Principles and procedures to admit and exclude evidence - In...

Learning Outcomes

This article examines adverse inferences from silence under the Criminal Justice and Public Order Act 1994, ss.34–38, including:

• Statutory basis and legal framework for drawing inferences from a defendant’s silence under CJPOA 1994 ss.34–38
• Limited abrogation of the right to silence and policy justifications for adverse inferences in criminal proceedings
• Key legal conditions for each provision: s.34 (facts not mentioned during questioning), s.35 (silence at trial), s.36 (failure to account for objects/marks), s.37 (failure to account for presence)
• The s.34 “reasonableness” test and factors affecting it, including police disclosure, suspect characteristics, and access to legal advice
• Procedural barriers to adverse inferences, such as inadequate caution, denial of legal advice, or absence of a ‘special warning’ under ss.36/37
• The role of legal advice in remaining silent, including assessment of genuine reliance and potential privilege waiver
• Evidential limits and safeguards, particularly the s.38 prohibition on conviction solely or mainly based on silence
• Professional obligations and ethical considerations for solicitors advising clients at interview or in court
• Practical application to realistic practice scenarios involving criminal procedure, disclosure, and trial advocacy

SQE1 Syllabus

For SQE1, you are required to understand adverse inferences from silence under CJPOA 1994 ss.34–38, with a focus on the following syllabus points:

• The statutory structure for inferences from silence under ss.34–38 CJPOA 1994.
• The effect of adverse inferences on the defendant’s right to silence, and the policy reasoning for the legislative reforms.
• The precise requirements for each section:
  • s.34: Conditions for drawing inferences from failure to mention facts when questioned or charged, including the meaning of ‘reasonably expected’ and the interaction with legal advice.
  • s.35: Circumstances permitting inferences from silence at trial and the necessity of judicial warning.
  • ss.36–37: Operation of ‘special cautions’, nature of ‘objects/marks/presence’, and the difference in the evidential basis compared to s.34.
  • s.38: Essential limitations and safeguards, including the prohibition on conviction based solely or mainly on inferences and the requirement of opportunity for legal advice.
• The continued significance of the privilege against self-incrimination and basic principles of fair trial (ECHR, Art 6).
• The relationship between silence during police interview and subsequent evidential uses, the role of legal advice, and the practice implications for criminal defence solicitors.
• The influence of adverse inferences on pre-trial strategy, client advice, and trial conduct.

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 section of the CJPOA 1994 can an inference be drawn if a defendant fails to mention a fact when questioned, which they later rely on in court?

   • a) s 34
   • b) s 35
   • c) s 36
   • d) s 38

2. True or False: A defendant can be convicted solely based on an adverse inference drawn from their silence during a police interview.

3. Which of the following is a pre-condition for drawing an adverse inference under s 36 or s 37 CJPOA 1994?

   • a) The defendant must have previous convictions.
   • b) The defendant must have answered some questions during the interview.
   • c) The police must have given the defendant a 'special caution'.
   • d) The defendant must be represented by a solicitor.

Introduction

The right to silence is a long-standing principle in English criminal law, founded on the presumption of innocence and the privilege against self-incrimination. It provides that a suspect is not obliged to answer police or prosecutorial questions, nor to provide information unless compelled by law. However, the right to silence is not absolute and was modified by the Criminal Justice and Public Order Act 1994. This legislation made it possible for courts and juries to draw adverse inferences in defined circumstances when a defendant remains silent at key procedural stages.

This change reflects the balancing of fair trial rights with the need for effective investigation and prosecution of offences. Defendants are expected, in certain situations, to mention facts that might reasonably be expected if truly innocent. Where they fail to do so, and later put forward facts at trial which could have been mentioned earlier, the court is permitted (but never obliged) to draw adverse inferences as to the reason for their silence.

Key Term: Adverse Inference
A conclusion drawn by a court or jury that the defendant’s silence or refusal to answer questions suggests an absence of an innocent explanation or supports the prosecution case.

Understanding when, how, and why adverse inferences may be drawn is essential both for those advising suspects at the police station and for advocates conducting trials or advising on evidence.

Section 34 CJPOA 1994: Failure to Mention Facts When Questioned or Charged

Section 34 CJPOA 1994 allows the court or jury to draw an adverse inference from a defendant’s failure, when questioned under caution or upon being charged, to mention a fact relied on at trial, which it would have been reasonable to mention at the time.

