The wife & I are watching a series through US’ PBS, called Unforgotten–a cold-case police drama set in the UK. There are multiple scenes where the DCI & DIs are interviewing suspects with an audio recorder, in what appears to mimic a US “in-custody” interrogation (my words) where a suspect has been properly “Mirandized,” with the benefit of the 5th Amendment and ability to have a lawyer present. In these scenes, the lawyer is usually present as a silent witness, and the interviewed party generally responds repeatedly with a “No comment” to deflect answering questions.
What I’m curious about, is that the Police Officer usually starts off with a statement including “…You do not have to say anything now, but information you do not give now may harm your defense in court later” (paraphrasing). This seems to me, as a Yankee, a serious fishing-troll-statement on the accused to elicit any kind of info.
But, I don’t know UK procedures of evidence. Are defendants restricted from introducing evidence at trial that wasn’t part of an interview? Do defense lawyers have to provide alibis or exculpatory evidence in writing during discovery so it’s all included for the trial? Can a suspect just clam his jaw shut and let the Police keep questioning without so much as a peep, and not affect his/her defense?
A few disclaimers up front:
I am an American, am not a lawyer, and do not need an answer fast.
My question’s based on watching a TV show–albeit a good one–but I wasn’t sure whether to put this in Cafe Society or FQ I think the gist of my question puts it in the latter . . .
The key legal term here is “adverse inference”. The basic idea here is that if you try to use a defence in the trial that’s based on a factual claim which, if true, you would have raised at the time of arrest already, but didn’t, then the jury (or magistrates, which are the judges in a magistrates’ court where less serious crimes are tried) can draw conclusions from that as to whether the defence is credible or not. It’s governed by statute, most notably sections 34-37 of the Criminal Justice and Public Order Act 1994, but the basic idea is always the same: If your defence were true, then why didn’t you say so earlier? This does, of course, not conclusively prove the defendant’s guilt, and indeed there’s a safeguard in section 38(3) of the Act that a conviction cannot be based soley on this; but the rules of adverse inference mean that the jury or magistrates may take the silence at the time of arrest into account when assessing how credible the defence raised at trial is.
(Also note, as a nitpick, that this is one of those cases where there is no such thing as “UK law”. The Act I’ve cited applies to England and Wales; Scotland and Nothern Ireland have their separate statutes, which may or may not be similar.)
I’ve heard that a lot of Brits, due to the influence of American media, have gotten the notion that they have an absolute Right to Remain Silent, and that this common misconception is a real headache for those in the British justice system.
If this happens (defense introduces an alibi in the trial that was not brought up before) is defense allowed to explain the reason for the previous omission (e.g. I was afraid a close member of my family might have been involved and I was protecting them, but now that I know they weren’t, I can tell the whole truth) and does that sort of thing help defense at all?
The law allows the court or jury to “draw such inferences from the failure [to provide an explanation when interrogated] as appear proper”, so there’s considerable flexibility for the fact-finders as to the conclusions they draw; the purpose of these rules (which were introduced in 1994 against much public protest) is not to define mechanistically which inferences must be drawn and which counter-evidence would be admissibel to refute the inference, but rather to eliminate a “right to silence”-type argument that thge failure to provide an explanation must not be taken into account to the defendant’s detriment at all. Also, the adverse inference can only be drawn from failure to mention a fact “which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned”. So the jury or court has a lot of flexibility, and I suppose that if the defendant can offer a convincing explanation as to why he did not come up with the defence sooner, then they would be allowed to buy that.
I should also add that there are some safeguards in the application of these rules. One has already been mentioned, namely, that such inference cannot be the sole basis for a conviction - there needs to be other evidence too. Also, the defendant must have been cautioned, i.e. warned about this possibility - that’s the statement by the interrogating officer that the OP cited. Also, if the interrogation occurred at “authorised place of detention” (basically, a police station), then adverse inference is only admissible if the defendant had been given an opportunity to consult a solicitor (i.e., lawyer) before being questioned. So the law does reign in the consequences of the rules of adverse inference to some extent. But for sure it is true that the “right to remain silent” is not as extensive as it is under the Fifth Amendment in America.
The reason for Brits often thinking they have an absolute right to remain silent might be due to the influence of American media in some cases but I think it is more commonly based on the law before the Criminal Justice and Public Order Act 1994.
Before the Act a police caution was along the lines of “You do not have to say anything unless you wish to do so, but anything you do say will be taken down and may be given in evidence.”
Also here in America, the police have restrictions on arresting you- unless of course you are/have just committed a crime (they need a warrant or solid evidence). This seems the same in the UK?
They also can only “invite” you down to the Police dept for questioning unless they have arrested you. This right does not seem to exist “over there” unless i am mistaken by watching too many Brit police mysteries.
