Licensees rights with regards to the law

Licensees should be fully aware of police procedures and their rights with regards to the law

by Suzanne Davies, one of thePublican.com's legal exerts from London soicitors Joelson Wilson​

Working relationships with all of the statutory bodies is an integral aspect of life as a licensee. Establishing and maintaining good working relationships is essential. Inevitably things will go wrong from time to time which will mean a brush with the law.

Licensees may encounter criminal investigations for breaches of the legislation relating to licensing, health and safety, public entertainment licensing, food safety, driving offences, theft, assault and so on. Depending on the nature of the offence and the circumstances, the investigation may involve an interview with the police or other appropriate officers, for example an environmental health officer.

Most responsible operators encourage management and staff to co-operate with the authorities, which is obviously the correct approach to adopt. In fact, in some circumstances, not assisting the police or relevant investigators could be an obstruction of their investigation, leading to a separate offence in its own right. In view of the relationships which are invariably established with local officers responsible for your premises, it is easy to discuss matters in the usual way with them which in certain circumstances would be more appropriate to be conducted with a legal adviser present.

Such circumstances arise when a local officer, whether it be police or local authority, wish to interview you under caution as part of their enquiries. On other occasions such officers may wish to caution you. It is important to be aware of the differences between an interview under caution and a caution.

What is an interview under caution?​

An interview is defined as the questioning of a person regarding his involvement or suspected involvement in a criminal offence.

It has to be carried out under caution.

The wording of the caution is, "You do not have to say anything. But it may harm your defence if you do not mention when questioned something that you later rely on in court. Anything you do say may be given in evidence".

Am I allowed a solicitor?​

Prior to the commencement of the interview the suspect has to be advised that he is entitled to legal advice (at his own expense), even if seeking such advice delays the interview. The interview can and should be postponed to allow a solicitor to be arranged.

The interview should begin with the interviewing officer asking the suspect about any significant statement or silence that could be used in evidence which occurred before arrival at the interview.

What happens during the interview?​

A series of questions will be put to you.

The police should not indicate, except in answer to a direct question, what action the police will take as a result of the interviewee answering questions, making a statement or refusing to answer.

As soon as the police officer is satisfied that a prosecution can be brought against the suspect and that there is sufficient evidence for it to succeed, he should ask the suspect if he has anything more to say.

If he has nothing more to say, the interview should end.You are entitled to consult your solicitor in private with regard to answering questions at any time.

Can I refuse to answer the questions?​

Yes. But you must bear in mind that if you are prosecuted subsequently, an inference can be drawn by the court if you did not answer a point which you later rely on as part of your defence.

Can I refuse to attend an interview?​

Yes. But again you must bear in mind the adverse inference the court can draw if you are subsequently prosecuted.

Will I be automatically prosecuted after an interview under caution?​

No. The police may believe a caution is appropriate or may decide that no further action is necessary.

Is it only the police who must follow such procedures?​

No. For example, local authority officers conducting interviews must follow the rules.

What happens at the end of the interview?​

The police should keep an accurate record of the interview which includes the location, the beginning/end time, when it was made and if any breaks were taken.

After the interview has finished, the suspect (and his solicitor if present) should be given an opportunity to read and sign the record.

Are interviews tape-recorded?​

Interviews are often tape-recorded and at the conclusion of the interview the tape should be obviously sealed and the suspect should be handed a notice which explains the use which will be made of the tape and arrangements for access to it.

A copy of the tape should be supplied as soon as is practicable if the person is charged or informed that he will be prosecuted.

What is a caution?​

Cautioning is an alternative to prosecution. A caution is given where there is an admission of guilt, and the accused party must consent.

There are distinct advantages for both society and the individual in avoiding court proceedings as no prosecution takes place.

How long will a caution stay on my record?​

Five years.

Is a caution the same as a conviction?​

No. A caution will be referred to by the court upon sentencing if you are subsequently prosecuted successfully for the same offence for which you have received a caution.