Cautions Miranda and espionage

[myrionomos]

We are writing a new story which involves espionage and the arrest of characters.

In USA TV programmes we frequently see someone told their 'Miranda rights' or in a UK based programme they receive the more qualified 'Caution'.

Our question is:- In the case of espionage/spying charges and the like, especially of a foreignor, do those rights still exist.

 

[sr71plt]

We are writing a new story which involves espionage and the arrest of characters.

In USA TV programmes we frequently see someone told their 'Miranda rights' or in a UK based programme they receive the more qualified 'Caution'.

Our question is:- In the case of espionage/spying charges and the like, especially of a foreignor, do those rights still exist.

If they are arrested on U.S. soil, for arrest by U.S. agents, yes. If non-U.S. citizens are apprehended outside the United States, the FBI has been known to Mirandize foreigners its agents have detained, but that's not policy and agents of other U.S. agencies haven't done so.

 

[Handley_Page]

We are writing a new story which involves espionage and the arrest of characters.

In USA TV programmes we frequently see someone told their 'Miranda rights' or in a UK based programme they receive the more qualified 'Caution'.

Our question is:- In the case of espionage/spying charges and the like, especially of a foreigner, do those rights still exist.

If the 'accused' is being taken into custody for a time - Yes (given a straight deal; international stuff could be the subject of much debate).
It is a requirement of the Law.

In the case of the USA: see HERE.

and maybe : HERE

 

[Bramblethorn]

If they are arrested on U.S. soil, for arrest by U.S. agents, yes. If non-U.S. citizens are apprehended outside the United States, the FBI has been known to Mirandize foreigners its agents have detained, but that's not policy and agents of other U.S. agencies haven't done so.

...and sometimes they outsource things to another nation with weaker legal protections, as happened to Maher Arar.

 

[sr71plt]

...and sometimes they outsource things to another nation with weaker legal protections, as happened to Maher Arar.

Yes, they do.

 

[Desiremakesmeweak]

Seriously guys, Attorney Holder's previous employment was as the chief lawyer in the most prominent law firm for the worst corporate criminal fraudsters and gangsters - Obama knew it when he appointed him. And no bankster went to jail ever since.

Never in the history of the human race, has so much of Law and Rights been thrown in the face of the citizenry as now and you want to know whether you are going to be read your rights and that you can remain silent.

Well, you might and you can - that is, until the waterboarding gets to you!!

 

[sr71plt]

Well, that was irrelevant--especially since, as I noted, the Justice Department has been doing MORE in support of Mirandizing noncitizens detained abroad than the other U.S. agencies are doing. (and belongs on the partisan politics board).

 

[karaline]

We are writing a new story which involves espionage and the arrest of characters.

In USA TV programmes we frequently see someone told their 'Miranda rights' or in a UK based programme they receive the more qualified 'Caution'.

Our question is:- In the case of espionage/spying charges and the like, especially of a foreignor, do those rights still exist.

Let me first of all say that I am no expert, but I know that in the UK your 'right to remain silent' is effected if you are considered a terrorist. This maybe or may not be relevant depending on which country your spy is from and that countries relationship to the one your spy is arrested in.

A caution is a different thing to what I understand the Miranda rights to be, the police may offer a caution as an alternative to pursuing a prosecution, you maybe offered a caution if you're caught shoplifting, or travelling on a train without a ticket. Although a caution is not a conviction it could be understood as an admittance of guilt and it may show up in an enhanced CRB check; they've changed the name of these recently and I'm not sure what to but its unlikely to be relevant to your story, given that spies tend not to go on to pursue careers in caring professions.

Finally, in case it is of interest, a spy working for the British Government would be likely to be required to sign The Official Secrets Act and could also be prosecuted for breaching it.

I hope that helps, but don't take it as gospel.

meant to say... It sounds great!

 

[sr71plt]

Let me first of all say that I am no expert, but I know that in the UK your 'right to remain silent' is effected if you are considered a terrorist. This maybe or may not be relevant depending on which country your spy is from and that countries relationship to the one your spy is arrested in.

