Thank you for posting - I found this video fascinating. Made me think about the law in the UK. Interestingly when arrested here we are told : “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.”
I’d be interested if anyone has experience of the UK system and if the same strategy of staying silent would be advised in the uk.
I'm definitely not a lawyer, but I believe that the court may draw an inference from your silence. You are innocent and decided to remain silent only to have a perfect explanation that fits will all evidence known to the police weeks later. Why didn't you offer this earlier?
There is an interesting TV show called 24 Hours in Police Custody[1] that follows people in the 24 hours after they are arrested. Naturally, there are many scenes of police questioning. Plenty of people do just answer "No comment" to every question, even after consulting a solicitor.
> I'm definitely not a lawyer, but I believe that the court may draw an inference from your silence. You are innocent and decided to remain silent only to have a perfect explanation that fits will all evidence known to the police weeks later. Why didn't you offer this earlier?
this is my understanding of the UK system too (note: I am an american). it's quite different in the US because, among other things, the jury is explicitly instructed not infer anything from the defendant's use of their 5th amendment protection against self-incrimination. even if you have a perfect explanation for what happened, it's often best to just be quiet and let the prosecution fall apart.
The negative inference comes from the fact that you can't push an affirmative defence at trial that you haven't hinted at during questioning.
So, if you are arrested for beating up X, and you invoke your right to silence, THEN at trial you put forward a defence of "I wasn't there!" without any substantive evidence to back it up, the prosecutor can say "well, look, if there was an alibi, why didn't you tell the police about it?" The judge is supposed to then instruct the jury that they can draw an inference as to your honesty on the grounds you didn't bring it up during police interview.
The legislation that brings that into force are ss34-39 of the Criminal Justice and Public Order Act 1994.
"The negative inference comes from the fact that you can't push an affirmative defence at trial that you haven't hinted at during questioning."
absolute nonsense
the statute with the meaning that you are trying to whitewash your argument applies only to application for dismissal of the indictment based on a claim it's reasonable for you to have provided earlier thereby preventing the proceedings progressing to court
"Plenty of people do just answer "No comment" to every question, even after consulting a solicitor."
precisely because that's the best advice that you will get from a solicitor in the circumstances!
I rather belaboured my earlier responses to this same question, because I wanted to make it understood how rarely there's any justification to arrest someone. UK LEO arrest people by default and they absolutely do not have a automatic right to arrest anyone and certainly not only to bring you in to interview.
If they ask you why you didn't offer this earlier, you send them a link to this video. But in all honesty, I think it's of course very different when it's a PR situation vs a court situation. If you are asked about what just happened by press, "no comment" or "wanting to plead the fifth" might instantly make you enemy of the public even if you are innocent and want to be strategic about it.
I'd also be interested to hear the advice, particularly as the Police seem to have a number of situations where you must give them varying amounts of information, and could be committing an offence if you don't, and other situations where you can say "no comment" to everything including name and address even when arrested. It's really confusing.
For example, the police can get you to show your documents, name, address if they think you are not a UK citizen. Another example: in a stop and search you must tell the police what they might find during a search.
if you are stopped lawfully the law does require you to identify yourself if asked, generally.
this requirement you linked to also provide your address I'd have to look at further to tell you categorically that providing your ad is specifically in connection with this stature, but when you are asked to identify yourself providing a address is quite normal, but I am surprised that I actually don't know if you have to give your address with your name by law or if your name is always sufficient for all other cases. it is equally likely that I'm trying to clarify ambiguity that arises only from the language of the linked information of course
Refusing to cooperate or exercising one's right to silence is absolutely NOT the best strategy in the UK. Whether you should or not will depend heavily on a variety of factors. If you plan to offer an affirmative defence at trial, you can't just spring it on prosecutors.
In addition, England (dunno about Scotland) does NOT have the "fruit of the poisonous tree" doctrine regarding illegally or improperly collected evidence as is seen in a lot of US legal dramas.
The best strategy if arrested in England is to seek legal advice, either from your own solicitor or from the duty solicitor.
I waited overnight before checking that this still needs a contrary opinion just for the way you phrased your advice, which seems to impart greater and hidden argument to always cooperate with UK LEO.
a court "may" infer from your silence a negative presumption...
so goes the doctrine
"may"
"may"
"may" conduct a mis-trial if they do.
the UK police have very few powers in reality.
you may not be coerced to provide a statement or submit to a interview.
you can be arrested for justified suspicion and required to attend a police interview.
you are not required to respond in any way
you can elect to provide a prepared written statement instead, which must be construed by a court to have answered and not been un-cooperative. It is a good idea to prepare this prior to your interview and amend if you wish afterwards.
Handing over a statement won't excuse you from a formal interview when under arrest.
