Cycling UK Forum

beachcomber wrote:Often when there is conflicting information regarding an offence or incident the Police have to question all parties involved. The caution is there to warn you that what you say may potentially become evidence in a later trial. To not warn you would put you at a disadvantage,as you may make an off the cuff remark which you would not wish to be repeated in court. Any admissions made when not under caution may be inadmissible at court.

I don't have an issue with the need to warn you that anything you say may be used in court. However, I do have an issue with, "it may harm your defence if when questioned you fail to mention something you later rely on in court" (or words to that effect). It's completely open-ended and ambiguous. For example, it can mean that you are responsible for ensuring that everything you intend or later wish to use in court is introduced into the interview. If you fail to do that, the caution can (if it mirrors the underpinning law) give a court the right to deem inadmissible anything you don't mention at that interview. However, another interpretation doesn't put a time limit on when the questioning occurs or who asks the questions provided that those questions are directed to you. Thus, a court has no right to deem inadmissible anything you mention when your own legal representative questions you in private. The same logic also shows that a court might or might not be entitled to make inferences from your silence if you exercise your right to remain silent at a first interview but later make full disclosure to your own brief.

To my mind, it's yet another example of knee-jerk legislation introduced without thinking things through.

Geoff

The caution is there to protect the interviewee and alert them to the fact a formal interview is taking place.
Under the earlier caution a suspect could remain silent and once at court could spring a defence on the court which the prosecution had no opportunity to examine or investigate. The court or prosecution could not suggest the defence account had been put together after the original interview as the original caution said' you didn't have to say anything but what you did say may be given in evidence.'
New laws of disclosure were brought out during the 1990s enabling the defence to have disclosed to them pre trial the evidence obtained by the prosecution. As part of this the prosecution were enabled to comment on the fact a defendant had offered no account during interview but was presenting evidence later at court. It is for the court to decide on the strength and admissibility of that evidence. the whole idea was to protect the public and attempt to prevent some of the earlier wrongful convictions which occurred in the 1960s &70s. The prosecution have to also disclose any information which would undermine their case. Communication between client and legal team are subject to legal privilege and are not disclosable

in that context I could reply that I don't understand it but will get my Brief to explain it to me - e.g. whether it may harm my defence or may not harm my defence if I don't say anything.

When it was read out to me when I gave a statement the chance to have the implications properly explained never arose.

The kind policeman who took my statement admitted that he didn't fully understand it either. He specifically admitted that he didn't know if 'it might harm my defence' if I later relied on something in court that he hadn't asked me about.

Not to be picky but you were interviewed, ie questions were put to you for you to answer or not. A statement is just that - a formal stating of what you saw, felt etc. which you wish to give. It doesn't involve questioning to elicit information from you (other than perhaps to aid the writing of a coherent and useful statement).

To give an example - Mr A. is arrested for burglary- he'll be interviewed to establish various facts such as did he think he had a right to take what he did; what did he intend to do with it etc.

Mr. B - the owner of the house broken into, will make a statement along the lines of how he left the house locked at a particular time, came home to find the window smashed and that he'd not given anyone permission to enter or take any item.

Mr A will be interviewed under caution. Mr. B will make a statement without a caution because it's not required.

For an interview you're under no obligation to say anything and if you don't understand what's being asked of you you don't have to say anything (you can see where this is going can't you!) ie exactly as per the caution - "You don't have to say anything.........".

If you didn't understand the caution you could ask your solicitor to be present during the interview.

Richard wrote:If you didn't understand the caution you could ask your solicitor to be present during the interview.

Thats one of my points - I needed the advice of a lawyer to understand the implications of the caution. I didn't have one and I doubt that people arrested in the street have opportunity to take legal advice before they answer the question 'do you understand?'. I didn't have a defence either and didn't have chance to mention, when questioned, all of the points that I will raise in my civil claim.

I can imagine that some police and some lawyers might think they know what the caution means but some don't and I can't see how ordinary people can be expected to. Use of the word 'may' alone makes its meaning is ambiguous.

I must say I do see your point of view. I personally feel that the caution as it stands (there's actually two cautions, but lets not go there!) is unnecessarily confusing and it has come to be this way because of the mess our criminal justice system and society has got itself into. We shouldn't need a fancy caution to be able to weed out those that choose to make up some cock and bull story for court but that's the way it is. The old caution would never have triggered this debate, it was unambiguous in it's statement of a persons rights.

paulah wrote:It makes sense when explained, but if you've had limited experience of the legal system, and someone says "‘it may harm your defence if you do not mention when questioned something that you later rely on in court", then you're going to wonder what's going on.

