Advising clients at the police station - Advising on silence...

Learning Outcomes

This article explains how to advise clients on the right to silence and adverse inferences at the police station, including:

• Identifying the extent and limits of the right to silence in interview and distinguishing it from the privilege against self-incrimination.
• Explaining the common law, statutory and human rights foundations of the right to silence, including PACE, the Criminal Justice and Public Order Act 1994 and Article 6 ECHR.
• Describing and applying the statutory framework governing adverse inferences from silence at interview and at trial, and the conditions and procedural safeguards for drawing such inferences.
• Evaluating the practical implications of advising a client to answer questions, remain silent, or give a prepared statement, and how each option may affect adverse inferences.
• Analysing the tactical and legal risks of silence versus answering questions, taking into account evidence strength, police disclosure, and client-specific factors such as vulnerability and fitness.
• Assessing when reliance on legal advice or inadequate disclosure may negate or limit adverse inferences, focusing on the genuineness and reasonableness of both the advice and the client’s reliance on it.
• Considering the position of juveniles and other vulnerable or unfit suspects, and the significance of an appropriate adult within the police station process.
• Applying these principles to realistic interview and SQE2 practice scenarios to develop robust, ethically sound recommendations for client strategy.

SQE2 Syllabus

For SQE2, you are required to understand silence in police station interviews and its practical consequences, with a focus on the following syllabus points:

• The right to silence, its sources (PACE, ECHR, CJPOA 1994), exceptions, and distinctions from the privilege against self-incrimination.
• The operation of adverse inferences under CJPOA 1994 (ss.34–37), including specific requirements for drawing inferences pre- and post-charge, in police interview and at trial.
• The options for advising a client in police interview: answering questions, providing a prepared statement, or remaining silent; the tactical and evidential implications of each.
• The concepts of basic intent and specific intent in relation to the effect of intoxication or mistaken belief at interview and trial.
• When legal advice to stay silent may or may not shield against adverse inferences, the significance of adequate police disclosure, and the impact of 'genuine and reasonable' reliance.
• Rules, safeguards, and procedural adaptations for vulnerable or unfit suspects, including the necessity and function of an appropriate adult.
• Application of these principles in criminal practice, including identification of suitable strategies for effective client representation in varied circumstances.

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. What must be present before an adverse inference can be drawn from a suspect's silence during police interview?
2. Under what circumstances is legal advice to remain silent a sufficient reason to prevent adverse inferences?
3. What are the options you might advise a client regarding answering police questions?
4. Can a suspect always remain silent without any negative consequence? Explain.

Introduction

A solicitor representing a client detained at the police station plays a critical role in safeguarding the client's rights. Understanding the legal and practical implications of the right to silence—including the circumstances in which a client's silence can lead to adverse inferences at trial—is essential. This article examines the doctrine of silence, its legal foundations, when courts may draw adverse inferences from silence, and how this affects client advice. Both substantive law and real-world application are emphasised, with a focus on practical decision-making for SQE2 scenarios.

Key Term: right to silence
The principle permitting an individual to refuse to answer police questions or otherwise avoid self-incrimination. The right to silence is protected by common law, statutory provisions (such as PACE and the Criminal Justice and Public Order Act 1994), and Article 6 ECHR. However, silence can lead to legal consequences where the law allows for adverse inferences.

Key Term: privilege against self-incrimination
The fundamental principle supporting the right to silence, protecting individuals from being compelled to provide evidence that could lead to their own conviction.

The Right to Silence

The starting point is that every person detained by police has a right to remain silent when questioned. Under UK law, no individual may be compelled to answer police questions or provide explanations that may prejudice their position.

The modern interpretation of the right to silence is twofold: the “right to refuse” to answer police questions (derived from common law and now reflected in the Police and Criminal Evidence Act 1984 (PACE)) and the privilege against self-incrimination (also protected by Article 6 ECHR). The right to silence is not absolute. Legislative reforms, notably the Criminal Justice and Public Order Act 1994 (CJPOA 1994), have placed limits on this right by allowing for adverse inferences in defined circumstances.

Key Term: caution (police caution)
The mandatory warning given to all suspects before interview under PACE Code C: “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.” Minor deviation from the precise wording is permissible so long as the meaning is clear.

Key Term: basic intent
A category of criminal offence where the mens rea can be satisfied by intention or recklessness (e.g. assault, s.20 OAPA 1861, s.47 OAPA 1861, manslaughter, criminal damage). Voluntary intoxication is not a defence to a basic intent crime.

