Fitness to be Interviewed

The Law

‘Vulnerable’ defendants

‘Vulnerable’ defendants should not be interviewed in the absence of an appropriate adult, aside from in exceptional circumstances.

Paragraph 1.13(d) of the Code C of the Police and Criminal Evidence Act 1984 (PACE) defines ‘vulnerable’ as: any person who, because of a mental health condition or mental disorder:

1. 1. may have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with:
    - their arrest and detention; or (as the case may be)
    - their voluntary attendance at a police station or their presence elsewhere (see paragraph 3.21), for the purpose of a voluntary interview; and
    - the exercise of their rights and entitlements.
  2. does not appear to understand the significance of what they are told, of questions they are asked or of their replies:
  3. appears to be particularly prone to:
    - becoming confused and unclear about their position;
    - providing unreliable, misleading or incriminating information without knowing or wishing to do so;
    - accepting or acting on suggestions from others without consciously knowing or wishing to do so; or
    - readily agreeing to suggestions or proposals without any protest or question

Annex G: Fitness to be Interviewed

This Annex of Code C of the PACE contains guidance to help police officers and healthcare professionals assess whether a detainee might be at risk in an interview.

1. A detainee may be at risk in an interview if it is considered that:
  1. 1. conducting the interview could significantly harm the detainee’s physical or mental state;
    2. anything the detainee says in the interview about their involvement or suspected involvement in the offence about which they are being interviewed might be considered unreliable in subsequent court proceedings because of their physical or mental state.
2. In assessing whether the detainee should be interviewed, the following must be considered:
  1. 1. how the detainee’s physical or mental state might affect their ability to understand the nature and purpose of the interview, to comprehend what is being asked and to appreciate the significance of any answers given and make rational decisions about whether they want to say anything;
    2. the extent to which the detainee’s replies may be affected by their physical or mental condition rather than representing a rational and accurate explanation of their involvement in the offence;
    3. how the nature of the interview, which could include particularly probing questions, might affect the detainee.
3. It is essential healthcare professionals who are consulted consider the functional ability of the detainee rather than simply relying on a medical diagnosis, e.g. it is possible for a person with severe mental illness to be fit for interview.
4. Healthcare professionals should advise on the need for an appropriate adult to be present, whether reassessment of the person’s fitness for interview may be necessary if the interview lasts beyond a specified time, and whether a further specialist opinion may be required.
5. When healthcare professionals identify risks they should be asked to quantify the risks. They should inform the custody officer:
  - - whether the person’s condition:
      - is likely to improve;
      - will require or be amenable to treatment; and
    - indicate how long it may take for such improvement to take effect.
6. The role of the healthcare professional is to consider the risks and advise the custody officer of the outcome of that consideration. The healthcare professional’s determination and any advice or recommendations should be made in writing and form part of the custody record.
7. Once the healthcare professional has provided that information, it is a matter for the custody officer to decide whether or not to allow the interview to go ahead and if the interview is to proceed, to determine what safeguards are needed. Nothing prevents safeguards being provided in addition to those required under the Code. An example might be to have an appropriate healthcare professional present during the interview, in addition to an appropriate adult, in order constantly to monitor the person’s condition and how it is being affected by the interview.

‘Capacity’ assessments

Psychiatrists may be asked by the police for various comments on the alleged offender. These may include asking about their ‘capacity’ regarding prosecution and at the time of the offence. Such matters require expert opinion that is offence specific, and are separate considerations that occur later in the investigatory process. Edwards et al. (2020) provides an approach to the assessment of fitness to be interviewed that includes guidance on how to manage such requests.

The CPS guidance on Suspects and Defendants with Mental Health Conditions or Disorders notes the following regarding requests for capacity:

“A request for further information should therefore articulate whether it is related to an assessment of the evidence in the case, or the public interest, or both, and how. Precision is needed to inform any further investigation of this issue. A request for evidence as to capacity for instance, lacks precision. Whilst this term appears elsewhere in mental health law and in some criminal offences, it is not a term which makes clear whether it is focused on the evidence (the mental element of a crime or a potential defence) or the public interest. A prosecution does not have to prove as part of the evidence the suspect’s capacity. It implies that a prosecution would not proceed if the suspect lacks capacity: as will be discussed below, this may be the case but it may not be.”

It goes on to advise that a medical professional cannot be compelled to undertake an assessment and they are entitled to understand the rationale for the matters on which their opinion is sought.

Case Law and Key Judgements