# "It may harm your defence..." (British police warning) **URL:** \ **Category:** In My Humble Opinion\ **Created:** [August 3, 2015, 10:44pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926 "2015-08-03T22:44:45Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [August 4, 2015, 4:29pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/61 "2015-08-04T16:29:08Z")
> [@AK84](#): > > No it does not. (And there is no such thing as “British” prosecutors. England and Wales, Scotland and N Ireland have separate legal systems) > > I’ll just repeat what I wrote in my post earlier. > > Only under certain circumstances with premission can it even be brought up. And please note; A _conviction cannot ve made soley or mostly on the basis of silence_ > > Again,[the specific section](http://www.legislation.gov.uk/ukpga/1994/33/section/38) > > The prosecution has to get premission from the judge, disprove that there was a plausible reason for the silence and only then can they raise it and the judge cannot grant them permission if that is the only thing proving guilt. What sentence of mine are you specifically responding to? I never said (or know, for that matter) how much of this silent or not silent thing affects the case. Based on the thread, it seems there’s a bit more nuance, but I don’t see too much difference between what I stated and what you seem to have taken upon yourself to correct. So in some cases your silence when initially confronted by the police can be mentioned by the prosecution in an attempt to prosecute you, that seems to be the gist of it. No need to get all snarky because I didn’t cite legal precedent. And 99% of the time I use British interchangeably with all of the UK or England in particular so excuse me if I sometimes say British instead of using the exact name of the local jurisdiction. Next you’ll be telling me Scotland Yard isn’t just in in Scotland! ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [August 4, 2015, 4:45pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/62 "2015-08-04T16:45:08Z")
**American situation:** Cop: “You have the right to remain silent, etc… Do you understand these rights?” Suspect: “Yes.” Cop: “Well, you’re in a heap of trouble. I can help you if you talk now, but if you don’t tell me your side of the story, you’re facing a long term in prison.” **UK situation:** Cop: “You do not have to say anything. But, it may harm your defence, etc…” Am I to understand that some people think the UK caution is manipulative and objectionable, but the American attempt at getting someone to talk is okay? ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [August 4, 2015, 4:56pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/63 "2015-08-04T16:56:58Z")
> [@YogSosoth](#): > > What sentence of mine are you specifically responding to? > > I never said (or know, for that matter) how much of this silent or not silent thing affects the case. Based on the thread, it seems there’s a bit more nuance, but I don’t see too much difference between what I stated and what you seem to have taken upon yourself to correct. So in some cases your silence when initially confronted by the police can be mentioned by the prosecution in an attempt to prosecute you, that seems to be the gist of it. No need to get all snarky because I didn’t cite legal precedent. And 99% of the time I use British interchangeably with all of the UK or England in particular so excuse me if I sometimes say British instead of using the exact name of the local jurisdiction. Next you’ll be telling me Scotland Yard isn’t just in in Scotland! No. Not when initially confronted by the police, only when you have been cautioned and had chance to seek legal advice. Moreover, this particular caution applies to England and Wales. The other jurisdictions have their own peculiar rules. So using “British” is inaccurate. The Scotland Yard analogy fails because that was the name of the location rather then jurisdiction. And using British interchangeably with England is wrong as well. Gordon Brown (former PM) was British but not English. The Royal Navy nuclear deterrent is based in Britain, but not England ( it’s on Scotland). ---
**Author:** ![Kenm](https://avatars.discourse-cdn.com/v4/letter/k/bc79bd/32.png) [@Kenm](https://boards.straightdope.com/u/Kenm)\ **Post date:** [August 4, 2015, 5:06pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/64 "2015-08-04T17:06:19Z")
> [@AK84](#): > > English juries decide who is guilty or English magistrates. You do know that arrest does not equal to guilt? > Edit: In reply to **Kenm**. I know it. You know it. Dumbfuck cops don’t know it or don’t care. ---
