Prepared Statements in Police Interviews

What a prepared statement is

A prepared statement is your own written account, agreed with your solicitor in a private consultation, which is put before the police during the interview. In the reported cases it is commonly read out by the solicitor. In R v Turner “his solicitor read out a pre-prepared statement on behalf of the appellant in which he described the events.”^[5] In R v Beckles the appellant himself answered “no comment” on his solicitor’s advice; it was his co-accused, Montague, whose “prepared statement was read on his behalf by his solicitor.”^[6] After that, the suspect normally answers no comment.

It is still your account. Code C Note 6D says a solicitor may advise a client “not to reply to particular questions”, but lists “answering questions on a suspect’s behalf or providing written replies for the suspect to quote” as unacceptable conduct.^[3] So the statement is given once, as your account, not as a script for answering each question.

Why prepared statements exist: section 34

Section 34 of the Criminal Justice and Public Order Act 1994 allows a court or jury to “draw such inferences … as appear proper” if, when questioned under caution, you “failed to mention any fact relied on in [your] defence” which you “could reasonably have been expected to mention”.^[1] The caution in Code C paragraph 10.5 warns of exactly this.^[3]

The section targets facts, not silence. In R v Knight [2003] EWCA Crim 1977, as described by the Court of Appeal in R v Turner, the court came “to the clear conclusion that the aim of s.34(1)(a) did not include police cross-examination of a suspect on his account over and above the disclosure of that account. The aim of the section was to encourage a suspect to disclose his factual defence.”^[5] The Compendium states the rule: if a prepared statement is given in lieu of answers, “no inference is available unless D later relies on facts which do not appear in the prepared statement.”^[4]

That is the attraction. A prepared statement puts the facts of your defence on record at the earliest stage, without exposing you to a long interview in which a nervous or tired person may give a confused or inaccurate answer.

The risks

The Court of Appeal in Turner set out three points, drawing on Knight.^[5]

• No automatic protection. “of itself the making of a pre-prepared statement gives no automatic immunity against adverse inferences under s.34.” It “may be incomplete in comparison with the defendant’s later account at trial or it may be inconsistent with that account.”
• Something important left out. The court noted “a growing practice, no doubt on advice, to submit a pre-prepared statement and decline to answer any questions. This, in our view, may prove to be a dangerous course for an innocent person who subsequently discovers at the trial that something significant has been omitted.”
• Advice is not a shield. “the mere receipt of advice to remain silent does not without more, immunise the suspect from adverse inferences under s.34.”

On the last point, R v Hoare and Pierce [2004] says a defendant cannot “hide behind” advice if the true reason for silence was that “he had no or no satisfactory explanation consistent with his innocence to offer.”^[7] The Compendium summarises the same test.^[4]

Where the account in the statement differs from the account at trial, the Compendium says the right approach “may be to consider a lies direction rather than a direction under s.34”, citing Turner.^[4] Either way, inconsistency can be put to the jury, so accuracy matters more than length.

Special warnings still need an answer

A prepared statement does not deal with a special warning unless it actually accounts for the object, mark or presence the police ask about. Section 36 applies where an arrested person “fails or refuses” to account for an object, substance or mark after being told the effect in ordinary language.^[2] The Compendium says section 36, “unlike s.34, has no qualifying condition of reasonableness; the sole question is whether the suspect accounted for the object, substance or mark.”^[4] Turner itself involved both a prepared statement and a special warning about blood on the appellant’s clothing, and the court stressed that section 36 “contains no qualifying provision of reasonableness”.^[5]

When one is often considered

In practice, a prepared statement is often considered when:

• there is a clear defence (for example self-defence, consent, an alibi or lack of knowledge) that should be on record now;
• police disclosure is limited, so answering detailed questions risks guessing at the evidence. Code C paragraph 11.1A requires enough information to understand the nature of the offence and why you are suspected, but not full disclosure “at a time which might prejudice the criminal investigation”;^[3]
• the person is anxious, tired or unwell and may not give a clear account under questioning.

It is often not the right tool where the account is complicated, where the facts are still unclear, or where any omission could look like a later invention. Those are judgement calls for your solicitor once they have seen the disclosure and heard your account in private.

What a statement usually covers

In my experience a good statement is short, factual and in your own words. It usually covers the core facts of your defence, any explanation for physical evidence the police have mentioned, and a clear denial where that is your position. It should not guess at things you do not know. It is signed and dated, and the solicitor keeps a copy.

Anything read out becomes part of the interview record. The caution says: “Anything you do say may be given in evidence.”^[3]

If you were not allowed a solicitor

If you are at a police station and have not been allowed to consult a solicitor, section 34(2A) says the inference provisions “do not apply”.^[1] Code C Annex C then requires the shorter caution: “You do not have to say anything, but anything you do say may be given in evidence.”^[3] Legal advice at the police station is free (Code C paragraph 6.1).^[3]

An illustration (invented example)

This is an invented example to show how the rules fit together. It is not a real case. A woman is arrested for assault after a struggle with a neighbour. Police disclose a witness account but no footage. Her statement says the neighbour grabbed her first, that she pushed him away to free herself, and that she did not punch him. She then answers no comment. At trial she gives the same account. Because she relies on no fact missing from the statement, the Compendium rule means no section 34 inference is available. If she added at trial that she had been holding her keys in self-defence, that new fact could be the subject of an inference.