Introduction: what a police interview means for you

A police interview under caution is not simply an opportunity to have a conversation with the officer investigating your case. It is a formal part of the investigation. Your answers, any prepared statement you provide and, in some circumstances, your failure to answer may later be used as evidence.

People are often told that an innocent person should answer every question, or that nobody should ever speak to the police. Neither is a safe rule. A clear and truthful account can sometimes prevent a charge. In another case, answers may reveal facts the police could not otherwise prove or commit the suspect to an account before the evidence is understood.

The decision belongs to the person being interviewed, but it should normally be made after police disclosure and a private consultation with a solicitor. The sensible question is which course best protects your position now and if the case reaches court.

This guide explains the main choices in England and Wales. It provides general information, not individual legal advice. Different considerations apply to some specialist investigations.

What does the law say about a police interview?

An interview is questioning about a person's involvement or suspected involvement in a criminal offence. Before interview, the police must give the suspect and, where represented, the solicitor sufficient information to understand the nature of the alleged offence and why that person is suspected. This does not require the police to reveal every item of evidence if doing so might prejudice the investigation.

The interview will be recorded. At its beginning, the officer will give the caution:

"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 caution is important because it tells you three crucial things about the interview and how it can affect the outcome of your case:

1. You have the right to remain silent.
2. Silence can be held against you in the form of an “adverse inference”:
1. If you do stay silent now and late put forward a defence to the court, then the magistrates or jury may wonder why you didn’t just tell the police your defence when they asked.
2. Alternatively, if you give the police an explanation now but change your account at court then again, the magistrates or jury may wonder why you have done that.
3. Anything you do say can be used in evidence if your case reaches a courtroom.

This is why neither silence nor speech should be automatic. Under section 34 of the Criminal Justice and Public Order Act 1994, a court may draw an adverse inference if a defendant later relies on an important fact which they could reasonably have been expected to mention when questioned. The inference cannot by itself prove guilt, but it can damage the credibility of a later account.

A voluntary interview carries the same evidential importance as one following arrest. Being free to leave unless arrested does not make it informal or "off the record".

Adverse inferences - can silence harm your defence?

As we have seen, a court can draw an inference from that fact you remained silent in interview. It will not always do so, but it is important your solicitor explains the risks to you before you decide how to deal with the interview.

The inference concerns facts later relied upon, rather than silence by itself. A refusal to answer does not prove guilt. The issue arises where, for example, a defendant first claims self-defence, an alibi, permission or another innocent explanation at trial instead of telling that to the police at the interview. An inference can also be drawn if your account changes, for example you deny assaulting the complainant in interview but at trial admit you did assault him but say you did it in self-defence.

Before drawing an inference, the court must consider whether the fact was one the defendant could reasonably have been expected to mention in the circumstances existing at the time. It will also consider the explanation for the silence and whether the prosecution case, as it appeared at interview, clearly called for an answer. An inference must be fair and proper and a person cannot be convicted wholly or mainly because of it.

Following a solicitor's advice to remain silent is important, but it will not automatically prevent an inference being drawn. The court may still consider whether it was reasonable to follow it. Age, maturity, health, vulnerability, complexity, police disclosure and the reasons for the advice will all matter.

There are also "special warning" provisions. In broad terms, sections 36 and 37 of the 1994 Act may apply where an arrested person is asked to account for an object, substance or mark, or for their presence at a particular place, and is given the required warning by the interviewing officer. These provisions are distinct from the ordinary caution. If an officer gives a special warning, the safest response is to ask for a break and take specific legal advice before deciding whether to answer; of course, you would hope that your solicitor will have foreseen that a special warning might be given and have advised you fully already!

How should the decision be made?

Before advising, a solicitor should consider the allegation, what the police have disclosed, what remains unclear and what the police appear able to prove without help from the suspect. The solicitor must then hear the client's account in private. Only then can advice be properly given.

An early explanation has value where it is clear, truthful and capable of being checked. It can direct the police to an alibi, messages, witnesses, CCTV or location data. It may also counter a later suggestion that the account was invented after seeing the prosecution case.

The competing risk is that an interview cannot be undone. A person may accidentally prove presence, ownership, knowledge or another part of the case. Anxiety, tiredness and imperfect memory can produce inaccurate answers without dishonesty. In an old or document-heavy allegation, an answer from memory may later be contradicted by an unseen record.

