Interview strategy: answers, prepared statement and silence

There is no universally correct interview strategy. Combine the disclosed allegation, private instructions, available documents or digital material, the client's ability to give a reliable account, the possibility of undisclosed contradictory evidence and the statutory consequences of silence. Distinguish not knowing, not remembering, denying and choosing not to answer. Never encourage a client to guess or adopt an invented account in order to avoid an inference. Authority: Code C, section 6 and Note 6D; CJPOA, sections 34–38.

A prepared statementGlossary termPrepared statement is a deliberately worded account given during the investigation, commonly before declining some or all follow-up questions. It is a method of communicating facts, not a separate protected category of evidence. An adverse inferenceGlossary termAdverse inference is an adverse conclusion the court is permitted to draw from a specified failure or refusal when statutory and fairness conditions are met. It is not an offence of remaining silent. Authority: CJPOA, sections 34–38; R v Webber [2004] UKHL 1, paragraphs 24 and 33–39.

A prepared statement is not immunity from questioning or inference. It should include the material facts the client can honestly and accurately give and may later rely on. Reading it does not end the interview. Decide expressly whether follow-up questions will be answered, and warn about omissions. A later statement does not necessarily remove an earlier failure to mention a fact when it could reasonably have been expected; each relevant occasion and its circumstances matter. Authority: CJPOA, section 34; R v Webber [2004] UKHL 1, paragraphs 24 and 33–39.

Section 34: an omitted fact later relied on

The ordinary police-station route applies where the accused, when questioned under caution before charge, or when charged or officially informed of possible prosecution, fails to mention a fact later relied on in the defence which, in the circumstances at the time, they could reasonably have been expected to mention. The later fact may be an innocent explanation of admitted conduct, not just a denial of presence. Identify the exact fact and the earlier opportunity; “the interview was no comment” is not the statutory analysis. Authority: CJPOA, section 34(1)–(2); R v Webber [2004] UKHL 1, paragraphs 30–34.

The assessment is practical and personal: what information had been disclosed, what the suspect knew, their condition and understanding, and the circumstances of the advice. A fact whose significance the suspect could not reasonably appreciate because the relevant allegation or evidence was unknown is different from a familiar positive defence deliberately withheld. An inference is permitted only if proper; it does not relieve the prosecution of proving its case. Authority: CJPOA, section 34(1); R v Argent [1997] 2 Cr App R 27, 33, as set out in Condron v United Kingdom, paragraph 35; R v Webber [2004] UKHL 1, paragraphs 22 and 27–29.

At an authorised place of detention, section 34 does not operate where the person has not had an opportunity to consult a solicitor before the relevant failure. Equivalent opportunity protections apply to sections 36 and 37. Actual advice is not always required: a genuine opportunity declined is not the same as access withheld. A voluntary interview does not acquire the statutory detained-person protection merely because it occurs inside a police station; the rights and fairness of voluntary questioning still require separate consideration. Authority: CJPOA, sections 34(2A), 36(4A), 37(3A) and 38(2A); Code C, Annex C and Note 10C.

Sections 36 and 37: failures to account after a special warning

A special warningGlossary termSpecial warning explains the particular failure-to-account risk; it is additional to the ordinary caution. For the ordinary police powers considered here, the person must be under arrest. A request to explain a fact in a voluntary interview cannot simply be labelled a section 36 or 37 warning to create those powers. Specialist statutory extensions to other investigators are outside this ordinary police-station analysis. Authority: CJPOA, sections 36–37; Code C, paragraphs 10.10–10.11.

The warning must explain, in ordinary language, the offence and fact requiring an account, the belief linking it to participation, that a court may draw a proper inference from failure or refusal to account, and that a record is being made which may be used in evidence. Apply the appropriate-adult requirement where relevant and the solicitor-opportunity protection for a detained person. A formula recited without identifying the fact or belief is not a substitute. Authority: CJPOA, sections 36(1), (4)–(4A) and 37(1), (3)–(3A); Code C, paragraphs 10.10–10.11.

Unlike section 34, these routes do not require the person later to advance an omitted defence fact. The same episode can engage more than one route, but each needs its own conditions. An innocent presence explanation later relied on may raise section 34; the earlier refusal to account for being found there may separately raise section 37 only if its arrest, timing, belief, request and warning requirements were met. Do not treat “near the scene” as a complete section 37 test. Authority: CJPOA, sections 34, 36 and 37.

Legal advice, the trial route and limits on inferences

Following a solicitor's advice is relevant but not an automatic bar to inference. The tribunal must consider whether the silence was genuinely attributable to an explanation which makes an adverse inference improper. Advice must be based on this client's circumstances, not a blanket office rule. Keep a contemporaneous confidential note of disclosure, instructions, condition, risks, advice and the client's decision. Before choosing to deploy privileged advice at trial, consider the consequences of putting it in issue; do not assume that mentioning advice creates immunity without scrutiny. Authority: Condron v United Kingdom, application 35718/97, paragraphs 56–63; R v Webber [2004] UKHL 1, paragraphs 27–29.

Section 35 concerns failure to give evidence or answer without good cause at trial, with its own judicial-warning and other safeguards. It is not the section governing a police interview. Under section 38(3), an inference under sections 34–37 cannot alone justify transfer for trial, a finding that there is a case to answer, or conviction. Section 38(4) also prevents refusal of the specified dismissal application solely on such an inference. These are safeguards against substituting silence for the necessary prosecution case, not a rule excluding every inference where other evidence exists. Authority: CJPOA, sections 35 and 38(3)–(4).

Solicitor action. Identify each fact likely to form part of a future positive defence. Can it be stated now safely, accurately and with enough information to understand the allegation? If advising silence, explain the distinct section 34, 36 or 37 risk, not simply that silence “looks bad”. If new material is disclosed, request a break and reconsider. Preserve the precise questions, warning, response and circumstances for later trial advice. Authority: Code C, section 6; CJPOA, sections 34–38.

Legal advice: compare the two outcomes

In HowellKey caseR v Howell[2003] EWCA Crim 1, paragraphs 17–27, the missing written statement did not by itself justify withholding an account where detailed oral information was already available. In BecklesKey caseR v Beckles[2004] EWCA Crim 2766, paragraphs 35–57, the court had to address why the defendant followed advice and what account the police already knew; deficient directions were not harmless. These are contrasting applications of the same fact-sensitive inquiry, not a choice between two incompatible rules.

Read the diagram with the full safeguards above, including the separate restrictions on a conviction based only on an inference. It is not a complete substitute for the statutory test.