Learning Outcomes
After reading this article, you will be able to:
- Identify and explain the right to silence at the police station and its legal basis.
- Understand when adverse inferences may be drawn from a suspect's silence under current law.
- Advise clients on the potential consequences of remaining silent or making a prepared statement during interview.
- Recognize the factors affecting whether an adverse inference can be drawn and how to respond to common police strategies.
SQE2 Syllabus
For SQE2, you are required to understand the doctrine of silence and the legal and practical impact of remaining silent during police questioning. Focus your revision on:
- The right to silence at the police station, including the application of PACE and CJPOA 1994.
- The circumstances in which adverse inferences may be drawn from silence both before and after charge.
- Best practice in advising clients about their options in police interview (answering questions, remaining silent, making a prepared statement).
- When legal advice to remain silent may negate or limit adverse inferences.
- Special rules relating to vulnerable or unfit suspects.
- How to apply these points to realistic client interview and practice scenarios.
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.
- What must be present before an adverse inference can be drawn from a suspect's silence during police interview?
- Under what circumstances is legal advice to remain silent a sufficient reason to prevent adverse inferences?
- What are the options you might advise a client regarding answering police questions?
- Can a suspect always remain silent without any negative consequence? Explain.
Introduction
When a solicitor represents a client detained at a police station, clear advice regarding answering police questions is critical. This article examines the right to silence, the legal effect of remaining silent, and when adverse inferences may be drawn in criminal proceedings. Practical guidance is included on how to ensure a client is properly advised and the consequences of their actions at interview.
The Right to Silence
The starting point is that every person detained by police has a basic right to silence when questioned.
Key Term: right to silence
The principle that a person cannot generally be compelled to answer police questions or otherwise incriminate themselves. This right is recognized in domestic law and Article 6 of the European Convention on Human Rights. However, silence can carry consequences, and suspects must be aware of the circumstances in which adverse inferences may arise if they choose not to respond to police questions.
Advising on Silence: Options at Interview
When advising a client prior to police interview, their main options are:
- Answer all police questions.
- Provide a prepared written statement and then say "no comment" to further questions.
- Remain silent throughout ("no comment" interview).
- Answer some questions selectively (not generally recommended).
Each option has potential advantages and disadvantages, and the best advice will depend on the facts, the strength of the prosecution case, and what disclosure has been received from police.
Key Term: prepared statement
A written document setting out the client's account or defence, which is read or handed to police before or at the start of interview. After this, the client usually remains silent.
Adverse Inferences from Silence
Key Term: adverse inference
A negative conclusion which the court or jury is permitted to draw when a suspect remains silent during police interview or at trial without a proper explanation.Key Term: CJPOA 1994, s 34
Enables courts to draw an adverse inference from a failure to mention a fact relied on in defence when questioned by police or on charge, provided certain conditions are met.Key Term: special caution
Additional words given by police when requiring a suspect to account for objects, marks, substances, or presence at a particular place, under ss 36–37 CJPOA 1994.
To draw an adverse inference, the following must generally be satisfied:
- The suspect had a proper opportunity to reply under caution.
- The questioning was directed to discovering whether the suspect committed the offence.
- The fact relied on at trial was not mentioned in interview but could "reasonably have been expected" to be mentioned.
- The suspect had access to legal advice, unless that access was properly delayed.
Worked Example 1.1
Your client is charged with burglary and is interviewed at the police station. She remains silent throughout. At trial, she claims she was elsewhere at the time of the offence (an alibi).
Answer:
An adverse inference may be drawn. She could "reasonably have been expected" to mention the alibi at interview. The judge may direct the jury that this silence casts doubt on the credibility of her defence.
When Legal Advice Prevents Adverse Inferences
A client who is advised by their solicitor to remain silent may, in some circumstances, avoid an adverse inference. However, the jury/court will consider whether the reliance on legal advice was genuine and reasonable. Merely saying the advice was followed will not automatically prevent the drawing of an inference; the explanation and circumstances matter.
Key Term: reliance on legal advice
A reason given by a suspect for remaining silent, based on their legal representative’s guidance—relevant in deciding whether it was reasonable for them not to answer. If the jury believes the real reason for silence was genuine reliance on legal advice, and following that advice was itself reasonable in the circumstances (e.g., inadequate disclosure from police), then no adverse inference should be drawn. But if this was not the true reason (or the advice was unreasonable), an adverse inference may still be possible.
Worked Example 1.2
You advise your client not to answer police questions because the police have provided minimal disclosure. At trial, the client raises self-defence (which was not mentioned in interview). Can the court draw an adverse inference?
Answer:
If the advice to remain silent was given for good reason (for example, inadequate police disclosure), and the client genuinely relied on that advice, the court should not draw an adverse inference.
Factors Affecting the Advisability of Silence
When deciding whether to advise a client to remain silent, consider:
- The strength of the police evidence.
- The adequacy of disclosure provided to the solicitor.
- Whether the client is likely to perform well or poorly at interview.
- The client’s personal circumstances (e.g., vulnerability, age, health).
- Whether the client has a credible defence to raise.
Key Term: inadequate disclosure
Insufficient information provided by police before interview, making it difficult for the solicitor to assess the strength of the case or best line of defence.
Risks of Silence: Tactical and Legal
Remaining silent is not without risk. If a client later puts forward a defence at trial that was not mentioned at interview, juries may doubt the reliability of that defence. In borderline cases, a prepared statement may be safer, as this allows the client's position to be placed "on record" without the risks associated with answering all questions or making inconsistent statements.
Vulnerable or Unfit Suspects
Clients who are unfit to be interviewed (due to mental impairment, youth, intoxication, or other vulnerabilities) should not generally be questioned. Where they are, special care must be taken and the presence of an appropriate adult is usually required.
Key Term: appropriate adult
A responsible person (not police or legal advisor) who must be present when a vulnerable or juvenile suspect is interviewed, to protect their rights and welfare. If a client is vulnerable or unfit for interview, ensure this is recorded in the custody record and challenge any attempt to proceed.
Exam Warning
If your client later claims at trial that they wished to raise a fact or defence but relied on poor legal advice to remain silent, this will not always prevent an adverse inference. The reasonableness and genuineness of the original advice and the client's reliance on it will be scrutinized.
Revision Tip
Clarify with clients before interview what defence (if any) they might later want to raise. If they intend to rely on an alibi, self-defence, or other explanation, advise them to put this forward in a prepared statement or answer questions—unless there are strong reasons not to.
Key Point Checklist
This article has covered the following key knowledge points:
- The right to silence exists at the police station but is not absolute; silence can have legal consequences.
- Adverse inferences from silence may be drawn under CJPOA 1994 if proper conditions are met.
- Relying on legal advice to remain silent may prevent adverse inferences only where genuine and reasonable.
- Advising clients on silence must always be tailored to the specific facts, the strength of the case, and adequacy of police disclosure.
- Prepared statements can be useful where answering questions carries risk but there is a viable defence.
- Vulnerable suspects require special attention and must generally have an appropriate adult present at interview.
Key Terms and Concepts
- right to silence
- prepared statement
- adverse inference
- CJPOA 1994, s 34
- special caution
- reliance on legal advice
- inadequate disclosure
- appropriate adult