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Reading 'Your Rights'

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nailit | 18:28 Fri 22nd Jan 2021 | Law
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//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//

Does anyone apart from a police officer (eg, a TV licensing Inspector) have any legal right to *Lawfully* use the above?
Thanks.

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The warning is a "PACE" (Police and Criminal Evidence Act) warning. Anyone who is conducting an interview which may result in a criminal prosecution should use it.
I have heard it used by a revenue protection officer on a train.
Question Author
Thank you NJ & Novalis.
Appreciated.
I've been given that warning by an RSPCA inspector after a neighbour reported that reported that I wasn't caring for my cat properly. (The cat was actually just very old and near to the end of his life and had been seen by a vet. The inspector left fully satisfied that I loved my cat and I was doing all I could to make his last few weeks really happy ones).

When I was working o the railways, I often heard our revenue inspection guys saying that to fare dodgers.

I've been in a shop, which had music playing, when it was visited by someone checking up on premises without PRS licences. He also formally cautioned the shop owner before proceeding further.

A pub acquaintance of mine worked as an investigator for an insurance company, looking at possible cases of fraud. He said that he always had to use that caution before questioning people about their insurance claims.

I've seen a YouTube video where an Environment Agency official, looking into a possible source of river pollution, cautioned a landowner.

I've also heard Trading Standards staff, investigating fake goods, pirated DVDs and the like, cautioning stall holders at car boot sales.

HMRC staff, looking into tax fraud, will also caution people suspected of illegality. (Indeed, HMRC staff have actually got somewhat greater powers than the police have in many respects in that, for example, they can search property without a warrant).
I don't know of any law stopping anyone from saying it. There is a law against impersonating a police officer, though.
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Cheers Chris, very informative, thanks.

//I don't know of any law stopping anyone from saying it. There is a law against impersonating a police officer, though//
Thanks jno. Kinda what I was getting at.
I was working on a traffic survey where police officers were pulling queues of drivers over to voluntarily answer our questions. At one point the officer who was meant to be stopping vehicles at the very front of the queue (where I was working) was distracted by having to answer his radio, meaning that drivers weren't legally required to stop.

When the copper had finished his call, he realised that, despite not having his services, our team had continued to be able to interview drivers as normal. He looked accusingly mat me and asked "How did you do that? YOU'RE not permitted to make drivers stop!"

I replied that anyone is entitled to ASK a driver to stop and I'd simply done so by raising my clipboard to drivers who'd entered the queue that his colleagues had directed them into. His reply was honest: "I've never thought of it like that. You're dead right. Anyone at all is entitled to ASK a driver to stop".

So using the same words or actions as a police office is definitely not the same as actually impersonating one!
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Thats Gold Chris ;-)
Is that what's called 'Mirandized' in America?
I wonder if you replied to this question; that you reserve the right to use anything that has occurred since the beginning of time.

The police would then be on notice that you reserve the right to use anything that had happened prior to them questioning you in your defence. Similarly the police are allowed to use anything that has occurred since the beginning of time in your prosecution (which seems fair to me).

In relation to the line of questioning by the police – you might not be aware of a fact (that you later became aware of) which is relevant to your defence. The police could argue that you did not disclose this to them (harming your defence), but as you have advised – you’d reserved the right to use anything in your defence – so they could not make this claim.
In the circumstances you describe, Hymie, it would be for the judge (or Magistrates) to decide whether they believed you deliberately withheld the information you failed to mention and later relied on, or whether it was genuine oversight or you concocted the information after being interviewed. Simply putting the police "on notice" that you reserve the right to rely on anything you have not already mentioned does not trump the provisions of the PACE warning.
OK, so you are interviewed by the police, who ask your whereabouts at the time of a crime that happened sometime ago; you claim you cannot remember. As a result of the evidence against you, the CPS decides to prosecute you.

Just before the trial, you find an old diary record that shows you were elsewhere at the time. Unless the judge believed this was not made up – your genuine defence will be brought into question.

