If the police interview you will either attend voluntarily or be under arrest. You have the option to provide –
1. No comment – give no account
2. Comment – give your account
3. Hand in a written statement – written statement during or after interview but before charged
4. Hand in a prepared statement – if released pending further investigation then handed in if later charged to attend court
The Right to silence in law
At common law, when being questioned about involvement in a criminal offence, a suspect is under no obligation to answer any questions. At trial, an accused person also has a ‘right to silence’, sometimes termed a ‘privilege against self-incrimination’.
The right to silence is a key feature of the criminal justice system in England and Wales and is generally recognised as being enshrined in the right to a fair trial under Article 6 of the European Convention on Human Rights.
It is the reason behind the cautioning of suspects required by the Police and Criminal Evidence Act 1984 (PACE 1984).
However, sections 34-37 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994) place important limitations on the right to silence. The provisions permit the court to draw inferences against an accused person in specific circumstances should they then give an account in court. These inferences are known as “adverse inferences”.
Many people assume that, by saying “no comment” during a police interview, you are automatically putting yourself on the backfoot and will be, in some way, incriminating yourself. However, this isn’t necessarily the case.
In England and Wales, you have a right to silence during criminal proceedings. This means that you are protected from facing any adverse consequences if you choose to make “no comment” when facing questions from the police.
However, remaining silent when being interviewed isn’t always the most appropriate course of action. Here, we discuss when it may be appropriate to make “no comment”, why it is not always the best option and why legal advice is essential if you find yourself under investigation from the police.
When might you say, “no comment”?
The decision to remain silent when questioned by the police can be a difficult one and will depend on various circumstances.
The best course of action could be to remain silent where:
- You have no recollection of the alleged offence and cannot provide an accurate account; or
- You do not understand the line of questioning; or
- You are not guilty of the offence, but may have concerns about being implicated for a separate offence.
Most importantly, saying “no comment” will be the right course of action if it is specifically recommended by your solicitor. For example, your solicitor may advise you to remain silent because your arrest could be considered unlawful, or there is a serious lack of evidence tying you to the alleged offence.
What are the benefits to saying “no comment?”
The most obvious benefit to saying “no comment” in a police interview is that you will not be adding an immediate strength to a prosecution case. In certain situations, this may leave a prosecution with insufficient evidence to charge you.
However, it is important to note that simply saying “no comment” will not always be enough to prevent you from being convicted. In fact, under certain conditions, it has the potential to backfire.
Why might saying “no comment” cause complications?
It is important to note that, while you have a right to remain silent and this should give you the privilege against self-incrimination, it may not be the most appropriate response in certain situations.
The condition often attached to the answer “no comment” is often referred to as ‘adverse inference’.
For example, the court may draw adverse inference if you are questioned by the police and you do not mention a fact which you later rely on for your defence in court. If you had the opportunity to share the information and you instead chose to remain silence, this could ultimately count against you.
Adverse inference may not be drawn if you are able to provide a clear explanation for your decision to remain silent during the original questioning.
The specific circumstances are:
- Section 34 – a defendant fails to mention facts which they later rely on in their defence at trial which they could reasonably have been expected to mention at the time of the interview.
- Section 36 – fails to account for the presence of an object, a substance mark or a mark on an object.
- Section 37 – fails to account for their presence at a place at or about the time of the offence
What does adverse inference mean?
The term ‘adverse inference’ means the court is permitted to draw ‘such inferences as appear proper’ including a negative conclusion from the defendant’s silence; in other words, the court may hold the defendant’s silence against them. The significance for a judge is whether or not that failure is an indication that the facts which are now being advanced can or cannot be relied on.
One inference a court may draw is that what is being said is a recent fabrication ie. that the defendant remained silent when interviewed because they did not have an adequate explanation for their conduct and they have since fabricated what they say in court.
Alternatively, the inference may be drawn that the suspect did not put their defence forward when interviewed by the police because they did not believe it would stand up to further investigation by the police.
Why might you comment?
If you are being interviewed by the police, you have the option to give your account. While this may not be an appropriate option for everyone, depending on circumstances, it may be the correct approach if your comments strengthen your defence.
If you have an alibi – you must give that alibi – e.g. I was 100 miles away seeing my granny when the offence happened.
Why might you provide a prepared statement?
There are two types of prepared statements you can make in response to police questioning. You can provide a written during or after an interview, or if you are bailed pending investigation you can hold back a written statement for it to then be handed to the police or prosecution if you are later charged to attend court.
A prepared statement during or after the interview process allows someone to control the amount of information they disclose in interview to the police. There are certain scenarios where a prepared statement during a police interview may be appropriate, such as if the police are not providing full disclosure of the evidence they hold and may attempt to spring a surprise on you during questioning. You may not be strong enough to withstand unfair or difficult questions from officers. You may come across badly in interview as not everyone responds well to authority of police or investigators. Or e.g. making no comment when you may have to say “I did not rape her, we had sex but the sex was consensual” then you make no comment but set out a broader account in writing.