No Comment Interviews: When and How

Reference: WIKI-4597EAA1 | Last Revised: 22 November 2025 | Version: 2.0

Contents

1. Introduction
2. When No Comment is the Right Call
3. Section 34 Warnings Explained
4. Prepared Statements
5. Explaining to Your Client
6. Handling Client Disagreement
7. Common Mistakes
8. Summary
9. References

Introduction

Advising on whether a client should answer police questions or exercise their right to silence is one of the most critical decisions a police station representative makes. This comprehensive guide explains when no comment advice is appropriate, how to handle Section 34 adverse inference warnings, and the tactical use of prepared statements.

The right to silence is a fundamental protection under English law, enshrined in common law and reinforced by the Police and Criminal Evidence Act 1984 (PACE).[1] However, the Criminal Justice and Public Order Act 1994 introduced provisions allowing courts to draw adverse inferences from silence in certain circumstances,[2] making tactical decision-making essential.

When No Comment is the Right Call {#when-no-comment}

Clear No Comment Situations

1. Weak Evidence Cases

• Police have nothing concrete
• Fishing expedition
• Why: Don't provide ammunition for a weak case

2. Complex Cases Needing Full Disclosure

• Serious charges with minimal disclosure
• Need CCTV, phone records, witness statements first
• Why: Cannot properly defend without knowing the full case[3]

3. Client Isn't Thinking Clearly

• Intoxicated, shocked, or emotional
• Mental health concerns
• Sleep-deprived
• Why: Unreliable answers now create problems later

4. When Client's Story Has Holes

• Account doesn't make sense yet
• Need time to investigate
• Waiting for witnesses or evidence
• Why: Better silence than a bad account that can be disproven

5. Joint Enterprise Cases

• Other suspects not yet interviewed
• Don't know what co-accused have said
• Why: Need full picture first to avoid inconsistencies

Section 34 Warnings Explained {#section-34}

The Warning

"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."

What It Really Means

Section 34 of the Criminal Justice and Public Order Act 1994 allows a court or jury to draw adverse inferences if:[4]

• A defendant fails to mention a fact when questioned under caution
• That fact is later relied upon in their defence at trial
• The court considers the defendant could reasonably have been expected to mention it at the time

Importantly, adverse inferences alone cannot prove guilt—there must be a case to answer based on other evidence.[5]

When Section 34 Matters

• Client has clear, provable defence (alibi, self-defence)
• Evidence supporting defence already exists
• Account is simple and won't change
• Disclosure is sufficient to give informed advice

When Section 34 Doesn't Change Advice

• Evidence too weak for court anyway
• Need more disclosure first
• Defence needs investigation
• Client cannot give reliable account now

Prepared Statements {#prepared-statements}

When to Use

Prepared statements are a tactical middle ground when:

• Section 34 is a real concern
• Client has clear defence to state
• Want to avoid adverse inferences
• But client shouldn't be cross-examined in interview

Structure

A properly structured prepared statement should:

1. Confirm identity
2. State core facts clearly and briefly
3. Assert the defence
4. Explain why no further questions will be answered

Template:

"My name is [NAME]. I am [AGE] years old.

[State core facts clearly]

Example: 'On [DATE] at [TIME] I was at [LOCATION] with [WITNESSES]. I did not commit this offence.'

[End with reason for silence]:
'This is my full account. I will answer no further questions until I have seen all disclosure and taken full legal advice.'

After reading: Client goes full no comment to all questions.

Explaining to Your Client {#explaining}

Don't Say

"Just go no comment on everything"

Do Say

"I'm advising no comment because [SPECIFIC REASON]. This means when they ask questions, you say 'no comment'. This is your legal right under PACE Code C.[6]

The police must prove their case—you don't have to help them. We can give a full account later when we have all the evidence.

The court cannot convict you just for staying silent. They need actual evidence of guilt."

Handling Client Disagreement {#disagreement}

If client wants to talk despite your advice:

"I understand you want to explain. But that could harm your case because [SPECIFIC REASONS].

If you choose to answer against my advice, that's your right—but understand the risks: [EXPLAIN CONSEQUENCES].

I'll note in my attendance record that I advised differently."

Documentation: Always record: "Client insisted on giving account despite advice to remain silent. Risks explained. Client understood but chose to proceed."

Common Mistakes {#mistakes}

❌ Generic no comment advice — Assess each case individually

❌ Not explaining Section 34 — Client needs to understand the law

❌ Forgetting prepared statements — Useful tactical middle ground

❌ Not documenting advice — Always record your advice in attendance notes

❌ Failing to review disclosure — Can't advise properly without knowing police case

Summary {#summary}

No comment advice is a powerful protective tool when used tactically. The key considerations are:

When to advise silence:

• Weak evidence
• Insufficient disclosure
• Client unable to give reliable account
• Complex case requiring investigation
• Joint enterprise with co-accused not yet interviewed

Section 34 adverse inferences:

• Can be drawn if defendant later relies on facts not mentioned when questioned
• Cannot alone prove guilt—must be supporting evidence
• Consider prepared statement to avoid adverse inferences while protecting client

Best practices:

• Assess each case individually based on evidence and circumstances
• Explain the law and your reasoning clearly to the client
• Document your advice thoroughly
• Consider prepared statements as tactical middle ground
• Remember: you can always provide an account later with full disclosure

References {#references}

[1] Police and Criminal Evidence Act 1984, Code C, para 10.1: Right to legal advice and to be informed of the right to silence.

[2] Criminal Justice and Public Order Act 1994, sections 34-37: Provisions relating to inferences from silence.

[3] PACE Code C 2023, para 11.1A: Requirement for sufficient information to be provided before interview (https://www.gov.uk/government/publications/pace-code-c-2023)

[4] Criminal Justice and Public Order Act 1994, s.34(1): "Where, in any proceedings against a person for an offence, evidence is given that the accused—(a) at any time before he was charged with the offence, on being questioned under caution by a constable... failed to mention any fact relied on in his defence..."

[5] R v Condron [1997] 1 WLR 827: Adverse inferences alone insufficient; must be case to answer based on other evidence.

[6] PACE Code C para 10.1 and Note 10A: Right to silence and caution requirements.

[7] Criminal Justice and Public Order Act 1994, ss.36-37: Special warnings relating to objects/marks (s.36) and presence at scene (s.37).

[8] R v Argent [1997] 2 Cr App R 27: Establishing when adverse inferences can properly be drawn under s.34.

Fact-checked: 22 November 2025
Sources verified: All statutory references and case law checked against legislation.gov.uk and authoritative legal databases.
Next review due: May 2026