**Author:** ![Novelty\_Bobble](https://avatars.discourse-cdn.com/v4/letter/n/a3d4f5/32.png) [@Novelty\_Bobble](https://boards.straightdope.com/u/Novelty_Bobble)\ **Post date:** [August 4, 2015, 5:45pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/65 "2015-08-04T17:45:33Z")
> [@Kenm](#): > > Oh, please. The Met is a hotbed of corruption and sleaze, and has been for decades. If it wasn’t, the richest media mogul on Earth wouldn’t have closed his profit-raking red top, been hauled in front of a parliamentary committee investigating him, his shitty newspaper and the corrupt cops all the way to the top of Scotland Yard and the extent that that sleaze and payoffs affected the Royal Family. what, the proof of corruption in the system is a legal case being brought and a parliamentary inquiry being set-up? and in any case, the Met is not equivalent to “English police forces”. > [@](#): > > Don’t tell me English cops don’t decide who’s guilty or not. Oh I will tell you, they don’t…juries do. > [@](#): > > There are cases galore of English cops making false arrests, tossing a child down a flight of steps for daring to take a photograph on a public street, tackling and arresting old people — especially when deaf — kicking a man minding his own business in the back and killing him, shooting an innocent man through the head on a train in the tube because the cops were so stupid they couldn’t tie their own shoelaces. name me any country on the face of the globe where individual incidents such as this do not happen. (and I notice you don’t actually cite any of them). It only becomes a problem if you claim that the such behaviour is endemic… > [@](#): > > There are thousands of cases like these. Don’t decide who’s guilty or not! Jesus Christ on a pogo stick. > . ooooo! which you just did. Fine then, give us the figures that shows there are “thousands of cases like this”, tell over what period, tell us how it compares to better systems around the world. ---
**Author:** ![up\_the\_junction](https://avatars.discourse-cdn.com/v4/letter/u/f1d935/32.png) [@up\_the\_junction](https://boards.straightdope.com/u/up_the_junction)\ **Post date:** [August 4, 2015, 6:08pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/66 "2015-08-04T18:08:11Z")
… sometimes it’s best to just … walk away from threads \>\>\> ---
**Author:** ![Staggerlee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/staggerlee/32/3134_2.png) [@Staggerlee](https://boards.straightdope.com/u/Staggerlee)\ **Post date:** [August 4, 2015, 6:47pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/67 "2015-08-04T18:47:26Z")
> [@up\_the\_junction](#): > > … sometimes it’s best to just … walk away from threads \>\>\> You do know that your failure to continue contributing to this thread may harm your defence of English/Welsh legal rights? ---
**Author:** ![up\_the\_junction](https://avatars.discourse-cdn.com/v4/letter/u/f1d935/32.png) [@up\_the\_junction](https://boards.straightdope.com/u/up_the_junction)\ **Post date:** [August 4, 2015, 6:55pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/68 "2015-08-04T18:55:29Z")
I’ll take my chances, M’lord. ---
**Author:** ![Kenm](https://avatars.discourse-cdn.com/v4/letter/k/bc79bd/32.png) [@Kenm](https://boards.straightdope.com/u/Kenm)\ **Post date:** [August 4, 2015, 7:30pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/69 "2015-08-04T19:30:00Z")
> [@up\_the\_junction](#): > > I’ll take my chances, M’lord. **Beak:** Thou scurrilous knave, on the morning of August 5th at 11 by the clock, you shall be taken from your cell to be removed to that place prescribed by law, to be pressed until you admit your guilt, at which time all your assets will be transferred to the Crown, thereby leaving your wife and children to starve in the street then arrested for begging, or you die under the press but your family keeps its hovel and single wooden plate. ---
**Author:** ![eclectic\_wench](https://avatars.discourse-cdn.com/v4/letter/e/ac91a4/32.png) [@eclectic\_wench](https://boards.straightdope.com/u/eclectic_wench)\ **Post date:** [August 4, 2015, 7:57pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/70 "2015-08-04T19:57:32Z")
> [@Boyo\_Jim](#): > > So, let’s say that I respond that I won’t talk without a lawyer. Sometime later my lawyer shows up. A couple of questions … > > 1. If I refuse at first, and later answer their questions with my lawyer present, can that early silence during the first attempt at questioning be held against me? > [@aruvqan](#): > > 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 … > [@Kenm](#): > > What would happen if the person arrested says “I won’t say anything else until I have a lawyer present.” Rubber hoses? The risk of having a jury draw adverse inferences doesn’t apply to keeping your mouth shut until you have a chance to talk to a solicitor. As I said right back in post #2, and as it says right there in the link I gave. > [@eclectic\_wench](#): > > it doesn’t apply to refusing to answer questions before you’ve spoken to legal counsel. ---
