Staying silent during a police interview: some comments on “no comment”

A striking feature of The Detectives: Series 3 is the multiple use of the phrase “no comment” during the police interviews. The persistent and probing questions of the detectives were met by an equally determined refusal by the murder and kidnap suspects to provide an answer to even the most basic factual questions.

Viewers of the two documentary programmes, which follow the work of Greater Manchester Police’s Major Incident Team, may have felt increasingly frustrated that suspects in very serious criminal investigations refused to answer questions, a frustration that was no doubt shared by the team of detectives working on the cases.

How does the law treat a refusal to answer questions when being interviewed by police? Is staying silent a way for those responsible for criminal acts to escape being convicted?

This [the law] acknowledges that we all have a right to silence, which is sometimes referred to as the privilege against self-incrimination.Although there are sound legal reasons for protecting a suspect’s right to refuse to answer questions, the law does try to strike a balance between the interests of the individual under suspicion and the wider public interest of ensuring those guilty of criminal conduct are convicted.

The basic starting point of the legal approach to “no comment” comes from the common law of England and Wales. This acknowledges that we all have a right to silence, which is sometimes referred to as the privilege against self-incrimination. This means that individuals who are subject to criminal proceedings can’t be compelled to answer questions at trial.

This protection is seen as a key plank in ensuring a fair trial, a right that is recognised in Article 6 of the European Convention on Human Rights . There have been a number of occasions where vulnerable suspects  have made a confession under questioning which has led to a conviction later to be ruled unsafe. A series of miscarriages of justice including The Guildford Four (1974); The Birmingham Six (1975); The Maguire Seven (1976) and Judith Ward (1974), several involving false confessions, led to the establishment of the Criminal Cases Review Commission  by the Criminal Appeal Act 1995 which investigates claims of unsafe convictions.

However, as with many legal rights protecting individuals, limitations have been imposed on the right to silence in order to strike a balance with the wider public interest. Section 34 of the Criminal Justice and Public Order Act 1994  allows for ‘adverse inferences ’ to be made by a court when determining the guilt of a suspect who remains silent, but later relies on information she has could reasonably be expected to provide when interviewed under caution. For example, where a defendant answers “no comment” to questioning in a police interview and later offers an alibi during the trial, it is permissible for the prosecution to cast doubt on the reliability of their evidence on the basis that if it was true, the defendant could reasonably have mentioned it during questioning.

So, although the legal right to rely on a “no comment” response to questions in a police interview is one that may cause frustration for investigators and TV viewers, the provisions on adverse inference aim to ensure that it isn’t also a cause of injustice.

 Hugh McFaul

Hugh McFaul is Co-Director of the Open Justice Centre and Module Chair of Justice in Action.