How to refuse to be a witness

[mc2fool]

Not in regards to that question. Again "Failure to identify the driver of the vehicle is a criminal offence in its own right...".
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And if so then you can explain that to the police and if they agree that your explanation is reasonable then they most probably won't prosecute you. But you can't explain by silence.

Again, as a defendant i do not have to "explain" anything. I do not have to help the prosecution at all.

The Crown needs to be able to make its case without intimidating either the defendant or (getting back to the topic) intimidating a reluctant witness.

As a juror I would acquit in such a situation.

Failure to identify the driver of a vehicle is a summary offence and your silence to the police would be what landed you in front of a magistrate for it in the first place. Whether you like it or not the "failure to" offences, by definition, require action on your part to avoid prosecution. (And good luck with any attempt at "magistrate nullification"!)

[JohnB]

The prosecution tries to make a convincing case as to what happened in the incident. If the defence fails to make a good counter case, by the defendant refusing to say anything, providing an alibi, or suggesting an alternative course of events that could put doubt in the minds of the magistrate or jury, they should expect the prosecution to prevail.

The role of the witness is to inform the process. Clearly their testimony might favour one side, but refusing to testify because they know their evidence will lead to an outcome they don't want, is unacceptable.

I expect the difference in sentencing terms after guilty or not-guilty pleas was derived to encourage defendants to actually cooperate with the system. Being contemptuous of the legal process is a serious thing for all concerned.

[Lootman]

It sounds like the witness feels they can change the outcome of the trial by their refusal to testify. The verdict is up to the court, not them, and they have a very strong moral obligation to say what they saw. To do otherwise is arrant cowardice.

That is a point of view certainly but my sense from the OP's comments is not that the witness seeks to change the outcome of the trial. But rather that she genuinely feels uncomfortable participating in a process that appears to be trying to railroad her into testifying against someone she knows, and in a small community where everyone knows each other.

The prosecution tries to make a convincing case as to what happened in the incident. If the defence fails to make a good counter case, by the defendant refusing to say anything, providing an alibi, or suggesting an alternative course of events that could put doubt in the minds of the magistrate or jury, they should expect the prosecution to prevail.

But what you are really saying there is that important civil rights like the right to silence and the presumption of innocence are not of concern to you. And that you could not in all honesty agree to be a juror in such a trial because you will infer all kinds of things from someone exercising those civil rights.

Moreover if the prosecution's case is so weak that it stands or falls on the testimony of a witness who was not even present at the accident and cannot speak of it, then maybe the case should fail. Because what she actually saw afterwards proves nothing other than that the accused got out of a vehicle near her house.

I suspect that if you and I were both on this jury then it would be deadlocked and a mistrial would have to be declared.

[Mike4]

I think if this thread were copied and this discussion presented in court as supporting evidence, a jury might well find it rather illuminating. Regardless of what the OP says or doesn't say in the witness box.

[Lootman]

I think if this thread were copied and this discussion presented in court as supporting evidence, a jury might well find it rather illuminating. Regardless of what the OP says or doesn't say in the witness box.

Although people with legal questions are often advised to get a solicitor, and for good reasons, there are some legal questions that I think are best asked to a more diverse crowd, like TLF.

The OP's question is a good example of that. Ask a solicitor how to dodge a summons and you will be advised not to. In fact you already saw such a response from our resident solicitor CK. Now I have a lot of respect for his knowledge. But I also recognise that as a lawyer his first duty is to the system that supports him and enables him to enjoy all that good food and those fine wines. He is not going to advise anyone to avoid a summons regardless. That could even put his license to practice law at risk.

Similarly you cannot go to a solicitor and ask them the best method of getting away with lying under oath. They will not "suborn perjury" in that way even if in practice it might be your best chance of getting off. It is that "officer of the court" thing again. (Dishonourable exception to lawyers who defend mafia bosses and Trump, presumably). Nor will any lawyer advise you to flee the jurisdiction. They are not allowed to.

So if I were the OP I would welcome getting a wider range of lay opinions, as well as "chapter and verse" answers from lawyers. Because in the end the law does not prescribe or decide what you do. It is a merely an input into the decision that only the OP can make, according to her own principles, ethics and values. If she prefers to get a citation for contempt rather than sell out someone she cares about, then that should be respected as taking a moral stand.

