Learning Outcomes
After studying this article, you will be able to explain the right to silence at the police station, identify when adverse inferences may be drawn under the Criminal Justice and Public Order Act 1994, and advise clients on the practical and legal implications of remaining silent or answering questions. You will also be able to apply these principles to realistic client scenarios and understand the strategic considerations for SQE1.
SQE1 Syllabus
For SQE1, you are required to understand the right to silence and the drawing of adverse inferences in criminal investigations and proceedings. Focus your revision on:
- the statutory right to silence and its limits at the police station and in court
- the circumstances in which adverse inferences may be drawn from silence under ss 34–37 CJPOA 1994
- the practical and strategic considerations when advising clients whether to answer police questions, including the use of prepared statements and the effect of legal advice
- the impact of adverse inferences on the outcome of criminal proceedings
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.
- 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?
- True or false? A defendant can never be convicted solely on the basis of an adverse inference drawn from silence.
- What is a "special caution" and when must it be given during a police interview?
- If a client remains silent in interview on legal advice, can an adverse inference still be drawn at trial? Briefly explain.
Introduction
When advising clients at the police station, understanding the right to silence and the potential for adverse inferences is essential. The right to silence is a fundamental protection, but it is not absolute. The Criminal Justice and Public Order Act 1994 (CJPOA 1994) introduced key provisions allowing courts to draw adverse inferences from a suspect’s silence in certain circumstances. For SQE1, you must know when these inferences may be drawn, how to advise clients, and the practical implications for criminal proceedings.
The Right to Silence: Scope and Limits
The right to silence allows a suspect to refuse to answer police questions or provide information. This right is rooted in common law and protected by Article 6 of the European Convention on Human Rights. However, the CJPOA 1994 changed the framework by permitting courts and juries to draw adverse inferences from silence in specific situations.
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.
Adverse Inferences: Statutory Provisions
Adverse inferences are negative conclusions that a court or jury may draw from a suspect’s silence. The main statutory provisions are found in ss 34–37 CJPOA 1994.
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
Section 34 allows a court to draw an adverse inference if a suspect fails to mention a fact when questioned or charged that they later rely on in their defence. The fact must be one that the suspect could reasonably have been expected to mention at the time.
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.
Section 35: Silence at Trial
Section 35 permits an adverse inference if a defendant fails, without good cause, to give evidence at trial or refuses to answer questions. The court must be satisfied that the defendant was aware of their right to testify and the consequences of not doing so.
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.
Section 36: Failure to Account for Objects, Substances, or Marks
Section 36 applies where a suspect fails to account for objects, substances, or marks found on their person, clothing, or in their possession at the time of arrest, which may be linked to the offence. The police must give a "special caution" warning the suspect that an adverse inference may be drawn from their silence.
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.
Section 37: Failure to Account for Presence at a Particular Place
Section 37 allows an adverse inference if a suspect fails to explain their presence at or near the scene of an offence at the relevant time, after being given a special caution.
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.
When Can Adverse Inferences Be Drawn?
Adverse inferences may only be drawn if statutory conditions are satisfied. For section 34, the suspect must have been questioned under caution, and the fact omitted must be one they could reasonably have been expected to mention. For sections 36 and 37, a special caution must be given. For section 35, the defendant must have been informed of their right to testify and the consequences of remaining silent.
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.
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, the court may draw an adverse inference from their silence, potentially undermining their defence.
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.
Advising Clients: Practical and Strategic Considerations
When advising clients at the police station, consider the following:
- Assess the strength of the prosecution case and the adequacy of police disclosure.
- Evaluate the client’s ability to give a coherent account (consider age, vulnerability, or mental health).
- Explain the right to silence and the possible consequences of remaining silent, including adverse inferences.
- Advise on the use of a prepared statement if appropriate.
- Warn that selective silence (answering some questions but not others) can appear suspicious.
- Document the reasons for your advice, especially if recommending silence.
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.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 Effect of Legal Advice on Adverse Inferences
If a client remains silent on legal advice, the court will consider whether the advice was genuinely and reasonably relied upon. If so, an adverse inference may not be drawn. However, if the court finds the advice was not the true reason for silence, or was not reasonable in the circumstances, an inference may still be drawn.
Exam Warning
If a client relies on legal advice to remain silent, this does not guarantee that no adverse inference will be drawn. The court will examine whether the advice was the real and reasonable reason for silence.
The Limits of Adverse Inferences
A defendant cannot be convicted solely on the basis of an adverse inference. There must be other evidence supporting guilt. The drawing of inferences is discretionary, and the court must consider all the circumstances, including the adequacy of police disclosure and the suspect’s personal situation.
Revision Tip
Always check that the statutory conditions for drawing an adverse inference are strictly met. If in doubt, advise clients to ensure their defence is placed on record at the earliest opportunity.
Summary
- The right to silence is a fundamental protection but is not absolute.
- Adverse inferences may be drawn from silence under ss 34–37 CJPOA 1994 if statutory conditions are met.
- A special caution is required for inferences under ss 36 and 37.
- Remaining silent on legal advice does not guarantee protection from adverse inferences.
- A conviction cannot be based solely on an adverse inference.
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.
- A conviction cannot be based solely on an adverse inference; there must be other evidence of guilt.
- Advising clients requires careful consideration of the evidence, disclosure, and the client's circumstances.
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