But a advance statement can enable your attorney to challenge the grounds for your arrest and detention.
the UK has very strict controls governing arrest for investigation purposes.
arrest is in fact prohibited unless the arrest is required for your attendance or protection of evidence.
the justifying facts can be challenged at any time. A good attorney will pay close attention to the detail of your interview questions and your attorney and you both have the right at any time to stop the interview and seek advice and counsel in private including from additional specialist lawyers. no time limit applies to the time out you call, although it may not count for the maximum limit of time you can be detained without judiciary approval
this being hn I'm g to assume that you have some recourse to the agency of trusted friends and financial resources.
specifically if you have such resources, I cannot recommend enough for you to make your solicitor instruct a reputable criminal barrister the moment you find out what's going on. cooperation with interview obviously helps you learn something helpful and if it doesn't you absolutely should be alarmed and proceed as follows :
you require your counsel to immediately obtain your warrant and any advance information available from the Crown Prosecution Service to be able to advise you on the possibility that your arrest is prejudicial because of a preexisting theory of your guilt.
bogus arguments for your arrest will never be fully compiled for reference and the possibility of embarrassing you calling you at work surely applies to most of us and all who we know.
unless you are unlikely to attend interview on request and unless you are provably likely to destroy evidence or interfere with witnesses YOU SHOULD NEVER BE ARRESTED AT ALL
the fact that potential witnesses won't be disclosed to you normally before interview is why you need to find out what you can as well as decisively excercise your right to counsel the moment you understand more regardless if it's two minutes into a interview everyone took all day to arrange.
as soon as the police can be said to not be forthcoming with witnesses you supposedly will meddle with, presuming you are not vagrant, the game is over for keeping you under arrest
now for 24 hours the duty custody sergeant must authorise your detention at intervals usually connected with the fact that the sergeants job is to oversee the correctness of proceedings and the provision of the rationale to go arrest you and slam you in a cell.
UK police sergeants are good stuff and I say that notwithstanding the contrary is true for too many officers in UK LEO - sergeants are on a different career path and don't like nonsense. they're also much older and more experienced folk. you'll be stood in front of yours at various times when you get your phone call and when you are called to interview and if the station isn't busy you can usually question them directly about your detention. officers have played endless games and detectives likewise - that's the business of it. UK LEO is in a woeful state but your Sarge is the sanest voice of reason you'll hear through your experience and including your attorneys because they're playing another game as well and one which I think has caused a lot of transgressions by officers to take place in the knowledge that you have to be seriously lucky to get a good station attorney attending on you and blessed by the Lord to receive someone who is going to be on point for you if you are arrested in the UK today.
I stress these points : Sarge Good : your attending attorney : suspect.
although anyone who cares will obtain a lot of details very quickly convening your situation, your reality created by silence and concurrent reticence on the part of the police, during the first stages, gives nothing whatsoever for anyone who can do anything for you to go on.
if you are brought before a judge the next morning (Saturday courts do operate and >24hr detention isn't allowed unless you are charged of a offence, IF CPS FAIL TO BRING TO YOUR FIRST HEARING ANY EVIDENCE CAPABLE OF DISPROOF OF THEIR CHARGES FROM THAT MOMENT THE WHOLE PROCEEDINGS ARE ONLY A ABUSE OF PROCESS AND UNLAWFUL AND THE DISCOVERY OF INCRIMINATING EVIDENCE LATER ON IN PROCEEDINGS IS IRRELEVANT. I have forgotten the case you'll find it in Blackstone Criminal Practice (the 2 volume reference for barristers to apply proceedings in criminal law - nota very bene because the other volume covers civil law few firms have copies of this vital reference work.
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I'M WRONG YOU CAN purchase Blackstones Criminal Practice individually and for only £350 which is much cheaper than the 2012 set including the companion civil practice volume, which cost me a thousand pounds together.
GET a copy!
I'm crazy huh?
just get your copy and start reading it from a random page : I will take bets (friendly, I'd feel bad for taking from you too easy) that you will be astonished to learn that the foundations and assumptions that you have accumulated inadvertently over the years are simply utterly rotten and dangerous nonsense, within the hour.
(you'll find the critical case law I refer to if you look at the maximum detention of a accused person and regardless I'm going to find a place where this can be found, myself, but it is also in the Judicial Review Handbook (Fordham / Hart Publ. £202) and was given in 1951 meaning that you can pick up used copies of these references for a very modest price which is easy to recoup - at least firm demand always existed however the reduction in price by almost twenty percent for BCP makes me think someone's finally scanned all the thousands of Bible weight oversize pages..
I've placed such emphasis on the value of reference texts because if you can prove to me that a solicitor attending a arrest or representing a first hearing, had any awareness of these vital rights I'm describing today, I shall gladly make it my genuine pleasure to gift you this year's editions as well as additional copies for the use of whomever you subsequently instruct to represent your abrogated rights and obtain for you n
necessary redress. only condition to be the payment for as many more copies out of the costs ordered against or settled with your I learned former lawyers to offer the same again to the next soul who was effectively sacrificed by the incompetence of the only profession who by law not only can but must be paid for their work fully in advance at all times except for attending to arrests.
