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Changing Your Original Statement
Hi
firstly thanks for taking the time to read this and any help would be greatly appreciated.
i have recently been arrested in a situation that was out of my control
and during the interview i gave a statement.
now looking back at it i wish i said no comment due to all the online post that i have read.
the questions i have is that
1. am i able to retract my original statement and change it to no comment via my new lawyer
2. will this effect my case in the future, by this i mean will it make me look bad by me changing my statement
3. can they use my original statement as evidence against me, will the prosecution team be able to bring it up in court
any advice would be very helpful
thanks
firstly thanks for taking the time to read this and any help would be greatly appreciated.
i have recently been arrested in a situation that was out of my control
and during the interview i gave a statement.
now looking back at it i wish i said no comment due to all the online post that i have read.
the questions i have is that
1. am i able to retract my original statement and change it to no comment via my new lawyer
2. will this effect my case in the future, by this i mean will it make me look bad by me changing my statement
3. can they use my original statement as evidence against me, will the prosecution team be able to bring it up in court
any advice would be very helpful
thanks
Answers
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1. No - the statement is made and cannot be "unmade". What you can do is make a second statement contradicting what you said in the first. This will not be a "no comment" statement. You cannot make a "no comment" statement. You can be part of an interview where you reply "no comment" to quations that are put to you.
2. Possibly. It depends what form further action takes.
3. Yes, your first statement can be raised in court. Also, the difference between your two statements can be raised and you will almost certainly be asked to explain that difference.
2. Possibly. It depends what form further action takes.
3. Yes, your first statement can be raised in court. Also, the difference between your two statements can be raised and you will almost certainly be asked to explain that difference.
-- answer removed --
“…more people should say no comment from the start “
A strange approach, Peter, and not one that should be universally adopted. You probably know that the caution given before an interview now includes:
“…it may harm your defence if you do not mention, when questioned, something you later rely on in court”
When matters are put to you by the police you have the opportunity to rebut those matters. You can offer a reason why you did what is alleged (which may be a statutory defence to the allegations); you can refute the allegations entirely perhaps by means of an alibi. All sorts of things, in fact.
As an example of the possible harm to your defence “no comment” can do, take the matter of an alibi. If you are accused of a crime and fail to mention, when questioned, your alibi that is certainly your privilege. However, if you later raise the alibi in court (having not mentioned it during your interview) the prosecution may well suggest to the jury or Magistrates that this alibi was contrived after your release (i.e. you phoned up a mate and asked him to say you were elsewhere with him at the relevant time). The jury or Magistrates may well consider (as they are entitled to do) why you did not mention your alibi earlier when it could easily have been checked. It would certainly make it a lot stronger if it had been checked and found to be true before you had the opportunity to fabricate it. I have seen this happen. I have seen what might be perfectly reasonable evidence discredited because it was not mentioned at the appropriate time.
There are times when “no comment” may be appropriate, especially when answering questions which may provide the police with information or evidence they do not already have. But a blanket strategy of “no comment” can sometimes prove very costly. It looks good on the telly but is not to be recommended.
A strange approach, Peter, and not one that should be universally adopted. You probably know that the caution given before an interview now includes:
“…it may harm your defence if you do not mention, when questioned, something you later rely on in court”
When matters are put to you by the police you have the opportunity to rebut those matters. You can offer a reason why you did what is alleged (which may be a statutory defence to the allegations); you can refute the allegations entirely perhaps by means of an alibi. All sorts of things, in fact.
As an example of the possible harm to your defence “no comment” can do, take the matter of an alibi. If you are accused of a crime and fail to mention, when questioned, your alibi that is certainly your privilege. However, if you later raise the alibi in court (having not mentioned it during your interview) the prosecution may well suggest to the jury or Magistrates that this alibi was contrived after your release (i.e. you phoned up a mate and asked him to say you were elsewhere with him at the relevant time). The jury or Magistrates may well consider (as they are entitled to do) why you did not mention your alibi earlier when it could easily have been checked. It would certainly make it a lot stronger if it had been checked and found to be true before you had the opportunity to fabricate it. I have seen this happen. I have seen what might be perfectly reasonable evidence discredited because it was not mentioned at the appropriate time.
There are times when “no comment” may be appropriate, especially when answering questions which may provide the police with information or evidence they do not already have. But a blanket strategy of “no comment” can sometimes prove very costly. It looks good on the telly but is not to be recommended.
dt, yes you can request further interviews, for example to clear up ambiguity, change your version of events etc but to refuse to say anything during an interview that you requested is going to be some what difficult (and odd). The police may wish to further interview you but then its up to you what you say, if anything. A record of any interview may be used in evidence in court.
"looking back at it i wish i said no comment due to all the online post that i have read".
Just to add to the excellent post by New Judge, you've really got to know what you are doing giving a no-comment interview, get it wrong and it could cause you major problems. There are several situations where a no-comment interview is good advice such as police currently not in possession of admissible evidence or police refusing to disclose info to solicitor prior to accused being interviewed etc etc but you will need quality advice. Certain conditions allow police to use whats known as 'Special Warnings' during questioning and refusal to answer will likely result in a court drawing an inference from that...risky business, so always seek proper legal advice.
I've often heard people say to coppers with a stupid grin, "I'll just go no-comment mate", but a no-comment interview can make life a lot easier for the officers, and usually the prosecution.
Obviously, speak to your new lawyer who can advise you having assessed all the facts of this case.
"looking back at it i wish i said no comment due to all the online post that i have read".
Just to add to the excellent post by New Judge, you've really got to know what you are doing giving a no-comment interview, get it wrong and it could cause you major problems. There are several situations where a no-comment interview is good advice such as police currently not in possession of admissible evidence or police refusing to disclose info to solicitor prior to accused being interviewed etc etc but you will need quality advice. Certain conditions allow police to use whats known as 'Special Warnings' during questioning and refusal to answer will likely result in a court drawing an inference from that...risky business, so always seek proper legal advice.
