Advising clients at the police station - Right to silence an...

Learning Outcomes

This article outlines the scope, rationale, and practical operation of the right to silence and adverse inferences under the Criminal Justice and Public Order Act 1994 (CJPOA 1994) in police station and court contexts, including:

• Scope, rationale, and practical implications of the right to silence
• Lawful adverse inferences under CJPOA 1994 and distinctions between ss 34–37
• Criteria and thresholds for drawing adverse inferences
• Strategies for advising clients on exercising or waiving the right to silence
• Statutory cautions, including standard and special cautions
• Client vulnerabilities, adequacy of police disclosure, and the impact of legal advice
• Consequences of silence for the client's defence position
• Strategic use and limitations of prepared statements
• Interaction of adverse inferences with criminal procedure and evidence
• Legal reasoning at trial: burden and standard of proof, corroboration requirements, and judicial discretion
• Procedural safeguards for juveniles and vulnerable clients
• Professional and ethical duties in police station advice and subsequent case management

SQE1 Syllabus

For SQE1, you are required to understand the right to silence and adverse inferences under the Criminal Justice and Public Order Act 1994 in police station and court contexts, with a focus on the following syllabus points:

• the scope and practical operation of the right to silence at the police station and in subsequent proceedings
• the statutory basis and limits for adverse inferences under ss 34–37 CJPOA 1994, including all procedural prerequisites
• application of police cautions, including the standard and special caution in interviews and upon arrest
• the threshold for inferences from failure to mention facts, failure to account for objects/marks, or presence at a crime scene
• strategic and ethical considerations in advising clients, including the impact of legal advice and use of prepared statements
• interplay between adverse inferences and the burden/standard of proof
• the effect of legal advice and its genuineness in determining whether an adverse inference should be drawn
• consequences and practical implications for bail and later stages in proceedings
• the differential impact of silence and adverse inferences for juveniles and vulnerable clients, and the essential role of appropriate adults

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under which statutory provision can a court draw an adverse inference if a suspect fails to mention a fact when questioned that is later relied upon in their defence?
2. True or false? A defendant can never be convicted solely on the basis of an adverse inference drawn from silence.
3. What is a "special caution" and when must it be given during a police interview?
4. If a client remains silent in interview on legal advice, can an adverse inference still be drawn at trial? Briefly explain.

Introduction

The right to silence is a long-standing principle of the English legal system, reinforcing the presumption of innocence and the prosecution’s burden of proof. Historically absolute, this right has evolved, especially following the Criminal Justice and Public Order Act 1994, which allows courts to draw negative conclusions—adverse inferences—if the suspect fails to answer certain questions at key stages. The operation and limits of the right to silence, and when inferences can be lawfully drawn, are fundamental knowledge for any adviser at the police station and for the SQE1. Effective client advice requires careful consideration of statutory requirements, police cautions, police and Crown disclosure, the client’s own circumstances, and the possible tactical and evidential consequences of silence, particularly when it is based on legal advice. The following sections provide a comprehensive analysis of this area of criminal litigation.

Key Term: right to silence
The legal entitlement of a suspect or defendant to remain silent when questioned by police or in court, without being compelled to answer.

The Right to Silence: Scope and Limits

The right to silence underpins the privilege against self-incrimination. In England and Wales, this right is reflected in several provisions: suspects are not obliged to answer police questions, give evidence, or present a defence at trial. Article 6 of the European Convention on Human Rights also protects this right, requiring fairness in criminal proceedings. However, through the provisions of the CJPOA 1994, the right is qualified to allow inferences to be drawn in certain circumstances where the suspect or defendant remains silent or refuses to provide explanations when reasonably expected to do so.

Historically, suspects could maintain silence without risk; today, remaining silent in unwise circumstances can profoundly undermine the defence. A suspect’s silence cannot be actively compelled, but nor is it immune from evidential consequences where statutory prerequisites are met.

When advising a client, the solicitor must clarify that the right to silence remains in place but is “qualified” in several ways. Exercising the right to silence may lead to inferences at trial, depending on what is not said, when, and why. This position is essential to determining how best to protect a client’s interests in the face of police questioning and throughout criminal proceedings.