Conditions for a Section 34 Inference

In order for an inference to be drawn under s.34, the following requirements must be satisfied:

• Questioning or Charging under Caution: The defendant must have been questioned by a constable or another relevant officer under the standard police caution or charged with the offence.
• Proper Administration of Caution: The caution must clearly inform the suspect: “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.”
• Opportunity for Legal Advice: The interview must take place with the opportunity for the suspect to obtain advice from a solicitor (see s.38(2A), and below).
• Failure to Mention a Fact Relied Upon: The defendant fails to mention a specific fact when questioned or when charged, and later seeks to rely upon that fact at trial in their defence.
• Reasonable Expectation to Mention: The fact is one which, in the circumstances existing at the time, the defendant could reasonably have been expected to mention. This expectation is judged objectively.
• Criminal Proceedings: The inferences are only available once criminal proceedings have commenced.

Notably, s.34 is not triggered merely by remaining silent in interview; an inference can only be drawn if a fact subsequently relied upon as part of the defence case was not mentioned when it could reasonably have been expected to be.

Explaining 'Reasonable Expectation'

The core focus of s.34 is on whether it was reasonable to expect the defendant to disclose a given fact at the time of questioning or charge. This test is necessarily fact-sensitive, and includes considerations such as:

• The suspect's physical and mental capacity (age, state of health, fatigue).
• Their level of understanding, maturity, or experience with police procedures.
• The nature and detail of the information disclosed by police prior to questioning—was the suspect in a position to know the case to be answered?
• The advice given by a solicitor (see below).
• The general context of the interview, including time elapsed since the alleged offence and any language difficulties.

If, for instance, police disclosure is inadequate or misleading, or if the suspect is especially vulnerable, the reasonableness of expecting full disclosure diminishes. Conversely, where the interview was fair and proper disclosure made, a court is more likely to conclude that an innocent person would reasonably have given their exculpatory account.

Silence as a result of confusion, anxiety, or a genuinely held (but possibly unreasonable) belief may still result in a permissible inference, as the court is to assess the totality of relevant circumstances.

Role of Legal Advice

An important issue, both in practice and in subsequent litigation, is the defendant's reliance on legal advice to remain silent. While seeking and acting on legal advice is an essential safeguard, relying on such advice does not veto the drawing of adverse inferences under s.34. The court will explore:

• Whether the defendant genuinely relied on the legal advice.
• Whether reliance on the advice was reasonable in all the circumstances.
• If silence is motivated by a desire to fabricate a defence or avoid cross-examination, or if the legal advice is a mere pretext, the inference remains available.

If the defendant advances their reason for remaining silent as being legal advice, this may constitute a waiver of legal professional privilege with respect to the content and circumstances of that advice, especially if they seek to show their reliance was genuine (see R v Beckles [2004] EWCA Crim 2766, R v Condron [1997] 1 WLR 827).

Key Term: Caution
The formal warning administered to a suspect during arrest or questioning indicating the right to silence and the potential consequences of failing to mention facts later relied on at trial.

The right to consult a solicitor before and during police interviews is itself protected under s.6 ECHR and PACE 1984, and absence of the opportunity to consult negates s.34 entirely: no inference can be drawn if the opportunity is denied, even if the suspect declined to take up the advice.

Prepared Statements and Selective Silence

Where a suspect provides a written statement in lieu of answering police questions—a common course on a solicitor’s advice—problems may still arise. If, in later proceedings, the defendant relies on facts not covered by the written statement and which could reasonably have been included, an inference can still be drawn in respect of those new facts. Thus, the use of a prepared statement is not an absolute shield.

Worked Example 1.1

David is arrested for burglary. During his police interview under caution, after receiving legal advice, he answers 'no comment' to all questions. At his trial, he gives evidence that he was at his friend Sarah's house at the time of the burglary. Sarah also gives evidence supporting his alibi. The prosecution asks the judge to allow the jury to draw an adverse inference under s 34.

Answer:
Yes, potentially. David failed to mention the fact of his alibi when questioned under caution. He is now relying on that fact in his defence. The key question is whether he could reasonably have been expected to mention it during the interview. If the police disclosed sufficient information about the time and place of the burglary, it would generally be reasonable to expect an innocent person to state their alibi. The jury would be directed to consider if David genuinely relied on legal advice and if it was reasonable to do so in the circumstances. If they believe he remained silent because he hadn't yet fabricated the alibi, or because he knew it wouldn't stand up to scrutiny, they may draw an adverse inference.