I've often heard people say to coppers with a stupid grin, "I'll just go no-comment mate", but a no-comment interview can make life a lot easier for the officers, and usually the prosecution.
Obviously, speak to your new lawyer who can advise you having assessed all the facts of this case.
Some leading case law:
R v Roble [1997] CLR 449 held that legal advice to remain silent at a police interview was unlikely to provide an adequate reason for failing to explain apparently criminal conduct in the absence of any reason being given for that advice. The only evidence was that of the appellant which was unlikely to prevent the jury from drawing an adverse inference from the appellant’s silence.
Betts and Hall [2001] EWCA Crim 224 stated that, ‘A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his lawyer’s advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.’
R v Howell [2003] EWCA Crim 01 stated that, ‘There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against clear public interest in an account being given by the suspect to the police. Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind.’
R v Carl Anthony Robinson [2003] EWCA 2219 which decided that, ‘It is not enough for a defendant to say that he acted on his solicitor’s advice when making no comment. It is for a jury to consider whether the defendant could be reasonably expected to mention the facts upon which he later relied.’
R v Roble [1997] CLR 449 held that legal advice to remain silent at a police interview was unlikely to provide an adequate reason for failing to explain apparently criminal conduct in the absence of any reason being given for that advice. The only evidence was that of the appellant which was unlikely to prevent the jury from drawing an adverse inference from the appellant’s silence.
Betts and Hall [2001] EWCA Crim 224 stated that, ‘A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his lawyer’s advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.’
R v Howell [2003] EWCA Crim 01 stated that, ‘There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against clear public interest in an account being given by the suspect to the police. Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind.’
R v Carl Anthony Robinson [2003] EWCA 2219 which decided that, ‘It is not enough for a defendant to say that he acted on his solicitor’s advice when making no comment. It is for a jury to consider whether the defendant could be reasonably expected to mention the facts upon which he later relied.’
The six simple conditions that must be satisfied prior to a court drawing an adverse inference ( under section 34: CJPOA)
The alleged failure to mention a fact which they later rely on in their defence, must occur when the suspect is being questioned under caution;
The failure to mention these facts must occur before or on being charged;
The questions which were not answered were posed in an attempt to discover whether or by whom the offence had been committed;
The suspect failed to mention a fact which was later relied on in their defence;
The suspect could, in the circumstances existing at the time, reasonably have been expected to mention the facts they relied on at trial;
The provision only applies to criminal proceedings.
The alleged failure to mention a fact which they later rely on in their defence, must occur when the suspect is being questioned under caution;
The failure to mention these facts must occur before or on being charged;
The questions which were not answered were posed in an attempt to discover whether or by whom the offence had been committed;
The suspect failed to mention a fact which was later relied on in their defence;
The suspect could, in the circumstances existing at the time, reasonably have been expected to mention the facts they relied on at trial;
The provision only applies to criminal proceedings.
Yes, I don’t quite understand your approach, Peter.
Whether you like it or not the police have a duty to investigate crime. I think that’s what most people expect them to do. Part of that duty involves questioning people whom they suspect might be involved. It is not unreasonable for them to expect their questions to be answered. The change in the wording of the caution and the accompanying change to court rules where silence in an interview could attract an adverse conclusion came about because suspects were behaving in the manner I described in my example. They were refusing to answer questions when asked but later brought up evidence in court which had not been previously mentioned. Prior to the change no adverse inference could be drawn from their silence and as a result miscarriages of justice occurred in the form of people who had committed crime being acquitted. (This is just as ghastly, in my view, as innocent people being convicted).
This is not about getting people to confess to crimes they did not commit and as Orderlimit has explained, adequate legal protection is provided for people being questioned. In fact it is quite the opposite. It is about getting to the truth of crimes that people probably have committed. If I had been accused of something I had not done I would welcome the chance to put my version of events to the police at the earliest opportunity. However, if I had been accused of something I had done I might not be so keen.
Whether you like it or not the police have a duty to investigate crime. I think that’s what most people expect them to do. Part of that duty involves questioning people whom they suspect might be involved. It is not unreasonable for them to expect their questions to be answered. The change in the wording of the caution and the accompanying change to court rules where silence in an interview could attract an adverse conclusion came about because suspects were behaving in the manner I described in my example. They were refusing to answer questions when asked but later brought up evidence in court which had not been previously mentioned. Prior to the change no adverse inference could be drawn from their silence and as a result miscarriages of justice occurred in the form of people who had committed crime being acquitted. (This is just as ghastly, in my view, as innocent people being convicted).
This is not about getting people to confess to crimes they did not commit and as Orderlimit has explained, adequate legal protection is provided for people being questioned. In fact it is quite the opposite. It is about getting to the truth of crimes that people probably have committed. If I had been accused of something I had not done I would welcome the chance to put my version of events to the police at the earliest opportunity. However, if I had been accused of something I had done I might not be so keen.
Sorry to go on PP, but thought I'd share the following advice for interviewers by the National Centre for Policing Excellence:
The section 34 inference is concerned with flushing out innocence at an
early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes that he is entitled to rely on legal rights of which his solicitor had advised him. Legal entitlement is one thing. A suspect’s reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is.’
The section 34 inference is concerned with flushing out innocence at an
early stage or supporting other evidence of guilt at a later stage, not simply with whether a guilty defendant is entitled, or genuinely or reasonably believes that he is entitled to rely on legal rights of which his solicitor had advised him. Legal entitlement is one thing. A suspect’s reason for exercising it is another. His belief in his entitlement may be genuine, but it does not follow that his reason for exercising it is.’
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