Answering Police Questions

Introduction

When a suspect is questioned by the police, one of the most important practical decisions facing the **defence solicitor** is whether the client should answer questions, make a **no-comment interview**, or hand in a **prepared written statement**. This chapter examines the **right to silence** and the way in which it has been qualified by the **adverse inference provisions** in **sections 34–38 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994)**. You will learn when a court or jury may draw such inferences as appear proper, the crucial safeguard in **s. 38(3)**, the case law on **legal advice to remain silent** (**Argent, Condron, Howell, Beckles**), and how to advise the client at the police station.

Assessment focus

For SQE1 **FLK2**, the **s. 34 / solicitor's advice** scenario is one of the most heavily tested topics in criminal litigation. Questions are **single best answer questions (SBAQs)** set in **realistic client-based scenarios** at the police station or at trial. You must be able to **identify which adverse inference provision applies** (ss. 34, 35, 36 or 37), **apply the conditions** for drawing an inference, and remember the safeguard in **s. 38(3)** that no one may be convicted **solely** on an inference. You will also be expected to **advise on the tactical choice** between a full account, a no-comment interview and a prepared written statement. This is a closed-book assessment — learn the section numbers, the conditions and the leading cases from memory.

Study tips

1) Learn the **three cumulative conditions** for a **s. 34** inference: cautioned/charged; fact later relied on; fact reasonably expected to have been mentioned. 2) Distinguish **s. 34** (facts not mentioned), **s. 35** (silence at trial), **s. 36** (objects/substances/marks) and **s. 37** (presence at a place). 3) Always state the **s. 38(3)** safeguard — no conviction **solely** on an inference. 4) For legal advice to remain silent, apply **Condron / Beckles** (genuine **and** reasonable reliance) and **Howell** (tactical silence rarely reasonable; inadequate disclosure or unfitness may justify it). 5) Know the **special caution** (Code C, para 10.11) required before a s. 36 / s. 37 inference, and the **ordinary caution** (Code C, para 10.5) for s. 34.