We’re all familiar with the TV cliche of a police interrogation: A tight lipped suspect sat behind a table in a windowless room. A determined cop dragging a confession out of him under threat of hard time and more serious charges unless ‘he comes clean and tells them what he knows’.
For many, that is the closest they will ever come to a police interrogation. But for some who have actually been on the receiving end of police questions, such myths are not altogether dispelled. Because most people still wrongly believe that by refusing to answer police questions you will automatically be placed in the frame of guilt.
But not only are you not obliged to answer any police questions under interview, you are under no obligation to take the police interview either.
Before we explain why, let us just set the record straight of why so many people wrongly believe – including the police – that subjects who refuse to answer questions at interview run a greater risk of being convicted if they find themselves in court…
DO YOU HAVE A RIGHT NOT TO SELF INCRIMINATE?
One of the most sacred principals of our criminal justice system is that a defendant has an automatic right to the presumption of innocence. It is the job of the prosecution to prove guilt beyond a reasonable doubt, not a job for the accused to prove his innocence.
In America a defendant has a constitutional right to silence. As the Fifth Amendment of the U.S. Constitution provides, “No person shall be compelled in any criminal case to be a witness against himself.” But what about here in the UK?
Well, up until 1994, we had a similar right to silence that was preserved under common law. That all changed with the introduction of Section 34 of the Criminal Justice and Public Order Act – whereby a person’s silence or refusal to cooperate can be ruled upon as an implication that they are trying to hide something.
That rule is called Adverse Inference.
Unfortunately, the police are all too keen to suggest that adverse inference can begin to work against you the moment they start asking questions. They commonly misinterpret Section 34 to give the misleading impression that if you don’t have an answer for everything thrown at you, then you will be presumed guilty by your silence.
This is a massive over-simplification of a complex legal rule. Firstly adverse inference can only be drawn by a judge or jury at trial, not by the police at interview. Secondly, adverse inference on it’s own is not enough to convict someone. And thirdly, and most importantly, the police cannot use your refusal to answer questions during interview as a reason to prosecute you.
Simply put, adverse inference is a matter for the courts to determine. Not the police.
We deal with the legal issues surrounding adverse inference in greater detail in our Ebook ‘Right to Remain Silent’. But for now we want to examine what can happen in respect of it if you not only refuse to answer police questions, you refuse to enter the police interview room too…
DECLINING A POLICE INTERVIEW
Once you are brought to a police station, you will most likely be held in custody while the arresting officer arranges an interview room. You will then be instructed to follow the officer to be interviewed. It’s at this point you can decline. Something that happens very rarely in modern police stations and when it does it nearly always takes the police by surprise. In fact, most officers are so used to detainees doing exactly what they are told, they have no idea what to do when they refuse to comply.
Before the Police and Criminal Evidence Act (PACE) was introduced in 1984, if you declined to be interviewed it was likely you would be dragged kicking and screaming into the room. But PACE Codes C & E set out very clear procedures that must be followed by the police in relation to a detainee’s right to refuse an interview; meaning that the police cannot use force to get you to talk.
PACE Code E 3.4 (CODE OF PRACTICE ON AUDIO RECORDING INTERVIEWS WITH SUSPECTS ): If a person refuses to go into or remain in a suitable interview room, see Code C paragraph 12.5, and the custody officer considers, on reasonable grounds, that the interview should not be delayed the interview may, at the custody officer’s discretion, be conducted in a cell using portable recording equipment or, if none is available, recorded in writing as in Code C, section 11. The reasons for this shall be recorded.
PACE Code C 12.5 (REVISED CODE OF PRACTICE FOR THE DETENTION, TREATMENT AND QUESTIONING
OF PERSONS BY POLICE OFFICERS): 12.5 A suspect whose detention without charge has been authorised under PACE because the detention is necessary for an interview to obtain evidence of the offence for which they have been arrested may choose not to answer questions but police do not require the suspect’s consent or agreement to interview them for this purpose. If a suspect takes steps to prevent themselves being questioned or further questioned, e.g. by refusing to leave their cell to go to a suitable interview room or by trying to leave the interview room, they shall be advised their consent or agreement to interview is not required. The suspect shall be cautioned as in section 10, and informed if they fail or refuse to co-operate, the interview may take place in the cell and that their failure or refusal to co-operate may be given in evidence. The suspect shall then be invited to co-operate and go into the interview room.
Effectively if you refuse to go into the interview room, then the police must bring the interview room to you. And although as Code C points out the police do not need your consent to ask questions, you are under no obligation to reply.
A refusal to leave the confines of a cell usually means the police having to dig around in some ancient storage cupboard looking for a mobile cassette player. Then maybe having to flog halfway across town for a set of fresh batteries. In some cases however it means the police simply abandon the interview altogether, in the hope that when it gets to court the judge will instruct the jury to draw an adverse inference from the interviewees unwillingness to talk.
But as the police discovered in R v HIND (2005) if they never ask you any questions then the rule of adverse inference cannot be applied:
REGINA v HIND
R v Hind was an appeal case that centred upon a detainee – Jodie Hind – refusing to leave his police holding cell and be interviewed. As the police were unable (or unwilling) to bring a tape recorder to the cell, the detainee was charged without interview. At trial the judge instructed the jury to draw an ‘adverse inference’ as re section 34 of the Criminal Justice and Public Order Act from the fact that Hind had refused to be interviewed. Hind was found guilty and convicted.
Hind appealed his conviction. As the police had never technically asked him any questions, it was put, no adverse inference could be drawn from his silence, even though Hind had failed to account for actions, facts, evidence and objects that related to his arrest to the police and then testified in his defence at court.
Hind won his appeal and his conviction was quashed.
The court was of the view that a detainee’s right to silence is enshrined within the words of the police caution. Particularly two words of that caution:
“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.”
The Judge ruled that adverse inference could only apply if you failed to answer questions put to you by the police. If they don’t ask those questions then technically you haven’t failed to answer. Furthermore questioning is qualified as meaning after arrest (and arguably after you have been given the opportunity to have legal representation). Prior to arrest your silence CANNOT be used against you.
So regardless of what the police would have you believe, your refusal to answer questions under caution cannot of itself be used as a reason to prosecute you. And adverse inference is for a court to decide, not for the Police or the CPS to base their decision upon whether to prosecute or not. Without supporting evidence you cannot be prosecuted by your words alone.
If the police have no evidence and are relying on you to incriminate yourself during interview, then your silence is paramount.