The cop wants you to incriminate yourself. That’s why you’re being interviewed. He may or may not care if you’re actually guilty, but in any case he’s happy if you spill your guts right there, and almost as pleased if you tell a story riddled with obvious contradictions.
The cop doesn’t make the ultimate decision, but the statements do make it to court as evidence. Such evidence can harm the truly innocent.
I am pleased to live in a country where I cannot be harmed by failing to tell a story under the stress of a police interview.
In all honesty its a difficult job. The solicitor only knows the bare bones of why the arrestee is in custody. He or she will be allowed to talk in private but unless they know the prisoner they won’t have any real grasp of the police case.
The main job is to keep the questioning low key and simply being there hampers the police. They can’t shout and intimidate.
Also the solicitor is there to ensure the questioning is focused on the alleged crime. Some police are clever and tricky. A calm wandering discussion with the prisoner about owning his house and a Porche and maybe his last holiday to Thailand turns out in reality to be a fishing expedition for a “proceeds of crime” case.
Or maybe its a chat about local high schools and which have the prettiest girls. With a man who allegedly has shoplifted women’s underwear. If not stopped by the solicitor pretty soon the prisoner has placed himself at the site of attempted assaults.
It is never in practice going to harm your defence for reasons **Angry Badger **gives. You can of course come up with highly theoretical ways in which it could, just as I could come up with a number of highly theoretical (or worse) flaws in the US system.
What I object to is not the rational point that the UK system is imperfect, it’s the rather over the top hysteria implying (or downright stating) that the UK system is notably unjust compared to the US, which is more than a little rich given the numerous flaws in your own system.
Which is exactly true in any jurisdiction, yours included.
Do they? You’re suddenly an expert on UK evidence law? Have you ready Angry Badger’s posts?
Congratulations, so am I. It’s a trivial thing though, when one removes the gross exaggeration bordering on wilful ignorance and gets down to the nub of actual difference. And there are those who would say that the absolute rights you (and I) have also contribute to the ability of clever criminals to make fools of the system. So it cuts both ways. This issue isn’t a clear fault in the UK system on a balanced view. It’s all rationally debateable.
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.
And I respect your position. Indeed as I posted above, there is quite a long list of countries which observe and respect the right to silence. England and Wales is unusual - and interesting.
Mildly Irritated Badger above has explained with exemplary clarity how the English (not British) system works. Questioning by the police is a formal procedure in a controlled and recorded setting. The arrestee has the benefit of counsel before the interview. The arrestee has the absolute right to silence.
Where this changes from other jurisdictions (and pre-1994) is that today a Judge may comment on an exonerating defence and rhetorically ask why it wasn’t offered at the time of arrest.
Leaving that aside, the defendant cannot be compelled to take the stand and no adverse comment can be made about it.
Dr Strangelove you should stick to rockets, yoh really don’t follow criminal procedure.
Firstly lets clarify one thing. No convction can be made solely or primarily on the basis of silence. See Ss 38 (3) of the Criminal Justice and Public Order Act 1994 (CJPOA 1994)
Secondly, the particlar provisions of the adverse inference which are Ss34-37 of the CJPOA 1994 apply not generally but when a judge invites the jury to draw inference. In other words, silence will only lead to inferences if the judge allows the jury to draw them.
Thirdly judges cannot simply invoke the section willy nilly, or because the accused has remained silent. See R v Argent [1997] 2 Cr App R 27 and DPP v T (2007) 171 JP 605.
Fourthly it applies only when the accused has raised a positive defence, R v Abdalla [2007] EWCA 2495.
Fifthly it applies to England and Wales not the UK as a whole.
Sixthly, it applies to silence after legal advice has been sought or provided. Ss 34 (2A) CJPOA 1994
Its not ideal. But its hardly medieval as some remarkably ill informed poster said up thread.
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?
That’s a plausible reason. No inferences can be drawn. " I was fucking Stella from acconting at the time and thats why I did not bring this up at the time, my wife would be upset". Plus Stella appears in the box and testifies.
From my own conversations with Barristers and Judges the main difference between the pre and post 1994 regimes is that Defense counsel tend to put fort defence early rather than ambush late in trial.
Well, this is in welcome contrast to the DOA threads I’ve been creating lately.
But please don’t generalize and assume all American Dopers or all Americans think the same way. I do get the explanations of the British warning. It seems to me that in spirit and intent the two warnings are the same. And the American one is pretty late in the scene.
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.
Don’t tell me English cops don’t decide who’s guilty or not.
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.
There are thousands of cases like these. Don’t decide who’s guilty or not! Jesus Christ on a pogo stick.
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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 …
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?
Can my not answering some questions be held against me if my lawyer advises me not to answer?
England doesn’t have the 5th Amendment so this kind of thing seems perfectly reasonable. Nobody’s guilty before they are proven innocent, but it seems to me this law allows British prosecution to simply bring up the fact that you didn’t say anything at the time. That argument can still fail, unlike in the US where we’re not allowed to bring it up at all.
US law seems to imply that anything and everything before you have a lawyer cannot be used against you, which I think fails the common sense test. If someone’s stupid enough to confess or incriminate himself before he has a lawyer, too bad for him. Only the possibility that an innocent person might be railroaded by an overzealous prosecution makes that remotely justifiable here, and then it all comes down to how severe and how often you think that happens to warrant such wide latitude given to defendants
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
[QUOTE=Ss 38(3) CJPOA 1994]
A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2).
[/QUOTE]
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.
I would expect that in that case, you could merely say that you weren’t lying but nobody religiously checks for the exact time when they are doing something so its a general estimate. I’d be willing to bet that a good majority of jurors will buy that. Just because the cops can make an argument against you doesn’t mean you don’t have a defense. Hell, if I were a defense lawyer, I’d ask the juror if they knew exactly what time it is right now. Probably 11 out of the 12 won’t know the exact time and that will prove that people don’t keep these details in their head during moments of crisis
