Prison Officer Interview Under Caution: Your Rights Explained

In shortIt is a police interview under PACE Code C where what you say, or do not say, can be used as evidence; it is not an HR interview and not a charge.

Under PACE Code C, a person whom there are grounds to suspect of an offence "must be cautioned before any questions about an offence" are put to them, if their answers or their silence may be given in evidence to a court in a prosecution (para 10.1).

The interview under caution is that questioning. It is run by a police officer (or another investigator with equivalent powers), it is a criminal process, and what is said can be used to decide whether you are charged and, later, at trial.

Police interviews of prison staff most often arise from alleged offences connected with the job. They can also arise from entirely private matters, such as a road traffic incident or a domestic allegation, with no link to prison at all. The caution works the same way either way.

Why it differs

It is very different from the conversations most prison officers have with managers. A line manager meeting to establish the nature of an incident, a disciplinary investigation interview and a police interview under caution are three separate things.

Line-manager fact-finding chat and HR investigation interview

Sit under the HMPPS Conduct and Discipline policy (see how prison officer misconduct is handled and what an HR investigation involves).

Police interview under caution

Sits under criminal law and PACE. Three separate things, with separate rules, separate records and separate consequences.

• Allegations of misconduct in public office
• Bringing prohibited items into a prison
• A relationship with a prisoner
• Bribery
• Contraband
• An assault allegation after a use of force

In shortThe caution has three jobs: you need not answer, silence may harm a later defence, and answers can be used in evidence; how to respond is a decision for your solicitor.

The caution police must give is set out in PACE Code C para 10.5: "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."

Minor deviations from the words do not breach the Code provided the sense is preserved (para 10.7), and after any break in questioning you must be reminded that you remain under caution (para 10.8).

How you respond to questions is one of the most consequential decisions in a criminal investigation, and it depends on the facts, the disclosure the police have given and the allegation. A solicitor can advise on whether to answer questions, give a prepared written statement, or decline to comment, and on the risks of each.

Sentence one

You are not obliged to answer.

Sentence two

A court may be able to draw conclusions if you stay silent about something and then rely on it at trial: Code C paras 10.10 onwards deal with the formal "special warnings" that can be given after arrest when a suspect fails to account for certain things.

Sentence three

Your answers can be used against you, or for you.

In shortWhether you are arrested or attend voluntarily, your rights and safeguards are the same; ask what the interview is about before you attend.

Code C is explicit that rights and safeguards "are not diminished simply because the interview is arranged on a voluntary basis". You must not be asked to consent to the interview until you have been told the rights set out in paragraph 3.21A.

Those include sufficient information about the offence to understand why you are suspected, and your right to free legal advice.

If you ask for advice, the interview should be delayed until you have received it, subject to narrow exceptions in para 6.6(c) and (d) that need an inspector or above to agree.

Many officers are first contacted by phone or letter and asked to attend by appointment. Do not treat a voluntary invitation as casual. If you are unsure of your status, ask directly and ask for it in writing.

In shortYou are entitled to free, independent legal advice and to have your solicitor present; do not decline it to get it over with.

Code C para 6.1 says detainees must be informed that they may at any time consult and communicate privately with a solicitor, in person, in writing or by telephone, and that free independent legal advice is available.

A detainee who wants legal advice may not be interviewed until they have received it, subject to the limited exceptions in para 6.6.

For voluntary interviews, para 3.21A(b) requires the interviewer to explain the same right, including the right to have the solicitor present during the interview, and to secure advice before interviewing if you ask for it.

A solicitor can only be required to leave an interview in limited circumstances (para 6.9), for example where their conduct is such that the interviewer cannot properly put questions.

In practice, a solicitor will usually ask for disclosure of the evidence police are prepared to share before the interview, hold a private consultation with you, and sit with you throughout.

In shortPOA legal assistance can cover work-related interviews under caution but is not retrospective: join before a problem arises.

The POA says it provides legal assistance on work-related matters including police investigations, prosecutions, disciplinary hearings and inquiries, and that its Legal Aid Committee approves applications and can impose conditions.

The England, Wales and NI handbook we reviewed says criminal assistance covers interviews under caution on work-related matters, and that witness interviews are not covered unless exceptionally approved. The handbook is undated, so confirm the current rules with the POA before you rely on them.

In shortIn corruption cases a criminal investigation takes primacy, so a disciplinary investigation may be paused, narrowed or run in parallel.

For corruption cases HMPPS policy is clear: a criminal investigation takes primacy.

The Counter Corruption and Reporting Wrongdoing Policy Framework (see our corruption and bribery guide) says the police Senior Investigating Officer, in consultation with HMPPS, decides priority, and HMPPS should consult the SIO before any HR decision that could affect the criminal case (para 4.94).

In practical terms, this means a disciplinary investigation may be paused, narrowed or run in parallel while police work. You may be suspended or moved from your normal duties. Keep records of who you speak to and when, and ask your representative how the two tracks are being coordinated.

• Staff must support police and CPS with statements and evidence, and managers must enable that (para 4.93).
• Serious cases can be referred to police under the Crime in Prison Referral Agreement between HMPPS, the NPCC and CPS (para 4.42).
• A staff member who is arrested, suspended or excluded for corruption must be offered a wellbeing risk assessment by the Local Counter Corruption Manager at that point (para 4.90).

In shortYou may have duties to tell HMPPS about a police investigation; the England and Wales time limit is not stated in the public text we could verify, so ask and take advice first.

Ask your line manager, LCCM or HR what applies, and take advice before you make a written declaration so that it is accurate, complete and limited to what is asked.

Vetting policy

The vetting policy requires staff to report changes in personal circumstances, including criminal charges, warnings or convictions, and involvement in criminal activity (Annex F).

Counter Corruption framework

Lists criminal convictions, cautions and investigations among the matters to raise with your Local Counter Corruption Manager on the conflict of interest form (paras 4.26 to 4.31), and says that completing the form is not an admission of corruption.

Time limit

The exact time limit for reporting in England and Wales is not stated in the public text we could verify; the Scottish Prison Service code, for comparison, says normally within 72 hours, but that must not be applied to England and Wales.

In shortPreparation is mostly about advice and organisation, not rehearsing answers; follow your solicitor's instructions.

The steps below are a general order of events, not a substitute for the instructions of your solicitor.

1. Confirm your status: suspect (under caution) or witness, and which force or unit is asking.
2. Contact the POA and a solicitor immediately; confirm in writing that your matter is covered and who is instructed.
3. Ask police for the offence description and the time and place of the interview so your solicitor can arrange attendance and disclosure.
4. Write down your own timeline of events for your solicitor only, based on your recollection, and keep it separate from anything you give HR.
5. Do not contact witnesses or complainants, and do not delete, edit or move any messages, records or devices.
6. Attend the interview with your solicitor; if you take a break, remember you remain under caution (Code C para 10.8).
7. Afterwards, ask for a copy of the interview record or recording as your solicitor advises, and note the date, any bail or release conditions and the next contact.
8. Tell your line manager or LCCM only what you are required to, in the form your representative advises, and ask for wellbeing support (HMPPS policy requires a risk assessment in corruption cases).

In shortOutcomes range from no further action to a CPS charging decision; delays are common, and resigning does not end either process.

After the interview, police may decide to take no further action, make further enquiries, release you pending a decision, or send a file to the CPS for a charging decision. CPS applies its own tests of evidence and public interest.

For misconduct in public office, CPS guidance says that if the evidential requirements are satisfied, prosecution is highly likely to be in the public interest because of the offence's seriousness.

Delays are common while devices are examined and disclosure is assembled.