Why would remaining silent "harm your defence" in the UK?
November 17, 2013 6:35 PM
Was just watching a UK mystery-crime show when one of the cops recited the right-to-silence statement, which includes the phrase
Also I notice this is actually called "Right to silence in England and Wales". Does this mean that the law differs in Scotland?
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.This seems backwards to the law in the States where nothing you say to the police is useful for your defense. I'm curious about the legal circumstances under which answering police questions would benefit the accused.
Also I notice this is actually called "Right to silence in England and Wales". Does this mean that the law differs in Scotland?
It's the middle of the night in the UK, so I imagine it'll be awhile before a lot of people with particular expertise check in. In the meantime, there's an okayish Wikipedia article on the subject that could give you some background if you haven't seen it yet.
posted by jacquilynne at 6:49 PM on November 17, 2013
posted by jacquilynne at 6:49 PM on November 17, 2013
Does this mean that the law differs in Scotland?
More for your reading list: Law of the United Kingdom.
posted by zamboni at 6:52 PM on November 17, 2013
More for your reading list: Law of the United Kingdom.
posted by zamboni at 6:52 PM on November 17, 2013
This writeup from the CPS talks about the post-1994 jurisprudence on adverse inference, and the circumstances under which the changes made in PACE 1994 might be applied.
Scots law has always been different, including criminal justice legislation; that predates devolution, but the self-governing powers of the Scottish Parliament have reinforced the distinction. The Carloway Report, which was a recent review of Scottish criminal law, had a discussion of the topic and recommended that Scottish courts retain the position that no adverse inference can be drawn from refusal to answer questions.
The straightforward answer is that if you're going to assert a positive defence -- a potentially-embarrassing alibi, something that incriminates you in a different way -- then you can't wait until the trial to do a grand reveal. As the CPS puts it:
Scots law has always been different, including criminal justice legislation; that predates devolution, but the self-governing powers of the Scottish Parliament have reinforced the distinction. The Carloway Report, which was a recent review of Scottish criminal law, had a discussion of the topic and recommended that Scottish courts retain the position that no adverse inference can be drawn from refusal to answer questions.
The straightforward answer is that if you're going to assert a positive defence -- a potentially-embarrassing alibi, something that incriminates you in a different way -- then you can't wait until the trial to do a grand reveal. As the CPS puts it:
If and when he gives evidence and mentions facts which in the view of prosecution counsel he could reasonably have been expected to mention in interview, he can then be cross-examined as to why he did not mention them in interview.posted by holgate at 6:54 PM on November 17, 2013
If you want the really really brief answer, it's basically: the British didn't get around to nailing this particular thing (the "can not saying anything hurt you") down until what at first glance seems to be a really unfortunate period in their history to be making these sorts of decisions. You want to read about the Criminal Justice and Public Order Act of 1994 to get the background.
You may also be interested in exploring other issues relating to criminal justice and how courts operate in the UK versus the US - they do quite a few things rather differently than we do, and the documents you most often think of when it comes to "rights" in the US are largely thanks to colonists being specifically pissed off about things in the UK system circa 1780 (if you've ever wondered why people jabber on about "the oldest written constitution in the world," you can thank English jurisprudence.)
There are huge differences in how criminal justice works in the Republic of Ireland versus the rest of that big geographic zone we think of as all being smushed together - "England, Ireland, Scotland, and Wales" - but the legal differences within the UK itself are a lot more superficial, or have to do with cultural things like "which examination do you take in order to prove you've gotten enough education." There's still quite a bit of jostling about on this subject, as some people are rather a lot less pleased with the status quo than others.
posted by SMPA at 6:57 PM on November 17, 2013
You may also be interested in exploring other issues relating to criminal justice and how courts operate in the UK versus the US - they do quite a few things rather differently than we do, and the documents you most often think of when it comes to "rights" in the US are largely thanks to colonists being specifically pissed off about things in the UK system circa 1780 (if you've ever wondered why people jabber on about "the oldest written constitution in the world," you can thank English jurisprudence.)
There are huge differences in how criminal justice works in the Republic of Ireland versus the rest of that big geographic zone we think of as all being smushed together - "England, Ireland, Scotland, and Wales" - but the legal differences within the UK itself are a lot more superficial, or have to do with cultural things like "which examination do you take in order to prove you've gotten enough education." There's still quite a bit of jostling about on this subject, as some people are rather a lot less pleased with the status quo than others.
posted by SMPA at 6:57 PM on November 17, 2013
I think the point of the wording is simply that failing to mention something up front may make your defence less convincing by making your later testimony less believable. For example a prosecutor may argue that you needed time to think of an alibi or an explanation for certain acts.
