Should You Say "No Comment" in a Police Interview?

There are various options in a police interview that you attend voluntarily or under arrest. Our only concern is to make sure that you are not charged. Where you are going to be charged we will do what we can to mitigate this and attempt an out-of-court result such as a caution or community resolution.  Every client and case is different. Sometimes sadly bad advice can lead to you being charged.

As a recognised leading firm, we can offer legal aid services and enhanced private services to fully prepare your case in advance and allow you the best chance at the interview. We can see you in and out of office hours privately. 

You have the option to provide –

1. No comment - give no account
2. Comment - give your account
3. A prepared statement - written statement during or after interview
4. A prepared statement - retained until charged to attend court

The final advice we give to each client varies depending on several factors. A skilled Lawyer will also take into account factors such as mental health, disabilities, addiction issues, youth and vulnerability. We will consider emotional strength of our client at the time of the interview.

We must balance this against the ability of each individual client to handle the questions put to them and the tactics each investigating officer will deploy against the client. Some officers may give us limited disclosure on which to take instructions but then ask extensive questions about various matters.

A skilled adviser from our firm will be able to work out what is the best advice for you and your case. We will only give you the advice that will work in your best interests based on your instructions you give. Some clients will not wish to give adequate instructions for a variety of reasons, and we take into account what you tell us. Every case is different, and everyone has individual circumstances. We will listen and work out what is best for you.

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. 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
• You do not understand the line of questioning
• 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 - 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, substance mark or mark on an object.
• Section 37 - fails to account for their presence at a place at or about the time of the commission 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 the tribunal of fact of a failure by the defendant, when first questioned, to mention facts which they later rely on at trial 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 that the jury or magistrates’ court may draw is 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 the facts that form their defence.

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 also 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.

However, before making a comment, it is essential to speak to a criminal defence solicitor, who can carefully advise you on whether it is in your best interests to make a comment and whether doing so would compromise your position.

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 you can have a statement retained on file, for it to then be handed to the police or prosecution until you are charged to attend court.

A prepared statement during or after the interview process allows someone to control the amount of information they disclose to the police. There are certain scenarios where a prepared statement during a police interview may appropriate, such as if your legal advisor believes the police are not providing full disclosure of the evidence they hold and may attempt to spring a surprise 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.

A prepared statement that is retained on file and is only divulged after someone is charged to attend court, may be drafted if you do not wish to divulge defence unless absolutely necessary. For example, someone’s defence to a charge may be that they were having an affair at the time of the alleged offence – something they would not want to reveal unless absolutely necessary to their defence. Another example may be that you may wish to avoid implicating a loved one or friend and may wish not to reveal certain information. We have succesfully used this process in many trials over the years.

Why you speak to a criminal defence solicitor before a police interview

If you are arrested or called to the police station for a voluntary interview, it is essential that you enlist the support of a specialist criminal defence solicitor.

They will be able to carefully assess your situation and, from here, be able to provide advice in relation to the types of questions you are likely to be asked. They will weigh up the pros and cons of remaining silent in response to certain questions, ensuring that you have the strongest possible defence against the allegations levelled against you.

Get immediate specialist legal advice for police interviews

If you are arrested, or are due to face an interview with the police, our criminal defence solicitors are on hand to lend their expertise and ensure you receive the best possible defence to the allegations you are facing.

Using our detailed knowledge of criminal law, we can advise you in relation to answering police questions and whether making “no comment” is the right approach for your personal situation.

Our vast experience of the criminal justice system means that you can be confident that your case is in the most dedicated and experienced hands. We will provide clear advice in plain English along with sympathetic personal support to help you through this difficult time.

You can contact us 24-hours a day, seven days a week for an immediate free initial consultation, expert legal advice and representation.

Our highly experienced criminal defence lawyers offer:

• 24/7 legal support in person and over the phone, 365 days a year
• Representation anywhere in England or Wales
• Accredited Police Station Representatives to support you during a police interview
• Clear, effective legal advice in any language (see our languages spoken)
• Local offices in London, Birmingham or Manchester

If you need immediate advice and representation, please use our emergency contact numbers:

Birmingham – 07891 777090
Brent & Camden – 07836 577556
Manchester – 07798 701339