[the0ni0nking]

Based on the original post, it's self evident that either the driver of the vehicle was speeding (as stopping distances at 30mph are way less than 150 yards) or wasn't paying due care and attention (maybe fell asleep at the wheel if not intoxicated).

Now the next point isn't a legal one - but in my mind, failing to provide details of the driver by the owner of the vehicle irrespective of whether it was them should permit the court to infer that they were the driver and deal with them accordingly irrespective of witness statements.

As another poster has said, what if someone was on that pavement and was seriously injured or died due to the drivers negligence. There is a moral responsibility to do what is right irrespective of any legal obligation.

[Lootman]

Based on the original post, it's self evident that either the driver of the vehicle was speeding (as stopping distances at 30mph are way less than 150 yards) or wasn't paying due care and attention (maybe fell asleep at the wheel if not intoxicated).

Now the next point isn't a legal one - but in my mind, failing to provide details of the driver by the owner of the vehicle irrespective of whether it was them should permit the court to infer that they were the driver and deal with them accordingly irrespective of witness statements.

A lot of talk on this thread is about the accused denying that she was driving. But the OP never said that so it is speculation.

It could be that she admits to driving but there were factors beyond her control that are exculpatory. For example the driver could have had a medical incident. The car could have had a malfunction. Another vehicle could have forced her to swerve off the road. And so on.

The witness cannot help with any of that. So it is up to the Crown to prove beyond any doubt that such accounts of the accident are false without that witness.

[the0ni0nking]

It could be that she admits to driving but there were factors beyond her control that are exculpatory. For example the driver could have had a medical incident. The car could have had a malfunction. Another vehicle could have forced her to swerve off the road. And so on.

We are in the world of guessing but one would assume mitigating circumstances (such as a vehicle malfunction) have been ruled out given the summons.

I might be in the substantial minority, but if knew my parents or my brother had committed a crime then testifying against them wouldn't bother me in the slightest. And the seriousness of the crime doesn't matter.

The fact I'm fairly sure my parents et al wouldn't commit a crime is irrelevant.

I'd hope everyone has a similar moral compass but this thread clearly.proves otherwise.

[Gersemi]

A lot of talk on this thread is about the accused denying that she was driving. But the OP never said that so it is speculation.

It could be that she admits to driving but there were factors beyond her control that are exculpatory. For example the driver could have had a medical incident. The car could have had a malfunction. Another vehicle could have forced her to swerve off the road. And so on.

The witness cannot help with any of that. So it is up to the Crown to prove beyond any doubt that such accounts of the accident are false without that witness.

If the accused has admitted that she was driving then I cannot see why the witness is being asked to testify, unless it is to give evidence about her demeanor immediately after the incident.

If there were factors beyond the control of whoever was driving then why wouldn't they give those reasons to the authorities?

But what you are really saying there is that important civil rights like the right to silence and the presumption of innocence are not of concern to you. And that you could not in all honesty agree to be a juror in such a trial because you will infer all kinds of things from someone exercising those civil rights

In England we no longer have the right to silence in the way you suggest - "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." https://www.gov.uk/arrested-your-rights, so JohnB is perfectly entitled as a juror to infer guilt if a defendant refused to answer questions. You may not agree with that, but that is the law.

However the nub of the original problem seems to be that if the witness testifies truthfully then they fear that they will be ostracised (or worse) by their community. I can understand this worry, but it is a terrible indictment on their community that they would treat someone telling the truth that way.

[Lootman]

If there were factors beyond the control of whoever was driving then why wouldn't they give those reasons to the authorities

I don't know but there is a risk if you start blurting out excuses or offering information to the cops that your words may be twisted into something that then comes back to bite you. There is a big difference between being questioned as a victim or witness and being questioned under stress as a suspect.

And in an adversarial situation it can be prudent to hold back and await legal advice rather than think you are smart enough to outwit trained interrogators who are legally allowed to lie to you to get a result.

I maintain it is best to keep quiet at least until your defence lawyer and you decide what your defence strategy is. There will be time to talk later.

In England we no longer have the right to silence in the way you suggest - "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." https://www.gov.uk/arrested-your-rights, so JohnB is perfectly entitled as a juror to infer guilt if a defendant refused to answer questions. You may not agree with that, but that is the law.