Yes and surely when questioned a person merely answers the questions. If not questioned about something they most likely wouldn't mention it. Then , if charged, they go to a lawyer who will be a somewhat more intelligent and skilled questioner than a police officer and will get things out them that the police questioning didn't. This might well help their defence if used in evidence in court but because of the caution would actually harm it.

There seems to be a presumption that every time a person is interviewed by the Police it results in a charge and court appearance,
Many allegations are made by one individual against another which require the Police to interview the 'suspect' under caution. The suspect has the right to have legal representation at the interview. Anyone who is to be detained at a Police station has to be given the right to legal representation and or advice over the phone prior to detention, amongst other rights, and sign to say these rights have been given. With out these rights being administered ( except in very special circumstances) any subsequent interview would be inadmissible.
When interviewed 'suspects' often do not have legal representation present,at their decision. They answer the questions and it becomes clear that they have committed no offence or there is insufficient evidence to prosecute. This decision is usually made by a Crown Prosecution Lawyer.
The role of the Police is to investigate the incident or offence. Gather evidence and present it to the Crown prosecution. It is the Crown who prosecutes not the Police.
As for solicitors being more intelligent and better interviewers. I have witnessed some very skillful Police interviewers and some shocking solicitors, to whom I would not entrust my liberty.
I know many officers who have obtained good university degrees and joined the Police after jobs in teaching,industry,commerce and even an ex barrister.
I wouldn't say they were less intelligent than the average solicitor

I suppose a cycling forum is not really the place for people to learn about their rights (in spite of some of the excellent info posted here.) Perhaps it would be a good subject to be covered at school.

Your rights is a site maintained by Liberty (Previously known as the National Council For Civil Liberties, where bright-eyed idealistic lawyers such as Hattie Harman and Pattie Hewitt cut their teeth before descending into party politics.)

Unlike the Law of Gravity etc, this type of law is man-made and subject to change and from time to time the balance between the rights of the individual as against the state has swung one way or the other.

I think the OP was really about something more: many people think of police investigations as something that only affect other people; the application of the law's protection to them - in this case the caution - is at least infra dig.

I think it is worth pointing out that the present wording of the cautions was not something decided by a couple of numpties down the nick when they were looking for an excuse to avoid getting off their fat backsides. Changes in the law - especially fundamental stuff like this - are thrashed about for a long time between al branches of the legal profession and politicians (often it must be said, the same people.)

I think it would be a foolhardy police officer who tried to reword the caution by way of explanation. A lot of time might be spent at any later trial about the meaning of what had been said. Even judges who try to explain legal concepts - e.g. beyond reasonable doubt - by straying from accepted formulae, see their words chewed over in the appeal courts.

thirdcrank wrote:Changes in the law - especially fundamental stuff like this - are thrashed about for a long time between al branches of the legal profession and politicians (often it must be said, the same people.)

The cynic in me suspects that's why we end up with obfuscation and ambiguity - jobs for the boys for the legal profession!

Geoff

GeoffL wrote:

thirdcrank wrote:Changes in the law - especially fundamental stuff like this - are thrashed about for a long time between al branches of the legal profession and politicians (often it must be said, the same people.)

The cynic in me suspects that's why we end up with obfuscation and ambiguity - jobs for the boys for the legal profession!

Geoff

The final thing which becomes law is often a cockup. A bright young copper charges the offender under the new law, it goes to court and he loses the case. As a former warrant holder I have witnessed a young copper suggesting charging the offender under the new law, the Station Sergeant says "NO, charge him under clause X of the act of 18xx and it will stick". Thereafter the new law will be ignored.

I have searched unsuccessfully for a Wizard of Id cartoon which was published in the mid 1990's and when I last saw it, a much enlarged copy was displayed in the charge room at a certain West Yorkshire police station.

Two wretches are hanging from chains on the dungeon wall.

One explains:

First they told me I had a right to remain silent. Then they asked me if I understood my rights.

The new police caution was designed by, Michael Howard, when he was Home Secretary and trying to porove his tough on crime credentials.

However, it is complete and utterely inconprehensible, which violates the principle that the caution must be understood by the person being given it.

Can any one quote a solitary case, where something the suspect failed to mentioned at the time of their arrest harmed their defence or, was deemed inadmissable in court?

"You are not obliged to say anything but, anything you do say will be taken down in writing and may be used in evidence against you."

A caution easily understood and one which should be reinstated A.S.A.P.