Key Term: specific intent
A category of criminal offence requiring proof of intention (and not mere recklessness) for liability (e.g. murder, s.18 OAPA 1861, theft, robbery, burglary, attempts). Voluntary intoxication may, in some circumstances, provide a defence to specific intent offences.

Article 6 ECHR recognises the right to a fair trial, including the right to silence and the privilege against self-incrimination. These underlie UK practice but may be subject to statutory qualifications.

Advising on Silence: Options at Interview

Prior to police interview, the solicitor should meet privately with the client, review the custody record, consider police disclosure, and assess the strength of the evidence. There are three principal options for response in police interview:

• Answer all questions put by the police.
• Provide a written prepared statement and then answer "no comment" or remain silent to all further questions.
• Remain silent throughout, or give "no comment" responses to all questions.

Selective answering (i.e. answering some questions but not others) is rarely recommended, as inconsistent or partial answers may risk damaging the credibility of the client's eventual defence and increase the likelihood of adverse inferences.

The decision between these options involves an assessment of various factors, including the quality of police evidence, the disclosure made pre-interview, the client’s vulnerability or maturity, how well the client is likely to perform in interview, and any potential defence.

Key Term: prepared statement
A written document, usually drafted with a solicitor’s assistance, setting out the client’s account or defence. This is handed to the police at or before interview and may be read aloud. After a prepared statement is given, the client typically answers all further police questions with "no comment."

Prepared statements are sometimes advised where the client has a clear defence but is not likely to perform well in live questioning, or where there is a risk of inadvertently undermining a legitimate defence. However, careful drafting is essential: if the client relies at trial on facts not disclosed in the prepared statement, an inference may still be drawn.

Worked Example 1.1

Your client has been accused of 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 her silence in interview casts doubt on the credibility of her defence. The adverse inference cannot be the sole basis for conviction, but it may significantly undermine the defence.

Adverse Inferences from Silence

Key Term: adverse inference
A negative conclusion that the court or jury is permitted to draw where a suspect remains silent during police interview or at trial (or fails to account for objects, marks, or their presence at a particular place), without an adequate explanation.

Under CJPOA 1994, ss.34–37:

• Section 34 permits adverse inferences where a suspect, when interviewed or charged, fails to mention a fact later relied on in their defence. For an inference to be drawn, the ‘fact’ must be one "which in the circumstances existing at the time, the accused could reasonably have been expected to mention".
• Section 35 allows inferences if a defendant fails to testify at trial after the prosecution evidence is heard, or refuses to answer a question when testifying.
• Section 36 and Section 37 relate to failures to account for objects, marks, substances, or presence at a particular place, when required by the police after arrest.

Key Term: CJPOA 1994, s 34
Section 34 of the CJPOA 1994 enables courts to draw an adverse inference if a defendant, when questioned under caution by police, fails to mention a fact later relied on at trial as part of their defence.

In all cases, the adverse inference must be "proper" and supported by evidence beyond the silence itself. A conviction cannot rest solely on an adverse inference (CJPOA 1994, s.38(3)).

To draw an adverse inference under s.34:

• The questioning must be under caution.
• The suspect must have had the opportunity to consult a solicitor.
• The questioning must be genuinely 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 have been.
• The suspect subsequently relies on that fact in their defence at trial.

It is not necessary for the client to have answered all questions: a failure to mention even one key fact (later relied on in court) may result in an adverse inference. Simply providing a prepared statement that omits a particular fact is insufficient protection.

Worked Example 1.2

Suppose a suspect hands in a prepared statement saying only "I didn't do it," but at trial claims detailed self-defence. Can an adverse inference be drawn?

Answer:
Yes. If the suspect relies at trial on a defence not mentioned in the prepared statement (or interview), and could reasonably have been expected to mention it, the court may draw an adverse inference, regardless of having made a general or insufficiently detailed prepared statement.

Key Term: special caution
Under ss.36–37 CJPOA 1994, the police may give a special caution when requiring a suspect to account for objects, marks, substances, or their presence at a particular place. For an adverse inference to be drawn from silence in these scenarios, the suspect must have been told in ordinary language what is required, the effect of not answering, and warned that their silence may be relied on in evidence.

When Legal Advice Prevents Adverse Inferences

Claims of acting on legal advice, or limited police disclosure, frequently arise in practice as purported justifications for silence. However, reliance on solicitor’s advice will only negate or limit adverse inferences if it is both the genuine reason for remaining silent and reasonable in the circumstances.

Key Term: reliance on legal advice
A factual circumstance where a suspect, advised by their legal representative to remain silent, later claims this as the reason for silence—giving rise to judicial scrutiny of whether this was genuine and reasonable. The court will consider whether following such advice was reasonable, what information was available pre-interview, and whether the suspect genuinely relied on it.

