View Full Version : "It may harm your defence..later rely on in court."

21st Nov 2006, 01:13
Perhaps some-one who knows can answer this. A friend and myself were talking about this after seeing the 'rights' read to a villain in a TV play. As I see it, bearing in mind that apart from the normal bit of law breaking on the A14/M11 and speed limits, I am an ordinary law abiding citizen.
If, therefore I were to be arrested for something I KNEW I was not guilty of, and further more could PROVE I was not guilty of, surly I would be a prat if I told the plod at this point. As I see it I would be far better off by remaining quiet until the trial. My Brief then comes up with MY evidence, shoots the prosecution down, and counter claims for wrongful arrest...

21st Nov 2006, 01:27
Was listening to the radio the other night on the way up the M6 and they were interviewing this poor old codger who had been arrested after remonstrating with some yoofs who had been kicking his fence down.

Quotes the Jobsworth police girl - I won't give her the respect that being called "a woman" would suggest came on to explain that :-

"The police's job is to investigate and not to apportion blame. Accordingly any interviewee is a potential candidate for prosecution by the CPS so they always interview under caution"

So if you are attacked - get a gun or a bloody big dog - because the constabulary - if you believe this dozy bint who has swallowed the PC bit (and I don't mean police constable) hook line and sinker, won't turn up "on your side" or with a view to restoring the peace.

All this type sees their job as, is to submit a report - and if a prosecution follows - its a feather in their cap.

God help us all!

21st Nov 2006, 01:30
NO! In a case of criminal charges always talk to an attorney first.

Trust me, and no, I'm not an attorney.

That of course is if you have been arrested for an alleged crime or have been taken in for questioning.

Now if it is on the street, so to speak, and you and your mates can say "No we didn't do the crime and this how we can prove it." is diffferent.

There are a few attorneys here, hopefully they can help answer your question.

MSP Aviation
21st Nov 2006, 01:31
i don't know how exactly your legal system works (i assume you have the right to remain silent, just not sure about the intricacies), but in the good ol US of A, if you want a chance you tell them your name, ask for a lawyer, and don't say a word!

21st Nov 2006, 01:43
It doesn't really work that way, terryjones. Before the matter even got as far as trial you would need to "disclose" your defence. If your counsel suddenly introduced evidence or defence that had not been discussed prior to the start of the trial, it could be a reason for that trial to be aborted on the grounds that Prosecution had not had the opportunity to consider those things and prepare appropriate questions. You would possibly have to do it all again at a future date and without any "secret" evidence.

That "shooting the prosecution down" thing happens only in movies. If it was tried on in a real courtroom and a piece of new evidence was introduced out of the blue, there would be immediate objection from prosecution, the jury would be sent out so they were unable to hear what followed, your counsel would be left facing a displeased prosecutor, and there would be a big "Please Explain" from the judge wanting to know what Defence was playing at. You really can't play those sorts of games in a court.

The worst case scenario ... and a nightmare for you ... would be that the judge disallow your Counsel's new evidence and direct the trial to continue without it.

21st Nov 2006, 01:49
Yeah, what Blue said. That's what I meant to say. :O

21st Nov 2006, 01:59
"Discovery" is what Bluey is on about.

Should you reach this stage the lawyers will already have "discovered" whats in your bank account.

21st Nov 2006, 02:03
It would be in your best interest to answer any questions presented to you, while under caution, if you in fact did not commit the crime you are being questioned about. If the officer still believes on reasonable grounds that an offense has been committed, then he can proceed with the arrest, and the laying of an information (charge). Or proceed with the issuing of a summary offence notice, depending on what law you broke, under which act, and give you the ticket.

A copper would be required to articulate his actions, under oath, as to why he proceeded with the laying of an information, (a charge) before a Justice of the Peace, when information to the contrary was presented to the copper by the accused.


21st Nov 2006, 02:41
i assume you have the right to remain silentRight to remain silent? I think you'll find that the nice Mr. Bliar and his Secretary of State for Home Affairs persuaded Parliament to do away with that a couple of years ago.

It was in our own best interests and therefore the right thing to do.

21st Nov 2006, 03:25
They know the rules and you don't. If they say that your "lawyering up" is a sign of guilt, tell 'em that a lot of brave people went to a lot of cost to create the legal system we all have and that it would dishounour them if you did not follow the guidelines they have set for you.

Then you'll get a kicking :ouch:

21st Nov 2006, 04:23
Bottom line is, the second they start reading your "rights" is to shut up and don't say anything until you have legal advice.

21st Nov 2006, 05:38
Bottom line is, the second they start reading your "rights" is to shut up and don't say anything until you have legal advice.

con-pilot is right - absolutely right and I no longer work as a lawyer.:ok:

Now back to the original question.