I dispute the argument that there is no right to silence in England (do not know about Scotland). But that really deserves its own topic. And we do not even know here whether the accused talked to the cops or not. But the revised wording of the police caution is a black mark for civil rights in England in my view.

If a fellow juror of mine stated such a prejudice as JohnB did then I would immediately go to the judge and inform him/her that the jury pool is tainted by bias.

[mc2fool]

And in an adversarial situation it can be prudent to hold back and await legal advice rather than think you are smart enough to outwit trained interrogators who are legally allowed to lie to you to get a result.

"The history of how suspects are questioned in the UK and US are similar up to the last 30 years. Now the UK does things very differently. I am a detective superintendent with 28 years experience, and when I talk about interviewing it’s from both a practical and theoretical perspective. I have studied the subject extensively, but my biggest interest is in what works—in terms of making police officers better at solving crimes, but also preventing false confessions and miscarriages.
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Police in the UK don’t see interviewing as a secret process, and we don’t feel the need to hide interview techniques. The law does not allow lying to suspects, under any circumstances. Officers are trained to concentrate on probing a suspect’s account, seeking to confirm or negate by comparison with other known information. When the suspect knows that I can’t lie—my job is on the line if I do—I get more information."

https://innocenceproject.org/how-the-uk-police-interview-suspects/

[Lootman]

And in an adversarial situation it can be prudent to hold back and await legal advice rather than think you are smart enough to outwit trained interrogators who are legally allowed to lie to you to get a result.

"The history of how suspects are questioned in the UK and US are similar up to the last 30 years. Now the UK does things very differently. I am a detective superintendent with 28 years experience, and when I talk about interviewing it’s from both a practical and theoretical perspective. I have studied the subject extensively, but my biggest interest is in what works—in terms of making police officers better at solving crimes, but also preventing false confessions and miscarriages.
:
Police in the UK don’t see interviewing as a secret process, and we don’t feel the need to hide interview techniques. The law does not allow lying to suspects, under any circumstances. Officers are trained to concentrate on probing a suspect’s account, seeking to confirm or negate by comparison with other known information. When the suspect knows that I can’t lie—my job is on the line if I do—I get more information."

https://innocenceproject.org/how-the-uk-police-interview-suspects/

I do not know the extent of police lying (*) nor other dubious practices in their zeal to elicit confessions. But cops who get more arrests, charges and convictions tend to get promoted more than those who do not. And I would not want to blindly assume that cops never engage in dirty tricks to up their stats. Especially if I were, say, black or Arab in London. Or anyone with a rap sheet.

There is widespread distrust of the cops within a number of segments of the population, and I doubt that that is totally without just cause. It may be hard for our TLF demographic to understand as you, me and others here probably see cops as benign protectors who would never fit anyone up.

I maintain that it is prudent to not talk to cops without a lawyer present. And possibly not speak to them at all. That should not be held against an accused.

But all that said we have wandered a long way from the OP's issue and we do not know whether or not this driver blabbed to the cops or not. So unless the OP wants to come back with more information, I am not sure how we can help him/her any more.

(*) The one time I was questioned by the cops, he absolutely lied to me. I know this because my friend was also questioned in another room and we later compared notes. This was Chelsea nick, albeit a long time ago.

[chas49]

But all that said we have wandered a long way from the OP's issue

Moderator Message:
Indeed we have. Please can we drop the wider discussion now and stick to answering the OP's original question. If the OP comes back with additional legal questions, we can discuss those then. Thanks. (chas49)

[didds]

(Dishonourable exception to lawyers who defend mafia bosses and Trump, presumably). Nor will any lawyer advise you to flee the jurisdiction. They are not allowed to.

Isn't the point here that SOMEBODY "has" to be his defence lawyer? Otherwise the system is rigged against defendants who can't ever be re[resented.

Here in the UK, wrt barristers anyway, its the first cab off the rank principle - they cannot turn the case down.

didds

[scrumpyjack]

(Dishonourable exception to lawyers who defend mafia bosses and Trump, presumably). Nor will any lawyer advise you to flee the jurisdiction. They are not allowed to.

Isn't the point here that SOMEBODY "has" to be his defence lawyer? Otherwise the system is rigged against defendants who can't ever be re[resented.

