‘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.’
Fairly straightforward you may think, but what does it actually mean? This is the wording of the caution which must be given to a person suspected of having committed a criminal offence before they are questioned. Failing to do so could mean that any answers given to those questions might be excluded from being used as evidence against that person.
As a lawyer advising arrested persons in the police station on a daily basis, explaining what this caution actually means is the most important aspect of my role. I have to find a way of explaining it to the very young, the very elderly, the mentally disordered, persons for whom English is not their first language, and sometimes its a very difficult task. Sometimes, it’s impossible, and that’s the driving force behind why I do my job.
This is how I explain what those words mean to my clients… bear with me as it’s quite involved, but vital that my clients understand so that they can make an informed decision about whether or not to answer questions in their interview.
Like the Forth Bridge
I don’t tell my clients what to do or say (regardless of what the police think), I give them all the information and it’s for them to make the final decision, as it’s one they may have to feel comfortable with for a long time to come. ‘You don’t have to answer the questions, you can remain entirely silent if you wish, or reply ”no comment”. This is because you are entitled to have the case proven against you, you do not have to convict yourself by your own words. But, if you have a defence (and I will advise you if you do), you should consider putting forward that defence now. If you do not, and your case goes to Court, and the first time you mention your defence is in Court, then the magistrate is entitled to think, or the judge is entitled to tell the jury, why is that? Wouldn’t an innocent person want to tell the police at the first opportunity that they were innocent? And they might think that you’ve made up that defence in the meantime, and that what you’re saying is not true. You are perhaps less likely to be believed if the first time you mention your defence is in Court.’
Quite wordy, isn’t it? A bit like the Forth Bridge in that by the time I’ve got to the end I need to go back and explain the first part again. The trouble with this caution is that the Police and Criminal Evidence Act 1984 (Code C 10d) says that if appears it that a person does not understand the caution, the person giving it should explain it in their own words. In practice, the caution is always broken down and explained by the interviewing officer, however, there is no standardised form of wording for that explanation, and many officers get it wrong, wrong enough to completely change the meaning.
They often imply that if a suspect refuses to answer questions in their interview, and gives an explanation in court, the court is likely to decide that they were dishonest, not ‘may’ come to that conclusion. At this point of course it is necessary for me to apply the correct interpretation. I don’t say all these officers are deliberately being disingenuous, but I do find it incredible that they do not receive better, and ongoing training.
It’s there for a reason, officer
You may wonder why I make a fuss over the precise wording. The interview can be a highly charged situation with all the odds stacked in the favour of the police. The detainee may be vulnerable, withdrawing from drink or drugs, injured, scared, and inevitably desperate to be released from custody. They may have pressures not admitted to, fear of co-defendants, or of what the police or their families may think about the circumstances leading to their arrest. They may be vulnerable in unseen ways, with personality disorders which make them overly liable to confess, or wish to ‘please’ their interrogators by agreeing to suggestions. So yes, I am picky about the wording of something which might amount to a pressure to confess, upon people who are not able to withstand that pressure. If the powers that be didn’t want suspects to be allowed to remain silent, they wouldn’t have left it in the legislation. It’s there for a reason, officer.
My next blog discusses the decision making process behind whether to speak in interview or remain silent, and the benefits and disadvantages of doing so.
Kim Evans has spent 31 years working at the sharp end of the criminal justice system - the last ten years in the cells of East Sussex police stations defending people in custody. ‘I'd guesstimate that 90% of my clients have a personality disorder, mental health issues, and, or, serious substance addiction be it drugs or alcohol,’ she says. Kim started her career at the Metropolitan Police as a uniformed officer in 1979.