Right to silence & interviews

CRP.02 — Right to Silence & Interviews

The core position

There is a right to silence, but adverse inferences can be drawn from silence under the Criminal Justice and Public Order Act 1994 (CJPOA). The privilege against self-incrimination survives; the cost of exercising it can be an inference.

The four inference provisions (CJPOA 1994)

• s.34 — failure to mention, when questioned under caution or on charge, a fact later relied on in defence which the accused could reasonably have been expected to mention. The most-tested provision.
• s.36 — failure/refusal to account for objects, substances or marks (e.g. on clothing/in possession), after a constable's request and special warning.
• s.37 — failure/refusal to account for presence at a particular place at/around the time of the offence, after a constable's request and special warning.
• s.38 — the safeguard provision: a person cannot have a case to answer established, or be committed for trial, solely on an inference under ss.34/36/37 (s.38(3)). A conviction may rest on inference plus other evidence, but the inference alone is never enough to found the case.

Key safeguards and tests

• The caution ("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...") must be given (PACE Code C). For ss.36/37, a special warning under Code C para 10.11 (in ordinary language: what is being asked, why, that an inference may be drawn) is the trigger.
• s.34 conditions: under caution; failure to mention a fact; fact relied on at trial; reasonable to expect mention at the time. The jury/court must find silence can only sensibly be attributed to having no answer / none that would stand scrutiny (R v Argent [1997]).
• Legal advice to stay silent does not automatically bar an inference. The genuineness AND reasonableness of relying on that advice is assessed (R v Howell [2003]; R v Beckles [2004]). A bare "my solicitor advised silence" is not enough; soundness of the basis matters.
• No inference where the suspect was denied legal advice before questioning (s.34(2A); Murray v UK).
• A prepared written statement can defeat a s.34 inference if it discloses the facts later relied on — but not if the defence later departs from it.

Common traps

• s.38 = inference alone cannot found a case to answer or committal — do not confuse with s.34 conditions, and do not overstate it as "no conviction on silence alone."
• Inferences are permissive, not mandatory ("may", not "must").
• s.34 bites only on facts relied on in defence, not mere failure to answer.
• ss.36/37 need the special warning, not just the general caution.
• "No comment" is not automatically fatal — the Argent threshold and legal-advice analysis apply.
• The caution wording differs from the "old caution" (no inference) used where access to advice is delayed.