If the jury accept that the sole reason for silence was the solicitor’s genuine and reasonable advice—such as a lack of adequate disclosure or concern over oppressive police tactics—no adverse inference should be drawn. However, a mechanical claim that "my lawyer told me to say nothing" is not sufficient. The court must investigate the circumstances and allow the jury (or magistrates) to decide whether the client's explanation for their silence is credible.

Key Term: inadequate disclosure
Where the police have not provided sufficient information pre-interview to enable meaningful legal advice, it may be reasonable to advise silence, supporting a claim that adverse inferences should not be drawn.

Worked Example 1.3

A client is arrested for serious fraud, and police state only “a business investigation” is underway, refusing more detail. Defence legal advice is to remain silent until proper disclosure. At trial, the client puts forward detailed explanation of his business dealings.

Answer:
If the advice was genuinely based on an absence of disclosure, and the client genuinely relied on it as the reason for their silence, the court should not draw an adverse inference.

If, however, the client remained silent for reasons other than legal advice (such as fear of self-incrimination or lack of a real defence) or the advice was plainly unreasonable, an adverse inference may still be drawn at the court’s discretion.

Factors Affecting the Advisability of Silence

The solicitor’s approach to advising silence, answering police questions, or submitting a prepared statement must be tailored to each client and case. The following factors are particularly relevant:

• The strength (or weakness) of current police evidence.
• The nature and amount of pre-interview disclosure.
• Any risk to the client through self-incriminating or inconsistent answers, especially in cases involving complex facts, vulnerable clients, or significant pressure.
• The likely performance of the client in interview, given their age, maturity, language abilities, mental health, or vulnerability.
• Whether the client wishes to advance a positive defence at trial (alibi, self-defence, duress, or other explanation).

Where the police have limited or refused disclosure, or the facts remain unclear, a "no comment" interview or use of a prepared statement may be advisable. However, if the client has a credible defence they wish to rely on, it is wise to record this defence in some form during the police interview—even briefly in a prepared statement—to avoid the risk of an adverse inference at trial.

It is fundamental to distinguish between basic and specific intent offences when advising, especially where intoxication, mistake, or vulnerable state may apply. For basic intent offences, voluntary intoxication is not a defence, and the right to silence does not extend to mistakes induced by intoxication (e.g. self-defence cases where the mistake is caused by drunkenness).

Key Term: basic intent
Crimes that can be committed by intention or recklessness (e.g. s.20/s.47 Offences Against the Person Act 1861, manslaughter, criminal damage). Voluntary intoxication is not a defence to these offences.

Key Term: specific intent
Crimes where the mens rea requires proof of intention alone (e.g. murder, theft, s.18 OAPA 1861, most attempts). Voluntary intoxication may, in some instances, prevent the requisite intent from being formed and so may constitute a defence.

Risks of Silence: Tactical and Legal

Choosing silence is not without risk. Whilst suspects have the right not to incriminate themselves, the consequence of failing to mention a later-relied-upon fact can be significant:

• If a fact central to the defence is not mentioned during interview, and is instead raised for the first time at trial, the court or jury may draw the conclusion that the client fabricated that defence.
• Juries and courts are specifically directed that silence during police questioning may call into question the credibility of any subsequent defence.
• Silence is especially problematic where the prosecution case is not particularly strong, yet the defence is only provided at trial (thus looking concocted or an afterthought).

In borderline cases, or where there is a realistic prospect of conviction, suspects who have a tenable defence but poor interview prospects should be advised to put their defence on record (for example, via a prepared statement), unless strong reasons not to do so exist. If, however, the case is legally or factually weak, total silence may be the best tactical choice.

Worked Example 1.4

A suspect is arrested for ABH and police provide little disclosure. The defence has evidence of an alibi but is concerned the client will perform poorly at interview. What is the safest option?

Answer:
Advising the client to make a prepared written statement setting out the alibi (even if brief), then remaining silent to other questions, is often best. This places the defence “on the record” to limit the risk of adverse inference, but avoids the dangers of open questioning.

Vulnerable or Unfit Suspects

The rules governing the interview of juveniles, mentally disordered, or otherwise vulnerable individuals are more stringent. If a client is unfit for interview due to intoxication, mental impairment, health, youth, or language issues, police should postpone questioning until the client recovers or until an appropriate adult can attend.

Key Term: appropriate adult
A suitably responsible person (such as a parent, guardian, social worker, or non-police responsible adult) who must be present during the questioning of juveniles or vulnerable adults to safeguard their rights and welfare. The appropriate adult's role is to support and assist the suspect, monitor police conduct, and facilitate communication.

