Under
Arrest?
We all know
and recognise the famous “caution”
-
“Joe Bloggs,
you are being arrested for the murder of Jack Black. You do not
have to say anything, but anything you do say may be taken down
and used in evidence against
you.”
You’d think,
then, that anyone who has been arrested would know they had
been arrested, and would have the right not to answer any
questions until they have a solicitor
present.
Well, if the
caution was delivered exactly as it’s shown here, that would be
the case. But there are two significant problems with
this.
Firstly,
it’s rarely delivered as clearly, or as obviously. Often the
caution is hidden within a whole bunch of “information” fired
at the “suspect” (who probably has no idea he is a suspect) by
the arresting officer or officers.
Secondly, many people who are
taken into a police station for questioning “under caution”
have not actually been
arrested.
In Scotland,
there are two circumstances in which a person will be
cautioned, held and questioned without actually having been
arrested.
The first is
as a “Voluntary Attender.” Most people believe, at this stage,
they are witnesses, helping the police with their enquiries.
What they do not understand is that they are already a suspect,
and anything they say may be used against
them.
Consider the
following, from a real life case:
The police officer first explains
why they are in the police station, saying they need more
information about the deceased from her “immediate friends” and
a clearer understanding of the witness’s “observations at that
time.” It’s all very innocuous, with no hint that the “witness”
is in any way “under suspicion.” The officer then asks the
witness to complete and sign a declaration of “Voluntary
Attendance” which says “I agree to remain with police for
interview regarding……” and then “I understand I may terminate
this interview at any time.”
This might
seem self evident - once there’s nothing more you can tell the
police, the interview will naturally come to an end…. won’t it?
But then, after all this softly, softly introduction, and after
the form is signed, the officer states, “OK, in fairness… it’s
a procedural thing… I have to caution you that you’re not bound
to answer any of these questions we put to you today, but if
you do, your answers will be recorded, may be noted, and may be
used in evidence.”
Helping the
police with their enquiries as a witness, you may believe the
fact that it’s just a “procedural thing” because the officer
didn’t say “may be used in evidence against you.” There would
be no point in obtaining information if it wasn’t going to be
used in evidence - it’s the omission of the critical words
“against you” that keeps the person believing he only a
witness.
Weeks later
comes “Detention under Section 14.” Here the “witness” is told
he is being detained for questioning. He is told “OK,
you’re going to be asked questions about the murder of X,
you’re not bound to answer these but if you do, your answers
will be recorded and may be used in evidence.” Once again, the
words “against you” are omitted. This time, though, he is not
free to terminate the interview - he must stay with the police
for the full duration allowed by Section 14, after which the
police must either arrest him, or set him free. But this is not
explained to him by the police. He is still not told he is a
suspect, and worse, he is not entitled to have a solicitor
present, either as a Voluntary Attender or under Section
14.
He asks if
he has been arrested and is told “No.” He asks if he is being
accused of the murder and is told
“No.”
Put yourself
in that position. You haven’t been arrested, you haven’t heard
the proper version of “the caution,” you’re not being accused
of anything and you haven’t been told that your answers may be
used in evidence against you. What would you think had happened
to you?
If you ever
find yourself in a police station, helping police with their
enquiries and are told that your evidence may be used “in
evidence,” beware. Your witness status has just turned to
suspect status, and you won’t even know
it.
by Sandra Lean - July
2008
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