Limits and Exclusions under Section 34

Section 34 does not apply in several scenarios:

• Where facts not mentioned at interview are not subsequently relied upon at trial.
• Where the suspect had no opportunity to consult a solicitor.
• Where no proper caution was given.
• Where the fact was so obviously trivial or peripheral that there was no reasonable expectation to mention it.
• In respect of facts genuinely unknown to the suspect at the time of questioning.

The ultimate safeguard lies in s.38(3): no conviction may be based solely or mainly on inferences drawn under s.34.

Judicial Directions under Section 34

The court must give careful and specific direction to the jury on when and why an inference may be drawn. The judge should instruct the jury to consider whether the defendant’s silence was genuinely or reasonably explained, including reliance on legal advice or other factors (Cowan, Gayle and Ricciardi [1996] 1 Cr App R 242). The jury must be told that the burden of proof remains with the prosecution and that silence by itself cannot prove guilt.

Section 35 CJPOA 1994: Silence at Trial

Section 35 addresses the consequences where, at trial, a defendant does not give evidence or, having been sworn, refuses without good cause to answer questions.

Conditions for a Section 35 Inference

• Opportunity to Testify: The court must be satisfied that the defendant has been informed, in ordinary language, of their right to give evidence and, specifically, that the court may draw inferences if they refuse.
• Refusal or Failure to Testify: Applies where the defendant does not go into the witness box, or, having been sworn in, refuses to answer questions put in cross-examination.
• Absence of ‘Good Cause’: No inference may be drawn unless, in the case of refusal in the box, the court is satisfied that the refusal lacks good cause. Mental or physical incapacity may constitute good cause (s.35(1)(b)), but strategic refusal does not.
• Safeguards: The judge must first identify that there is a prima facie case against the defendant before inviting the jury to draw inferences; the right not to give evidence is not absolute, but it protects the privilege against self-incrimination.

The essence of the s.35 inference is that an innocent person, faced with a serious allegation and able to answer, would be expected to take the stand. Silence in the face of a case to answer, particularly when positive assertions are later made in defence, may suggest the defendant lacks confidence that their explanation will survive cross-examination.

Key Term: Good Cause
A legitimate reason for refusing to give evidence at trial, typically a physical or mental incapacity, rather than mere tactical silence.

Judicial Warnings and Directions

Before the close of the prosecution case, the judge must specifically warn the defendant of the consequences of failing to give evidence. The judge’s directions to the jury must again make it clear that an adverse inference is not required, the defendant’s silence is not evidence of guilt on its own, and the prosecution’s legal burden remains unchanged.

Sections 36 and 37 CJPOA 1994: Failure to Account for Objects, Substances, Marks or Presence

Sections 36 and 37 address situations where a suspect, on arrest, is found with physical evidence or present at a key location, and fails or refuses to account for these when directly challenged by a constable.

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

Section 36 allows the court or jury to draw adverse inferences where:

• The defendant is arrested by a constable.
• There is an object, substance or mark on their person, clothing, possession, or at a place where they are at the time of arrest.
• The arresting officer reasonably believes this may be attributable to participation in a specified offence, informs the suspect of this, and requests an explanation.
• The officer provides a special caution—explicitly warning that failure to account may prompt the court to draw an inference.
• The suspect fails or refuses to provide an account.

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

Section 37 is analogous to s.36 but focuses on presence at a location:

• The person is arrested at a particular place at or about the time an alleged offence was committed.
• The constable reasonably believes that the person's presence may be attributable to their participation in the offence.
• The constable so informs the person, requests an explanation, and gives the special caution.
• The person fails or refuses to provide an account.

Key Term: Special Caution
For ss.36 and 37, a special caution is a specific verbal warning requiring the police to inform the suspect of the nature of the enquiry, the officer’s belief about their involvement, that failure to provide an account may result in an inference at court, and that a record of the exchange will be made.

The object of requiring a special caution is to ensure that the suspect is given fair warning of the need to provide an explanation, so that any subsequent silence cannot be said to be inadvertent or the result of confusion.

The Difference from Section 34

Under ss.36 and 37, the court is not confined to facts subsequently relied on at trial—the mere failure or refusal to answer the direct question about objects/marks/presence can lead to an inference. The focus is not whether the suspect relies on a fact at trial, but whether the failure to offer an account at the relevant time is itself probative.

