MARLON BRANDO never said: “I’m going to make you an offer you can’t understand”, but if he’d been representing someone in a mainland police station he might as well have done.

The police in Britain are bound to administer a caution to anyone who has been detained and is about to be interviewed. In the good old days it ran similar to: “You do not have to say anything but anything you do say will be taken down and may be given in evidence.” Cynics who disapproved of the position before the rights of a suspect in police stations were fortified by the Police and Criminal Evidence Act 1984 claimed that it was adjusted by the last part reading, “. . . will be taken down, changed, and used in evidence against you”. Even if that was so — and I’m not contending that it was — you knew where you were.

The “new” caution — it has been with us for more than ten years — reads: “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.”

Only a fool would fail to understand a paragraph containing just 37 words . . . but pause a moment to reflect on the true position in a police station and things become radically different. You have just been arrested for taking part in a fight in a street and the offence is affray or assault occasioning actual bodily harm. You were taken from the scene at 2.30am and arrived at the station half an hour later, put in a cell after your possessions and your belt and laces were taken from you. You don’t need a solicitor as you have “nothing to hide”. The officer rattles the caution off in about eight seconds. He asks you if you understand. You are an average, intelligent individual: of course you understand. You say you do. You answer his questions. You finish the taped interview and don’t ask for a copy.

Six months later you find yourself in court answering questions in cross-examination. Why didn’t you say that you weren’t the only Count Dracula at the fancy dress party? Who stopped you explaining that your right arm had only just come out of a sling (as you now say your GP could verify), that you are right-handed and could barely lift your arm, let alone thump anyone with your right fist? You’ve made it all up, haven’t you, in the interim?

There is no duty on an officer to: (a) explain the different parts of the caution; (b) ask the suspect to explain it to the officer so that he can assess if he really does understand it; (c) give him a typed copy with a simple explanation written underneath or; (d) do any more than tell a court some months later that it was his belief at the time that the suspect understood it and, after all, he — at least — has heard it many, many times before.

The police station is an alien environment. Many people have never been in one. They’ve never been arrested. They don’t appreciate that if they give an account but don’t refer to something that they use in court some time later a court could draw an adverse inference (ie, that they had no answer at the time or one that could withstand examination) and infer that they are liars or, simply, guilty. Day in, day out, courts run by case-hardened judges and magistrates go through the process of stating that people understood the caution. They refuse to remove seemingly incriminating interviews based on the contention that an individual did not understand the caution. When a juvenile or a person who appears mentally disadvantaged is involved, an “appropriate adult” is also asked to attend. That person may not understand the caution either, or his power to intervene and may simply bolster the courts later giving weight to the assertion that everyone understood because no one said that they didn’t.

One format of the caution that some police officers have reads: “You have the right not to say anything if you do not want to. Anything you do say can be given in evidence. This means if you go to court the court may be told what you have said. If there is something you do not tell us now, when we ask you questions, and later you decide to tell the court, then the court may be less willing to believe you.”

Some officers make considerable effort to satisfy themselves that the suspect understood the caution. Many do not. Current “safeguards” are mere lip service to the continuing need to boost convictions. Who better than the Lord Chief Justice, then Lord Woolf, to identify the appropriate principle at stake in a criminal trial when he said this in one case in 2003: “. . . at the heart of our criminal justice system is the principle that while it is important that justice is done to the prosecution and that justice is done to the victim, in the final analysis it is even more important that an injustice is not done to a defendant. It is central to the way that we administer justice in this country that although it may mean that some guilty people go unpunished it is more important that the innocent are not wrongly convicted.”

The author is a barrister at 37 Square Park Chambers, Leeds

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