Advertisement
If you have a new account but are having problems posting or verifying your account, please email us on hello@boards.ie for help. Thanks :)
Hello all! Please ensure that you are posting a new thread or question in the appropriate forum. The Feedback forum is overwhelmed with questions that are having to be moved elsewhere. If you need help to verify your account contact hello@boards.ie

Legality of "no comment" interview answers

2»

Comments

  • #32
    234
    Registered Users, Registered Users 2 Posts: 1,529 ✭✭✭234


    obsidianclock wrote: »
    You have a choice of both of course. Your Solicitor can read out a pre-prepared statement - I was suggesting it might be a better idea to keep it back, so you have the choice though, apologies if this wasn't clear.

    Also reading out a statement you concocted privately with your Solicitor at the station could be seen as a waiver of legal privilege, so the Prosecution may ask further questions if it comes to court.

    Can we try to pin this down, as I'm still not exactly sure that you mean by keeping back a pre-prepared statement.

    Unless you give the statement in interview, it will not in any circumstances protect you from any inferences for failure to answer. Neither can the statement be used at trial, it is hearsay. At most it might be admitted as a prior consistent statement to rebut a suggestion recent fabrication.

    Also, I can't see any normal circumstances in which the reading out of a prepared statement would amount to a waiver of privilege. If you want outline a scenario in which it could happen that might help. The use of prepared statement is relatively common so in most cases nobody would assume that by giving on the client was waiving privilege.


  • #33
    obsidianclock
    Closed Accounts Posts: 158 ✭✭obsidianclock


    234 wrote: »
    Can we try to pin this down, as I'm still not exactly sure that you mean by keeping back a pre-prepared statement.

    Unless you give the statement in interview, it will not in any circumstances protect you from any inferences for failure to answer. Neither can the statement be used at trial, it is hearsay. At most it might be admitted as a prior consistent statement to rebut a suggestion recent fabrication.

    Also, I can't see any normal circumstances in which the reading out of a prepared statement would amount to a waiver of privilege. If you want outline a scenario in which it could happen that might help. The use of prepared statement is relatively common so in most cases nobody would assume that by giving on the client was waiving privilege.

    I meant that if you prepared a statement while consulting with your Solicitor but asked them to retain it rather than read it out, this could prove problematic if you rely on it at trial in that it could amount to a waiver of legal privilege.

    Of course if you did choose to read it out at trial to prevent an accusation of recent fabrication, the jury could still draw adverse inferences from the fact you chose to do this rather than answer Police questions at the time. However, you're less likely to come to court in the first place if you tell the Police nothing IMO.

    If of course you prepare a statement and read it out to the Police during interview that is another matter.


  • #34
    234
    Registered Users, Registered Users 2 Posts: 1,529 ✭✭✭234


    obsidianclock wrote: »
    I meant that if you prepared a statement while consulting with your Solicitor but asked them to retain it rather than read it out, this could prove problematic if you rely on it at trial in that it could amount to a waiver of legal privilege.

    If of course you prepare a statement and read it out to the Police during interview that is another matter.

    Yes, I see where you are going.

    In order to have the statement brought into evidence you would need to allow the solicitor to be examined, so yes there would be a necessary waiver of privilege. How far that goes would clearly be a matter for argument.

    Tactically, it would be a very poor choice to prepare a statement but then only try to use it at trial.


  • #35
    spikeS
    Closed Accounts Posts: 179 ✭✭spikeS


    A follow on from the no comment question do you have to give a password when asked?


  • #36
    obsidianclock
    Closed Accounts Posts: 158 ✭✭obsidianclock


    234 wrote: »
    Yes, I see where you are going.

    In order to have the statement brought into evidence you would need to allow the solicitor to be examined, so yes there would be a necessary waiver of privilege. How far that goes would clearly be a matter for argument.

    Tactically, it would be a very poor choice to prepare a statement but then only try to use it at trial.

    A little gem from the CPS website:

    "Privilege will not be waived if the defendant merely gives evidence to the effect that he was advised to be silent. If the defendant explains the reasons for the advice or the circumstances then that could amount to a waiver of the privilege. R v Bowden [1999] 4 All E.R. 43.

    Privilege will not be waived if a solicitor is called to rebut an inference of subsequent fabrication by giving evidence that the fact was communicated to him by the defendant at or about the time of the interview. R v Condron and Condron [1997] 1 W.L.R. 827. "

    This is why I would prefer to simply rely on a written statement as there'd be no implicit waiver of privilege. You simply have asked your Solicitor to witness a statement you prepared yourself.

    If of course you wanted your Solicitor to confirm something you'd told them at time of interview, then that would be a different story. It appears that a simple admission of the facts by your Solicitor isn't a waiver of privilege as stated above.


  • Advertisement
  • #37
    obsidianclock
    Closed Accounts Posts: 158 ✭✭obsidianclock


    spikeS wrote: »
    A follow on from the no comment question do you have to give a password when asked?

    Hi Spike,

    In the UK the answer is yes under the Regulation of Investigatory Powers Act (RIPA). A couple of people have been jailed for refusing to hand over their passwords. It only applies under certain circumstances.

    Not sure what the situation is in Ireland!

    One excellent defence against this is to use plausible deniability encryption whereby you have two passwords for an encrypted volume, one which points to some harmless dummy files and the other which reveals your private data. It's near impossible for someone to prove that there is another password for the volume.

