Have You Been Offensive Lately?

Most of us might answer that question subjectively by saying “of course not”. About 95% of us usually lead mundane and inoffensive lives, the other 5% of us are likely to come into contact with Police. That contact can be a frightening and an unnerving experience.

On some occasions a Police Officer may wish to speak to a person about a traffic offence. Usually, the best way to deal with that is to remain calm, wait for the Police Officer to advise you as to why you were stopped. The Police Officer will usually ask you to produce your driver licence. In that event you must do so if you have it with you. It is always a good idea to have your driver licence on your person on each occasion that you drive.

The Police Powers and Responsibilities Act, being the Act which provides the Police with powers to carry out their duties, provides that; A Police Officer may require a person to state the persons correct name and address in prescribed circumstances.
One of those prescribed circumstances occurs when a Police Officers finds the person to be committing an offence. Failure to provide the correct name and address can result in being charged with an offence, which would normally be an offence of failing to comply with a lawful direction (request) made by the Police Officer.

Generally speaking it is also necessary to provide Police with your correct date of birth, and driver licence details.

This information enables the Police Officer to identify the person correctly, and/or to consider whether that person has committed an age related offence. Apart from providing this information to Police, the citizen can otherwise refuse to answer Police questions. The Common Law (unwritten law of the land) is that a citizen is not obliged to answer any question which may incriminate that citizen. In addition, our law provides that if Police are investigating a person in relation to a more serious charge (an Indictable offence – that is an offence for which the person must be tried by Judge and Jury) then the Police must caution a person prior to the commencement of any questioning of the person. The caution usually takes the form of advising the person that he or she has a right to remain silent, and that anything that they may say may then be used against them in evidence in a Court of Law.

No doubt we have all seen this type of caution when we have been watching movies or television programs.

It would be advisable for any person, in such circumstances, to exercise their right not to take part in any interview with Police, or to answer any questions from Police, until they have sought legal advice. The reason for a person to exercise this right is fairly simple and basic. It is basic because our law provides that every person is innocent until proven guilty. It is simple because all that the citizen has to do, to protect his or her rights, is to say to the Police Officer, that he or she does not wish to answer any questions, and the person then answers “no comment” to each and every question asked by Police, except for providing their name, address, date of birth and driver licence details. It is possible that if a person does not answer questions, the Police could detain that person and take the person to the Police Station.

The Police have power to detain any persons for a period of up to eight (8) hours, usually in four (4) hourly blocks of time. Some citizens become very agitated and concerned about being detained. In fact, they become so agitated and concerned that they are immediately willing to speak to the Police in the hope that the Police will not lock them up. This Author would describe this as simply acting upon a fear of the unknown. The real situation, in relation to detention, is that the Police can detain a person, but they still cannot force a person to answer questions. The Police can only detain a person for a limited period of time, eight (8) hours. At the end of that period of detention the Police must either release the person or charge the person with an offence.

The fact is that being detained by Police, without charge, is unlikely to cause any citizen any physical harm. The “bad old days” (depicted in many old time movies from the 1930’s) of Police “beating out a confession” from a suspect, are finished. Police detention means that the person would be sitting in a cell in the Watch House for most of that time. At some stage Police Officers may visit that person and ask whether they are willing to take part in any interview. If the person does take part in the interview then of course the Police will have achieved a result from the detention. If the person does not take part in a Record of Interview then they will either be released, or charged with an offence. If the person is charged then it is clear that the Police always did have sufficient evidence to at least charge the person. The hope of the Police, by detaining the person, is to obtain admissions from the person (effectively a confession), which would then make it much easier for the Police to prove the case against the person.

An admission can be very useful as Police may otherwise have a case, based on circumstantial evidence, against a person. Without the admission, the Police may not have sufficient evidence to actually get a conviction against the person, or even to charge a person.

Upon reading this article you may form the view that it is your civic duty to co-operate with the Police, and answer all questions, whether guilty or not. If you do have that fixed view then the Author of this article is not attempting to persuade you to change your views, or principles.

However, the law is there to protect all citizens. Therefore, if in doubt as to your rights, or if in doubt as to whether you have committed an offence, or whether you should admit an offence, this Author recommends that you ascertain your legal rights before answering questions about anything other than your name, date of birth and address, and driver licence details.

Finally, the writer would like to share with you the experience of one famous criminal lawyer, who rarely lost a case. When asked why he had lost a particular case he replied “well, the Prosecution relied upon the old legal maxim of expurgato intestano” when asked what that meant, he replied “he
spilled his guts!”.