When the British cops arrest someone on TV, they say, “You do not have to answer any questions, but it may harm your defence if you do not mention when questioned something that you later rely on in court.”
Do they say this IRL?
What does this mean exactly-- how does this play out? Does that mean I have to tell you everything when you arrest me that I plan to use in my defense in court? That hardly seems possible. Defense attorneys are always coming up with stuff at the last minute.
The full, and official version:
I think the key word here is ‘may’, I don’t think anyone would expect you to have precise recall of all relevant facts at the time of arrest. But if you miss out something critical and obvious, then the court may feel that you’ve just made something up that you didn’t have time to concoct at the time of arrest, or have since had time to arrange some suitable alibi.
Say, for example, you’re caught by the police behind the wheel of a (parked) car that’s not yours and has obviously been broken into. You’re also drunk. You get arrested, but offer no defence at the time. You’re charged and later appear in court. Suddenly, your defence (of which you mentioned nothing at the time of arrest) becomes ‘Yes, I was walking home from the pub and saw this car that had its window smashed, and was looking in the glovebox for the owner’s ID so I could let them know’. If you were on that jury, would you believe that?
Yep, they have to say it in real life.
In practice, it means: Say the police see you running down the street, and you match the description of a person who just beat someone up. They stop you and notice that your knuckles are split and bleeding. They arrest you, bring you back to the station and ask you what happened to your hands. You say, ‘No comment.’ When you’re in court, you say that you hurt your hands chopping wood for your aged grandmother. The jury can draw ‘adverse inferences’, within certain limits, from the fact that you didn’t mention this at the time of questioning. You can’t be convicted based solely on silence.
It only applies to facts that you could reasonably be expected to mention, and it doesn’t apply to refusing to answer questions before you’ve spoken to legal counsel.
Thanks for those two informative responses. This is a different wrinkle from the US Miranda warning, which is basically, “don’t say a word until your lawyer gets here.”
yeah, the tone is rather different. the Miranda warning basically says “don’t talk until you have a lawyer because you might screw yourself.” The English phrase seems to say “you might want to talk now because we might not believe you later.”
So, people over there don’t just clam up until they have a lawyer? Hell, I have paralegal training and I would shut up until I got a lawyer …
I’ve also noticed in the zillions of British detective/police shows that I watch that the solicitor who sits with the person when they’re being questioned is pretty uninvolved. Sometimes they intervene and say “we have to stop.” But often they sit there the whole time and don’t say a word.
So what is the role of the solicitor during questioning? Just to make sure the accused’s rights aren’t trampled on? They don’t seem to be even thinking about building a defense case at that point.
I just recently (thanks to Silk) finally got that the barrister is the one who goes into court. In that show, sometimes the barrister only found out the particulars of the case practically when she was walking into the courtroom.
If, at trial, you attempt to say “I wasn’t me - this guy just came up and grabbed my gun and shot her. He wiped the gun clean of his prints, and I just picked it up, which is why only my prints are on it!”.
You really should have mentioned the “real killer” at time of arrest.
As an example.
What would happen if the person arrested says “I won’t say anything else until I have a lawyer present.” Rubber hoses?
so, guilty until proven innocent then?
I must confess I like Rosemary and Thyme. Please dont jidge me. 
“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.”
Does anyone believe cops don’t perjure themselves? I’d demand a lawyer and not say anything until one represents me, the same as I would in Canada and the U.S.
No, not at all.
At trial, the Crown will use as evidence that your gun with your fingerprints on it is the murder weapon, in an attempt to prove that you are guilty.
You are attempting to thwart their efforts by agreeing that your gun killed her, but Other Dude was the guilty party, and your fingerprints are on it only because you picked it up after Other Dude wiped it clean. You are not trying to prove your innocence; you are trying to prove that the Crown’s evidence doesn’t mean what the Crown says it means and does not in fact prove your guilt.
The “it may harm your defense” warning means that the prosecutor will try to convince the jury that you really should have mentioned Other Dude earlier, and the fact that you didn’t implies that you invented Other Dude after the police questioning.
Well, a scene showing the barrister reading an email is kinda dull. And sure you could have a scene where the solicitor tells the barrister about the detail over the phone three days before but that isn’t as exciting as an explanation given on the run.
How is this going to make a difference? If a cop is prepared to perjure themselves why aren’t they just going to say you confessed before your lawyer turned up?
Confessions require signed statements (as far as I know).
My point is that you can’t have it both ways. If you are concerned that the police may perjure themselves and claim you said something you didn’t, then that concern arises whether you refuse to say anything till your lawyer turns up or not.
I won’t help them by saying anything.
You’re not getting it, sorry.