There's a movement in the U.S. Congress to withdraw Miranda for suspected terrorists, but I don't think a bill has passed on that yet.

 

[oggbashan]

Let me first of all say that I am no expert, but I know that in the UK your 'right to remain silent' is effected if you are considered a terrorist. This maybe or may not be relevant depending on which country your spy is from and that countries relationship to the one your spy is arrested in.

A caution is a different thing to what I understand the Miranda rights to be, the police may offer a caution as an alternative to pursuing a prosecution, you maybe offered a caution if you're caught shoplifting, or travelling on a train without a ticket. Although a caution is not a conviction it could be understood as an admittance of guilt and it may show up in an enhanced CRB check; they've changed the name of these recently and I'm not sure what to but its unlikely to be relevant to your story, given that spies tend not to go on to pursue careers in caring professions.

Finally, in case it is of interest, a spy working for the British Government would be likely to be required to sign The Official Secrets Act and could also be prosecuted for breaching it.

I hope that helps, but don't take it as gospel.

meant to say... It sounds great!

It is more complex than that. UK Police warning and cautions:

What the UK Police are obliged to say instead of the US Miranda statement is:

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.

The issuing of a Police warning or caution is even more complex:

From here: https://en.wikipedia.org/wiki/Police_caution

Types of cautions

As a result of changes made by the Criminal Justice Act 2003, cautions can be administered in two forms: as a simple caution or as a conditional caution, the latter of which has specific conditions attached that the offender must satisfy—attending a course aimed at targeting offending behaviour, for example. The Home Office has released guidance to the police and prosecutors on the use of the simple caution.

Although a caution is not a conviction, it forms a part of a person's criminal record and can be used as evidence of bad character if a person goes to court for another crime,[4][7] and Disclosure and Barring Service (DBS) checks (previously called Criminal Records Bureau (CRB) checks) for certain types of employment. A caution might cause some countries not to allow visits to, or residence in, that country.

Circumstances for use

In order to safeguard the offender's interests, the following conditions must be met before a caution can be administered:

there must be reasonable suspicion to believe an offence has been committed
the offender must understand the significance of a caution and give informed consent to being cautioned.

Where the available evidence does not meet the standard normally required to bring a prosecution, a caution cannot be administered. A caution will not be appropriate where a person does not make a clear and reliable admission of the offence (for example if intent is denied or there are doubts about his mental health or intellectual capacity).

Cautions are typically administered in the case of an offence that is triable summarily or either-way. The Ministry of Justice recommends that the decision to offer a simple caution for the most serious of offences (an indictable only offence, an either-way offence routinely dealt with at the Crown Court or any offence which the sentencing guidelines indicate has a starting point at high level community order or sentence of imprisonment) is taken only in exceptional circumstances.

As for terrorists and spies, the UK law is the same but someone suspected of a terrorist offence can be held for a longer period than for other suspected offences.

UK intelligence agencies are very wary of being associated with the US practice of Extraordinary Rendition. The UK government has also expressed concern about the US's use of Guantanamo Bay to hold people who have not been given any appropriate legal rights. Any British citizen formerly held at GITMO is assumed to be innocent unless there is evidence against them that can be used in a UK court. That doesn't prevent the authorities from monitoring the former internee's activities, but they have to have legally justifiable proof before taking any other action against them.

 

[karaline]

It is more complex than that. UK Police warning and cautions:

What the UK Police are obliged to say instead of the US Miranda statement is:

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.

I just wanted to respond to this, even though its pedantic of me because its unlikely to be of use to the OP. In Britain we have the right to remain silent, I remember them changing the wording of the little speech the arresting officer makes and I can't remember when it was exactly it was 10-15 years ago at least and I remember lots of people being cross about the ambiguity of this new wording because it wasn't clear that nothing changing anything legally -that the arrested person continues to be entitled to remain silent and is often safer remaining silent than answering any questions the arresting officer might ask or participating in any small talk the officer will try make.

The legal firms I know suggest remaining silent when arrested, in fact often they advice not responding to questions with anything other than 'no comment' when in interview, the presumption being the police only conduct interviews when they don't have enough evidence to charge and they're trying to trip their suspect up.

