A suspect who answers “no comment” in a police interview has not admitted the allegation. The prosecution must still prove the case, and silence cannot be treated as proof of guilt. However, silence does become important if the defendant later relies on an explanation that could reasonably have been given when the police asked about it.
The recent Court of Appeal decision in R v Onalundula [2026] EWCA Crim 1133 clarifies when an adverse inference may be considered and when the jury can be told about the detailed questions asked in a no-comment interview.
The right to silence remains important
A person interviewed under caution is entitled to remain silent. There is no obligation to assist the police or cooperate with their investigation. It is an important right that protects innocent and vulnerable people at an extremely stressful time for which they are unlikely to be properly prepared.
The right to remain silent is qualified by section 34 of the Criminal Justice and Public Order Act 1994. If a defendant later relies on a fact that was not mentioned when questioned under caution, the court or jury may draw such inferences as appear proper, provided that the fact was one the defendant could reasonably have been expected to mention at the time.
What must happen before section 34 is engaged?
The prosecution must identify a particular fact on which the defence now relies. It is not enough to point generally to silence and suggest that an innocent person would have answered every question. The issue is the contrast between a specific later account and what was omitted from interview.
The court then considers whether the defendant could reasonably have been expected to mention that fact in the circumstances existing at the time of the police interview. That assessment may include what the police disclosed, the questions actually asked, the defendant’s age and condition, the opportunity for legal advice, and any explanation for remaining silent. Only then does the question arise whether the omission supports an inference that the later account was invented or adapted after the event.
A defendant who puts the prosecution to proof - this is the name lawyers give to a defendant who says nothing and requires the prosecutor to prove each part of the case against them - is not be relying on a positive fact at all and so the section 34 qualification is not engaged.
What did Onalundula decide about timing?
In Onalundula, the prosecution introduced the detail of the police questions and the defendant’s no-comment answers before he had given evidence. The Court of Appeal held that this was not the correct procedure. Until a defendant relies on a fact that could reasonably have been mentioned in interview, the foundation for a section 34 inference has not yet been established.
The jury may need a neutral account of the investigation, which can include the fact that an interview took place. That is different from presenting the detailed questions and repeated no-comment answers as if they formed part of the evidence proving guilt. Ordinarily, those details should wait until the defence case reveals whether a relevant fact is being relied upon.
The Court of Appeal concluded that the procedure used at trial was wrong, although the conviction remained safe on the facts of the case. The judgment is therefore a warning about trial management, not a rule that every procedural error involving a no-comment interview automatically makes a conviction unsafe.
What can the jury be invited to conclude?
Even when section 34 applies, an adverse inference is optional. The jury should be directed to identify the omitted fact, consider the defendant’s explanation and decide whether the only sensible conclusion is that the fact was not mentioned because it was later invented or was not true. The inference is a matter of common-sense evaluation, not a substitute for evidence.
There is also an important statutory safeguard: under section 38 of the 1994 Act, a person cannot be convicted solely or mainly on an inference drawn from silence. The prosecution case must contain other evidence capable of proving guilt.
What if the suspect followed legal advice?
Following a solicitor’s advice to answer no comment is highly relevant, but it does not create an automatic immunity from an adverse inference. The jury may have to consider whether the advice was genuinely relied upon and why it was given, while respecting legal professional privilege unless it has been waived. A carefully recorded explanation of the circumstances at the police station can later be important.
The law also requires a real opportunity to obtain legal advice. Where a detained suspect was not allowed a reasonable opportunity to consult a solicitor before being questioned, section 34 restricts the drawing of an inference from the interview silence.
Does a prepared statement solve the problem?
A prepared statement can place the essential defence account on record while limiting the risks of open-ended questioning. If a relevant fact is clearly included, it has not been omitted merely because the suspect answers no comment afterwards. But a prepared statement is not a universal shield: an inference may still arise if the defendant later relies on a material fact that the statement did not mention and which could reasonably have been given at the time.
Is a no-comment interview ever the right advice?
Yes. The decision is case-specific. Silence may be justified where the police have provided inadequate information, the questioning is based on an unclear or shifting allegation, the suspect is not fit to give reliable answers, or there is another sound reason why an immediate account would be unsafe. In other cases, an early and accurate explanation may allow evidence to be checked and reduce the risk of a later adverse inference.
That balance is why police-station advice should be based on the evidence disclosed, the likely defence and the client’s individual circumstances, rather than a fixed policy of answering questions or remaining silent.
How Chetwode can help
A no-comment interview can affect the shape of a case long after the police station. Chetwode Criminal Defence Solicitors can advise before and during interview, review whether section 34 is genuinely engaged and ensure that any proposed adverse-inference direction is confined to the correct facts. Early, strategic advice helps protect both the immediate interview position and any defence that may later need to be presented at trial. Contact us today.