Adverse Inferences: Statutory Provisions

Adverse inferences are conclusions drawn by a court or jury against an accused based on their silence or unwillingness to provide explanations at key procedural points. These inferences may support the prosecution’s case or weaken the credibility of the defendant’s account. The primary statutory basis is found in ss 34–37 CJPOA 1994, each with distinct procedural requirements and limits:

Key Term: adverse inference
A negative conclusion that may be drawn by a court or jury from a suspect’s or defendant’s silence in certain circumstances, potentially undermining their defence.

Section 34: Failure to Mention Facts Later Relied Upon

This widely invoked provision allows a court or jury to draw an adverse inference if, when questioned under caution or charged, a suspect fails to mention a fact later relied upon in their defence but which, at the time, the accused could reasonably have been expected to mention. The purpose is to discourage recent fabrication of defences or “ambush” defences at trial. However, it is not enough merely to remain silent—an inference may only be drawn if the omitted fact is one which it would be reasonable to expect the suspect to mention given the circumstances (e.g. an alibi). Section 34 applies both to silence and to selective answers, where material points are omitted.

Key Term: section 34 inference
An inference that may be drawn when a suspect fails to mention a fact during questioning or on charge that is later relied upon in their defence.

Statutory Pre-conditions for s34:

• The accused must have been “questioned under caution by a constable trying to discover whether or by whom the offence had been committed”, or officially informed they might be prosecuted.
• The questioning relates to the offence under investigation.
• The fact must be one which the accused relies on in their defence.
• It must have been reasonable to expect the accused to mention it at the time.
• The accused is given the opportunity to consult a solicitor (unless declined). Absence of adequate disclosure or actual opportunity to consult a solicitor will prohibit any adverse inference from silence being drawn.

Not every fact mentioned for the first time at trial will give rise to an adverse inference; a key issue is whether it would have been reasonable to mention it earlier and whether a good reason exists for the omission (see below).

Section 35: Silence at Trial

This provision permits an adverse inference if a defendant, “without good cause,” chooses not to give evidence at their own trial, or refuses to answer questions when called. This provision maintains the presumption of innocence—no defendant can be compelled to testify—but recognises that total silence in the face of a prosecution case “calling for an answer” can be probative of guilt. Inferences may only be drawn if the defendant, having been properly warned by the judge, chooses not to testify or refuses, without good cause, to answer questions in the witness box. However, a conviction cannot be founded solely on inference from silence.

Key Term: section 35 inference
An inference that may be drawn if a defendant fails to testify at trial or refuses to answer questions, without good cause.

Judges must ensure that the defendant is aware of their right to give evidence and the consequences of silence. The jury or magistrates must be reminded that the burden of proof remains with the prosecution.

Section 36: Failure to Account for Objects, Substances, or Marks

This section is focused on situations where, at the time of arrest, police find an object, substance, or mark on the person, clothes, or in their possession, and believe it relates to the offence. The suspect is invited to account for the relevant matter and warned (“special caution”) that an adverse inference may be drawn from failure or refusal to account, provided all statutory conditions are met.

Key Term: special caution
A specific warning given by police to a suspect when asking them to account for objects, substances, marks, or presence at a place, informing them that silence may lead to an adverse inference.

Key Term: section 36 inference
An inference that may be drawn if a suspect fails to account for objects, substances, or marks found on their person, clothing, or in their possession at the time of arrest, after being given a special caution.

Special caution must specify:

• The nature of the offence being investigated.
• The fact or circumstances to be accounted for.
• That failure to account may trigger an adverse inference.
• That a contemporaneous record is being made, which may be used in evidence.

Section 36 inferences apply only if the procedural steps are followed. The suspect must be informed of the special caution contemporaneously and its content accurately recorded.

Section 37: Failure to Account for Presence at a Particular Place

The mechanism here mirrors s36: if, at the time of arrest, a suspect is found at or near the scene of an offence, or in “such circumstances as to suggest a connection with its commission”, and is asked to account for their presence under a special caution but fails to do so, an adverse inference may be drawn.

Key Term: section 37 inference
An inference that may be drawn if a suspect fails to account for their presence at or near the scene of an offence, after being given a special caution.

Both s36 and s37 aim to undermine a suspect’s position where they offer no explanation (or a late explanation) for highly incriminating circumstances.

When Can Adverse Inferences Be Drawn?