Regarding the last part of your question: Criminal law in general is totally different in Scotland, although I don't know how those differences apply to this specific issue. Certainly the right to silence applies there, but the legal history, details, and implementation (including the specific warning read at arrest) could differ.
posted by Pre-Taped Call In Show at 7:00 PM on November 17, 2013
Regarding the last part of your question: Criminal law in general is totally different in Scotland, although I don't know how those differences apply to this specific issue. Certainly the right to silence applies there, but the legal history, details, and implementation (including the specific warning read at arrest) could differ.
posted by Pre-Taped Call In Show at 7:00 PM on November 17, 2013
I think the point of the wording is simply that failing to mention something up front may make your defence less convincing by making your later testimony less believable.
Yeah, so that's still a difference from an absolute right to silence.
I believe NSW recently swapped from the absolute right to something closer to the UK version (where something relied upon in court may be considered less reliable than something mentioned at the time of arrest). There's some discussion of the (then-upcoming) change here (including an Aus copper's interpretation of the state of the law in the UK as "This act permits the court to draw an adverse inference from a person's failure to disclose vital information during the police investigation, in certain circumstances." - which, I think, is along the lines of the change in NSW).
posted by pompomtom at 7:13 PM on November 17, 2013
Yeah, so that's still a difference from an absolute right to silence.
I believe NSW recently swapped from the absolute right to something closer to the UK version (where something relied upon in court may be considered less reliable than something mentioned at the time of arrest). There's some discussion of the (then-upcoming) change here (including an Aus copper's interpretation of the state of the law in the UK as "This act permits the court to draw an adverse inference from a person's failure to disclose vital information during the police investigation, in certain circumstances." - which, I think, is along the lines of the change in NSW).
posted by pompomtom at 7:13 PM on November 17, 2013
I was trying to find a Wikipedia article that briefly explains the no-bill-of-rights issue (the "how can you possibly have a law that violates a right the US Constitution and a crapton of people seem really really sure is an absolute right" thing) and more generally the "why having no written constitution matters" and low and behold:
Constitution of the United Kingdom - parliamentary supremacy
Parliamentary sovereignty in the United Kingdom
In any case, if you ask this question again in a year or two, the answer could very well be totally different and a cop could lose his job for saying such a thing. No revolution required, just enough MPs deciding it should be so.
My guess is that over time the answer is likely to be more different in Scotland and Wales and Northern Ireland (from England) than it is right now, particularly when it comes to this sort of banner-waving right.
Especially because huge numbers of people in pretty much every single English-speaking country are being implicitly taught that the stereotypical text of Miranda applies to them, thanks largely to Dick Wolf. BTW, did you see this question from a while back on international Miranda equivalents?
posted by SMPA at 7:17 PM on November 17, 2013
Constitution of the United Kingdom - parliamentary supremacy
Parliamentary sovereignty in the United Kingdom
In any case, if you ask this question again in a year or two, the answer could very well be totally different and a cop could lose his job for saying such a thing. No revolution required, just enough MPs deciding it should be so.
My guess is that over time the answer is likely to be more different in Scotland and Wales and Northern Ireland (from England) than it is right now, particularly when it comes to this sort of banner-waving right.
Especially because huge numbers of people in pretty much every single English-speaking country are being implicitly taught that the stereotypical text of Miranda applies to them, thanks largely to Dick Wolf. BTW, did you see this question from a while back on international Miranda equivalents?
posted by SMPA at 7:17 PM on November 17, 2013
"why having no written constitution matters"
The existence, or otherwise, of a written constitution is not really relevant here.
Australia has a written constitution. This does not mean that it is beholden to a bill of rights written by the long dead. It is hardly likely to be unique in this regard.
low and behold
"Moo"?
posted by pompomtom at 7:25 PM on November 17, 2013
The existence, or otherwise, of a written constitution is not really relevant here.
Australia has a written constitution. This does not mean that it is beholden to a bill of rights written by the long dead. It is hardly likely to be unique in this regard.
low and behold
"Moo"?
posted by pompomtom at 7:25 PM on November 17, 2013
Thanks for the answers!
From the Wikipedia article:
posted by Deathalicious at 8:23 PM on November 17, 2013
From the Wikipedia article:
An adverse inference is appropriate where the jury conclude that the reason the accused remained silent was that he had no proper answer to the charge put against himAm I reading this correctly that in the UK if I refuse to testify because for whatever reason I cannot or choose not to refute the charges against me that in itself is tantamount to guilt?
posted by Deathalicious at 8:23 PM on November 17, 2013
SMPA, your tiny-text side note linking to the earlier question led me to this very information webpage put out (I guess?) by a Privacy/Civil Liberties group in the UK.
It outlines four circumstances under which "adverse inference" (which I'd never heard of before) can be used:
It outlines four circumstances under which "adverse inference" (which I'd never heard of before) can be used:
The right of silence, long considered the most fundamental right of a suspect, was curtailed by the Criminal Justice and Public Order Act 1994. This permits the court hearing the charge against you to draw such inferences as appear proper from the fact of your silence in the following circumstances:posted by Deathalicious at 8:33 PM on November 17, 2013
- Failure to mention a fact when questioned under caution before charge which is relied on in your defence.
