Advising on Police Questions and Interviews — SQE1 FLK2 Criminal Law and Practice

Your client has been arrested for wounding after a fight outside a nightclub. He tells you the other man came at him with a bottle first, and that he defended himself. He names a friend who saw the whole thing. The police disclosure is reasonably full, and it fits his account. So he has a credible defence. But he is exhausted, badly anxious, and he rambles. Answer the questions, or go no comment?

Neither. And the fact that there is a third answer is the single most useful thing in this episode, because at the police station the choice is almost never binary. The wrong call can lose a case that was winnable. Keep him in mind. We come back to him.

Here is the route. The framework, and what is left of the right to silence. Then section 34, which is where the marks are: when a court may hold silence against your client, and when it may not. Then how you actually decide what to advise. Then the interview itself under Code C, and your role in it. Then appropriate adults and vulnerable clients. And last, confessions and Article 6.

Three pieces of law do the work here. PACE, and in particular Code C, which governs how an interview is conducted. The Criminal Justice and Public Order Act 1994, which introduced adverse inferences from silence. And Article 6 of the European Convention on Human Rights, brought in by the Human Rights Act 1998, which guarantees a fair trial.

Start with what survives. At common law a suspect has the right to remain silent, and they still do. Nobody can compel your client to answer a question. What changed in 1994 is the consequence. A court or jury may now draw adverse inferences from a failure to mention facts when questioned under caution. The right is intact. It is just no longer free.

Section 34 is the provision that matters at the police station, and it has conditions. The suspect must have been questioned under caution by a constable, before charge, about the offence. They must have failed to mention a fact they later rely on in their defence. And it must be a fact which, in the circumstances existing at the time, they could reasonably have been expected to mention.

That last condition is where the argument lives. Reasonably expected is judged on all the circumstances: the suspect's age, their experience, their mental state, whether they had been properly cautioned, and whether they had legal advice. If your client was denied access to a solicitor, it becomes much harder for the prosecution to say they should have spoken.

So what is an inference? It is a conclusion the jury may draw, not one they must. The classic example: your client says nothing at the station, then produces an alibi at trial, and the jury are invited to conclude the alibi was invented afterwards. And note the limit. Your client does not have to tell the police everything. Only the facts they intend to rely on.

Two neighbouring provisions. Section 35 covers a failure to give evidence at trial. Section 36 covers a failure to account for an object, a mark or a substance found on the suspect, on their clothing, or in their possession. Section 36 only bites if the police told the suspect about the object and gave them a chance to explain it. Think drugs cases and weapons cases.

And one limit that decides real cases. Under section 38, a defendant may not be convicted solely on an inference. Not on silence in interview, not on a failure to testify, not on a failure to account, and not on all three stacked together. Inferences can strengthen a case. They cannot be the case.

Which is exactly what the caution warns about. 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. Three sentences, and the middle one is section 34 in plain English. It must be given in language the suspect understands.

Now the decision itself. Factors pointing towards answering: your client has a clear, credible defence, such as alibi, self-defence or consent. The evidence against them is strong and silence will not help. Or answering may stop the case going to court at all.

Factors pointing the other way: your client does not know what evidence the police have. The disclosure is too thin to respond to properly. Their account may conflict with other evidence. They may incriminate themselves, or somebody else. Or they are confused, intoxicated, or simply not in a fit state to be interviewed.

Which brings us back to your nightclub client, and to the third answer. He can hand in a prepared written statement setting out the self-defence account, and then answer no comment to the questions. That puts the facts of his defence on record when questioned, so no inference can normally be drawn about the facts in it. And it keeps a fragile client out of sustained questioning at his very worst.

That is the approach approved in R v Knight, and it is the standard answer where the defence is credible but the client is not a good witness. But draft it with care. Any fact he relies on at trial that is missing from the statement is still exposed to an inference. The statement protects what is in it. Nothing more.

And now a warning that catches solicitors as well as candidates. Advising your client to say nothing does not, by itself, stop an inference. Even genuine reliance on your advice is not a shield. The statutory question stays the same: could he reasonably have been expected to mention the fact? The jury may still draw an inference if sure the real reason for his silence was that he had no answer, or none that would withstand questioning.

That formulation matters, because it is what the jury must be told. Following Condron v United Kingdom, the jury must be directed carefully. They may draw an inference only if satisfied that the real reason for the silence was that the suspect had no account, or none that would withstand questioning. It is not enough to tell them they may simply hold the silence against him.

And it is not always all or nothing. Your client can answer the questions that establish a defence or explain an innocent fact, and decline the rest. That reduces the risk of an inference while limiting the risk of self-incrimination. Agree the topics with your client in advance, so that nobody is improvising in the room.

The interview itself, under Code C. Before it starts, the suspect must have been cautioned, and must have had access to legal advice. They must be fit to be interviewed, and must have had adequate food, drink and rest. Every interview must be recorded, on audio under Code E, and it may be recorded visually under Code F. Breaks must be offered at reasonable intervals.

Interviews should not be conducted during the suspect's normal sleeping hours, unless they agree, or the offence or the urgency of the investigation requires it. If it happens at night, the reasons must be recorded. The suspect must not be threatened, coerced, or promised anything for answering. And if you advise no comment, the police should not pressure them to answer anyway.

Your role during the interview is to observe and to protect. You cannot answer for your client. If they choose to speak, they speak in their own words. But you can consult with them privately at any time, and you should: whenever a new issue arises, whenever they look confused or unwell, and whenever the questioning turns improper. That right exists to be used.