Adverse inferences can only be drawn where statutory conditions are strictly satisfied. The judge plays a critical “gatekeeping” role: before directions are given to the jury, the statutory pre-conditions must be found on the evidence and, where facts are disputed, by hearing argument from the parties. The judge (or magistrates) must make sure that:

• The accused received a proper caution and, where required, a special caution for s36 and s37.
• The accused had opportunity for legal advice.
• Inferences are not drawn solely from silence—there must always be some other probative evidence.
• Inferences may only be drawn where it was reasonable, in the circumstances, for the accused to have mentioned the fact in question.

Significantly, if evidence is withheld by the police or if disclosure is inadequate, remaining silent may be justified and should not support any adverse inference. Age, vulnerability, intelligence, language skills, and physical condition are also closely considered when examining whether it was truly reasonable to expect an accused to make an accounting statement.

Worked Example 1.1

A suspect is interviewed about a burglary. They remain silent in interview but later claim at trial that they were at home with a friend at the time of the offence. Can an adverse inference be drawn?

Answer:
Yes. Under section 34 CJPOA 1994, if the suspect fails to mention an alibi during police questioning and later relies on it at trial, the court may draw an adverse inference, provided the suspect could reasonably have been expected to mention it. The judge must confirm that all statutory preconditions are satisfied and consider any potential justification for silence in the circumstances.

Worked Example 1.2

A suspect is arrested with blood on their clothing after an assault. The police ask them to explain the blood and give a special caution. The suspect says "no comment." What is the effect?

Answer:
Under section 36 CJPOA 1994, if the suspect fails to account for the blood after a special caution is given, the court may draw an adverse inference from their silence, potentially undermining their defence. The admissibility of the inference depends on the police properly administering the special caution and the suspect having the opportunity for legal advice.

Worked Example 1.3

A defendant chooses not to give evidence at trial. The judge explains the consequences. Can the jury draw an adverse inference?

Answer:
Yes. Under section 35 CJPOA 1994, if the defendant fails to testify without good cause, the court or jury may draw an adverse inference—but cannot convict solely on that basis. The jury should be specifically directed as to the implications and limits of such an inference.

Advising Clients: Practical and Strategic Considerations

Effective advice at the police station must combine legal knowledge with acute sensitivity to the client's personal and case context.

Core factors include:

• The strength and character of the evidence disclosed by the police—if disclosure is inadequate, or evidence appears weak, remaining silent (a “no comment” interview) may be justified and warrants full documentation.
• Vulnerability of the client, age, mental health, comprehension, experience, and state of sobriety—all weigh heavily in determining the likely impact and risks of answering police questions.
• The seriousness and nature of the allegations—the greater the potential sanction or the more serious the charge, the greater the imperative to avoid inadvertently damaging admissions.
• Whether the client is likely to struggle with interview pressure—some clients, due to confusion or stress, may inadvertently say things which are self-incriminatory, inconsistent, or untrue.
• Availability and adequacy of legal advice—early and confidential consultation with a solicitor is necessary; records of advice and reasons should be kept.
• The risk of selective silence—answering some questions but not others can appear contrived or manipulative and may draw stronger suspicion.

Clients should be made aware of their right to silence, the possible or likely adverse inferences, and the significance of each available option: answering all questions, remaining silent, or providing a prepared written statement.

Key Term: prepared statement
A written statement provided by a suspect to police, setting out their account, often used when advised to remain silent in interview.

A prepared statement allows the client to put forward an account without being drawn into a pressured or adversarial interview, but once a prepared statement is provided, anything omitted from it (and raised only later) may still trigger a s34 inference. Similarly, if a fact needed for defence is not even included in the prepared statement, adverse inferences may still arise.

Key Term: legal advice and adverse inference
The fact that a suspect remained silent on legal advice does not automatically prevent an adverse inference, but the court must consider whether the advice was genuinely and reasonably relied upon.

The appropriate adult and support mechanisms must be provided for juveniles and vulnerable suspects when under arrest or in interview. If an appropriate adult is not present when required, and the client is vulnerable, any inference from silence will not be permitted.

The Effect of Legal Advice on Adverse Inferences

Where legal advice is given to remain silent, the court undertakes a detailed review of the circumstances. If the advice was genuine, reasonable, and given for proper reasons (such as lack of disclosure, vulnerability, or complexity) and the client genuinely relied on it, a court may decide not to draw an inference. However, legal advice alone is not an absolute shield; it is for the court to assess whether reliance on the advice was the real reason for silence. Factors such as the client’s understanding, mental state, and any contemporaneous record of advice or reasons for silence are weighed. If the court finds the advice was not the genuine reason for silence, or the silence was not reasonable in the circumstances, an inference may still be drawn.