You can introduce any evidence you like at trial however if you want to name someone as an alibi you can be sure the police will want to interview them before you meet up and get your stories straight.
There were many cases in Australia were organized crime gangs would produce a alibi much later later hence the change to the law, the inference is to the reliability of the witness.
I’ve just waded through a very long blow-by-blow podcast of the Mushroom Murder Case [v.good - highly recommended - but long] which was tried in the Victorian (Australian) courts, and would follow similar principles to the UK.
The defendant made initial statements to the police in a series of interviews that were completely at odds with what they found out later - ‘I never owned a food dehydrator’ vs ‘Here’s footage of you the day after the lunch throwing a dehydrator away at the tip’ etc. The defendant’s lawyer said they acknowledged the lie to the jury as a lie they told under stress. The discrepancy and admission were used by the prosecution after that to undermine the credibility of the defence. The judge made mention of it in his summing up and said it was open to the jury to use it in giving weight to any other statements that the defendant made.
For reference, the exact 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 which you later rely on in court. Anything you do say may be given in evidence.“
They need to be able to justify the arrest by reference to a power of arrest conferred by law. There are a number of powers that they may be able rely on, depending on the circumstances.
They can arrest you with a warrant, of course. To get a warrant they need to satisfy a magistrate that there are reasonable grounds for thinking that an offence has been committed, and that your arrest is necessary to secure your appearance in court.
They can arrest you without a warrant if they reasonably suspect that you are in the course of commiting a crime, or that you have committed a crime. However this power can only be exercise if one of a number of further tests is satisfied:
arrest is necessary to ascertain your identity
arrest is necessary to preven injury or property damage
. . . to protect a child
. . . to allow investigation
. . . to prevent your flight.
They can arrest someone to prevent a breach of the peace
They can arrest someone to protect life and property. In these two cases the threat to peace/life/property needs to be imminent.
A police officer’s memoirs I have upstairs somewhere includes an incident in Blackburn where, to win a bet, he made out an application for a warrant to search Number Ten (‘suspicion of dealing in controlled substances on the premises ‘) and slipped it in with a bunch of others. Magistrate signed it without even reading it.
I mentioned this in passing in a similar thread, but I hate the idea that a person must give the State their defense (or in this thread defence) before the trial. In an Australian case, the coroner had set a time of death of the suspect’s wife as 4am and of course he had an alibi. Coincidentally, the coroner made a mistake and now the time of death was 1am for which the suspect had no alibi.
Note: not the exact facts probably as I am going from memory, but the premise is the same.
Not quite. You can save your defense for later, but if you do the Prosecution can point that out in Court and the jury is allowed to consider that fact.
In America, for example, if you “Lawyer up” (and you nearly always should) the Prosecution is barred from using that against you in the trial.
And, in the UK, you might get a jury that understands that instinct and therefore doesn’t draw any adverse inference from your failure to mention when questioned etc etc.
No it would not. I’m not an criminal lawyer but my understanding is that in Australia only NSW has something equivalent to England & Wales’ “adverse inference” law.
Further, the situation you describe is totally different - in the Mushroom Murder case the defendant said things at interview that proved untrue. That is pretty much the inverse of the subject of this thread which is where the defendant does not say things in their defence that you would expect they might.
That’s exactly right, and this illustrates an important point about how such rules of evidence work. Let’s see how it plays out.
Suppose there’s an attempted burglary on a jewelry store in the middle of the night. Alarms ring and police rush towards the store, so the burglars have to discontinue their attempt. One block away from the store, you are arrested by a police officer. You’re carrying a crowbar. The officer cautions you and asks you what’s with the crowbar. You don’t say anything.
Now you’re charged with and tried for the attempted burglary. At trial, the prosecutor asks you about the crowbar. Now you present an explanation: You’ve been helping a friend who lives nearby do some works in his house, it got a little later, you had had a few drinks so you didn’t want to drive home, but you didn’t want to pay for a taxi, so you walked home and took the crowbar with you because you’d need it the next morning.
Under both American and English law, the jury would be allowed to consider the crowbar itself as evidence when making up their mind whether your guilt has been proved beyond a reasonable doubt. But what about your story with the friend you were helping? Does this provide an explanation for the presence of the crowbar that creates a reasonable doubt? Under English law, a juror would be allowed to say (well, think to herself): “That story must be a load of nonsense. If it were true, he’d have come up with it at the time of arrest already.” In American law, the judge would have to instruct the jurors that they have to disregard the silence at the time of arrest and that they must not draw any conclusion from it (but may still draw conclusions from the crowbar itself). But there’s not much more the judge can do than give the jury this instruction. What the judge can’t do is read the jurors’ minds to know whether they didn’t, to themselves, think along such lines anyway.