The ‘right’ to silence: what does this mean?

If a complaint is made to the police then any person suspected of having committed an offence will usually be interviewed ‘under caution’. The interview will take place at a police station to which the suspect has either been invited to attend ‘as a volunteer’ or brought ‘under arrest’. Either way, the process for interview is the same.

The main decision for anybody who is the subject of a police interview is whether they should answer questions or exercise their ‘right to silence’. Most people will be familiar with the concept of a ‘right to silence’ but what does this actually mean and are the parameters to it?

The right to silence

The ‘right to silence’ is a common law right that developed in the 17^th Century and has been fortified by the right to a fair trial under Article 6 of the European Convention on Human Rights (enshrined into domestic law by the Human Rights Act 1998). The basic concept that everybody has a right against self-incrimination. This means that nobody should be compelled to have to provide information that may be used against them in criminal proceedings. In certain circumstances, persons can be compelled to answer questions in recorded interviews, but those responses cannot be used against them in any criminal court of law.

The caution

Thus, prior to the commencement of any interview in which criminal allegations will be put to a suspect there must be a ‘caution’.

The caution is as follows: “You do not have to say anything, but it may harm your defence if you don’t mention something now which you later rely on in court. Anything you do say may be given in evidence”.

This caution is not to be confused with the alternative method of disposal where a suspect admits an offence, but is not prosecuted.

What does the caution actually mean?

It can be broken down into three parts:

You cannot be compelled to answer any questions. The common approach is simply to say “no comment” to each question.
But if you decline to answer questions AND you are charged with an offence AND you have a trial AND you give evidence at that trial then the jury may be invited to draw an ‘adverse inference’ from your failure to answer questions in the police interview.
Anything you do say is being recorded and may be transcribed and used in evidence as part of the prosecution case IF you are charged with an offence.

What is the adverse inference?

The concept of the adverse inference from silence was first introduced by the Criminal Justice and Public Order Act 1994.

It is important to recognise the adverse inference only applies IF you are charged with the offence and prosecuted, and IF you plead not guilty and go to trial and IF you give evidence at trial. And even then there may be good reason why it should not be applied.

The adverse inference is effectively a direction given by the judge to the jury that they may wish to consider that one possible explanation for the defendant’s failure to mention certain facts in interview was that he had subsequently concocted them. In the recent case of R v Calvin Newson [2025] EWCA 1234, the Court of Appeal dismissed an appeal based upon the form of this direction and upheld the safety of Mr Newsom’s conviction when he had given evidence in his defence about facts he declined to mention in interview.

Conclusion

So whilst there is a ‘right’ to silence, it is not unqualified. However, the adverse inference is only applicable in circumstances where there is a trial and there may be many good reasons (apart from being guilty of the offence) why suspects in police interviews ought to exercise their right to silence. It is very important to seek the advice of a solicitor prior to an interview under caution and everybody has a right to do so.