Your rights when being questioned by Police
Following our previous article “Your rights regarding police questioning and interviews” we’ll now look further into your rights when being questioned by police.
It is important to appreciate that anything you say to the police is potentially admissible in evidence against you in the event you are charged with a criminal offence.
This is the case whether you are questioned by police after being arrested and advised of your rights (formal questioning) or questioning when the police first approach you and speak with you (informal questioning). Special care should be taken by you in informal questioning situations if you are not fluent in English.
Generally speaking, you have a right to remain silent whether the police are questioning you informally or formally. It is the role of the prosecution (the government) to prove that an accused person is guilty and not for an accused person to prove their innocence. Consequently, it is a basic common law right that any accused person has the right to silence. If the matter about which the police question you ever gets before a court, no adverse inference can be drawn from you exercising your right to silence.
I say “generally speaking” you have a right to remain silent because there are some circumstances where you are obliged to answer certain questions which the police may ask you. Some examples of those circumstances are given later in this article. However, you still have a right to remain silent for any other questions which you are not obliged to answer. Exercising the right to remain silent can therefore be difficult for the ordinary person because questioning by police almost always commences with questions that you are obliged to answer such as asking for your name and address, asking you to produce your driver’s licence and to give details of the owner of the motor vehicle. Having being obliged to answer some questions, people often make the mistake of believing that they have to continue to answer all other questions in circumstances where they are not obliged to answer them. When being questioned by the police you should make a firm decision either to answer their further questions or not.
You should also exercise your right to obtain legal advice if you are detained by police or if you are arrested. You should listen to the advice of the lawyer that the police will arrange for you.
If you choose not to answer further questions, then it’s generally recommended by lawyers that you maintain that position throughout any questioning from the police.
You might consider saying at the outset, for example, “I do not wish to answer any questions (or any further questions) at all”. If you received advice from a lawyer, it’s perfectly legitimate for you to say “on the advice of my lawyer, I do not wish to answer any questions (any further questions) at all”.
If the police persist with questioning you should continue to repeat this phrase over and over again, I guarantee they will soon stop asking you questions if you do this.
It is generally ill-advised to answer some questions but not answer others as this may later be interpreted as an admission of guilt about the questions that you didn’t answer.
Circumstances where you are obliged to answer questions
There are circumstances where you are obliged to answer questions which the police ask you and I’ll deal with the most common ones.
- You are obliged to give your name and address where a police officer reasonably suspects you’ve committed an offence.
- You obliged to give your name and address if you are the driver of a motor vehicle and in addition, to give the name and address of the owner of the motor vehicle.
- You would be obliged to provide some kind of proof of your age if, for example, you were on premises that were limited to persons who were adults.
- You would be obliged to provide your name and address and your firearms licence in relation to any kind of firearms offending.
- You are required to provide your name and address and licence in relation to any kind of offences associated with boating.
There are other circumstances under legislative provisions where you are obliged to provide your name and address and a relevant licence or authority if you hold one, for example, tobacco retailers. Providing you with an exhaustive list would be a very big undertaking and well beyond the scope of this article, though if you do some research you should be able to locate the details.
Recording of police interviews
When the police formally interview you, a record is made of their questions and your answers. This is known as a ‘Record of Interview’. Records of interview by the police are required to be recorded either by audio or by audiovisual means. The Summary Offences Act 1953 (SA) provides that if it is reasonably practicable the police must make an audiovisual record of the interview, failing which they must make an audio recording of the interview.
If there is no audio or audiovisual recording device available, they can make a handwritten record of the interview. You can refuse to allow the interview to be electronically recorded in which case the police will make a handwritten record of the interview. It’s typically recommended that you consent to audio or audiovisual recording as this gives you a better chance of anything you do say being accurately recorded.
However, when an interview is either handwritten or typed you will be invited to read it and if you wish, to also sign that written recorded interview. You can choose, if you wish, to lawfully decline to sign that written record of interview because this is consistent with your right to silence.
Look out for our next article on this topic will cover Police powers of arrest.