Decades ago long before I was appointed I was implicated in a minor motoring incident when a 3rd party who was involved sustained a very minor injury. I called the police and assisted that 3rd party. In due course police arrived and I explained the situation and signed a statement. No doubt they also spoke to the mother of the 3rd party who was a minor. Some few weeks later I received a letter stating that no further action was being taken and that the case was closed. Subsequently when I joined the bench the consequences of defendants deciding to go no comment to police requests for a statement became an important consideration of the decision on a defendant`s guilt or innocence. This authority to draw adverse inference from a no comment interview is derived from the Criminal Justice and Public Order Act 1994 (CJPOA), which received Royal Assent and came into effect on 3 November 1994. The governing law is contained within Sections 34, 35, 36 and 37 of the Act and these provisions are premised on the assumption that silence reflects guilt. Previously a judge could not normally make any comment to the jury on the accused's pre-trial silence when charged or questioned by someone in authority (R v Gilbert (1977)). Similar rules applied to the lower court. The police caution beloved by TV police officers was amended to read "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." The middle sentence is the addition to the then existing caution.
The fundamental point of the topic is whether and/or in what circumstances a person arrested and/or being interviewed should volunteer a statement without a lawyer or go no comment with or without a lawyer.
For most people a formal police interview [noted at the scene or at police station] would be a stressful event. Without a lawyer being present it doesn`t take much imagination to consider that one could easily give contradictory accounts of an incident or be inconsistent in a situation designed deliberately to elicit evidence of wrong doing. Misremembering events or their chronology could easily be interpreted as a sign of guilt. For an innocent person caught up in a possible criminal investigation and without a lawyer present going no comment might be the sensible option notwithstanding that middle sentence of the police caution. The pressure from police that assistance will speed up the process of being able to leave the police station can lead somebody completely innocent to become confused and liable to be drawn into a net of suspects particularly if that individual is of a compliant or vulnerable disposition.
Somebody who is perhaps at the periphery of an unlawful situation is arguably most at risk if s/he submits to interview without legal advice. As explained above a no comment approach is arguably the only sensible option. The near universal advice from criminal defence solicitors is: say nothing until you have spoken to a lawyer. The right to free legal advice in the police station (in England & Wales under the duty solicitor scheme) is absolute and costs nothing. There is no rational reason to waive it. Police will often try to persuade suspected persons with the comment that if they have nothing to hide tell us what happened. That common objection; "but I'm innocent I have nothing to hide" ignores that the interview is not a conversation between equals. It is an evidence gathering exercise conducted by trained professionals and one is not on a level playing field without representation.
There have been a few studies on the benefits or otherwise of interviewees exercising their right to silence. Bucke, Street & Brown (2000) for the Home Office found that suspects who exercised the right to silence were more likely to be charged than those who gave accounts but this correlation does not prove causation (silent suspects may have been those with more to hide or those with better legal advice)
Research by Gudjonsson (2003) on false confessions is well established: a significant minority of people confess to things they did not do under police interview pressure particularly vulnerable individuals
The PACE 1984 and subsequent CJPOA 1994 changes were specifically driven by government concern that too many suspects were using silence to avoid conviction, implicitly acknowledging that silence was an effective protection. Studies on eyewitness and self-memory reliability (Loftus, 1996 onwards) consistently show that stress significantly degrades accurate recall supporting the risk of giving unadvised statements.
The bottom line for those being interviewed at a police station is to exercise their right to free legal advice before saying anything. No comment with a lawyer who has reviewed the circumstances is a coherent, protected strategy. No comment without a lawyer is safer than talking without a lawyer but neither is ideal.
So in short: 30 years ago in November 1994 Parliament fundamentally changed a centuries old common law right and the courts have been refining exactly how far it reaches ever since. It`s interesting to note that another centuries old common law right to trial by jury is currently in the headlines.
Conviction cannot be based solely on inferences drawn from silence: there must be other evidence to establish a prima facie case.
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