The legal basis
The right to silence derives from the common law principle that no one is required to incriminate themselves. It is enshrined in PACE 1984 and the caution itself. No one can compel you to answer questions in a police interview.
The adverse inference risk
Since the Criminal Justice and Public Order Act 1994, courts may in some circumstances draw an ‘adverse inference’ if you fail to mention something in interview that you later rely on in court. This does not mean you should always speak — it means you must make this decision with expert legal advice.
When remaining silent is the right choice
- When the police have not disclosed the evidence they hold against you
- When there is a risk your answers could be misunderstood or taken out of context
- When the allegation is serious and you need time to prepare a considered response
- When you have not yet had an opportunity to review the relevant evidence
When speaking may be appropriate
- When you have a clear, documented alibi that can be immediately verified
- When the matter is a straightforward misunderstanding with an obvious explanation
- Always only after full consultation with your solicitor
Frequently asked questions
In some circumstances, yes. Under ss.34–37 of the Criminal Justice and Public Order Act 1994, a court or jury may draw adverse inferences from silence where you fail to mention something you later rely on in your defence. This is why your solicitor’s advice on when and how to use your right to silence is crucial.
An adverse inference is a conclusion a court is permitted to draw from your silence. It does not mean you are guilty — silence alone cannot convict you — but it can be used as supporting evidence. Your solicitor will advise on whether the risk of adverse inference applies in your specific case.
The right to silence applies in all police interviews, voluntary and under arrest. Separate regimes apply in some regulatory and financial investigations (e.g. FCA, HMRC, SFO) where the right to silence may be more limited by statute. We advise on any special interview regime applicable to your case.