You Do Not Have to Say Anything

“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 say may be given in evidence.”

When you hear these words spoken to you, it means that you are being arrested by the police. The moment of arrest is a traumatic moment, and although fair warning is given, I doubt if anyone arrested has time or inclination or the presence of mind to balance whether he or she should say anything as the handcuffs are being clapped on and as the full force of the legal process starts to bring itself to bear against the accused.

The warning is about the interrogation that a suspect will inevitably receive. Many interrogations, on legal advice, lapse into a farcical series of questions each of which is answered by the words “no comment”. Interrogation is probably the most useful tool of the police when it comes to detecting crime; most criminals are convicted by their words, as much as by their actions. For a person who is falsely accused of crime the warning presents a real dilemma.

I do not accede to the theory that if a person has nothing to hide that person should answer police interrogation fully and transparently. There have been too many miscarriages of justice, often created by a determination to convict, almost no matter what the evidence in the case may be. Even an intelligent person, with legal knowledge may not always know whether he or she should answer police questions; there are reasons to answer and reasons to reply no comment.

Reasons to Answer Police Questions

  1. You may by your answers clear the matter up and persuade the police to direct their inquiries elsewhere.
  2. You will by the questions gain a good understanding of the evidence that the police have which leads them to suspect you.
  3. If the matter comes to trial a whole series of “no comment” answers looks bad and may prejudice the jury against you.

Reasons Not to Answer Police Questions

  1. The matter may be complex and you may not communicate your answers carefully enough; every misspoken phrase will be used against you.
  2. You are likely to be in a position of stress and anxiety; this is not conducive to you making the right answers
  3. You may be tempted to lie when the truth will help you more; under stress people react in ways that are frequently against their best interests.

Perhaps the best way to understand what you should do is to recall the precise warning that you have been given: you do not have to say anything; that means what it says. You have a right to remain silent, and silence is a better option than answering with a series of no comments. No answering may harm your defence, but if you have a good reason not to answer then answering will harm your defence. If you are anxious, tired or stressed or a combination of all three, then you should say so in order to explain why you are not answering. You will inevitably feel better after being refreshed with some legal advice and a good solicitor can give you advice before you answer the questions that the police will ask.

There is no obligation for an arrested person to answer questions according to the timetable of the police. You can certainly say that you will consider answering questions after you have had legal advice about it, but for now you are too tired and upset to be sure of answering questions accurately.

And in so far as anything you say may be used in evidence, you should insist that everything you say is used in evidence.

Interrogation is a skilled technique. Interrogators will try to make the person they are interrogating talk, and once that person talks then there is a great potential for miscarriages of justice. The right to silent is an important right. It is so important that if you say nothing at all, even in court, the prosecution must prove its case against you from evidence which does not come from your words. In the stress of arrest, that is often forgotten.

One Response

  1. Thanks for keeping us up to Pace, Rob, great advice.

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