Our practical starting point is that a person should not add to the police case without a positive reason. That is a starting point, not an instruction to say "no comment" in every case. It must be balanced against the value of putting forward an account and the risk of an adverse inference if important facts are left until later.

Your five main interview options

Option one: answer the questions

In a full-comment interview, the suspect answers the relevant questions put by the police. This may be the strongest approach where there is a straightforward and truthful account which deals with the allegation and can safely be tested.

Answering records the defence at the earliest opportunity and can identify evidence the police should obtain. Where an offence is admitted, properly advised co-operation may sometimes support an out-of-court disposal, although an officer cannot safely promise that result in exchange for an admission.

The main danger is that every answer creates evidence. A person may guess instead of saying they do not remember, agree with an inaccurate proposition or give an estimate later treated as precise. If the account changes, the prosecution may allege dishonesty rather than ordinary error.

A full-comment interview is not the same as speaking freely. Listen carefully, do not guess and correct misunderstandings promptly. Ask for a break if new evidence or a difficult issue requires advice.

Option two: answer "no comment"

In a no-comment interview, the suspect declines to answer substantive questions. The police will usually continue to put their questions and allegations so that the interview records what the suspect was asked.

Silence prevents accidental admissions and may avoid filling gaps in a weak case. It can be appropriate where disclosure is inadequate, evidence is revealed in stages, the allegation is old or complex, documents are unavailable, or the suspect cannot answer reliably because of illness, exhaustion, shock or vulnerability. It also requires the police to expose the matters they want answered.

The disadvantages are real. The police do not have to treat silence as a sign that there is no answer, and a no-comment interview does not prevent charge. More importantly, a later court may be asked to draw an inference if the defence then relies on a fact which could reasonably have been mentioned. Silence may also deprive the police of a clear route to evidence which could have ended the investigation.

For those reasons, "no comment" should be a considered forensic choice, not a reflex. The advice should be based on identifiable features of the case which can be explained if necessary.

Option three: give a prepared statement and then answer "no comment"

A prepared statement is a written account settled before or during the interview and provided under caution. It will usually contain the essential denial or explanation and the central facts on which the suspect may later rely. It may be read aloud or handed to the officer before the suspect declines to answer further questions.

This can combine some benefits of speaking and remaining silent. It records the core defence early, limits mistakes during prolonged questioning and may counter an allegation of recent invention. It is particularly useful where the account can be expressed accurately in writing but the suspect would struggle with questioning.

There are important limitations. A prepared statement commits the suspect to what it says and may prove facts which the police could not otherwise establish. It must be sufficiently complete: if an important fact is omitted and first appears at trial, an adverse inference may still be possible. The police may continue to ask questions, and refusing to answer them is not automatically protected merely because a statement has been given.

Option four: give a prepared statement and then answer questions

Some suspects provide a statement and then take part in a full-comment interview. This may put a complicated chronology or essential defence clearly on record before detailed questioning. It can also help a person with communication difficulties.

In many cases, however, this approach offers little protection beyond a full-comment interview. Helpful wording in the statement can be undermined by an inaccurate or speculative answer. If the person is able and advised to answer everything, the same core account can usually be given orally.

This option should have a clearly defined purpose. A prepared statement should not be treated as a script designed to make later answers safe.

Option five: answer some questions but not others

There is no rule requiring a suspect either to answer every question or none. As a general strategy, it is the most difficult option. Refusing only the questions which appear troublesome looks like you have something to hide and is likely to focus attention on precisely those areas. If the defendant later relies on facts connected with the unanswered questions, the prosecution may invite the court to draw an inference. Indeed a prosecutor is likely to wave the failure to answer those questions at the jury while commenting how the defendant had no answer when questioned because he hadn’t made up that bit yet!

It is usually better to ask for a break and decide on a principled approach than to make improvised choices question by question. Where only part of an account can safely be given, a carefully drafted prepared statement will often express the boundary more clearly.

Can you change approach during an interview?

Yes. A suspect may ask for a break and seek private legal advice at any point. New disclosure, an unexpected allegation or a special warning may make the original strategy inappropriate. A person who began by answering may be advised to stop, while someone who initially remained silent may decide to provide an account.

A change should not be made casually. The record will show what happened, and a court may ask why an answer was not given earlier. Where possible, the reason for the change should be recorded without unnecessarily disclosing confidential advice.

Your solicitor may intervene to challenge an unfair or misleading question, ask the officer to clarify it, prevent oppressive questioning or request a consultation. The solicitor does not ordinarily answer questions for you and cannot knowingly help you present a false account.

