Should I answer questions in police interview?

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Created on May 15, 2017

Should I answer questions in police interview?

You hear it often enough: If you have nothing to hide then you have nothing to fear. With a slight modification you can apply this to interviews: If you have nothing to hide, there’s no reason to refuse to answer questions.

Might going “No Comment” be the best option?

There are any number of reasons why this lazy analysis may be wrong. People refuse to answer questions in interview for perfectly understandable reasons. Some are frightened of their co-accused or even their accusers. Some are embarrassed by behaviour unconnected with the offence. Others are worried about blaming someone else or are simply too overwrought to give a good account of themselves. It is not uncommon for events to be so complex that it is difficult to recall events with clarity.

It remains true however that a proportion of those giving ‘no comment’ interviews are doing so in order not to make a bad situation worse. Advice in the police station can be wide in its scope but frequently the key question will be whether to answer questions.

The importance of good quality legal advice

Those representing people in the police station need to be familiar with the law and alert to the weaknesses in their client’s case. Where the client has a perfectly decent explanation for the allegation but the advice is nevertheless to refuse to answer questions then it is important to take a good note of the client’s instructions. This can be deployed later to prevent any suggestion of recent fabrication.

Take, for example, a client who claims that he was not involved in an assault but does not wish to blame his brother for the attack. He should be advised of the potential dangers of this course but a full note should also be taken of his account. This may prove useful at trial.

Client’s do not always tell their lawyers the truth or, at least, not the whole truth. Police station advisors should be alive to this and a skilled practitioner can test their clients’ cases without making them feel they are not believed. Occasionally a skilled lawyer will sense that a client is holding something back to protect someone else or is perhaps simply incapable, either for medical or educational reasons, to adequately explain themselves. Here, a judgement has to be made about whether answering questions would cause more harm than good.

Consequences at trial – the “adverse inference”

At trial, the jury will be given a specific direction if the defendant has refused to answer questions in interview. The law allows the jury to weigh a defendant’s refusal to answer questions in interview into the balance when considering his guilt. However, the direction introduces certain safeguards to ensure that such an inference is fair and does not weight too heavily in consideration of the case. The direction will often follow the following form:

A.  The defendant was interviewed by the police under caution.  The interview was tape-recorded.  The words of the caution are: ‘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’.

B.  The defendant answered ‘no comment’ to all questions put to him and when he was cautioned, he was told that he was not obliged to say anything.  The defendant was entitled to remain silent and to decline to answer questions.  But he was also told that it might harm his defence if he failed to mention facts on which he later relied in court.

C.  The prosecution say that the defendant failed to mention during the interview claimed facts on which he now relies.

D.  The prosecution say that if there were any truth in that at all, he would have mentioned those facts when given the opportunity to do so in interview shortly after the event; and that because of his failure to do so, you should draw the conclusion that the claimed facts are simply untrue. Before you may draw that conclusion, you must consider several important matters.

E.  Firstly, even if you do draw such a conclusion, you may not convict the defendant wholly or mainly on the strength of that conclusion.  It is a factor you can take into account in evaluating his evidence and in deciding where the truth lies, but you cannot convict him because he failed to mention the facts in his interview.

F.  Secondly, before you may draw that conclusion:

you must be satisfied that the defendant now relies on the facts he failed to mention;

you must be satisfied that it would have been reasonable to expect him to mention the facts at the time of the interview;

you must be satisfied that the only sensible explanation for his failure to do so is that he had nothing to say that he felt would stand up to questioning by the officers or further investigation;

you must be satisfied that, leaving aside his failure to mention the facts, the prosecution’s case against him is strong enough to call for some response; and

you must be satisfied, having regard to all the circumstances, that it would be fair and reasonable to draw the conclusion for which the prosecution asks.

G.  You must consider the defendant’s explanation.

Sometimes, the defendant will rely on the fact that his/her solicitor advised that a ‘no comment’ interview was appropriate. In these circumstances the Judge would give the following additional direction.

E.  ‘The defendant has given evidence that he did not answer questions on the basis of advice given him by his solicitor, who was present during the interview.  If you accept that he did receive such advice, this is an important consideration.  But it does not automatically mean that you cannot draw an adverse conclusion against the defendant.  Bear in mind that a person who receives legal advice is not obliged to follow it.  Bear in mind also it is the defendant’s interview, and it is the defendant who was cautioned that his defence that may be harmed by his failure to mention facts, not the solicitor’s. If you conclude that he had an answer he could have given, but genuinely and reasonably relied on the solicitor’s advice in not answering, you may agree that it would be wrong to hold that against him.  On the other hand, if you think that he had no answer, or none that would stand up to questioning, and was using the solicitor as a convenient shield, then you may find it fair and reasonable to draw the conclusion.’

The general rule is relatively simple: “will I be making things worse if I answer questions?” However, as you can see, the law is not straightforward and the judgement required to get it right comes with experience. You would always be wise to get the best professional advice you can find.

If you have been asked to attend for a police interview or if you have already been interviewed and want to consider your options moving forward, contact Old Bailey Solicitors by clicking here.

Camilla Rents

Camilla Rents

Camilla has specialised in criminal defence work since 2010 and has particular experience in cases involving sexual offences, serious violent offences (including murder) and money laundering and fraud.

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