Worked Example 1.2

Police are called to a burglary. They find Peter hiding in bushes nearby. He has mud on his trousers matching soil from the burgled garden, and a screwdriver is found in his pocket. The arresting officer reasonably believes Peter's presence and the screwdriver are linked to the burglary. At the police station, after caution, Peter is asked to account for his presence near the scene and for the screwdriver. The officer gives the special caution required by ss 36 and 37. Peter says 'no comment'.

Answer:
Yes. Inferences can be drawn under both s 36 (failure to account for the screwdriver) and s 37 (failure to account for his presence near the scene). All conditions appear to be met, including the reasonable belief of the officer and the giving of the special caution. The inference could be that Peter had no innocent explanation for his presence or the screwdriver.

Limits and Procedural Safeguards

For inferences under ss.36 and 37 to be drawn:

• The suspect must have been arrested and at an authorised place of detention, and been given the opportunity to consult a solicitor (s.38(2A)).
• The special caution must be administered, with the warning explained in ordinary language.
• Records must be kept of the giving of the caution and the suspect’s response.

Like s.34, ss.36 and 37 inferences cannot alone provide the sole or main basis for conviction.

Section 38 CJPOA 1994: Interpretation and Savings

Section 38 acts as a limiting provision and sets out essential safeguards:

• No Conviction on Silence Alone: Section 38(3) mandates that a person shall not be convicted solely or mainly on an inference drawn from silence under ss.34, 35, 36, or 37. There must be additional independent evidence.
• Opportunity for Legal Advice: No inference may be drawn (under ss.34, 36, 37) from silence where the suspect did not have an opportunity to obtain legal advice prior to questioning, unless they declined such opportunity.
• Requirement for Authorised Detention: Inferences are not available if the failure to mention a fact or provide an account occurred at a place other than an authorised detention location (i.e., a police station).
• Judicial Control and Directions: The judge retains broad discretion in whether to allow the jury to draw any inference, and must direct the jury on these safeguards and the limited probative value of silence.

These rules align with ECHR Art. 6, which establishes the right to a fair trial and privilege against self-incrimination, by maintaining procedural protections even in permitting adverse inferences.

Worked Example 1.3

Lisa, aged 19, is arrested at a police station, asked to account for red paint on her hands, which the officer reasonably believes is linked to nearby criminal damage. She is given a special caution but is not told of her right to consult a solicitor. Lisa gives a 'no comment' interview and later at trial offers no explanation for the painted hands. Can an inference be drawn?

Answer:
No. Because Lisa did not have an opportunity to consult a solicitor before questioning, s.38(2A) prevents the court from drawing an inference under s.36 (and s.34 if she is later to rely on a fact not previously disclosed). This ensures the procedural fairness of the adverse inference regime.

Interrelationship, Overlaps and Strategic Considerations

Sections 34–37 sometimes overlap, as may be the case where facts relate to presence at the scene (both a ‘fact’ for s.34 and a ‘presence’ for s.37). In such cases, practitioners and the court frequently consider whether all the statutory conditions of each section have been satisfied, and which gives rise to the most apt inference. The specific requirements, particularly around cautions and legal advice, must always be checked.

It is important to distinguish between the use of these provisions and the broader right not to incriminate oneself. Silence may not always be effectively used as evidence; for an inference to arise, statutory conditions must be met and an innocent explanation (such as poor police disclosure, confusion, or vulnerability) may adequately rebut the implication of guilt.

Practical Professional and Ethical Issues

Deciding whether to advise a client to answer police questions or to remain silent is a complex issue for solicitors. The advice must be based upon the strength of the prosecution case, the adequacy of police disclosure, the client’s vulnerabilities, and the legal and evidential consequences of silence. Although a 'no comment' interview may protect a suspect from self-incrimination, the solicitor must explain the risks of adverse inferences at trial, including that, subject to genuine justification, silence can damage the credibility of a later defence.

Key Term: Prepared Statement
A written statement provided by a suspect prior to, or instead of, a full interview, setting out their account or explanation.

Where the client is vulnerable, a juvenile, or inadequately informed of the case against them, it may be proper to advise silence, provided the factual basis for that advice will stand up to later judicial scrutiny if an inference is sought to be drawn.

Solicitors should also be mindful that simply stating ‘I remained silent on legal advice’ will not always suffice; they may be required to explain the reasons for that advice in court if privilege is waived by the defendant's reliance on it.