The approach is more likely to change between interviews. For example, we represented a young man accused of causing death by dangerous driving. We initially advised a no comment interview to see what material, if any, the police found. At the second interview, the police made further disclosure and we were satisfied their investigation was unlikely to find anything further. At that point, we advised our client to answer questions. The police took no further action against him.

Evidence that may help your case

Before the strategy is fixed, tell your solicitor about supporting messages, records, photographs, location information, CCTV and witnesses. Explain any medication, health condition, communication need or memory difficulty which may affect the interview.

Preserve original material. Do not edit or delete messages, create new evidence, coach a witness or contact a complainant without advice. Your solicitor can consider whether evidence should be shown to the police immediately, preserved for later or raised in written representations after interview.

What happens after the interview?

The police may decide to take no further action, make further enquiries, arrange another interview or seek a charging decision. An arrested person may be released under investigation, released on pre-charge bail or charged. A voluntary attendee who has not been arrested cannot be placed on pre-charge bail simply as a result of the interview.

What was said, or not said, is only one part of the evidence. A confident denial does not force the police to close the case, just as silence does not automatically justify a charge. If significant new evidence leads to a further interview, the strategy should be reconsidered rather than repeated automatically.

Case studies: why the facts matter

In one anonymised case, a husband was accused of causing bruising to his wife's face. The information disclosed by the police showed that family members said there had been no assault and that the apparent bruising was a long-standing skin condition. There was little the client could safely add to evidence which already pointed away from guilt. He gave a no-comment interview and was released without charge.

In another matter, a mobile-phone shop employee faced questions about hundreds of contracts processed over several years. Detailed answers from memory would have created a serious risk of innocent mistakes being portrayed as lies. Remaining silent until the relevant records could be examined was safer than attempting to reconstruct years of transactions in the interview room.

These examples do not create a rule that silence is always best. A suspect with a simple, checkable alibi may be in a very different position: giving the location, witnesses and supporting records promptly could enable the police to verify the account before evidence is lost.

How Chetwode can help

Chetwode Criminal Defence Solicitors can obtain information from the investigating officer, advise you privately, agree a clear interview strategy and attend the interview with you on a privately funded basis. Where a prepared statement is appropriate, we can draft it carefully so that it records the necessary facts without straying beyond the account you are able to give.

We look beyond the immediate interview to how the decision may appear later. That includes identifying evidence to preserve, advising after release and making pre-charge representations where appropriate.

Frequently asked questions

Does saying "no comment" make me look guilty?

No. Police officers may act as though they cannot possibly understand why you would answer no comment, but the reality is that they will encounter suspects answering that way multiple times per day. The real question is, “how will what I saw now look to a jury in a year or two?” The best way to consider that is to take expert legal advice from a solicitor who understands how to present a case to a jury so that work can begin in the police station.

Will I be charged if I do not answer?

No. The charging decision depends on the evidence and the applicable charging test. Silence may leave damaging evidence unanswered, but it cannot turn an otherwise unsupported allegation into proof by itself. Silence may also avoid giving the police additional evidence against you.

Does a prepared statement prevent an adverse inference?

A well prepared statement should do; however, sometimes it cannot be helped. Your focus should be on how best to put across your side of the story rather than worrying about an abstract legal concept that may or may not rear its head in a years time.

What if I genuinely cannot remember?

Say so if you are answering questions, and do not guess. The age of the allegation, access to documents and the reason for the memory difficulty may affect whether immediate answers are sensible.

Can I speak to the officer informally before or after the recording?

You should assume that any relevant comment can be recorded and used. PACE Code C requires a record of potentially relevant unsolicited comments made outside the formal interview. There is no dependable "off the record" conversation about the allegation.

Can I wait to see every piece of evidence before answering?

The police must provide enough information to explain the nature of the offence and why you are suspected, but they do not have to disclose the entire case before interview. Limited or staged disclosure may influence the advice, but it does not automatically make silence risk-free.

Next steps

If the police want to interview you, avoid discussing the allegation informally. Ask for the officer's name, the suspected offence, whether attendance is voluntary and when the interview is proposed. Preserve anything that may support your account and obtain legal advice before deciding how to respond.

To discuss private representation for a forthcoming police interview, contact Chetwode Criminal Defence Solicitors. A carefully chosen strategy can place the right information before the police while avoiding mistakes which may be difficult to correct later.