Here in the UK, wrt barristers anyway, its the first cab off the rank principle - they cannot turn the case down.

didds

Quite so, and my son in law's brother, who is a barrister, has had some horrendous cases! Talk about having to defend the indefensible!

One client suddenly changed from male to female. God knows how he, and the judge, remembered to use the right pronoun

[Clitheroekid]

Ask a solicitor how to dodge a summons and you will be advised not to. In fact you already saw such a response from our resident solicitor CK. Now I have a lot of respect for his knowledge. But I also recognise that as a lawyer his first duty is to the system that supports him and enables him to enjoy all that good food and those fine wines. He is not going to advise anyone to avoid a summons regardless. That could even put his license to practice law at risk.

This is a quaint, but hopelessly wrong interpretation of the lawyer's role.

A lawyer's first duty is not to `the system' (by which I assume you mean the State). It's to his client, who is, in criminal cases, in direct conflict with the State.

If a lawyer's first duty was actually to the State it would mean that he could never defend someone accused of a criminal offence because of a conflict of interest.

Secondly, I'm pleased to say that I receive no support whatsoever from the State - if I were to be dependent on such support then I'm afraid there wouldn't be much good food, and fine wines would be in very short supply. Although I don't practise in criminal law I often represent people who are, one way or another, in conflict with the State.

I'm aware that we've had our hands slapped for straying from the subject, and I don't want to look as though I'm trying to have the last word, but I really couldn't let your comments go unchallenged.

[Lootman]

Ask a solicitor how to dodge a summons and you will be advised not to. In fact you already saw such a response from our resident solicitor CK. Now I have a lot of respect for his knowledge. But I also recognise that as a lawyer his first duty is to the system that supports him and enables him to enjoy all that good food and those fine wines. He is not going to advise anyone to avoid a summons regardless. That could even put his license to practice law at risk.

This is a quaint, but hopelessly wrong interpretation of the lawyer's role.

A lawyer's first duty is not to `the system' (by which I assume you mean the State). It's to his client, who is, in criminal cases, in direct conflict with the State.

If a lawyer's first duty was actually to the State it would mean that he could never defend someone accused of a criminal offence because of a conflict of interest.

Secondly, I'm pleased to say that I receive no support whatsoever from the State - if I were to be dependent on such support then I'm afraid there wouldn't be much good food, and fine wines would be in very short supply. Although I don't practise in criminal law I often represent people who are, one way or another, in conflict with the State.

I'm aware that we've had our hands slapped for straying from the subject, and I don't want to look as though I'm trying to have the last word, but I really couldn't let your comments go unchallenged.

That is fair enough. By "the system" I did not so much mean the State or the Government. But rather the legal system. That includes the courts of course, which are run by the government. But it is also about the professional body and code of conduct, the principles of the Law Society, and the power of the Solicitors Regulation Authority (SRA).

As an example of the limits of advice a solicitor can give, the SRA has this to say:

We adhere to strict rules of law and ethics, and we cannot knowingly mislead the Court. If a client tells us that he or she has committed the offence in question, then we cannot allow him or her to give evidence of his or her innocence under oath otherwise we would be complicit in their perjury.

Likewise I doubt that I could get you to advise me on how to successfully lie under oath, how to hide my assets in a divorce or bankruptcy, or (getting back to the topic) how to dodge a valid summons. And certainly not on how to murder my wife and get away with it.

So yes, as you say, "A lawyer's first duty is . . . to his client". But then that is actually priority number 7 on this list of principles, again from the SRA:

1) in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.
2) in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons.
3) with independence.
4) with honesty.
5) with integrity.
6) in a way that encourages equality, diversity and inclusion.
7) in the best interests of each client.

I am absolutely convinced that you give the highest standard of legal help. My point was limited to noting that you are governed by a code of conduct, and that others here or elsewhere are not. So you are more limited in what you can say than a non-lawyer would be.

Citations are from https://www.sra.org.uk/

PS: That said, and speaking of moderation, note this TLF rule: "Topics or posts which appear to incite or encourage an act that may be illegal, or advise in favour of a course of action which may be illegal, or any post which is in itself might be criminal or illegal, may be deleted without warning, and appropriate sanctions may be taken against posters of such material."