remember that you do not have to answer questions. The police will inform you that although you do not have to answer questions it may harm your defence if you later rely on in evidence something that you failed to mention when questioned. However, there can be very good reasons why it is still the best policy not to answer questions, particularly if there is outstanding forensic evidence.
Another option is for you to give an account in the form of a prepared statement. This allows you the opportunity to put your side across but without having to answer any questions from the police. This avoids the questioning traps that the officer may have in store. Remember, it is for the police and prosecution to prove its case against you. Do not feel under any duty to help the state prosecute you by failing to have your own solicitor with you.
The police investigation
The police and Crown Prosecution Service have, in the past, faced major criticism for low investigation and conviction rates. As a result, police procedure is now that the alleged victim is telling the truth and the suspect is lying. Specialist police units who investigate sexual offences are less likely to detect, or even be open to detecting, false allegations.
When the police investigate historic allegations, because of the time that has gone by, a great deal of latitude is given to the person making the complaint with regard to the consistency and reliability of their memory. A suspect may still end up being charged even if there are major inconsistencies in the victim’s account (such as dates of the alleged offence, or even locations, not being correct).
Following the first interview (whether or not you chose to answer questions) the police are likely to bail you back to the police station at a future date. This allows time for the police to further investigate any new information obtained from you. The police may want to interview you again when you return to the station. If the police make a decision to charge you, you will then be informed formally of the specific offence and, in most cases, bailed to court. However, if you are charged with a serious sexual assault, the police may refuse bail and you will be held in police custody until taken to court the following day. You are entitled to apply for bail when at court although the prosecution are likely to oppose it. Again, specialist legal representation is paramount if you are to obtain bail rather than be held in prison until your trial date.
Police sting operations
The introduction and expansion of the internet has brought tremendous benefits to people and societies around the world. It has also created enormous problems, particularly in the way people communicate. Whilst it is no doubt easier to communicate, the quality of the communication is often degraded because the person sending the communication believes they are anonymous and, as a result, alter egos play a role in blurring reality. Spending time in chatrooms may or may not be innocent enough, but conversation and behaviour can sometimes evolve in a way that was not initially intended to situations in which criminal offences have taken place.
Some police investigations, particularly relating to inciting or grooming offences, can begin as a result of an undercover police officer pretending to be a child in a chatroom or other social media platform. This contact may progress to private sexual exchanges, or even a meeting, at the end of which an arrest will take place. The issue of entrapment will arise where an undercover police officer has appeared to encourage the behaviour which is being prosecuted. The person arrested may claim that they would never had behaved in that way without the encouragement from the undercover police officer. In effect, the defendant may claim that he or she was ‘set up’. The legal position is that entrapment is generally no defence. However, the court does have power to stop proceedings in a situation where the police have done things far beyond what a genuine person encouraging the criminal behaviour might have done, or where there has been obvious bad faith beyond the remit of a normal investigation. Without specialist legal advice it is difficult to challenge a prosecution which has arisen as a result of an undercover sting operation.