Arrests, Detentions, Interviews & Searches

When investigating an offence or attending an interview, the Police will only carry out an arrest if there are reasonable grounds to suspect that an offence has been committed or the arrest is necessary.

There are multiple reasons that an arrest may be necessary, including to enable a prompt and effective investigation, prevent harm to the individual being arrested (or another) or secure a person’s attendance at interview (where it’s unlikely that they’d attend voluntarily). 

When you’re interviewed under arrest, you’ll remain in custody until you’re discharged, bailed or the time limit for detention expires without charge. 

Where an arrest doesn’t meet the above criteria, a person may be asked to attend an interview voluntarily. In these circumstances, you’re not compelled to attend the interview and may choose to leave the interview at any time. 

However, it’s important to be aware that any evidence obtained or provided during the course of a voluntary interview under caution has the same evidential value in any charging decision or proceedings that may be brought against you. 

Therefore, while a voluntary interview under caution may seem like an informal procedure, it’s just as important to have legal representation. 

If you’ve been arrested for an allegation of fraud, you’ll now be aware of the nature of the allegations against you. You’re likely to have been interviewed and may have made the decision to put forward your version of events. 

The decision of whether to charge you will be made by the prosecuting authority — for example, the CPS, SFO or HMRC — and will be determined by whether there’s sufficient evidence that would lead to a realistic prospect of conviction and whether it’s in the public interest to prosecute. 

You’ll only be charged if both limbs of the test are satisfied. 

If you’re charged with an offence, you’ll likely be feeling many emotions and be concerned about the uncertainty of your position. However, there are a number of important decisions you need to make — including identifying your legal team. The experience of your representatives could be the difference between conviction and acquittal. 

Our business crime and compliance team has many years’ experience in defending serious and complex allegations of financial crime. We’ve prepared some of the most complex and high-profile cases for trial, leaving no stone unturned.

We’re able to:

1. Provide advice in respect of Restraint Orders.
2. Assist you to identify and instruct experienced Counsel.
3. Review evidence and advise you on the strengths of the prosecution’s case.
4. Gather defence evidence.
5. Provide advice on the trial process.
6. Advise you in respect of legal arguments.
7. Identify and instruct appropriate experts, such as forensic accountants and computer specialists.

Where there are reasonable grounds to suspect that a person has committed an offence, the individual must receive a caution before the interview is conducted. 

This includes a warning in the following terms: 

“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.”

This can be broken down into three parts: 

1. You don’t have to say anything — you may lawfully exercise your right to silence and refuse to answer any questions that are put to you during the interview. This is often referred to as a ‘no comment’ interview. 
2. It may harm your defence — if you choose to remain silent during interview but later seek to raise a defence at trial, the jury or magistrates may be directed by the court to draw an adverse inference from this. The Jury may then be entitled to question why you didn’t put forward your defence from the outset and use this against you. 
3. Anything you do say may be given in evidence — if you choose to answer questions that are put to you, your response can be used in evidence against you at trial. 

Whether to answer questions may be one of the most crucial decisions you make during the investigation. You should always seek expert legal advice before making a decision, as this has the potential to have lasting and unavoidable consequences.

When investigating an offence, the investigating authority may seek to gather evidence from a variety of sources, including potential witnesses who may have knowledge of material facts or possess documentary evidence. 

In such circumstances, the investigator may approach a witness and request that information is disclosed voluntarily. 

Where a request is made for the voluntary disclosure of evidence, a witness will need to consider a number of issues, including:  

1. Contractual agreements prohibiting the disclosure of documentation.
2. Data protection obligations.
3. Issues relating to self-incrimination.

If you’re in receipt of a Witness Summons, you should seek independent legal advice to consider the legality of the summons and any wider implications of providing disclosure, including any challenges that may be made to the order. 

Where a witness refuses to comply with a request for the voluntary disclosure of evidence, an investigator may make an application to the Crown Court for a Witness Summons. 

