Annex C: Restriction on drawing adverse inferences from silence and terms of the caution when the restriction applies

1. The Criminal Justice and Public Order Act 1994, sections 34, 36 and 37 as amended by the Youth Justice and Criminal Evidence Act 1999, section 58 describe the conditions under which adverse inferences may be drawn from a person’s failure or refusal to say anything about their involvement in the offence when interviewed, after being charged or informed they may be prosecuted. These provisions are subject to an overriding restriction on the ability of a court or jury to draw adverse inferences from a person’s silence. This restriction applies:

(a) to any detainee at a police station who, before being interviewed, see section 11 or being charged or informed they may be prosecuted, see section 15, has:

(i) asked for legal advice, see section 6, paragraph 6.1;

(ii) not been allowed an opportunity to consult a solicitor, including the duty solicitor, as in this Code; and

(iii) not changed their mind about wanting legal advice, see section 6, paragraph 6.7(d).

Note the condition in (ii) will:

apply when a detainee who has asked for legal advice is interviewed before speaking to a solicitor as in section 6, paragraph 6.7(a) or (b);

not apply if the detained person declines to ask for the duty solicitor, see section 6, paragraphs 6.7(b) and (c).

(b) to any person who has been charged with, or informed they may be prosecuted for, an offence who:

(i) has had brought to their notice a written statement made by another person or the content of an interview with another person which relates to that offence, see PACE Code C section 16, paragraph 16.4;

(ii) is interviewed about that offence, see PACE Code C section 16, paragraph 16.5; or

(iii) makes a written statement about that offence, see Annex D paragraphs 4 and 9,

unless post-charge questioning has been authorised in accordance with section 22 of the Counter-Terrorism Act 2008, in which case the restriction will apply only if the person has asked for legal advice, see section 6, paragraph 6.1, and is questioned before receiving such advice in accordance with paragraph 6.7(b). See paragraph 15.11.

2. When a requirement to caution arises at a time when the restriction on drawing adverse inferences from silence applies, the caution shall be:

‘You do not have to say anything, but anything you do say may be given in evidence.’

Where the use of the Welsh Language is appropriate, the caution may be used directly in Welsh in the following terms:

‘Does dim rhaid i chi ddweud dim byd, ond gall unrhyw beth yr ydych chi’n ei ddweud gael ei roi fel tystiolaeth.’

3. Whenever the restriction either begins to apply or ceases to apply after a caution has already been given, the person shall be re-cautioned in the appropriate terms. The changed position on drawing inferences and that the previous caution no longer applies shall also be explained to the detainee in ordinary language. See Note C1.

C1 The following is suggested as a framework to help explain changes in the position on drawing adverse inferences if the restriction on drawing adverse inferences from silence:

(a) begins to apply:

‘The caution you were previously given no longer applies. This is because after that caution:

(i) you asked to speak to a solicitor but have not yet been allowed an opportunity to speak to a solicitor. See paragraph 1(a); or

(ii) you have been charged with/informed you may be prosecuted. See paragraph 1(b).

‘This means that from now on, adverse inferences cannot be drawn at court and your defence will not be harmed just because you choose to say nothing. Please listen carefully to the caution I am about to give you because it will apply from now on. You will see that it does not say anything about your defence being harmed.’

(b) ceases to apply before or at the time the person is charged or informed they may be prosecuted, see paragraph 1(a);

‘The caution you were previously given no longer applies. This is because after that caution you have been allowed an opportunity to speak to a solicitor. Please listen carefully to the caution I am about to give you because it will apply from now on. It explains how your defence at court may be affected if you choose to say nothing.’