    Truecrypt and its successors like tcplay and Veracrypt support this feature.


  • #38
    spikeS
    Closed Accounts Posts: 179 ✭✭spikeS


    obsidianclock wrote: »
    Hi Spike,

    In the UK the answer is yes under the Regulation of Investigatory Powers Act (RIPA). A couple of people have been jailed for refusing to hand over their passwords. It only applies under certain circumstances.

    Not sure what the situation is in Ireland!

    One excellent defence against this is to use plausible deniability encryption whereby you have two passwords for an encrypted volume, one which points to some harmless dummy files and the other which reveals your private data. It's near impossible for someone to prove that there is another password for the volume.

    Truecrypt and its successors like tcplay and Veracrypt support this feature.

    What if you had a nfc chip in your finger that needs to be renewed every 24hr with conjunction of a password a two step system, if you got taken in the nfc password would expire and you would never be able to unlock it forced to do a wipe to get your system back

    I alway wondered cause you see the guards asking for people they stop on drug busts to unlock the phone to read texts, can the person not refuse


  • #39
    obsidianclock
    Closed Accounts Posts: 158 ✭✭obsidianclock


    spikeS wrote: »
    What if you had a nfc chip in your finger that needs to be renewed every 24hr with conjunction of a password a two step system, if you got taken in the nfc password would expire and you would never be able to unlock it forced to do a wipe to get your system back

    I alway wondered cause you see the guards asking for people they stop on drug busts to unlock the phone to read texts, can the person not refuse

    Hi Spike,

    As I understand it they would need to serve you an official notice to hand over the password.

    I agree with you that a "dead man's switch" would be an ideal way to make sure that your info is safe and if you head on over to the Information Security area of boards you can see some discussion on this subject.

    Bear in mind you would still legally be obliged to provide the key but of course if you did so after the password had expired you'd be quids in.

    Deniable encryption is fine so long as the decoy files look plausible enough to hide. My own files include details of my passwords for banking, scanned love letters from a couple of ex girlfriends (there aren't many!) and also some adult videos - all stuff you might want to hide!


  • #40
    spikeS
    Closed Accounts Posts: 179 ✭✭spikeS


    obsidianclock wrote: »
    Hi Spike,

    As I understand it they would need to serve you an official notice to hand over the password.

    I agree with you that a "dead man's switch" would be an ideal way to make sure that your info is safe and if you head on over to the Information Security area of boards you can see some discussion on this subject.

    Bear in mind you would still legally be obliged to provide the key but of course if you did so after the password had expired you'd be quids in.

    Deniable encryption is fine so long as the decoy files look plausible enough to hide. My own files include details of my passwords for banking, scanned love letters from a couple of ex girlfriends (there aren't many!) and also some adult videos - all stuff you might want to hide!

    Yeah I was just wondering what legally can happen if you use those methods of security and have a no comment stance.


  • #41
    obsidianclock
    Closed Accounts Posts: 158 ✭✭obsidianclock


    spikeS wrote: »
    Yeah I was just wondering what legally can happen if you use those methods of security and have a no comment stance.

    Under RIPA you can be punished for failing to divulge a password, however I seem to remember the maximum sentence is something small like 6 months so this might be preferable if they actually did catch someone guilty like a paedophile or terrorist who'll take the lesser sentence.

    There's no requirement though for you to talk to the Police if you decide to cooperate though. Rendering the information into a format which is readable would be enough so for instance you could ask your Solicitor to have the Police bring you your mobile phone so you could key in the passcode.

    This is a case though of prevention being better than cure. I think your idea of a 24 hour password is an excellent one, though personally I'd make it a smaller interval (mine is every 12 hours!).

    Also if you have your password or keyfile stored on a USB stick or SD card and choose to destroy it before you can be arrested, that's also your right.


  • Advertisement
  • #42
    spikeS
    Closed Accounts Posts: 179 ✭✭spikeS


    obsidianclock wrote: »
    Under RIPA you can be punished for failing to divulge a password, however I seem to remember the maximum sentence is something small like 6 months so this might be preferable if they actually did catch someone guilty like a paedophile or terrorist who'll take the lesser sentence.

    There's no requirement though for you to talk to the Police if you decide to cooperate though. Rendering the information into a format which is readable would be enough so for instance you could ask your Solicitor to have the Police bring you your mobile phone so you could key in the passcode.

    This is a case though of prevention being better than cure. I think your idea of a 24 hour password is an excellent one, though personally I'd make it a smaller interval (mine is every 12 hours!).

    Also if you have your password or keyfile stored on a USB stick or SD card and choose to destroy it before you can be arrested, that's also your right.

    If you ate the sd card once you heard the knock is that not willfully damaging evidence, but if it just didn't get a chance to renew it cause you or your equipment was being held away that's not you fault you where unable to.

    12hrs is a bit tight, one might over sleep after a night out.


  • #43
    obsidianclock
    Closed Accounts Posts: 158 ✭✭obsidianclock


    spikeS wrote: »
    If you ate the sd card once you heard the knock is that not willfully damaging evidence, but if it just didn't get a chance to renew it cause you or your equipment was being held away that's not you fault you where unable to.

    12hrs is a bit tight, one might over sleep after a night out.

    I am sure you're more sociable than I am Spike, I'm usually in bed by 10:30. :)


Advertisement