Should You Say "No Comment" in a Police Interview?
There are various options in a police interview, whether you attend voluntarily or under arrest. Our only concern is to make sure that you are not charged.
In Brief
In England and Wales, you have a common law right to silence and a privilege against self-incrimination. Choosing to say "No Comment" means you are exercising this right; however, it is a strategic decision that carries legal risks. Under the Criminal Justice and Public Order Act 1994, a court may draw an "adverse inference" from your silence if you later rely on a defence at trial that you failed to mention during the interview.
Three Key Risks (Adverse Inferences): Silence can count against you if you fail to mention facts later used in your defence (Section 34), fail to account for objects or substances found on you (Section 36), or fail to account for your presence at a crime scene (Section 37).
When "No Comment" is Recommended: Solicitors often advise silence if the police provide "poor disclosure" (not enough evidence shared), if the suspect is vulnerable or unwell, or if an arrest is considered unlawful.
The "Prepared Statement" Alternative: Instead of answering questions directly, your solicitor can draft a Prepared Statement. This allows you to set out your version of events in a controlled way, preventing self-incrimination while often avoiding adverse inferences.
Impact on Charging: Saying "No Comment" does not imply guilt, but it may prevent the prosecution from building a case if their evidence is already weak. Conversely, a poorly handled interview can provide the "missing link" the police need to charge you.
Specialist Advice: Decisions on silence should never be made alone. Specialist firms like JD Spicer Zeb evaluate factors like mental health, police tactics, and the strength of disclosure before advising on the best interview strategy.
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, so it is important to seek specialist legal advice for a police interview as soon as possible.
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.
In a police interview, you will have the option to provide:
- No comment - give no account.
- Comment - give your account.
- A prepared statement - written statement during or after an interview.
- A prepared statement - retained until charged to attend court.
The final advice we give to each client will depend on several factors. Our skilled lawyers will take into account information such as mental health, disabilities, addiction issues, youth and vulnerability.
We will 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.
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 the instructions you give.
The right to silence in law
Under 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 back foot and will be, in some way, incriminating yourself. However, this is not 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 is not 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 by the police.
What does “no comment” mean?
In a police interview, responding “no comment” means you are exercising your legal right to remain silent and not answer the questions put to you.
In the UK, you are not legally obliged to respond during an interview, and choosing to say “no comment” can be a way to avoid providing information that might be misinterpreted or used against you. However, there are important implications to consider.
Under certain circumstances, if you later raise a defence in court that you did not mention in the interview, the court may be allowed to draw an adverse inference from your earlier silence.
This means they could treat your failure to mention it at the time as damaging to your credibility.
Using “no comment” is a significant decision and can influence how a case develops, so it should be approached with clear legal advice from a specialist solicitor.
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” in an interview 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 of 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 the 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 an 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 silent, 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.
Does “no comment” imply guilt?
Saying “no comment” in a police interview does not automatically imply guilt. In the UK, every person has the right to remain silent when questioned under caution.
There are many legitimate reasons for choosing not to answer, such as avoiding the risk of saying something that could be misunderstood or used unfairly.
However, under certain conditions, a court may draw an adverse inference from silence if a defence is raised later that was not mentioned in the interview.
This does not mean guilt is assumed, but it can influence how evidence and credibility are assessed during proceedings.
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 court must consider whether a defendant's failure to mention certain facts during initial questioning impacts the reliability of those facts when they were later presented at trial.
One inference that the jury or magistrates’ court may draw is recent fabrication. This is where 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 do solicitors tell you to say “no comment”?
Solicitors may advise a client to answer “no comment” during a police interview to protect your legal position.
This approach is often recommended when the full evidence has not yet been disclosed, when the allegations are unclear, or when immediate responses could be misinterpreted or used out of context.
Remaining silent allows time to review the case, consider the strength of the prosecution’s evidence, and prepare a consistent defence strategy.
While silence can sometimes lead to adverse inferences at trial, it can also prevent unnecessary self-incrimination and ensure that any later statements are informed, accurate, and legally sound.
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 statement 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 when 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 be 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 able to withstand unfair or difficult questions from officers. You may also come across badly in an interview, as not everyone responds well to the 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 your 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 successfully used this process in many trials over the years.
Why you should 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.
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