A significant number of people find the Police caution used in England and Wales hard to fully understand. Further to this, there are also potential consequences of giving a 'full no comment interview' in Police custody that many people struggle to comprehend.
I have previously worked as an Appropriate Adult supporting young people and vulnerable adults in Police Custody; trained people to undertake the role; and also delivered training to staff in the wider Criminal Justice System alongside people with learning differences and autism who have first-hand experience of being interviewed by the Police.
These experiences have given me insight into some of the problems with the timing, wording and subsequent understanding of the Police Caution that is read out to suspects at the time of their arrest and again before they are interviewed in police custody (interviewed ‘under caution’ as they would say on the news).
The current caution used in England and Wales* comprises three main parts, and is:
“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.”
This second sentence is important here, and was introduced in 1995 when the caution was amended. Prior to this the caution was "You do not have to say anything. Anything you do say may be given in evidence”. The addition of the second part allows judges, juries and magistrates to take an ‘adverse inference’ if someone provides answers to a question in court that they did not give when offered the opportunity in Police custody - the adverse inference being that they have made it up in the interim and are lying.
*The Scottish Caution can be read here, and does not include an adverse inference clause.
When the new wording was introduced, the Home Secretary at the time, Michael Howard said "It is designed to ensure that people questioned by the police understand the possible consequences if they answer questions or stay silent."
Whether this is truly the case is the subject of this post.
The Role of the Appropriate Adult
According to the Home Office and Police and Criminal Evidence Act 1984 (PACE) Codes of Practice, which covers the provision of Appropriate Adults in England and Wales:
The role of the Appropriate Adult is to safeguard the rights, entitlements and welfare of juveniles and vulnerable persons to whom the provisions of this and any other Code of Practice apply. For this reason, the Appropriate Adult is expected, amongst other things, to:
- support, advise and assist them when … they are given or asked to provide information or participate in any procedure;
- observe whether the police are acting properly and fairly to respect their rights and entitlements, and inform an officer of the rank of inspector or above if they consider that they are not;
- assist them to communicate with the police whilst respecting their right to say nothing unless they want to as set out in the terms of the caution;help them to understand their rights and ensure that those rights are protected and respected
An Appropriate Adult is not simply an observer. Their role is to assist the detainee to ensure that they understand what is happening at the police station during the interview and investigative stages. In particular they should:
- ensure that the detainee understands the caution that is given by the police at the start of the interview (according to the PACE Codes of Practice, “If it appears a person does not understand the caution, the person giving it should explain it in their own words”)
- ensure that the detainee understands the nature of the crime that they are charged with
Appropriate Adults are not there to provide the detainee with legal advice.
Issue 1 - The First Use of the Caution
As stated in PACE, if the detainees was initially cautioned in the absence of the Appropriate Adult, the caution must be repeated in the appropriate adult's presence. By the time that an Appropriate Adult arrives, the detainee will almost always have already been cautioned at least once – at the time of this arrest – and probably also when they first arrived in Police custody and were spoken to by the Custody Sergeant at the custody desk, who will been the one deciding that an Appropriate Adult was required.
My first issue with this is that many people requiring Appropriate Adult support will also require support in having the caution explained to them. Despite not having any support when they were cautioned at the point of arrest, anything that they did say at that point or between there and the police station (such as in the back of the police van) is still admissible in court.
Issue 2 - Understanding the Caution
My experience of working as an Appropriate Adult led me to believe that many people did not fully understand the caution. I was often required to assist the interviewing officer to explain what the caution meant to the satisfaction of the role. However, beyond this, I was never totally sure that a lot of the detainees that supported fully appreciated the potential ramifications of what they said or didn’t say, if they ended up in court (which often they were trying not to think about). To me, if someone cannot fully comprehend either the crime that they are accused of (aiding and abetting a burglary for example) or the caution, they cannot receive fair access to justice. This may be why Issue 3 arises so frequently.
Issue 3 - The No Comment Interview
For some vulnerable adults with communication difficulties it may be much easier to not respond to Police questions that to try and do so.
In my experience solicitors and legal representatives (people are not always represented by a solicitor whilst in police custody) more frequently advice clients with learning disabilities and other cognitive impairments to give a full ‘No Comment’ interview than those without a cognitive impairment. This is often to prevent themselves incriminating themselves and reduce the potential that the Police will have enough evidence to progress to trial. There may well be good grounds for doing this. I have seen detainees incriminate themselves and implicate themselves in crimes that they were involved in. I have also witnessed detainees unwittingly incriminate themselves for things that they did not do. Sometimes this occurred as a result of misunderstanding a question (as an Appropriate Adult this is the kind of thing that you can and should bring to the attention of the police interviewer and the detainees solicitor (although they may have declined to have one)), but I was not always sure that ‘going no comment’ was in a vulnerable detainees best interest. Of course, as an Appropriate Adult, giving the advice to go against legal advice would not be allowed or deemed appropriate. However, it raises the question of when it is in their best interest if staying silent could do more harm. Whilst it is the Crown Prosecution Service's responsibility to prove guilt, courts and juries can draw adverse inferences from a defendant’s failure to answer questions in a Police interview. It is not a reasonable defence within law to say that you stayed silent because of legal advice, and this is where a full understanding of the potential ramifications of staying schtum is necessary. Giving no responses to Police questions can (and does) prevent people from explaining the mitigating circumstances around the alleged offence.
In one case that I am familiar with, though not as their Appropriate Adult, a young man with a learning disability was arrested and taken into Police custody accused of aiding and abetting in a burglary. As he put it, desperate for friendship, he had fallen in with the wrong crowd. These 'friends' had asked him to wait outside a house whilst they ‘visited a friend’. Shortly afterwards a policeman tapped him on the shoulder and asked him what he was doing. He replied “waiting for some friends that have gone into that house" and pointed to a house that had just been burgled.
Having been advised to say 'no comment', he was not in a good position to explain that he didn’t really understand what ‘aiding and abetting’ was, nor that he did not know his ‘friends’ were burgling the house. To make matters worse, whilst he was in custody the Police went to his flat and found stolen goods in some bags that one of his ‘friends’ had asked him to look after whilst he ‘moved house’.
He was sent to court.
In court, a different solicitor told him that it didn’t look good with the stolen goods charge as well, and suggested that he agree to plead guilty just to the aiding and abetting charge, which he did. He narrowly avoided a custodial sentence.
About Hugh Asher
Hugh is an author, practitioner, trainer, researcher and consultant.
He keeps rare breed sheep and cows.
He also shares his house with the world’s largest puppy, called Charlie.
Although he was told from a young age that “Life isn’t fair” he has refused
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