No Comment Interviews: Your Right to Silence and Its Limits

What the caution actually says

The standard caution, in PACE Code C paragraph 10.5, is: “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.”^[5]

The first sentence is your right to silence. The second sentence is a summary of section 34 of the Criminal Justice and Public Order Act 1994. It applies where, on being questioned under caution, the accused “failed to mention any fact relied on in his defence”, being a fact which “the accused could reasonably have been expected to mention”. If so, the court or jury “may draw such inferences from the failure as appear proper.”^[1]

Notice what the section is about. It is not about refusing to answer questions as such. The Crown Court Compendium, the guidance judges use to direct juries, puts it this way: “The statutory right to draw inferences is aimed at the failure to mention facts on which reliance is placed at trial, not mere silence itself.”^[6] In R v Turner the Court of Appeal noted that counsel had flagged up “the mischief aimed at by the sections was not failure to answer questions per se, but failing mention facts subsequently relied upon at the trial.”^[7]

When a court can draw an inference under section 34

All of these have to be in place:

• You were questioned under caution (or charged, or officially told you might be prosecuted).^[1] Code C Note 10G says “a court will not be able to draw any inferences under the Criminal Justice and Public Order Act 1994, section 34, if the person was not cautioned.”^[5]
• At trial you rely on a fact you did not mention. A bare denial or simply putting the prosecution to proof is not enough. The Compendium records that a s.34 direction where the defendant “had put forward no more than a bare denial would amount to a direction that guilt could simply be inferred from the exercise of the right to silence. This was not the purpose of s.34.”^[6]
• It was a fact you “could reasonably have been expected to mention” at the time.^[1] The jury looks at the real person, not an imaginary reasonable suspect. Quoting R v Argent, the Compendium lists “time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice” as examples of relevant circumstances.^[6]
• If you were at a police station, you had been allowed to consult a solicitor first (s.34(2A)).^[1]

The prosecution also has to say what it is relying on. In R v Oni [2025] the Court of Appeal said: “There seems to us to be little point in having section 34 of the CJPOA if the prosecution do not identify what facts they say the accused could reasonably have been expected to mention, and what inferences they say should be drawn.”^[10]The Compendium quotes the same passage.^[6]

What a jury is told

Even when the conditions are met, an inference is not automatic. The Compendium says an adverse inference “will only be appropriate where the jury concludes that the silence can only sensibly be attributed to D not having an answer, or none that would withstand questioning.”^[6] Section 38(3) adds a hard limit: nobody can “be convicted of an offence solely on an inference drawn from such a failure”.^[4]

The solicitor rule: no inference if you were denied advice

Section 34(2A) says that where the accused was at an authorised place of detention (a police station), the inference provisions “do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed”.^[1] Sections 36(4A) and 37(3A) say the same for special warnings.^[2][3]

Code C Annex C turns this into practice. Where a detainee has asked for legal advice, has not been allowed to consult a solicitor, and has not changed their mind, the restriction applies and police must use a shorter caution: “You do not have to say anything, but anything you do say may be given in evidence.”^[5] If you hear that version, the “harm your defence” part has gone because the law no longer allows the inference. Annex C also notes the restriction will not apply if the detained person declines to ask for the duty solicitor.^[5]

Code C paragraph 6.1 says detainees must be told they may at any time consult and communicate privately with a solicitor, and that “free independent legal advice is available”.^[5] If you are asked whether you want a solicitor, it is worth saying yes before deciding anything about the interview.

Special warnings: objects, marks and being at the scene

Sections 36 and 37 are separate from section 34 and work differently. They apply only to people who have been arrested. Code C Note 10F says they “do not apply to any interviews with suspects who have not been arrested.”^[5]

• Section 36: an object, substance or mark on you, in your clothing or footwear, in your possession, or in the place you were arrested, which an officer reasonably believes may be due to your taking part in an offence.^[2]
• Section 37: you were found at a place at or about the time of the alleged offence and an officer reasonably believes your presence may be due to your taking part in it.^[3]

Before an inference can be drawn, Code C paragraph 10.11 says you must be told “in ordinary language”: what offence is being investigated, what fact you are being asked to account for, that it may be due to you taking part in the offence, that “a court may draw a proper inference if they fail or refuse to account for this fact”, and that the interview is being recorded.^[5] The statute says the same: the sections do not apply unless the accused “was told in ordinary language … what the effect of this section would be”.^[2][3]

The key difference: the Compendium says section 36, “unlike s.34, has no qualifying condition of reasonableness; the sole question is whether the suspect accounted for the object, substance or mark.”^[6] So a special warning needs particular care with your solicitor. For a child or vulnerable adult, paragraph 10.11A says the warning must not be given unless the appropriate adult is present.^[5]

No comment on legal advice

Many people stay silent because their solicitor advised it. That advice is relevant, but it does not automatically stop an inference. In R v Hoare and Pierce the Court of Appeal said that “however sound the advice in law or as a matter of tactics, a defendant is not entitled to hide behind it if, at the time, the true reason for not mentioning the facts was that he had no or no satisfactory explanation consistent with his innocence to offer.”^[8] The Compendium summarises Hoare in the same terms and notes that Betts was endorsed by Lord Woolf CJ in Beckles.^[6][9]

What you say to your solicitor is privileged. You do not have to reveal it. But the Compendium warns that privilege “will be waived if D and/or D’s solicitor give evidence of the content or reason for the advice”, though only to a limited extent.^[6]That is a trial decision, made later with your defence team.

Code C Note 6D describes the solicitor’s job at the station: “The solicitor’s only role in the police station is to protect and advance the legal rights of their client.” The solicitor may “advise their client not to reply to particular questions”.^[5]

Things said or not said outside the interview room

At the start of an interview, Code C paragraph 11.4 requires the interviewer to put to you “any significant statement or silence” that happened in front of a police officer or other police staff before the interview, and ask whether you confirm or deny it.^[5] A significant silence is one that “might, allowing for the restriction on drawing adverse inferences from silence … give rise to an inference” (paragraph 11.4A).^[5] Comments in the van or at the custody desk can matter, which is a good reason to keep the account for your solicitor.

How the decision is usually made

In practice, the choice between answering questions, a prepared statement and no comment is made after the solicitor has heard what the police are willing to disclose and has spoken to you privately. Code C paragraph 11.1A says that before an interview you and your solicitor must be given “sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it”, but that this “does not require the disclosure of details at a time which might prejudice the criminal investigation.”^[5]

There is no single right answer. Silence can protect someone when the police have disclosed little, when the person is not fit to give a reliable account, or when the law makes no inference possible. Answering can be better when there is a clear, true explanation that would be harder to believe if it first appeared at trial. A prepared statement sits between the two.

Silence at trial is a separate rule

This page is about silence in the police station. Choosing not to give evidence at trial is covered by section 35 of the same Act, which has its own rules.

An illustration (invented example)

This is an invented example to show how the rules fit together. It is not a real case. A man is arrested after a fight outside a pub. Police disclose very little. On advice, he answers no comment. At trial he says nothing new and simply puts the prosecution to proof. Because he relies on no fact he failed to mention, there is nothing for section 34 to work on. If instead he said for the first time at trial that he acted in self-defence, the prosecution could ask the jury to consider why he did not say so in interview, and the jury would weigh his reasons, including the advice he was given.