Rod HaylerRod has specialised in criminal defence work since 1998. He is a trial advocate of 17 years’ experience and, as a Higher Courts Advocate, he represents clients in Crown Courts and in the Court of Appeal.
Does going “No Comment” during an interview make me look guilty?
If you’re interviewed under caution by the police or any other investigatory body in relation to a suspected offence, you might decide not to answer questions (or to answer “no comment”) for various different reasons. The most widely held, but often incorrect, belief is that by going “no comment” you are signaling your guilt of the offence in question. This stems from the basic perception that if you are innocent, you would choose to say so, in fact, you would shout it from the rooftops. So, silence must mean guilt, right?
Wrong. Our experience tells us that this basic perception is often wrong. There are many reasons why a suspect may choose not to answer questions and there are other reasons why a legal adviser (a solicitor, legal representative or “brief”) might advise a client to maintain their right to silence.
Why might someone go “No Comment” when they are not guilty of the offence?
There are a number of reasons why a suspect might legitimately maintain their right to silence in interview, even where they are not guilty of the offence in question. Here are some examples:
- Where the suspect has no recollection of the incident in question, whether through drink or drug use. In these circumstances, trying to provide an account of an incident may prove hazardous and is best avoided.
- Where the suspect is not guilty of the offence they have been arrested for but they might be guilty of some lesser offence. If answering questions to the main allegation may involve the making of admissions to the lesser offence, the suspect may elect to say nothing at all.
- Occasionally, suspects who are not guilty of the offence will choose to say nothing so that they don’t implicate someone else in the alleged offence. They may wish to protect a family member or a close friend (either in the hope that the police won’t have sufficient evidence against the other person or in the hope that the other person will make their own admissions).
- Some suspects will be in fear of reprisals. They will take the view that it is safer to say nothing than to tell the police the truth and risk the real offender from finding out and taking retribution.
- Many suspects arrested by the police have mental health issues which effect their capacity to understand the situation they are in, their legal rights or the consequences of their words or actions. Where a solicitor has genuine concerns about their client’s capacity to understand, they may advise that client to go “no comment” until more is known about their mental state.
- Occasionally, the circumstances giving rise to the alleged offence may be confused or it may not be clear whether an offence has been committed at all. This might be because of conflicting witness testimony or it may be because the alleged offence involves a complex area of law. In those circumstances, a solicitor may advise their client not to answer questions until the evidential or legal position is clearer.
- Suspects who don’t speak English are at a distinct disadvantage during police interview. The police will arrange for an interpreter to be present and that will generally deal with most of the issues. However, the nuance of language is such that answers may be misunderstood or the emphasis misplaced so as to completely change the suspect’s intended meaning. Where there is a risk of that occurring, the suspect may be better advised not to answer questions during interview.
- The legal adviser may take the view that the suspect’s arrest was unlawful, that no power of arrest had arisen and so an interview in police custody would also be unlawful. In those circumstances, if the police declined to de-arrest the suspect and to treat him or her as a voluntary attender, the advice may well be to go “no comment” in interview.
When going “No Comment” might not be a good idea
We often encounter clients who will refuse to answer police questions as a point of principle, whether they are guilty or not. This might stem from certain embedded views about the police or it might be because the client is “anti-authority” in their outlook. This politicised approach may be understandable in certain instances but it not always the wisest position to take. An innocent suspect is taking a risk if they expect a Bench of Magistrates or a Jury to understand their rationale.
In other cases, the suspect may believe strongly that the complainant or the witnesses to the incident simply won’t support a prosecution. This may happen where the suspect accepts being present and involved in the alleged incident but might have a legitimate defence (such as self defence). But instead of answering questions and asserting their defence, they gamble on the witnesses deciding not to provide statements or, where statements have been made already, on not attending court to give evidence. So they say nothing. Again, this approach may backfire, but does not necessarily mean that they are guilty.
Occasionally, a legal representative might take the view that the police are lacking evidence and so advise the suspect not to answer questions. The point of an interview, after all, is for the police to obtain evidence against the suspect by questioning them. If it transpires that the police really didn’t have sufficient evidence to proceed, then that will have been the correct advice. If, however, the police are subsequently able to obtain further evidence, the decision to remain silent may not work in the suspect’s favour.
How might a court interpret a “No Comment” interview?
The court (be it a jury or a bench of Magistrates) are entitled to draw an “adverse inference” from a suspect’s failure or refusal to answer questions in interview. In other words, the court may conclude that silence equates with guilt. However, the court may only draw such an inference if they conclude that there was no good reason for the failure to answer questions or that the only reasonable explanation for the failure is that the suspect is guilty.
If, on the other hand, the suspect has an explanation for his or her decision not to answer questions, and the court accepts that this explanation may be true, no adverse inference will be drawn.
It is not enough for a suspect to rely on the fact that they were advised to go “no comment” by their legal advisor. The law states that the decision rests with the suspect and that they cannot “hide behind” legal advice. However, in practice, the court may give a suspect the benefit of the doubt where it is clear that they were advised not to answer questions. In most cases, the defendant will need to give evidence about their decision not to answer questions in interview. In some cases, that will be enough. In others, the client may need to waive legal privilege and allow their solicitor to give evidence about the advice they provided.
What is the solicitor’s role in relation to a police interview?
The solicitor will need to assess the extent of the case against the suspect and then weigh that against the pros and cons of the suspect putting forward their account in interview. Often, if the suspect has a clear account and can make a strong denial of the offence then the advice will be to answer questions. However, it is not always that simple and the solicitor or legal representative will need to bring their experience to bear in relation to police investigations and criminal defence work generally.
If the advice is to go “no comment” the solicitor should be able to justify that advice. In the event that the suspect is charged and decides to take the case to trial, the “adverse inference” from silence will need to be rebutted.
What should I do if I need legal advice about a police interview?
Old Bailey Solicitors have a team of lawyers, both solicitors and experienced legal representatives, who can attend the police station, at all times of day or night, to provide advice before you go into interview.
If you are arrested, you will need to request Old Bailey Solicitors when you are offered legal representation by the Custody Sergeant.
If you have been asked to attend the police station, or any other regulatory agency, for an interview under caution, you can contact us on 0207 8464 999 or at [email protected] to ask that a lawyer attends with you.
Finally, if you have already been interviewed, whether you answered questions or decided to go “no comment”, you can contact Old Bailey Solicitors for further advice. It’s never too late to obtain the best advice or to correct a mistake that may have been made previously.