FEW people relish the thought of being contacted by the police for anything – let alone to be interviewed as a witness, or worse a suspect. Doctors and dentists are no different. The police may contact you seeking information for any number of reasons – a coroner’s inquest (England and Wales), a fatal accident inquiry (Scotland) or in relation to a criminal matter. Knowing what to expect and having adequate legal support can help ensure you do not say or do anything you might later regret.
Providing a statement to the police as a witness should be a relatively straightforward process. In England and Wales the police may ask you to provide your own written statement which can then be used as evidence in court. However, they may request to come and take a statement from you.
In Scotland this is the most common approach. Scottish courts place less reliance on written evidence than in England and Wales, preferring evidence to be given orally, and so you are more likely to be required to attend court to give evidence. In Scotland, it is your recollection at the time of the court appearance that the court will be most interested in, and not what you said in your original statement. However your statement can be used to remind you about what you said nearer the time, or to challenge your evidence if you say something diff erent in court.
The police will note your statement and normally ask you to sign it to ensure that it is accurate. It is important to make sure your statement has been noted accurately and that you are happy with it before you sign it. You are unlikely to be given a copy of your statement when it is taken. In England and Wales you may be supplied with a copy before having to attend court but in Scotland this is unlikely.
If you do have to give evidence then you may be asked to look at any relevant medical records in court. It could be some time since you dealt with the case and most people find giving evidence in court a daunting experience and one they wish to get through as quickly as possible. However, try to take your time and refresh your memory from the medical records. You may wish to contact the party who cited you to attend court, the prosecutor or the coroner, to ask to see any relevant medical records before you attend court, as it is important that your evidence is as accurate as possible.
The police will often also ask you to hand over medical records as part of their investigation, and advice should be sought from the MDDUS if you feel at all uncomfortable about providing such information. You have competing data protection and confidentiality issues to consider and if you are at all concerned that you may be providing information that perhaps you should not, seek advice and assistance from the MDDUS.
Being interviewed as a suspect
Since the introduction of the Police and Criminal Evidence Act 1984, anyone suspected of having committed a criminal offence in England and Wales is entitled to speak to a solicitor before they are interviewed. The law in Scotland has recently changed to allow this right. Whilst a suspect can waive this right (and the police will often seek to persuade a suspect to do so), we would urge anyone in that situation to demand access to a solicitor before being interviewed under caution. A solicitor can offer you important advice on decisions such as whether or not to exercise your right to silence (see below).
In England and Wales the police can arrest an individual if they have a warrant or if that person is about to or in the act of committing an offence, or if there are reasonable grounds for suspecting the same. Indeed, anyone who is reasonably suspected to have committed an offence can be arrested without warrant. In such circumstances you may be taken to a police station but you should not be asked any questions until you have had the opportunity to seek legal advice. The right to seek advice from a solicitor can be exercised at any point during the time a suspect is detained, even if they have indicated earlier they do not want legal advice.
The police can hold a suspect for up to 24 hours without charge, unless permission is given at a high level or by a court that the suspect can be held for longer.
By contrast, in Scotland, the police do not arrest but detain a suspect for up to 12 hours (and up to 24 hours, if permission is granted by a senior police officer), the practical result being the same, i.e. being held by the police at a police station. During this time a suspect can be interviewed with the right to consult with a solicitor in private before being interviewed. A consultation can also take place in private at any time during the interview as is necessary, if the suspect wishes further advice.
The police can also ask a suspect to attend voluntarily (as opposed to being arrested or detained) to be interviewed under caution. In these circumstances the suspect still has the right to access advice from a solicitor and to have one present when they are interviewed. An important distinction between being detained and attending voluntarily is that with the latter the suspect is free to leave at any time.
Whilst a voluntary interview may sound less threatening, there exists the same possibility of self incrimination in relation to anything said at interview. Even if the suspect is told there is “nothing to worry about”, access to a solicitor should always be sought no matter what the police might say.
Right to silence
In deciding whether to make any comment at interview, it is important to realise that in England and Wales adverse inference can be drawn from the exercise by a suspect of the right to silence. It is important for any solicitor acting on your behalf to give you advice on how best to handle any questioning. Sometimes the police will provide the solicitor with some information prior to the interview, which can assist in providing the suspect with advice on how to handle the interview process and what, if anything, to say in reply to questioning.
In Scotland the right to silence is the same, but no adverse inference can be drawn from its exercise; thus in some circumstances remaining silent might be advisable. Each case will turn on its own facts and circumstances and advice should be sought on each occasion as to whether silence ought to be maintained.
No matter where you are in the UK it is clear that if approached by the police, either as a witness or as a suspect, legal advice should be sought, not only in relation to the criminal investigation but so as to keep you right when dealing with the GMC or GDC too, who may well subsequently carry out their own investigations.
Should you find yourself subject to investigation by the police as a witness or suspect you should make contact with the MDDUS. The Union offer members access to legal representation in situations related to clinical conduct but not normally if the conduct under investigation is personal. However, MDDUS advisers can put you in contact with a solicitor, experienced in both criminal and GMC/GDC matters, who can represent your interests privately in relation to the police investigation.
Laura Irvine is a solicitor at bto