Inferences and the Burden and Standard of Proof

Drawing an inference from silence does not transfer the legal burden of proof: the prosecution remains obliged to prove each element of the offence beyond reasonable doubt. The defence has only an evidential burden to raise relevant explanations for silence, where they exist.

An inference, even when available, may be drawn only if justified by the circumstances; it is not mandatory, and the tribunal of fact must be properly directed on the permissible basis for such an inference.

Worked Example 1.4

Fatima is arrested for theft, cautioned, and interviewed after consulting her solicitor. She stays silent on legal advice, despite being told by the police she was seen leaving the scene. At trial, she says she was present but only because she found a lost wallet she intended to hand in later. The prosecution seeks an inference under s.34.

Answer:
The court will consider whether Fatima could reasonably have been expected to reveal her 'lost and found' story when questioned, and whether her silence was genuinely on legal advice. If the jury finds the explanation implausible or fabricated after the event, they may draw an adverse inference. If police provided sufficient disclosure of the circumstances and Fatima was capable of answering, the inference is likely to apply.

Worked Example 1.5

Tom is arrested for burglary. He is found at the back of a building at night with burglary tools, is cautioned, and fails to explain his presence and the tools when given a special caution. He gives no account at interview but later at trial says he was there because his car broke down. At the police station, Tom was denied the opportunity to consult his solicitor. The prosecution wish to rely on ss.36 and 37.

Answer:
As Tom was not afforded the opportunity to consult a solicitor at the police station, no inference can be drawn from his silence under s.36 or s.37 by virtue of s.38(2A). This safeguard ensures that only silence after the suspect has been properly informed of their rights, and had real opportunity for advice, can have adverse evidential impact.

Connection to General Principles: Actus Reus, Mens Rea, and Defence

While inferences from silence concern evidential matters, they are fundamentally connected with the proof of the actus reus, mens rea, and available defences. The prosecution must call sufficient evidence against a defendant, and adverse inferences cannot supply missing elements of the offence itself. Silence as to a critical element of mens rea (e.g. intent) may, when combined with the surrounding facts and evidence, permit the jury to infer guilt, but silence is never evidence itself of one or more required elements.

Key Term: Burden of Proof
The requirement that the prosecution prove every element of the offence to the criminal standard—beyond reasonable doubt.

The statutory rules on inferences interact with the practical realities of modern criminal litigation, requiring consistent professional standards and ethical awareness from those who advise and represent clients across all stages.

Worked Example 1.6

Alison is arrested and questioned about a robbery. She gives a full account of her innocent presence near the scene, but omits to mention that she saw a co-accused leaving the shop. At trial, she gives evidence implicating the co-accused. The prosecution suggests that her failure to mention this at interview undermines her credibility.

Answer:
If Alison seeks to rely on a new fact not raised in police interview (e.g., the presence of a co-accused at the scene), the jury may be invited under s.34 to consider why she failed to mention this, and may conclude that the new fact is a recent fabrication. The focus remains on whether it would have been reasonable to expect her to speak up at the time, given the context and her understanding of the police case.

Key Point Checklist

This article has covered the following key knowledge points:

• Adverse inferences from silence under ss.34-38 CJPOA 1994 are a statutory abrogation of the absolute right to silence but remain circumscribed and subject to protections.
• Section 34 provides for inferences where a defendant fails to mention facts relied on at trial and which ought reasonably to have been advanced when questioned or charged, subject to key safeguards.
• Section 35 allows for inferences at trial when a defendant declines to give evidence or answer questions without good cause, following sufficient warning.
• Sections 36 and 37 permit adverse inferences where a suspect fails to give an account for significant objects/marks or for presence at a key place and time, but only following a special caution and after the opportunity for legal advice.
• Under section 38, a defendant may not be convicted solely or mainly on such an inference; additional evidence is essential, and the prosecution retains the burden of proof throughout.
• No inference may be drawn under ss.34, 36, or 37 if the suspect was denied the opportunity for legal advice at an authorised place of detention.
• Reliance on legal advice as the reason for silence at interview must be genuine and reasonable; privilege may be waived if the defence raises the circumstances of the advice.
• Judicial directions on adverse inferences safeguard against improper use, reinforcing the presumption of innocence and ensuring that fair trial rights are not undermined.

Key Terms and Concepts

• Adverse Inference
• Caution
• Special Caution
• Good Cause
• Prepared Statement
• Burden of Proof