I only worked in Australian jurisdictions (and getting on now for 10 years ago) but I suspect the English caution has the same effect as a warning that is given in the lower court where a matter is about to go to a superior court in Australia. The warning is that the defence has to give at least 48 hours notice of an alibi defence to the prosecution. It came about because too many blaggards were claiming an alibi where the prosecution had no chance to investigate during the course of a trial.

Now what Bluey is on about is that you are not allowed to adduce evidence from your client that has not already been put to the prosecution witnesses. They must be given a chance to answer any allegations that there version of events is different from a defendants. If you don't do this then any evidence to the contrary from a defendant will lose any weight. Its know as the rule in Brown V Dunn and forms a very significant part of any trial.

In summary, it doesn't mean you have to tell all to the prosecution before the trial starts only during the cross-examination of the prosecution witnesses. However, alibi evidence must be given before the commencement of the trial by at least 48 hours in one of the jurisdictions I worked in.

Mr tinpis's "discovery" is part of civil cases only which as he correctly points out is to do with money, nothing but money.:yuk:

I have been recently reading an article about the former Sec of State for the Home Office, Blunkett (sp?) and some of the things he managed to get through parliament in the name of protection against terrorism are simply horrendous. Makes a complete traversty of balance. I was quite pleased to see that the High Court or perhaps the House of Lords knocked some of it out.:ok:

21st Nov 2006, 05:40
Amen to that brother con pilot!

21st Nov 2006, 06:53
Con is quite right as others have said; if you are ever accused of anything and have been arrested, you should say absolutely nothing. You give the police your name and address (your correct ones :)) and that is all you say. Never give a video interview and never make or sign a statement regardless of whether you did anything wrong or not.

Statements and interviews are pure gold for lawyers. They will pick up on every tiny discrepancy or, if they find none, will make large issues out of anything you didn't say. They will make the most insignificant and irrelevant detail into a major issue and you will end up looking devious and/or evasive regardless of how innocent you may be. If you have kept your head and made no statement or interview, you can be examined and cross-examined ONLY upon the evidence you give in court under oath.

21st Nov 2006, 06:57
Thank you Bluey;)

21st Nov 2006, 07:33
Not in trouble are you, Fliegs??? :uhoh: ;)

cessna l plate
21st Nov 2006, 08:01
This particular version of the caution came into being in the early 90's as a retort to the thousands of little scrotes that were abusing the system. Yes you have the right to remain silent and this is a qualified right and cannot be taken from you whatsoever. The bit that follows was to address the millions of pounds that were being wasted on trials at the time.

See, you arrested said little scrote, and with the collusion of his brief always replied "no comment" no matter what you asked. When it got to court it was always, "can't have been me for.................... reason" That introduced the possibility of doubt and that requires not guilty.

The new caution then entitiles you as a defendant to not answer questions, but if you later rely on a defence in court then the police can come back with "why was this not mentioned in interview", as a lot of scrotes were taking things to court that otherwise, had they answered the question in the nick, would have led to them going free from that point. It was purely a rouse from the scrote community to put the police and the system under the hammer a bit, and waste resources, thus allowing their mates to stand a better chance of not being detected.

If locked up for something, my advice, as a former plod, is to keep quiet and listen to your lawyer. If you don't have one, the police are obliged to call the duty solicitor for you, but always take a lawyer into the interview with you and follow his advice.

21st Nov 2006, 10:05
You cannot possibly be expected to come up with everything in your defence at an interview.

For one thing, you will feel threatened, guilty or not.

You may not be able to think clearly and could possibly give an answer which can be misinterpreted and used against you.

I would say this about the system, when a Police Officer is interviewed in the UK for a disciplinary matter, they will invoke thier right to silence and that will be the end of it.

If its good enough for our boys in blue, it should be good enough for Joe Public.

Stay silent, discuss with your solicitor, you can always disclose further facts when the pressure is off and you are thinking more clearly.

Metro man
21st Nov 2006, 11:41
You can easily be trapped into making damadging admissions by the police while being questioned. Remember they question people every day and get good at it. The odd little suggestion here or there made in a manner that suggests it's quite okay, by a sympathetic officer who seems to understand your point of view. Next thing you are signing a confession to something you didn't do.

The line of advice running through this thread is be polite, give your name and GET A SOLICITOR, SAY NOTHING without consulting him.

The law does not work on common sense or whose in the right, I remember hearing of a woman who was charged because she told police the deodorant in here handbag was for squirting into an attackers face. Had she kept silent no one would have said a thing about an item quite reasonably found in a ladies bag.

21st Nov 2006, 12:03
Having just briefly scanned the thread, I think the main point that has been missed here is since the change in the law, you don't have the luxury of keeping schtum in interview without any ramifications.

If you fail to give an account at the Police Station, you defence will be 'harmed' as stated in the caution because if and when your case comes to trial, the judge will direct the jury that they can draw an 'adverse inference' from your failure to answer questions in interview. In other words, they can infer that you didn't give an account because you have something to hide and don't want to make damaging admissions.