A juvenile (under 18) or vulnerable person must not be interviewed, nor asked to make any statement under caution, unless an appropriate adult is present throughout the process. Vulnerability may include mental or physical impairments, learning difficulties, or other factors affecting understanding or communication. If a client is unfit, this should be documented in the custody record and all steps taken to protect their position.

Special Considerations: Silence, Legal Advice, and Professional Ethics

Solicitors have fiduciary and ethical duties to act in their client's best interests, while upholding the administration of justice. Advising silence may be ethically required in many situations to avoid self-incrimination, but a solicitor must not facilitate the advancement of a known or fabricated defence.

Where a client wishes to plead not guilty in court after admitting guilt in interview to their solicitor, professional conduct requires the solicitor not to mislead the court. The lawyer may continue to act, but must not put forward any positive case known to be false. The solicitor can test the prosecution’s case but cannot adduce evidence they know to be fabricated. If the client insists on giving evidence the solicitor knows to be false, the solicitor must withdraw from acting.

Advising a 'no comment' interview for the sake of protecting from self-incrimination is legitimate and necessary in some circumstances, particularly when:

• Police evidence is weak.
• There is a lack of disclosure.
• The client is at risk of self-damaging inconsistent responses due to stress, language, or health.

It is essential, however, that the advice is tailored to the facts and does not constitute a "blanket" recommendation without basis.

Worked Example 1.5

Your client is 17 and detained on suspicion of robbery. They have learning difficulties and English is not their first language. The custody officer plans to proceed with the interview in the absence of an appropriate adult.

Answer:
Object and ensure this is recorded on the custody record. Insist that no interview or statement under caution proceeds until an appropriate adult is present throughout. If the police proceed without one, any evidence obtained may be excluded at trial under PACE or result in an abuse of process finding.

Adverse Inferences at Trial: S.35 and Further Guidance

In addition to inferences under s.34 (silence during police interview), the court may draw an inference under s.35 CJPOA 1994 if, having been properly warned, a defendant chooses to remain silent at trial, or refuses to answer a question, without good cause.

Where the only plausible explanation for refusal to testify is the absence of answers that can withstand cross-examination, the court is entitled to conclude that the defence is unsustainable. However, such inferences cannot form the sole basis of a conviction.

There is a limited statutory discretion not to draw adverse inferences where the defendant's physical or mental condition makes it undesirable for them to give evidence (s.35(1)(b) CJPOA 1994).

Special Rules and Practice Points: Intoxication and Mistake

Mistakes induced by voluntary intoxication (for example, a mistaken belief that force is necessary in self-defence) do not afford a defence to crimes of basic intent. In such cases, the law treats the voluntary excess as recklessness. A drunken mistake about the need for self-defence cannot be relied upon where the offence is of basic intent (see R v O'Grady; CJIA 2008 s.76(5)). The law is more forgiving for involuntary intoxication or mistakes made independently of intoxication.

Clients must be cautioned that relying on a mistaken belief formed under voluntary intoxication will not prevent a finding of criminal liability for basic intent crimes, and silence or prepared statements will not negate this.

Key Point Checklist

This article has covered the following key knowledge points:

• The right to silence is a key protection under the law, but its exercise can have significant evidential consequences.
• Adverse inferences under CJPOA 1994 (ss.34–37) may be drawn from silence at interview or at trial, subject to statutory safeguards.
• Relying on legal advice to remain silent prevents adverse inferences only where reliance was genuine and reasonable in the circumstances.
• Counsel must always tailor advice on answering or remaining silent to the particular circumstances, considering strength of evidence, disclosure, and client vulnerability.
• Prepared statements can protect clients from adverse inference provided all relied-upon facts are included; otherwise, prepared statements may be insufficient.
• In the case of vulnerable or unfit suspects, the law provides extra safeguards, and an appropriate adult is essential to lawful interviewing and safeguarding rights.
• For offences of basic intent, voluntary intoxication offers no defence, and mistaken beliefs induced by intoxication cannot constitute a lawful reason for silence or provide a defence.
• Professional conduct and ethical obligations prevent a solicitor from misleading the court or enabling a knowingly false defence, even where a client wishes to put prosecution to strict proof.

Key Terms and Concepts

• right to silence
• privilege against self-incrimination
• caution (police caution)
• basic intent
• specific intent
• prepared statement
• adverse inference
• CJPOA 1994, s 34
• special caution
• reliance on legal advice
• inadequate disclosure
• appropriate adult