Afterwards, check the record. If anything has been omitted or misrecorded, note it. Your client can refuse to sign, though the refusal will itself be noted. Then advise them on what comes next: charge, bail, or release under investigation.

Appropriate adults. One is required whenever the police interview a juvenile, meaning anyone under 18, or a mentally vulnerable adult. Their job is not legal advice, which is yours. Their job is to make sure the process is fair and that the suspect understands what is happening. And the Code is explicit: the appropriate adult is in addition to a solicitor, not a substitute for one.

Who can act? A parent or guardian, which is preferred for a juvenile. A social worker if no parent is available. Any responsible adult over 18 who is not connected with the police. Or a trained volunteer. Who cannot? A police officer or a police employee. And the solicitor representing the suspect.

And if a vulnerable person is interviewed without one? The evidence may well be excluded under section 78 of PACE, on the ground that admitting it would make the proceedings unfair. So if you arrive and find that no appropriate adult has been called for a vulnerable client, insist on one before anything begins.

Vulnerability is wider than people assume. Mental health conditions. Learning disabilities. Physical conditions affecting communication. Intoxication or withdrawal. Language barriers, where an interpreter is needed. Frail elderly clients. Recent trauma. And separately, ask whether your client is fit to be interviewed at all. Do they understand the caution? Can they follow the questions? Can they answer clearly?

If you have real doubts, ask for a healthcare professional to assess them, and say plainly that the interview should not proceed. The police may push back. Your duty is to your client, and an interview conducted with an unfit client produces evidence that is unreliable and may well be excluded anyway.

Voluntary interviews, sometimes called caution plus three. The suspect has not been arrested, attends by invitation, and is free to leave at any moment. They must still be cautioned, and they are still entitled to free legal advice. And here is the point candidates miss. The adverse inference provisions apply in exactly the same way.

Confessions last. Under section 76 of PACE, a confession is inadmissible if it was obtained by oppression, or in consequence of anything said or done likely to render it unreliable. Oppression covers violence, threats, and depriving a suspect of sleep or food. And the burden sits with the prosecution, to prove beyond reasonable doubt that it was not so obtained.

Finally, Article 6. In Murray v United Kingdom, from 1996, the European Court of Human Rights considered the point. Drawing adverse inferences from silence does not in itself breach the right to a fair trial, provided the right to silence is not undermined in a fundamental way. A breach of Code C alone does not automatically breach Article 6. But it is a factor the court will weigh.

A word on how SQE1 tests this. You will not be asked to recite section numbers or Code paragraphs. You get a scenario, five answers, and one instruction: pick the best. What is tested is whether you can spot the trigger for an inference, and whether you know what a solicitor is actually allowed to do.

If you keep only three. Section 34, because everything at the police station turns on whether the fact could reasonably have been expected to be mentioned. Section 38, because inferences can never be the whole case. And R v Knight, because the prepared statement is the answer when the defence is good but the client is not.

Traps the examiners set. One: silence is not risk-free, but it is still a right. Nobody can be compelled to answer. Two: your client only has to mention facts they intend to rely on. There is no duty to tell the police everything, and volunteering more than you need is its own risk.

Three: your advice is not a shield. Genuine reliance on a solicitor's advice to stay silent does not by itself prevent an inference. Four: an inference can never convict on its own. If the only other evidence is thin, say so, because section 38 is the answer.

Five: the appropriate adult is in addition to the solicitor, never instead of one. A police officer cannot be one, and nor can you. Six: a voluntary interview is not a softer one. Same caution, same right to free legal advice, same inference provisions.

And seven, the one that costs cases. If your client is not fit to be interviewed, say so and stop it. An interview pushed through with an unfit client produces unreliable evidence, and protecting them is your job.

Quick check. A man is arrested after a fight outside a takeaway. He sees the duty solicitor, is cautioned, and answers no comment to every question, including how the other man came to be injured. At his trial he gives evidence for the first time that the other man punched him first, and that he pushed him away, causing him to fall. The prosecution ask the judge to direct the jury on his silence.

Three candidate answers. One: no, because a suspect who exercises his right to silence cannot be criticised for it. Two: yes, because self-defence was a fact he could reasonably have been expected to mention when questioned. Three: yes, because his account at trial contradicts the answers he gave in interview. Pause here if you want a moment.

The answer is two. He was cautioned. The punch and the push are facts he now relies on. And having had the duty solicitor, and having been asked directly how the other man was injured, he could reasonably have been expected to give that account then. Every limb of section 34 is satisfied.

Why the others fail. One states the old common law position, which section 34 modified. Three is right by the wrong route: he gave no answers at all, so there is nothing for his trial evidence to contradict. And the jury must still be told to draw the inference only if sure why he really stayed silent.

Five things to take away, and your nightclub client covers the first. One: the choice is rarely binary. A prepared written statement puts the defence on record when questioned, blocks an inference on the facts in it, and keeps a fragile client out of sustained questioning.

Two: section 34 turns on one question. Could the fact reasonably have been expected to be mentioned at the time? Three: your advice to stay silent is a relevant circumstance, but it is not a shield, and an inference can never convict on its own.

Four: Code C governs the interview. Cautioned, fit, rested, recorded, breaks offered, no pressure. Five: an appropriate adult for anyone under 18 or mentally vulnerable, in addition to the solicitor, and without one the evidence may be excluded as unfair. Next time, Bail Applications.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.