The Criminal Caution: Can it still be relied on?

“You do not have to say anything. But it may harm your defence if you fail to mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”

Anyone questioned as a suspect of a criminal offence in England and Wales should hear and understand this caution.

The third sentence is the easy bit: the interviewer can jot down everything you say, and might quote it back to the court if you are prosecuted. This can apply during sentencing (guilty plea) or trial (not guilty plea).

The first two sentences are far trickier. Some seasoned police officers - and criminal lawyers - still do not understand them properly. The right to silence is stated, then qualified. But the context of that qualification is 'it may harm your defence if'. This indicates that harm can only occur to a person's defence if they:

(i) plead ‘not guilty’,

(ii) raise a positive defence during trial, and then

(iii) mention something within that defence that they did not mention when questioned.

Nothing is actually said here about those who either make ‘no comment’ or tell lies during interview, but then plead guilty in Court and so never raise a defence.

Judicial comment

The following are specific comments in 2019 from Crown Court judges whilst sentencing:-

“Well, the Probation Officer may feel (the defendant) is candid about his offences, and demonstrated good insight. But that does not appear to have been the case during his two police interviews in April and July 2018, when he answered ‘no comment’ to all questions… [The defendant] is an intelligent man. He knew he was not obliged to follow his lawyer’s advice. He made up his own mind to chance his arm, to wait and see what police could prove”

In a separate case:-

“I appreciate [the defendant] pleaded guilty as soon as this case got to Court, but during the investigation he lied repeatedly, twisting and turning any which way he could to try to evade responsibility. It was only in the face of overwhelming expert evidence that, I rather think, he was forced to admit these offences. I take that into account as well.”

Are these fair comments from sentencing judges, or do they effectively erode the right to silence and the burden of proof even further? Yes, both of the defendants in question knew that they were guilty during their police interviews. One of them said nothing, and the other lied. It seems some judges are becoming frustrated at having to allow full credit discounts, and then read and hear lengthy submissions about remorse, when the defendant either gave no information, or deliberately provided false information, to the police. It is also the case that, in a high proportion of Crown Court cases, the defence are looking to build arguments for a suspended sentence. Personal mitigation, beyond the arithmetical sentence discount, is key. Arguments around whether the defendant's remorse is 'genuine' are not theoretical. They are highly important.

The key questions are now:-

1) Can a refusal to tell police the truth properly limit the strength of one’s mitigation?

2) If it can, should this possibility be reflected within the warning given at the time of questioning, i.e. in the criminal caution?

To start with, if one looks over the plethora of Sentencing Guidelines which we now have, it seems that what is said during interview can indeed have either a mitigating effect, or an aggravating effect, on sentencing. This is quite separate from the sentence discount for a guilty plea. Mitigation can sometimes be gained by telling the investigator the truth from the outset. Conversely, misleading the investigators can constitute an aggravating feature.

Mitigating Effect of a Confession

Within the Sentencing Guidelines for Bladed articles/ Offensive Weapons: ‘Co-operation with the police’ is listed as a mitigating factor. Indeed, every defence lawyer worth their salt would refer the Court to their client’s candid confession to police. This is often said to be consistent with ‘genuine remorse’, which is another phrase referred to as mitigating within many Guidelines.

Indeed, the two Crown Court judges quoted above derived their doubts about ‘genuine remorse’ precisely from the defendant’s failure to make admissions during interview.

Of course, every offence guideline also bears a passage which might allow for extra credit beyond the initial discount, for providing assistance under sections 73 and 74 Serious Organised Crime and Police Act 2005. That relates to positive assistance, giving information or even giving evidence for the Crown. It is separate to, and distinct from, the point about truth or lies during interview.

Aggravating Effect of Lies

Conversely, within the Sentencing Guidelines for Fraud: ‘Blame wrongly placed on others’ is an aggravating feature. Again, this can include what was said during the defendant’s interview. For example if A is a bank clerk and an insider for a team of fraudsters, then it can be an aggravating feature if A falsely implicates her colleagues during her police interview.

Also, within the Sentencing Guidelines for both Assault and Sexual Offences, ‘Attempt to conceal or dispose of evidence’ is an aggravating feature. For example, if B claims during interview that he does not own or use a garage, then that lie could form an aggravating feature if his garage is later revealed, and damning evidence found inside it such as the weapon used, or so-called 'trophies' of B’s crimes.

Finally, within the Guidelines for Drugs offences: ‘Attempts to avoid detection' are an aggravating feature. Again, the police interview account is not excluded from this, meaning If C falsely claims that the phone number ending ‘654’ does not belong to him but belongs to D, then those lies can be treated as an aggravating feature if police are put to the trouble of proving '654' is indeed C's phone.

Possible alternative wording of the criminal caution

If we revert back to basics, and limit the criminal caution’s effect to the trial scenario, then we might have something like the following (edits in bold):

"You do not have to say anything, but it may harm your defence if you fail to mention something when questioned which you later raise in your defence during trial. Anything you do say may be given in evidence”

But perhaps a more modern approach, reflecting current Sentencing Guidelines, would be as follows:

"You do not have to say anything, but it may harm your interests if you fail to mention something when questioned which you later rely on in Court, whether during trial or during sentencing. Anything you do say may be given in evidence"

Indeed, perhaps the following might also be clarified:

"It may also aggravate any offence that you have committed if you are found to have lied about it when questioned"

There is, of course, a danger in making a sensible warning sound like an oppressive threat capable of scaring a vulnerable suspect into a false confession.

These are difficult areas, and there are no easy answers.

Overall, if the effect on sentencing from not disclosing the truth in one's interview is nil, then this ought to be made clear from the outset. In that case, then perhaps the Sentencing Guidelines should clarify that aggravating features cannot be gleaned from the defendant's interview. 

Alternatively, if the interview account (or lack of one) can actually aggravate the offence or reduce mitigation, then perhaps this risk ought to be made clear at the time of interview by way of an amended criminal caution. As it stands, is a defendant not entitled to say "Hang on minute Your Honour, no one told me my interview replies would affect my sentence. I was only told they might harm my defence in court, but I haven't raised one."

Wherever one stands on this, the current criminal caution’s warning on 'failure to disclose your account when questioned' does not properly cover the potential effects on sentencing.

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