A Witness Summons requires a witness to either:  

1. Attend court to give evidence of fact relating to the alleged offence.
2. Produce documentary evidence to the court relating to the alleged offence. 

The order will detail the evidence sought by the investigator that’s to be produced by the witness and a date by which the evidence must be produced. 

A person who fails to comply with a Witness Summons or Production Order commits an offence known as ‘Contempt of Court’. The penalties include imprisonment.

It’s important to note that both the prosecution and defence teams can apply for Witness Summons. The consequences of failing to comply are the same.

The length of time you can be detained without charge depends on a number of factors. 

In normal circumstances, the Police have the power to detain a person for a period not exceeding 24 hours. This is sometimes known as the ‘custody clock’. This period includes (collectively) the period of time that a person is detained during the course of an investigation. Multiple attendances at a police station may be required to answer bail before a charging decision is made.

The Police may be able to apply to extend the period of detention to a maximum of 96 hours, depending on the seriousness of the offence. 

Where it’s necessary to secure, preserve or obtain evidence — or where the offence concerned is an indictable offence and the investigation is being conducted diligently and expeditiously — an officer of sufficient seniority (superintendent or above) may authorise the continued detention of a person up to a maximum of 36 hours. 

A decision to extend the period of detention can be challenged. You (or your solicitor) are entitled to make representations regarding continued detention before authorisation is given.

Where it’s considered necessary to detain a person beyond 36 hours, the Police must obtain a warrant of further detention by making an application to the Magistrates Court, which may authorise a further period of 36 hours (up to a maximum of 72 hours). 

The Magistrates Court will consider whether continued detention is justified and lawful. The Court must be satisfied that further detention is justified.

If after 72 hours a period of further detention is necessary, the Police may apply to the magistrate’s court to extend the period. The Magistrates Court may extend the period of detention on the basis that further detention is justified, providing that the maximum length of detention doesn’t exceed 96 hours since the person was first detained. 

Where the offence under investigation concerns an offence under the Terrorism Act, the Police have the authority to detain somebody for 14 days without charge without obtaining a warrant.

The powers of the Police to enter and search premises differs depending on the circumstances of the arrest and the offence under investigation. 

If you’re arrested for an indictable offence — a serious offence that can only be tried in the Crown Court — the Police have the power to search the property where you were arrested or were at immediately before the arrest.

Where there are necessary grounds, the Police may also be permitted to search premises that are ‘occupied’ or ‘controlled’ by the person under arrest for an indictable offence. This may include business premises that are believed to be linked to the alleged offence. There must also be a reasonable belief that there’s evidence on the premises that relates to the offence. 

If the above criteria doesn’t apply — for example, because the Police wish to enter and search premises later in the investigation or a different premises linked to the investigation is identified — the Police must obtain a search warrant. 

A search warrant can be issued by a Magistrates Court where it’s satisfied that:

(a) an indictable offence has been committed; and

(b) there is material on premises which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and

(c) the material is likely to be relevant evidence; and

(d) it does not consist of or include items subject to legal privilege, excluded material or special procedure material.

It should be noted that there are other circumstances where the Police may be permitted to enter and search a property without a warrant, for example if the delay in obtaining a warrant would ‘defeat the interests of justice’ and for further advice please contact us. 

Following arrest, you have the legal right to have someone — such as a friend, partner or relative — be informed of your whereabouts. You’ll also be permitted to make one phone call. However, any calls that made while in custody may be listened to and can also be used in evidence. 

Throughout (and at any time during) your period of detention, you have the right to consult privately and confidentially with a solicitor. The Police don’t have the right to listen to instructions that you provide to your solicitor for the purpose of receiving advice. As such, these communications are protected by Legal Professional Privilege.

However, the exercise of either of the above privileges (including the right to consult with a legal representative) may be delayed or withdrawn in certain circumstances where there are reasonable grounds to believe that granting the right to legal advice will result in (for example) the interference with evidence or physical harm to another person.