If you do have a 'cast iron' defence as in the example, it is therefore in you interests to give it in interview.

Secondly - the defence are not required to disclose their case before trial in the way that the Crown are. The Crown must disclose all evidence that they wish to rely on in advance. The defendant may offer a 'defence case statement' before trial but this is not mandatory. It's therefore not correct to say that all aspects of the defendant's case must be put to prosecution witnesses before they are put in the defence case.

This may sound 'defence friendly' but it's perfectly in line with the concept of the burden being on the Crown to prove their case beyond reasonable doubt and the fact that the defendant need prove nothing.

Some lawyers will argue that we still technically have a 'right to silence'. Technically we do, but in practice we don't. If your silence can be held against you it is not a 'right'.

21st Nov 2006, 12:31
I hadn't realised that the law about the Right to Silence had changed in the U.K. I find it quite shocking that the Brits would have allowed one of their most fundamental principles of the legal system to be dispensed with in that manner. The right to silence, and the onus on the Prosecution to prove the charges, was there to protect everyone. I cannot believe people were willing to throw that away.

21st Nov 2006, 12:51
Criminal Justice and Public Order Act 1994, bluey; one of the Tory administration's most controversial pieces of legislation.

The Police caution as referred to in the thread title, was changed from:

"you do not have to say anything unless you wish to do so, but what you say may be given in evidence"


"you do not have to say anything but it may harm your defence if you fail to mention when questioned something which you later rely on in Court"

This was widely criticised as effectively removing the fundamental right to silence. Which, in practice, though not in theory, it does. Although you technically have the legal right to say nothing, surely your silence cannot be termed a 'right' if it can be used against you.

A Tory law, but to be quite fair the NuLabour government have done far more to degrade the criminal justice system than the Tories could ever have imagined possible.

21st Nov 2006, 12:52
In practice, it is perfectly legal, and does not harm your defence, to say to the police "I will not answer any questions until I have had the opportunity to consult with my solicitor" and leave it at that. The police have no right whatsoever to question anyone unless they have been given the right to legal advice. If they then waive that right, then they will be in a sticky situation if they don't bring up their defence, but raise it later in court (unless they can give a good reason for acting this way).

21st Nov 2006, 12:54
XXT - you're right that you can and always should remain silent until you have consulted a solicitor, but that's not the point of the law - the point is that having been advised you then can not give a no comment interview without the possibility (probability) that your silence later will harm your defence at trial.

21st Nov 2006, 17:34
I find it quite shocking that the Brits would have allowed one of their most fundamental principles of the legal system to be dispensed with in that manner.

Who said we allowed it.
As with most things...well all actually connected with the last 10 or so years of Government, we were told it was all for the best, some spin attached and then force fed to us.

Democracy died in this country a long while ago.

21st Nov 2006, 17:45
"Anything you do say may be given in evidence"

Why not go for the old "Please don't hit me again, officer!"

21st Nov 2006, 22:35

Yep, you can try saying that, and it will be written down with some glee by the police officer. Last time someone said it to me, was seen as evidence of him being a prat. It was also good evidence rebutting his allagation I did not use the proper wording of a caution, and he didn't therefore understand it.


Yes, Police at discipline only investigations are given an old 'rule 2' caution, (the one that says you do not have to say anything etc...) but that is for use at a discipline only hearing, and a statement taken under that cannot then be used it a criminal case. For that reason, if there is an allagation of crime, there can be 2 interviews, one with the 'new caution', which cannot be used in a discipline case, unless the officer agrees, and one under the old caution that can.

Going back to the new caution. There are 2 ways of looking at it. You could be stopped and asked about an offence, in an effort to decide if you are a suspect, if you decide to say nothing until you speak to a brief, the result could be arrest. Not because you are guilty, but because you can't be eliminated. Whereas, telling all, so as to speak could see you on your way in a few minutes (OK, slightly longer, as the officer will have to write a book over stopping you)

If you are arrested, and then cautioned (which you should be) then the officer wont be interested in questioning you at that time anyway. He would wait until you can be interviewed on tape. Before that happens you will be booked in at a Police station, and as part of that, you will be told you are entitled to consult to a solicitor (except in very rare circumstances). If you elect to do that, you, in almost all cases, will not be questioned, until you have. An exception would be drink driving, where you may be asked questions as part of the process, and that wont be delayed while a solicitor is found.

As has been said, if you have done nothing wrong, then explaining actions or movements in an interview, may save you the trauma of a trial. In the past, If solicitors had not advised thier clients to say nothing, some of them would never have been charged (irrespective of guilt or otherwise)

If you have done something wrong, or you have done something in 'iffy' circumstances (eg hit someone and killed them, although you were in fact defending yourself) then a solicitor may be a good idea. Not because the Police want to stitch you up, but it could prevent you from saying something you shouldn't, and leading to it being misunderstood.