I must wrap up my points but I hope that I have made it abundantly clear ideally beyond the possibility for doubting the importance to us all in or visiting the UK, this fact that the rights we are supposed to enjoy are so rarely sought for anyone's benefit that I can fairly assert that in criminal prosecution in the UK, the rotting fishes head is this carelessness and ignorance right here.
you know I could have answered from personal experience and toll you that I have absolutely no reason to believe that silence causes anyone any harm whatsoever nor will silence be construed to your detriment by any court and my experience with this includes courts in which I believed I was going to get nothing except for a prejudicial hammering on all points
but I haven't even ever heard anything said in any court about the accused giving a no comment interview. never.
I probably shouldn't have gone to such length as I did earlier only to respond to your questions, either, but the reason why I replied at length is because it is so important for people to learn how much everything is biased against the individual member of the public in every way beginning with our popular understanding of the applicable laws and logic.
the warning that you quoted, the UK Miranda equivalent warning, people somehow always seem to think applies to subsequent procedure in particular the interview process.
if you are arrested on suspicion of committing a crime, the first thing you should do is to establish whether you should have been arrested in the first place and prior to letting anything else further happen to you.
obviously this is a little difficult when you are in custody.
police station solicitors even for large firms are a neglected and weary bunch totally disconnected from the rest of everything that is going to happen to you. right here is the worst disconnect of incentives imaginable because the actions of a smart lawyer in the earliest stages of every proceedings can have disproportionate and incredibly serious consequences.
I wrote to tell anyone who is in such a position where possible to get a barrister specialist in police law to consult with as soon as you have gained any understanding of the situation at all.
this will not make your solicitor happy. but a solicitor who refuses the instructions of their client in the UK commits a crime and your life is not a joke but the kind of service for anyone in this situation who hasn't prepared or already gotten good connections, sure makes you think someone's laughing at your rights.
it should be obvious that you want to stop the police before they think that spending time and resources on finding evidence to incriminate you is a good idea. But it doesn't seem to occur to anyone that this is when you can do this and about your only chance very likely.
I think the majority of arrests are actually unlawful in the UK, because it has been standard procedure for all of my lifetime and the knowledge of anyone older than me I've asked, to automatically go arrest the person of interest and bring them in to custody as if that's their perfect God given birthright. Well heck it is not!
I only hope by my admittedly rather long comments that somebody who has to go through things like this can possibly experience UK LEO without a bunch of unnecessary fears and emotions and prejudicial ideas in their heads that are altogether doing nothing except work against the individual freedoms and rights which we still mercifully but effectively tragically don't in effect often really have.
I had few issues with that video while it was extremely entertaining and captivating. Yes, there are innocent people getting a guilty verdict. But the actual question is, statistically how often? It's easy to cherrypick few examples, because law of large numbers means that if there's 0.0001% chance of getting wrongfully prosecuted if you talk as an innocent person, there's bound to be some famous examples.
But maybe in 99.99% cases speaking the truth and co-operating quickly will spare you many months of stress and time.
All I'm saying is, that from the video alone it is not clear to me what the risk/reward here is and of course it is situation dependant.
He talks about this at ~9 minutes. Even if you said something good for your case, it won't be heard in court because its hearsay. And if you're in a spot when the police wants to interview you, the decision for your arrest was already made; you can only make the situation worse.
>when the police wants to interview you, the decision for your arrest was already made;
That's not true. The police will interview everyone connected to a crime. Like if your SO turns up dead you're going to be one of the first people the police talk to. Depending on what else they've found they will have varying levels of suspicion. That level will absolutely change on how you do in that interview or if you refuse to talk.
Fine, but the police level of suspicion is not relevant.
Never, ever agree to be interviewed by police without your attorney. There is no reason not to have someone who knows the game play for you. You have no clue what the police know or think they know already and your innocuous answer about something that seems unrelated may seem to confirm some wrong information they already have.
Again, your word cannot exonerate you but it can absolutely get you charged or even convicted.
>Fine, but the police level of suspicion is not relevant.
Of course it is. The police aren't the sole decision maker in the process, but as a rule if they don't think you did it you won't get arrested. Conversely if they think they can prove you did it you probably will end up getting arrested.
>Again, your word cannot exonerate you but it can absolutely get you charged or even convicted.
Sure it can. Juries and the police are fallible and can be swayed by a convincing performance. Jeffrey Dahmer, as an infamous example, managed to get the police to return one of his drugged victims by convincing them he was drunk and it was a lovers quarrel.
Extremely wrong. If you don’t agree to speak with police you will always have an opportunity to clear your name in the future, through an attorney who knows the game either before or during court. Every shred of information you share with them is ammunition and, again, you have no clue how they will use it, what it may appear to confirm or even what crimes they are actually investigating.
Every assertion you make to police opens you up to being prosecuted for completely separate crimes, including lying to the police, depending on what other information they already have (correct or incorrect).
Take the advice that every cop, every attorney takes and also gives to their kids: don’t talk to the police. Just get an attorney.
(A wild scenario of police catching someone in the act of a crime is not only not what we are talking about, but that individual was not exonerated.)
if there's enough evidence to justify an arrest, you're not going to talk your way out of it. even if you're innocent, it's much more likely you say something that makes the officer decide to arrest you.
In summary, you lose the moment you agree to talk.