Non Anwyl Jones discusses the Right to Silence in criminal law.
Any individual who has been arrested on suspicion of a crime and is thereby detained at the police station is entitled to free legal advice and representation by a solicitor under Section 58 of PACE 1984. A solicitor’s role at this stage is to “protect and advance” the legal rights of their client, whilst also advising where appropriate to ensure the client is not giving away evidence which may enhance the prosecution’s case against them. Essentially, the solicitor’s role is to advise and prevent the client from incriminating themselves any further.
Anyone who is interviewed at the police station following arrest on suspicion of a crime is entitled to remain silent. In other words, when an officer is questioning the accused regarding what they may or may not have done or their potential involvement in a crime, the accused can refuse to provide a response or say ‘no comment’. This is forewarned by the arresting officer, who should caution the accused as follows –
“I am arresting you on suspicion of …………. 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.”
What an accused individual should be mindful of, however, is that should the matter progress to trial, the Criminal Justice and Public Order Act 1994 allows the Court to draw adverse inferences from the defendant’s silence when questioned. This essentially means that the Court is permitted to draw a negative conclusion from their silence when questioned at the police station. A common conclusion drawn by the jury at trial is that a defendant remains silent at the police station to fabricate their defence at trial. This, on its own, cannot prove the defendant’s guilt, and the prosecution will require further evidence to attach to this if asking the jury to draw an adverse inference of guilt; however, it will not necessarily help with preserving your innocence either.
Another thing to bear in mind is that the Court is not permitted to draw an adverse inference from the accused’s decision to remain silent if this was before obtaining legal advice, or at least having had the opportunity to obtain it. In other words, should the accused choose to remain silent when questioned at the police station, having not had any independent legal advice, adverse inferences cannot be drawn.
A solicitor may indeed advise their client to remain silent when questioned at the police station, this would usually be in a situation whereby the evidence and disclosure provided by the police to them is lacking, and therefore the solicitor is unable to appropriately advise the client prior to interview. Similarly, this would also be the case if the materials held by the police were particularly complex or if the offence happened a very long time ago; thereafter, it would not be sensible to provide an immediate answer. It would also be reasonable for the solicitor to advise their client to remain silent in circumstances whereby the suspect is of ill-health, mentally disordered or vulnerable, or if excessively tired, confused, shocked, or intoxicated/influenced.
You may think it is better to say nothing to avoid incrimination – this can sometimes be your best option; however, this can also be a potential downfall. Always ensure you are aware of your rights and utilise your right to free legal advice if you are ever arrested on suspicion of a crime. Remember, you do not have to say anything, but ensure you make this decision once you have obtained independent legal advice and fully understand the possible implications of remaining silent should matters progress to trial.
If you have been accused of a crime and need expert advice, please contact our criminal law team in Conwy on 01492 596596.