The police caution administered before interview is one of the most important warnings you will ever receive. It is not a "caution" in the sense of an outcome or disposal—rather, it is a formal warning given to suspects before they are questioned about an alleged offence.
Under the Police and Criminal Evidence Act 1984 (PACE) and Code C of the PACE Codes of Practice, anyone who is arrested or interviewed as a suspect must be cautioned before any questions are asked about their suspected involvement in an offence[1].
The standard caution wording is:
"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."
This wording has been in use since the Criminal Justice and Public Order Act 1994 introduced provisions allowing adverse inferences to be drawn from a suspect's silence in certain circumstances[2].
"You do not have to say anything"
This is an unequivocal statement of your right to silence. You cannot be forced to answer questions. You cannot be compelled to provide an account. This right is enshrined in common law and protected by Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial[3].
The right to silence means that remaining silent during interview is not, in itself, an admission of guilt. Silence is a neutral position, and historically, no adverse inference could be drawn from it.
"But it may harm your defence if you do not mention when questioned something which you later rely on in court"
This is the critical qualification introduced by Section 34 of the Criminal Justice and Public Order Act 1994[4]. It permits a court or jury to draw "such inferences as appear proper" from a defendant's failure to mention facts during interview that they later rely upon in their defence at trial.
What this means in practice: If you choose to remain silent in interview but later provide an explanation or defence at court that you could reasonably have been expected to mention when questioned, the court may draw an adverse inference. The prosecution may argue that your silence suggests you fabricated your account later, after having time to think.
This does not mean silence is automatically damaging. The courts have established strict conditions for when adverse inferences may be drawn, including that the suspect must have had access to legal advice[5].
"Anything you do say may be given in evidence"
Every word you say during a police interview is recorded and can be used as evidence against you in court. This includes not just formal interviews under caution, but also any comments you make in the police car, in the custody suite, or to officers during breaks.
It is crucial to understand that anything you say can be taken out of context, misunderstood, or contradicted by other evidence. Even seemingly innocent comments can become critical pieces of prosecution evidence.
PACE Code C is clear about when a suspect must be cautioned[6]:
- Upon arrest: The caution must be administered immediately when a person is arrested.
- Before any questions: A person who is being questioned about an offence must be cautioned before any questions are asked.
- When suspicion focuses: If during general questioning, grounds for suspicion arise, the person must be cautioned immediately.
- Re-caution after break: The caution must be repeated when questioning resumes after a significant break.
- Voluntary interviews: The caution must be given even if the person is not under arrest but is attending voluntarily to be interviewed as a suspect.
Failure to properly caution a suspect may result in any subsequent admissions or statements being ruled inadmissible at trial under Section 78 of PACE, which allows a court to exclude evidence if admitting it would have an adverse effect on the fairness of proceedings[7].
The "Special Warning" (Sections 36 & 37 CJPOA 1994)
In certain circumstances, additional warnings may be given alongside the standard caution. Under Sections 36 and 37 of the Criminal Justice and Public Order Act 1994, adverse inferences may be drawn from a suspect's failure to account for[8]:
- Objects, substances, or marks found on their person, clothing, or in their possession (Section 36)
- Their presence at a particular place at or about the time an offence was allegedly committed (Section 37)
When relying on these provisions, the police must give a "special warning" informing the suspect what they are being asked to account for, why it may be attributable to their participation in the offence, and that failure to account may result in adverse inferences being drawn.
Restricted Caution (When Adverse Inferences Cannot Be Drawn)
There are situations where adverse inferences from silence cannot lawfully be drawn. In these cases, a "restricted caution" is used:
"You do not have to say anything, but anything you do say may be given in evidence."
This restricted caution is used when[9]:
- A suspect has not been allowed access to legal advice
- The interview is being conducted by non-police investigators (such as trading standards) who do not have the power to draw adverse inferences
- There are other legal restrictions preventing adverse inferences
The caution creates a profound dilemma for suspects: speak and risk incriminating yourself, or remain silent and risk adverse inferences being drawn. This is precisely why legal advice is crucial.
A qualified solicitor or accredited police station representative can:
- Advise you on the strength of the evidence against you
- Explain the implications of answering or not answering questions in your specific circumstances
- Ensure the interview is conducted properly and fairly
- Prepare a written statement if appropriate, allowing you to put forward your account without the pressure of questioning
- Protect you from improperly framed or misleading questions
Importantly, the courts have recognized that adverse inferences should not be drawn when a suspect has been advised by their solicitor to remain silent, particularly where that advice is objectively reasonable in the circumstances[10].
Misconception 1: "If I don't answer questions, it means I'm guilty"
Reality: Silence is not guilt. There are many legitimate reasons for not answering questions, including that you may be confused, traumatized, protecting someone else, or simply following legal advice. The law requires the prosecution to prove guilt; you do not have to prove innocence.
Misconception 2: "If I tell the truth, everything will be fine"
Reality: Even truthful accounts can be misinterpreted, taken out of context, or contradicted by flawed evidence. You may not know what other evidence exists. Speaking without legal advice can be disastrous even when innocent.
Misconception 3: "Only guilty people ask for a solicitor"
Reality: Asking for a solicitor is a fundamental right and a sensible precaution whether innocent or guilty. Courts and police recognize this. Requesting legal advice cannot be used as evidence of guilt[11].
Misconception 4: "The caution is just a formality"
Reality: The caution is legally significant. It marks the point at which a person becomes a suspect and their rights crystallize. Everything that follows the caution is evidentially critical.
[1] Police and Criminal Evidence Act 1984, Section 66; Code C, paragraph 10.1
[2] Criminal Justice and Public Order Act 1994, Sections 34-37
[3] European Convention on Human Rights, Article 6; Murray v United Kingdom [1996] 22 EHRR 29
[4] Criminal Justice and Public Order Act 1994, Section 34
[5] R v Argent [1997] 2 Cr App R 27; Condron v United Kingdom [2001] 31 EHRR 1
[6] PACE Code C (2019 Revision), paragraphs 10.1-10.6
[7] Police and Criminal Evidence Act 1984, Section 78; R v Samuel [1988] QB 615
[8] Criminal Justice and Public Order Act 1994, Sections 36-37; PACE Code C, paragraph 10.11
[9] PACE Code C, paragraph 10.5, Note 10D
[10] R v Roble [1997] Crim LR 449; R v Betts and Hall [2001] 2 Cr App R 16
[11] PACE Code C, paragraph 6.5; R v Chandler [1976] 1 WLR 585