Further, the mere fact that a client followed advice to remain silent does not automatically preclude the drawing of adverse inferences. The reliability of the advice, clarity with which it was given, and the overall fairness of the process are central. Solicitors should always be prepared to justify such advice, especially where it may later form the basis for the court's judgment on inference.

Worked Example 1.4

A client remains silent in interview on advice due to lack of disclosure by the police, but later gives evidence at trial mentioning an alibi. Can an inference be drawn?

Answer:
The court must assess whether the legal advice was the true and reasonable cause of silence. If it was genuine and reasonable (for example, in light of inadequate disclosure), the court may choose not to draw an adverse inference. However, if the court finds the client was silent for other reasons, or the advice was not reasonable, an inference may still be drawn.

The Limits of Adverse Inferences

Courts must exercise care and discretion before drawing adverse inferences. Section 38 CJPOA 1994 specifically provides that no person may be convicted solely on an inference from silence under ss 34, 35, 36, or 37. There must be additional independent evidence of guilt. This principle is key—adverse inference may support but never replace the need for actual probative evidence.

Additionally, inferences should only be drawn where statutory and procedural safeguards have been strictly observed, including the opportunity for legal advice, the administration of cautions and special cautions, and the presence of appropriate adults where needed. Failure to follow these safeguards will render any inference unsafe or inadmissible.

Adverse inferences are discretionary, not compulsory. The judge or magistrates must satisfy themselves that all factual and legal preconditions are met, including the fairness of the process and the adequacy of the police interview and disclosure. Circumstances justifying silence—such as poor disclosure, youth, language or cognitive difficulties—should be explicitly recorded and taken into account.

Worked Example 1.5

A defendant is convicted of an offence after refusing to answer police questions, and the only evidence adduced at trial is their silence. Is the conviction safe?

Answer:
No. Section 38 CJPOA 1994 prohibits a conviction based solely on an inference from silence. There must be other substantive evidence supporting guilt. If the only evidence is that the defendant failed to answer questions or give evidence, the conviction cannot stand.

Summary

• The right to silence is a qualified right—suspects are never compelled to answer questions, but silence can have evidential consequences.
• Adverse inferences under ss 34–37 CJPOA 1994 only arise where strict statutory and procedural conditions are met, and inferences cannot support a conviction unless corroborated by other substantive evidence.
• A special caution, issued at the time of interview, is necessary for ss 36 and 37 inferences, alerting suspects that silence may have legal consequences.
• Legal advice to remain silent must be genuine and reasonable to preclude an adverse inference, but is not, of itself, an automatic shield.
• The burden of proof and presumption of innocence remain, but courts are empowered to scrutinise the circumstances of silence or failure to account.
• Client advice at the police station must be meticulously documented and tailored to all situational factors, including the client's ability to comprehend, vulnerability, evidence disclosed and the potential consequences of silence.
• The right to silence and risk of adverse inferences interact with all features of the criminal litigation process, including police procedure, bail, charging, and subsequent trial strategy, meaning advice given at the earliest stage may shape the entire trajectory of the proceedings.

Key Point Checklist

This article has covered the following key knowledge points:

• The right to silence at the police station is a qualified right and not absolute.
• Adverse inferences may be drawn from silence under ss 34–37 CJPOA 1994 if statutory conditions are satisfied.
• A special caution must be given before inferences can be drawn under ss 36 or 37.
• Remaining silent on legal advice does not automatically prevent an adverse inference.
• Adverse inferences are permissible only where all procedural and statutory requirements are strictly observed.
• A conviction cannot be based solely on an adverse inference; there must be other evidence of guilt.
• Tailoring advice to the client requires careful consideration of the evidence, the adequacy of disclosure, the client’s capacity and circumstances, the appropriateness of prepared statements, and accurate record-keeping of all advice given.

Key Terms and Concepts

• right to silence
• adverse inference
• section 34 inference
• section 35 inference
• section 36 inference
• section 37 inference
• special caution
• prepared statement
• legal advice and adverse inference