Obviously there are many other similar examples that a judge would have to rule on – I doubt that a judge would give the defendant the benefit of the doubt – which is what the jury is entitled to do in finding a defendant guilty or otherwise.
You would not be prevented from presenting the diary as evidence. It would be for the jury (or Magistrates) to decide whether they believe it is genuine or whether you had fabricated it since being accused. The prosecution would be entitled to say tell tell the jury that, at your interview, you could not remember where you were at the relevant time. But the PACE warning was perfectly appropriate - it may harm your defence if you couldn't (or wouldn't) say where you were when asked because the court could decide that your recently found evidence was not genuine. The warning is not designed to prevent you changing or adding to the information you gave in interview. Whatever its purpose, it cannot simply be nullified in the way you describe.
>>> You would not be prevented from presenting the diary as evidence

Might there not be a problem with the time limit for the defence to disclose their evidence if, as Hymie suggests, the diary only comes to light just before the trial? [Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011]
Yes there might well be, Chris. I was trying to keep it simple to help Hymie understand the purpose of the PACE warning. The Crim Procedure rules you mention are to prevent "ambushes" in court. But thanks for the clarification.
Having found the diary, I can now locate other people who were present with me (at the time of the crime) – who will vouch under oath that I was there; what now?
Many years ago a friend of mine was prosecuted for drink driving - he had been attending the wedding reception of his brother. Knowing he was driving home after the reception, he only drank orange juice (that is what he claimed).

So he was surprised to fail a breathalyser test and was taken to the police station to give a blood sample. Back then you were given a vial of your blood and could have it tested yourself by an approved laboratory.

His brother, having left for his honeymoon with his new wife was not contactable. He got the test result he paid for of the blood sample, showing he was a little over the drink drive limit, despite thinking he had drank no alcohol.

When his brother returned from honeymoon, he admitted to his brother that he had spiked his drinks (with vodka), and believed that his brother was not driving after the reception.
His brother was allowed to testify in court to the above and my friend was acquitted of the charge.

I am assuming some one who finds themselves in the above position would now not be able to present the above evidence in their defence – as they were unaware of it at the time of the police interview.
//I am assuming some one who finds themselves in the above position would now not be able to present the above evidence in their defence – as they were unaware of it at the time of the police interview.//

You seem to misunderstand the purpose of the “PACE” warning, Hymie. It does not warn the suspect that he cannot mention something in court which he did not mention in interview. It says that if he does his defence may (but not necessarily will) be harmed. The Rules of Evidence and Criminal Procedure Rules (which govern how a trial is conducted) did not change with the introduction of PACE.

The case of your friend’s wedding is a perfect example of why a court may be sceptical about what they are being told. They might well think that when questioned he had no explanation for why he may have been over the limit (other than the fact that he’d drunk too much). Between then and facing a court he may have had a chance to explain the situation to his brother. There are then two possibilities: (a) his brother comes clean and explains what he did or (b) between the two of them they concoct a story to say that the brother will say he spiked his drinks and will agree to perjure himself in court. The court would have to decide which version they believe.

Your other example (finding the diary) is similarly not affected by the PACE warning. Where you are likely to come unstuck (as Buenchico kindly pointed out) is under the Criminal Procedure rules and accompanying legislation. If you intend to defend a matter in court you must have your defence prepared by the time of your trial. Trials do not occur within days. Even at the best of times the most straightforward matter takes weeks to reach trial day. Similarly convictions cannot be left “open” indefinitely “just in case” any new evidence comes to light. But once again, this has nothing to do with the PACE warning.

PACE was introduced largely to ensure the police followed correct procedures when dealing wit suspects. The introduction to PACE says it is “An Act to make further provision in relation to the powers and duties of the police, persons in police detention, criminal evidence, police discipline and complaints against the police..” Before its introduction there were no fixed rules about interviews, recording them, etc. In fact, it was largely introduced because throughout the sixties, seventies and early eighties there were numerous high profile cases of suspects being “fitted up” through the falsification of evidence, concocted admissions and so on. Perhaps the most infamous of these led to the “George Davis is Innocent” campaign in the 1970s:

https://flashbak.com/george-davis-is-innocent-the-1970s-campaign-that-proved-the-police-and-state-were-not-ok-2408/

Most of its provisions were aimed at ensuring suspects were treated consistently and fairly. The now famous warning was seen as a requirement because suspects had the right to remain silent (or provide a “No Comment” interview). But judges and magistrates were (and still are) entitled to draw adverse inferences in certain circumstances from such a course. All PACE did was to ensure that the suspect was made aware of this. Nothing else changed and your fears that the warning itself places constraints on the suspect’s defence are unfounded.
In my job i interview under the Perjury Act which means that bankrupts or directors are compelled to answer my questions, and have to answer truthfully or they could be tried for perjury. In that respect I have a wider power than the police, but my investigations are only for civil, not criminal, misconduct.

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