The Right to Silence at the Police Station

A suspect enjoys the right to silence at the police station however if the suspect remains silent, is charged and then advances a defence at trial there is a  danger that the court may draw adverse inferences against his silence under s34 Criminal Justice and Public Order Act 1994. Adverse inferences may also be drawn where the suspect fails to account for objects found on his person s36 or his presence at a particular place s37.

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Where a defendant produces facts at his trial which he failed to mention at interview he may have an adverse inference drawn against him if the court considers it was reasonable at the time for the defendant to have advanced the facts of his defence. The rationale behind s34 is that if the defendant has an explanation to put forward in relation to any allegation this must be done at the first available opportunity. The case of R v Argent 1997 2 Cr APP R 27 provides the conditions that must be met before the court may draw adverse inferences as follows:

  • There must be proceedings against the person for an offence
  • The alleged failure to answer questions must have occurred before charge
  • The questioning of the suspect must be directed towards discerning whether or by whom the alleged offence was committed
  • The fact that the defendant has failed to mention must be a fact which in the circumstances existing at the time he could reasonably have been expected to mention when questioned.

The reasonableness test in R v Argent includes the defendant's age and experience of dealing with the police, mental capacity and state of their health.

Whether or not the defendant's silence was based on legal advice would not necessarily stop adverse inferences from being drawn as the matter remains one for the magistrates or jury. An inference can only be drawn if having worked through a number or specified safeguards in the Judicial Services Board directions the jury comes to the conclusion that the defendant remained silent because he had no answer to the allegations or none that he was prepared to subject to critical scrutiny. The Judicial Services Board safeguards include:

  • A conviction cannot be solely based on an adverse inference
  • The court must consider the reason for the defendant remaining silent
  • Adverse inferences may only be drawn where the jury concludes that the real reason for the defendant's failure to answer questions was that he had no answer to the questions or none that would withstand critical scrutiny

Legal Advice

Your advice to your client to remain silent during police interview would not necessarily protect them from adverse inferences being drawn during trial. In order for the court to decide whether the choice to remain silent was reasonable would depend on the advice given which is of course protected by legal professional privilege. It is for the client to waive this privilege and then be cross examined as to exactly what they told their solicitor. An adverse inference may not be drawn if the court concludes the accused genuinely and reasonably relied on legal advice. Although conviction cannot be based mainly or wholly on silence a solicitor advising a client to be silent must make his client aware of the risks. You could advice your client to submit a prepared statement detailing facts to be relied on in their defence as a way to prevent adverse inferences from being drawn.

S36 CJPOA 1994- adverse inferences may be drawn where after arrest the defendant refuses to account  for any object substance or mark on his person or clothing or  on his possession and the officer believes the object to be attributable to the commission of the offence and the effect of failure to account for the object has been explained  to the suspect.

S37 CJPOA 1994- adverse inferences may be drawn where after arrest the defendant refuses to account for his presence at a particular place and the officer believes that his presence may be attributable to the commission of an offence and the possible effect of refusal to account has been explained to the defendant.