**Author:** ![Rigamarole](https://avatars.discourse-cdn.com/v4/letter/r/77aa72/32.png) [@Rigamarole](https://boards.straightdope.com/u/Rigamarole)\ **Post date:** [August 4, 2015, 9:56pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/71 "2015-08-04T21:56:46Z")
> [@AK84](#): > > Its not ideal. But its hardly medieval as some remarkably ill informed poster said up thread. Oh, get over yourself. I said that tongue-in-cheek. But it’s still a bad wording. ---
**Author:** ![Novelty\_Bobble](https://avatars.discourse-cdn.com/v4/letter/n/a3d4f5/32.png) [@Novelty\_Bobble](https://boards.straightdope.com/u/Novelty_Bobble)\ **Post date:** [August 5, 2015, 6:53am UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/72 "2015-08-05T06:53:48Z")
> [@Rigamarole](#): > > Oh, get over yourself. I said that tongue-in-cheek. But it’s still a bad wording. which bit of this is tongue in cheek? > [@](#): > > Sounds like a crock of horseshit to me. It’s essentially pressuring people to talk without counsel. England’s quaint and all but I’m glad I don’t live in a medieval monarchy. all of it? Because your complaints have now been fully addressed and shown to be baseless and I hope you now withdraw these comments. ---
**Author:** ![Rigamarole](https://avatars.discourse-cdn.com/v4/letter/r/77aa72/32.png) [@Rigamarole](https://boards.straightdope.com/u/Rigamarole)\ **Post date:** [August 5, 2015, 8:52am UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/73 "2015-08-05T08:52:11Z")
Nothing baseless about it. It’s a shitty way to word people’s alleged rights if you are telling them they may be harming themselves by not talking to police, possibly before getting counsel. And I _am_ glad I don’t live in a medieval monarchy. 😛 Not that I truly think England is one other than the entire concept of the monarchy being rather dated and quaint. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [August 5, 2015, 9:11am UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/74 "2015-08-05T09:11:40Z")
> [@Dr.Strangelove](#): > > I quite deliberately pointed out that the US has deep flaws. In fact, I suspect that the moral cost of the US plea bargain system is much worse than that of the UK’s lack of a perfect right to silence. But that is a different argument and a different thread. On this particular point, the US is the superior system. No, on this point the US system is a superior (in the sense of more absolute) implementation of a particular point of principle. Whether it is actually a good idea to implement that point of principle so rigidly is a whole other question. ---
**Author:** ![Shearer](https://avatars.discourse-cdn.com/v4/letter/s/57b2e6/32.png) [@Shearer](https://boards.straightdope.com/u/Shearer)\ **Post date:** [August 5, 2015, 11:25am UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/75 "2015-08-05T11:25:49Z")
It’s very outdated, we should use the American way and just shoot them. ---
**Author:** ![ThelmaLou](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thelmalou/32/390_2.png) [@ThelmaLou](https://boards.straightdope.com/u/ThelmaLou)\ **Post date:** [August 5, 2015, 1:10pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/76 "2015-08-05T13:10:45Z")
> [@Rigamarole](#): > > Nothing baseless about it. It’s a shitty way to word people’s alleged rights **if you are telling them they may be harming themselves by not talking to police, possibly before getting counsel.** And I _am_ glad I don’t live in a medieval monarchy. 😛 Not that I truly think England is one other than the entire concept of the monarchy being rather dated and quaint. My emphasis. You’re still not getting it. \ I’m a little curious as to why the hostility. The phrase begins, “You don’t have to say anything.” Period. Stop. You don’t have to say anything. Even if you are guilty. Even if you’re holding the gun or the bloody knife. You do not have to incriminate yourself. In the quote above, you left out “when questioned.” “When questioned” refers to the time when the police sit you down and question you. At that time, you WILL have a solicitor sitting next to you. But you still don’t have to talk. However, if you do MAKE THE CHOICE (and it is your choice) to talk, be sure and mention everything you remember at that time (when the police are questioning you with your solicitor present), because it might look fishy if you start bringing in important details later. And the warning says, “It MAY harm your case,” not it WILL harm your case, or you’re screwed. It’s really a bit of free, common-sense advice, “You will hurt your own credibility with us, with the judge, with the jury if you tell us what you claim is the whole story now and then start pulling stuff out of your ass later. Do **yourself** a favor and spill all the beans at the time of questioning.” I truly don’t see what the problem is. But it is fascinating to watch. ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [August 5, 2015, 1:19pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/77 "2015-08-05T13:19:48Z")
