What is a warning statement, and should you give one?

"We just need your side of the story." It is said in every police station in the country, and it is the moment at which more criminal cases are decided than at any trial.

A warning statement is a statement taken from a suspect after they have been warned of their rights. The warning is what makes it a warning statement, and understanding what the warning actually means is the difference between a case the State has to prove and a case you have helped it prove.

What you must be told

Section 35(1) of the Constitution gives everyone who is arrested for allegedly committing an offence the right:

• to remain silent
• to be informed promptly of that right and of the consequences of not remaining silent, in a language they understand
• not to be compelled to make any confession or admission that could be used in evidence against them
• to consult with a legal practitioner, and to have one assigned at state expense where substantial injustice would otherwise result

You also have the right to consult with a legal practitioner and to have one present during questioning. Those rights are not conditional on you asking about them; the officer is required to inform you.

In practice the rights are recorded on a prescribed SAPS form, which the officer completes to document that the warning was given. If nobody explains anything to you and nobody produces a form, note that, because it matters later.

Why the warning exists

A confession or admission is the most powerful evidence there is, and the law has always been cautious about how it is obtained.

Section 217 of the Criminal Procedure Act 51 of 1977 provides that a confession is admissible only where it was made freely and voluntarily by a person in their sound and sober senses, without having been unduly influenced.

A failure to warn a suspect of their rights does not automatically render a statement inadmissible, but it goes directly to whether the statement was freely and voluntarily made, and it is one of the strongest arguments available for excluding it.

South African law used to place the onus on an accused to prove that a confession made to a magistrate was not free and voluntary. In S v Zuma the Constitutional Court held that provision inconsistent with the right to a fair trial, so the burden of establishing admissibility does not sit on the accused in that way.

Should you give one?

The honest answer is: not without a lawyer, and usually not at all.

This advice is unwelcome because it feels like behaving as though you are guilty. It is not. Four things make talking at this stage a bad idea even when you are entirely innocent.

You do not know what the case is. The docket is not in front of you. You cannot know which details matter, and an innocent mistake about a time or a distance becomes an inconsistency the prosecution relies on.

You cannot take it back. A statement is a permanent record. You will be cross-examined on every word of it years later, when you no longer remember the day.

You are being questioned by somebody trained to do it. The officer is not your adversary personally, but they are building a case, and the conversation has a purpose.

Your explanation may fit the offence. People routinely explain themselves into an element of the crime they did not realise was an element. "I took it because he owed me money" concedes the taking.

The right answer, said politely and once, is: "I would like to speak to a lawyer before I make a statement." Then stop. You are not obliged to say more, and repeating it is not obstruction.

Silence and what it costs

The most common worry is that staying silent looks bad. The legal position is more protective than people expect, and the practical position is subtler.

Silence is not evidence of guilt. The right to remain silent would be worthless if exercising it counted against you, and a court cannot convict on the basis that you did not talk to the police.

But an explanation changed later can hurt you. Where an accused gives one version to the police and a different one at trial, the inconsistency is available to the prosecution. That is an argument about credibility rather than about silence, and it is the reason a hurried statement is more dangerous than no statement.

And a defence raised for the first time at trial may attract comment, particularly an alibi that could easily have been checked at the time and was not mentioned. The answer to that is not to make a statement without a lawyer; it is to get a lawyer quickly so that anything that should be said is said properly.

What you should do instead

Give your identifying particulars. Name, address and identity number are not the subject of the right to silence.

Say you want a lawyer, and say it before answering anything substantive.

Ask for Legal Aid if you cannot afford one. Legal Aid South Africa is on 0800 110 110, and our free legal help page explains the means test.

Do not sign anything you have not read, and do not sign a blank or partly completed form.

Do not consent to a search if you do not want one. Our guide on whether police can search your house without a warrant explains why consent removes a protection you would otherwise have.

Write down what happened as soon as you can: the time of arrest, who questioned you, for how long, what was said, whether you were warned, and whether you asked for a lawyer and what the response was.

Remember the 48 hours. You must be brought before a court within 48 hours of arrest, subject to extensions for weekends and non-court days, and our guide on how long police can hold you sets that out. Bail may be available before that, and our bail checker explains who can grant it.

Admissions, confessions and pointings out

Three things are treated differently and it helps to know which is which.

An admission concedes a fact that is adverse to you without admitting the offence. "I was there that evening."

A confession is an unequivocal acknowledgement of guilt, the equivalent of pleading guilty. It attracts the strictest requirements, including that a confession to a peace officer who is not a magistrate or justice must be confirmed and reduced to writing before a magistrate or justice in defined circumstances.

A pointing out is where a suspect physically indicates a place or an object. It is treated as conduct rather than words, and it has generated a great deal of litigation precisely because it can be a confession in substance while looking like something else.

The practical significance is that a suspect who thinks they are merely explaining something can be making an admission, and a suspect who agrees to "just show us where" can be doing something with the same effect as a confession.

If you already gave a statement

It is not necessarily fatal, and it is not a reason to avoid a lawyer.

Get a copy of it. Tell your attorney exactly what happened: whether you were warned, whether you asked for a lawyer, how long you were questioned, whether you were threatened or promised anything, your condition at the time, and whether you were given food, water and rest.

Those facts are what a trial within a trial determines. Where admissibility is disputed, the court holds a separate hearing on that question alone, and the statement is excluded if the State cannot establish that it was properly obtained.

Worked example

This example is illustrative. Andile is arrested over a workplace theft. At the station he is told he can remain silent, and he decides to explain because he did not take anything. He says he was in the storeroom that afternoon, that he had access to the cupboard, that he had argued with the complainant about money the week before, and that he left early.

Every sentence is true and he is innocent.

The problem is that he has placed himself in the storeroom, established access, supplied a motive, and given an early departure that can be characterised as leaving with something. The State's case has moved from an allegation to a set of admitted facts, and all of it came from him.

Had he said he wanted a lawyer and stopped, the State would have had to prove presence, access and motive, none of which it could necessarily have done.

The same facts, put forward later through an attorney who has seen the docket, might well have been a complete answer. The difference is not the truth of what he said. It is that he said it before anybody knew what the case was.