Just to clarify -my experience is limited to a few specific areas of law.

The issuing of a Police warning or caution is even more complex:

From here: https://en.wikipedia.org/wiki/Police_caution

Types of cautions

As a result of changes made by the Criminal Justice Act 2003, cautions can be administered in two forms: as a simple caution or as a conditional caution, the latter of which has specific conditions attached that the offender must satisfy—attending a course aimed at targeting offending behaviour, for example. The Home Office has released guidance to the police and prosecutors on the use of the simple caution.

Although a caution is not a conviction, it forms a part of a person's criminal record and can be used as evidence of bad character if a person goes to court for another crime,[4][7] and Disclosure and Barring Service (DBS) checks (previously called Criminal Records Bureau (CRB) checks) for certain types of employment. A caution might cause some countries not to allow visits to, or residence in, that country.

Circumstances for use

In order to safeguard the offender's interests, the following conditions must be met before a caution can be administered:

there must be reasonable suspicion to believe an offence has been committed
the offender must understand the significance of a caution and give informed consent to being cautioned.

Where the available evidence does not meet the standard normally required to bring a prosecution, a caution cannot be administered. A caution will not be appropriate where a person does not make a clear and reliable admission of the offence (for example if intent is denied or there are doubts about his mental health or intellectual capacity).

Cautions are typically administered in the case of an offence that is triable summarily or either-way. The Ministry of Justice recommends that the decision to offer a simple caution for the most serious of offences (an indictable only offence, an either-way offence routinely dealt with at the Crown Court or any offence which the sentencing guidelines indicate has a starting point at high level community order or sentence of imprisonment) is taken only in exceptional circumstances.

As for terrorists and spies, the UK law is the same but someone suspected of a terrorist offence can be held for a longer period than for other suspected offences.

UK intelligence agencies are very wary of being associated with the US practice of Extraordinary Rendition. The UK government has also expressed concern about the US's use of Guantanamo Bay to hold people who have not been given any appropriate legal rights. Any British citizen formerly held at GITMO is assumed to be innocent unless there is evidence against them that can be used in a UK court. That doesn't prevent the authorities from monitoring the former internee's activities, but they have to have legally justifiable proof before taking any other action against them.

Again, its my view that accepting a caution it is not a good thing, regardless of the official line. If the police have the inclination and the evidence they will charge you, if they don't they will offer you a caution and unless you're guilty of the offence they accuse you of and they have the evidence, or unless you're reasonably sure they can be arsed to jump through all those bureaucratic hoops you might be better off calling their bluff. I've known cautions to creep up and bite people on the bum years after they're supposed to have expired, especially if you're risking only having a civil offence on your record.

but this is irrelevant, in cases of espionage I reckon there would be no chance of a caution being on the table at any point

 

[oggbashan]

In the UK, accepting a formal Police Caution is an admission of guilt. It gives you a criminal record.

The right to remain silent is complex. You really need professional legal advice before saying anything except "I want a lawyer".

This is Wikipedia on the right to silence, but you need more expert advice than Wikipedia:

https://en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales

 

[R. Richard]

There's a movement in the U.S. Congress to withdraw Miranda for suspected terrorists, but I don't think a bill has passed on that yet.

In other words, if the government thinks that you have committed a crime, you are deprived of legal rights, because the government thinks that you have committed a crime. WARNING! My high school English teachers are now in control of the USA government, I recognize the 'thought' patterns.

 

[sr71plt]

In other words, if the government thinks that you have committed a crime, you are deprived of legal rights, because the government thinks that you have committed a crime. WARNING! My high school English teachers are now in control of the USA government, I recognize the 'thought' patterns.

You seemed to have missed the part where it hasn't passed yet--and may not.

 

[karaline]

In the UK, accepting a formal Police Caution is an admission of guilt. It gives you a criminal record.

I'm sorry to be belligerent but no it isn't.

Although if you except a caution you are admitting guilt it is not the same as having a criminal record. A caution can be used against you in court, it can show up on a CRB check, but to get a criminal record you need to be first charged, taken to court and then see it proven in a court of law that you have committed the crime that you have been charged with.

