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Police interviews under caution and the right to silence
Everyone has the right to remain silent in a police interview, but a court may draw an adverse inference if a defendant later relies on a fact they could reasonably have mentioned when questioned (Criminal Justice and Public Order Act 1994 s.34). Nobody can be convicted on silence alone.
The caution
Before questioning, the suspect is cautioned (PACE Code C para 10.5): "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 same caution is given in a voluntary interview, and free legal advice is available there too.
Adverse inferences
The Criminal Justice and Public Order Act 1994 allows the court or jury to draw "such inferences as appear proper" where:
- s.34: the defendant fails to mention, when questioned under caution or on charge, a fact later relied on in their defence, which they could reasonably have been expected to mention;
- s.35: the defendant does not give evidence at trial;
- ss.36 and 37: an arrested suspect, after a special warning, fails to account for objects, substances or marks, or their presence at a place.
No inference can be drawn if the suspect was at a police station and had not been allowed to consult a solicitor before the interview (s.34(2A)). A person cannot be convicted solely on an inference from silence (s.38(3)).
Silence on legal advice
Silence on a solicitor's advice does not automatically prevent an inference. The jury must consider whether the defendant genuinely and reasonably relied on that advice (R v Condron [1997]; R v Beckles [2004]). Explaining the reasons for the advice in evidence may waive legal privilege. Common reasons for advising no comment include little or no police disclosure, a vulnerable or unwell client, or a complex allegation needing documents.
Prepared statements
A written prepared statement setting out the key facts, followed by no comment to questions, can prevent a s.34 inference about the facts it contains (R v Knight [2003]). It gives no protection for facts left out, or if the defence at trial departs from it.
In practice
Whether to answer questions, give a prepared statement or say no comment is a judgment made after seeing the police disclosure. It is one of the most important decisions in a case, and the advice is free at the police station.
Authorities: PACE Code C (2023) paras 10.5, 10.10 to 10.11, Notes 10C and 10F; Criminal Justice and Public Order Act 1994 ss.34 to 38; R v Condron [1997] 1 WLR 827; R v Beckles [2004] EWCA Crim 2766; R v Knight [2003] EWCA Crim 1977