I’m not Rigamarole but at the start of this thread I was feeling similarly pugnacious about the attitude of the line because I did not know that “when questioned” refers to a very specific situation and not any time someone under the authority of the crown asks you a question from the time you’re handcuffed til the jury reads its verdict. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 5, 2015, 1:38pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/78 "2015-08-05T13:38:54Z")
> [@kayaker](#): > > How about a withheld alibi? > > I’m accused of murder. I have an airtight alibi _but_ my alibi, made public, would cause me other harm if made known today. > > So, I withhold my alibi until months later and use it in my defense. Public knowledge of the alibi is no longer a negative. How do the courts handle it? There is a whole area of evidence law in the US dedicated to this very point: it’s called the hearsay exception to an allegation of recent fabrication. The posters who are criticising the English rule seem to be arguing that in the US, coming out with an alibi at a late stage of the proceedings can’t be impeached, because of the right to silence. However, US prosecutors can challenge a late statement as a recent fabrication, and then the accused may have to rely on prior consistent statements to rebut the allegation of recent fabrication. Here’s a link to an article about the Federal Rule of Evidence which specifically addresses this very point: [Prior Consistent Statements: Temporal Admissibility Standard Under Federal Rule of Evidence 801(d)(1)(B)](http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2740&context=flr&sei-redir=1&referer=http%3A%2F%2Fwww.google.ca%2Fsearch%3Fq%3Drecent%2Bfabrication%2Bfederal%26hl%3Den-CA%26biw%3D%26bih%3D%26gbv%3D2%26oq%3Drecent%2Bfabrication%2Bfederal%26gs_l%3Dheirloom-serp.3...3105.4595.0.4833.8.2.0.6.0.0.103.200.1j1.2.0....0...1ac.1.34.heirloom-serp..7.1.103.0ODcxuFJntc#search=%22recent%20fabrication%20federal%22) > [@](#): > > Federal Rule of Evidence (FRE) 801(d)(1)(B) allows a prior extrajudicial statement, consistent with a witness’s in-court testimony, to be admitted to rebut an express or implied charge of recent fabrication or improper motive. This Rule specifies that such statements are not hearsay and allows them to be used for the truth of the matter asserted, thus giving substantive effect to statements that were admissible at common law only to rehabilitate the credibility of a witness who had been impeached. Would be helpful if one of our US lawyer dopers like **Bricker** or **Elendil’s Heir** could comment. ---
**Author:** ![Double\_Foolscap](https://avatars.discourse-cdn.com/v4/letter/d/85e7bf/32.png) [@Double\_Foolscap](https://boards.straightdope.com/u/Double_Foolscap)\ **Post date:** [August 5, 2015, 2:11pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/79 "2015-08-05T14:11:28Z")
> [@Kenm](#): > > **Beak:** Thou scurrilous knave, on the morning of August 5th at 11 by the clock, you shall be taken from your cell to be removed to that place prescribed by law, to be pressed until you admit your guilt, at which time all your assets will be transferred to the Crown, thereby leaving your wife and children to starve in the street then arrested for begging, or you die under the press but your family keeps its hovel and single wooden plate. More weight. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [August 5, 2015, 3:38pm UTC](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926/80 "2015-08-05T15:38:34Z")
American lawyer, now serving as a big-city magistrate, here. I have no problem with the English/Welsh warning, as it seems a common-sense rule, but don’t think it would make much of a difference in many cases anyway. Alibi defenses are pretty rare, in my experience. In six years as a felony prosecutor, I don’t think I ever saw one raised, or even heard of one from colleagues in their cases. This Federal Rule of Criminal Procedure (my state has a similar one), as to notice of alibi, may also be of interest: [Rule 12.1 Notice of an Alibi Defense | Federal Rules of Criminal Procedure | US Law | LII / Legal Information Institute](https://www.law.cornell.edu/rules/frcrmp/rule_12.1) [Previous page](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926.md?page=3) [Next page](https://boards.straightdope.com/t/it-may-harm-your-defence-british-police-warning/726926.md?page=5)