 

[oggbashan]

I'm sorry to be belligerent but no it isn't.

Although if you except a caution you are admitting guilt it is not the same as having a criminal record. A caution can be used against you in court, it can show up on a CRB check, but to get a criminal record you need to be first charged, taken to court and then see it proven in a court of law that you have committed the crime that you have been charged with.

Not belligerent - just accurate.

But for some employment, a caution counts against you. Although you do not have to disclose it for most employers, you do for some.

Accepting a caution is not recommended - unless you are caught red-handed!

Wiki:

Cautions will appear on a DBS certificate until 6 years have passed (or 2 years if the person was under 18 at the time of caution) provided the offence is not on the prescribed list of offences that will never be filtered from a criminal record check.

All information relating to simple cautions (as well as convictions) issued for a recordable offence is retained on the Police National Computer (PNC).

Although it is NOT a 'criminal record' sensitive employers will treat it like one. The PNC records it, possibly forever.

So you are 'recorded' even if you do not technically have a 'criminal record'.

Edited to add:

The record is supposed to be wiped clean after the appropriate period under Rehabilitation of Offenders - but the mark of the erasure might show for ever.

 

[JKendallDane]

Not belligerent - just accurate.

But for some employment, a caution counts against you. Although you do not have to disclose it for most employers, you do for some.

Accepting a caution is not recommended - unless you are caught red-handed!

Wiki:

Cautions will appear on a DBS certificate until 6 years have passed (or 2 years if the person was under 18 at the time of caution) provided the offence is not on the prescribed list of offences that will never be filtered from a criminal record check.

All information relating to simple cautions (as well as convictions) issued for a recordable offence is retained on the Police National Computer (PNC).

Although it is NOT a 'criminal record' sensitive employers will treat it like one. The PNC records it, possibly forever.

So you are 'recorded' even if you do not technically have a 'criminal record'.

Edited to add:

The record is supposed to be wiped clean after the appropriate period under Rehabilitation of Offenders - but the mark of the erasure might show for ever.

Sounds like your version of our NCIC...you automatically become 'guilty' of all sorts of nefarious things by just popping up on it during a background check.

More than a few times over the years, I've had loads of "fun" trying to explain away why they have files on me from the FBI, DEA, CIA, and the Secret Service.

.

 

[karaline]

The record is supposed to be wiped clean after the appropriate period under Rehabilitation of Offenders - but the mark of the erasure might show for ever.

and a mark of erasure could look far more nefarious that a caution for some minor misdemeanour

 

[oggbashan]

and a mark of erasure could look far more nefarious that a caution for some minor misdemeanour

I've told this story before but it illustrates the point.

Many years ago back in the 1920s, my father was a telegram boy working for the General Post Office in the City of London. At the age of 14 he was given a motorcycle to help him deliver telegrams quickly.

An urgent telegram was received that was addressed to the Dean of St Paul's Cathedral. It was given to my father to deliver and his supervisor emphasised that it was extremely urgent and must be delivered as quickly as possible.

My father rode his motorcycle the few hundred yards to St Paul's Cathedral, rode it up the steps and leant the machine against the front door. He rushed into the cathedral shouting for the Dean.

The Dean was not impressed. As was, and is, often the case, the message sender's 'urgency' wasn't urgent to the recipient.

The Dean complained about my father's action to his friend, the Postmaster General. At that time the Postmaster General was a member of the Cabinet - the ministers that rule the country. After sharing the story at a Cabinet Meeting, the Postmaster General ordered that my father should receive a permanent written warning - for dripping oil on the steps of St Paul's Cathedral and scratching the main door with his motorcycle.

My father survived the warning and gradually worked his way up through the UK Civil Service to become a very senior person indeed. He retired at age 65 but was re-employed for a further five years. At age 70 he finally (in theory) retired. At his retirement event, the Head of the UK Civil Service read out the formal written warning my father had received at age 14 and the circumstances recorded in the files. It is STILL on the archived personnel records of the Civil Service and will be there forever...

But by age 70, it was just a joke.