- Failure on being charged with an offence or informed of likely prosecution, to mention a fact which it would have been reasonable for you to mention at the time.
- Failure or refusal to account for objects, substances or marks found on your person, in or on your clothing or otherwise in your possession, in the place where you were arrested.
- Failure or refusal after your arrest to account for your presence at a place at or about the time the offence is alleged to have been committed.
Am I reading this correctly that in the UK if I refuse to testify because for whatever reason I cannot or choose not to refute the charges against me that in itself is tantamount to guilt?
No. The CPS link explains this in detail, talking about the four separate clauses of the Criminal Justice Act 1994 that your bullets cover. The burden of proof in criminal cases is still on the prosecution, and the standard of proof is still "beyond a reasonable doubt". Specifically, failure to testify in court cannot prove guilt by itself.
One could argue that the conditions established by higher courts over the use of adverse influence are functionally meaningless, but that's a somewhat different question.
posted by holgate at 8:39 PM on November 17, 2013
No. The CPS link explains this in detail, talking about the four separate clauses of the Criminal Justice Act 1994 that your bullets cover. The burden of proof in criminal cases is still on the prosecution, and the standard of proof is still "beyond a reasonable doubt". Specifically, failure to testify in court cannot prove guilt by itself.
One could argue that the conditions established by higher courts over the use of adverse influence are functionally meaningless, but that's a somewhat different question.
posted by holgate at 8:39 PM on November 17, 2013
(My reference to PACE upthread was to a different act, mea culpa. The law-and-order acts stack up over time.)
posted by holgate at 8:41 PM on November 17, 2013
posted by holgate at 8:41 PM on November 17, 2013
Englishman here, living in Scotland, not a lawyer. The difference between offering a poor alibi upfront and revealing the same alibi for the first time in court seems to me to be a matter of explicit non-cooperation with a police investigation, presumably to give yourself time to fabricate an excuse or allow time for others to tidy away evidence. Afer all, if you rely on it court it is likely to be questioned anyway so the caution is merely making this explicit.
Somewhat related to this discussion, in the sense that "you should have known this from the outset": Scots law has the notion of a special defence which, if accepted, will establish innocence but which must be lodged ahead of the trial. So it seems to me that in this regard Scots and English law are very similar in practice (which will raise Scottish hackles, but as I say, not a lawyer).
posted by epo at 12:13 AM on November 18, 2013
Somewhat related to this discussion, in the sense that "you should have known this from the outset": Scots law has the notion of a special defence which, if accepted, will establish innocence but which must be lodged ahead of the trial. So it seems to me that in this regard Scots and English law are very similar in practice (which will raise Scottish hackles, but as I say, not a lawyer).
posted by epo at 12:13 AM on November 18, 2013
Some additional points worth noting:
1) According to law, the "right to remain silent" is considered to be implicitly part of Article 6.1 of the ECHR (Right to a fair trial).
2) You are entitled to walk away from the police if they ask you to "stop and account" - though the police rely on people not knowing this a lot.
3) When you are questioned by police you have a right to legal advice, if you exercise that right, then the police cannot question you until you have seen a lawyer and your lawyer is present.
4) Under certain, draconian situations - most notably Schedule 7 Anti-terrorism questioning and Regulation of Investigatory Powers Act key disclosure laws you might have to respond to the police or disclose information. This is because these are awful illiberal laws.
posted by Another Fine Product From The Nonsense Factory at 2:07 AM on November 18, 2013
1) According to law, the "right to remain silent" is considered to be implicitly part of Article 6.1 of the ECHR (Right to a fair trial).
2) You are entitled to walk away from the police if they ask you to "stop and account" - though the police rely on people not knowing this a lot.
3) When you are questioned by police you have a right to legal advice, if you exercise that right, then the police cannot question you until you have seen a lawyer and your lawyer is present.
4) Under certain, draconian situations - most notably Schedule 7 Anti-terrorism questioning and Regulation of Investigatory Powers Act key disclosure laws you might have to respond to the police or disclose information. This is because these are awful illiberal laws.
posted by Another Fine Product From The Nonsense Factory at 2:07 AM on November 18, 2013
To partially address the last part of your question, the warning in England & Wales is different from the warning in Scotland. The E&W version gives a qualified right to silence while Scotland's is unqualified.
posted by biffa at 2:19 AM on November 18, 2013
posted by biffa at 2:19 AM on November 18, 2013
As an aside connected to this question, choosing to remain silent in the United States, under oath in a civil proceeding can lead to an inference of guilt. So this protection doesn't extend to the entirety of the US legal system, either.
posted by Atreides at 1:54 PM on November 18, 2013
posted by Atreides at 1:54 PM on November 18, 2013
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posted by zamboni at 6:49 PM on November 17, 2013