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If you are arrested in the UK, you'll hear that your rights include a rider inserted by the 1994 Criminal Justice and Public Order Act, after "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.

In common with, I think, many British laymen, I have never understood the justification for this change, and have only ever seen it as vaguely threatening and a non-specific erosion of civil liberties. At the same time, I'm not really sure what specific sort of abuse I have to fear from it.

Can anyone provide me with understandable, concrete examples of

  1. Why (if at all) I should be thankful that this clause exists? i.e., What kind of criminal act might a criminal get away with if this rider weren't there?

  2. What I have to fear? i.e., (a) What's the worst that might happen to a distrusting but innocent person who is wrongfully arrested and decides to say nothing? (b) How might the negative consequences have been avoided by saying something? (c) What additional risks are entailed in opening one's mouth in this situation, and how can they be minimized?

EDIT: having read Nate's interpretation and Dawn's comments, I can re-frame the question more specifically. Either A: there was a simultaneous change in the way a suspect's silence could be used or interpreted in an English/Welsh court (away from the US model in which prosecutors cannot even draw attention to it), and the change in wording reflects this erosion of civil liberties; or B: both before and after the Criminal Justice Act, silence could always harm your defense, and the change in wording is an entirely benevolent attempt to warn people of this fact. Can anyone tell me which is the case?

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jez
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    It looks like A is the case. If you read the text of the 1994 Act, it does in fact make changes in the way that inferences are allowed to be drawn from silence. See sections 34-37. My answer may not really be on point, then. – Nate Eldredge Feb 13 '16 at 17:38
  • This video is probably the best one explaining why you should never talk to the police (for America, but if the UK has a similar "right to remain slient", I think the general spirit carries over) https://www.youtube.com/watch?v=d-7o9xYp7eE . The tl;dr is that if you say something contradictory with ANYONE else's account (even if you didn't commit the crime) then you are now an extra suspicious person. – DeepDeadpool Feb 18 '18 at 20:23
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    @DeepDeadpool : Except that the UK's "right to remain silent" is extremely limited. – Martin Bonner supports Monica Mar 12 '18 at 12:55

2 Answers2

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I'm no expert, but I had assumed this clause was present in case of the following situation.

Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother.

On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi."

So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial.

The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this.

Nate Eldredge
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    Interesting. That is opposite to how the law works in the US. The prosecution cannot make negative inferences from a defendants silence if the defendant explicitly exercises their 5th Amendment right. From Salinas v. Texas: "...due process prohibits prosecutors from pointing to the fact that a defendant was silent...". –  Feb 10 '16 at 16:23
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    That's right, and I must say I do find it ominous, and threatening, that silence can ever be "interpreted". – jez Feb 10 '16 at 16:27
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    @Dawn: But even if the prosecution can't make those inferences, it's not so easy to prevent the jury from making those inferences on its own. – Nate Eldredge Feb 10 '16 at 16:31
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    @jez Even in the US, negative inferences can be drawn from silence if the conversation with police is happening in a non-custodial, non-interrogation setting (that was the issue in Salinas v. Texas). The defendant voluntarily reported a crime to police, they asked a question that would have revealed his involvement, which he declined to answer, and then he proceeded to answer other questions. He was free to leave at any time. That silence is able to be used against the defendant. –  Feb 10 '16 at 16:31
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    @NateEldredge The prosecution can't even mention the silence. If mentioned, the jury is instructed to not take it into account. And, regardless what actually goes on in a juror's head, the explicit, statutory difference between what is allowed in the UK vs the US surprises me in this case. –  Feb 10 '16 at 16:32
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    @Dawn thanks; I see that interpreting selective silence, as in your example, might make some sense. I'm just rather alarmed at the idea that a blanket "i know that if I speak a prosecution lawyer might twist my every turn of phrase in ways I can't even anticipate" silence could also harm one's defense. – jez Feb 10 '16 at 16:37
  • Any thoughts on the possibilities for abuse opened up by this clause, by unscrupulous investigators/prosecutors? – jez Feb 10 '16 at 16:48
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    You make it sound like it's to help the defendant, but I don't think that's true. In the past the judge would simply have instructed the jury that they should not infer anything from his silence, as he has a right not to say anything to the police and it doesn't imply anything. – user Aug 18 '17 at 10:36
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    Just to point out something very important -- you should never, ever give the police an alibi in circumstances like that. It can get you wrongfully convicted. There are better ways to use an alibi than that. As just one way this can go horribly wrong (and did!) imagine if a friend of yours was quite confident he saw you near the scene of the crime, but of course, was mistaken. Now your whole trial will be about "Why would an innocent person lie about his whereabouts?". It is absolute foolishness to disclose an alibi to police under those circumstances! – David Schwartz Nov 10 '17 at 10:31
  • It's worth noting that the use of this clause only applies to formal "interviews under caution" In any other setting, you have an absolute right to not answer questions. Also, the police are restricted on what they can say in an interview (no lies, trick questions, or threats). – rhellen Jan 24 '24 at 10:29
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Your point A is exactly right. The 1994 Act allowed the prosecution to draw attention to the fact that you refused to say "but I was with Jack the Knife all the time" at the time you were initially questioned.

Prior to that, the prosecution could not mention that a question was asked which you did not answer.

This was, in my view, a serious erosion of civil liberties, and I decided at the time that I would refuse to answer any questions under caution as a protest. (I have never, before or since, been questioned under caution).

Martin Bonner supports Monica
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