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In an interview under caution, you have three choices: answer the questions, say 'no comment', stay completely silent, or hand over a prepared statement of your account, and then say nothing further. People assume that staying silent is always the safer option. It is not. The law allows a court, in defined circumstances, to hold your silence against you, and getting this decision wrong at the police station can damage a case long before it reaches court. This is what each option in an interview means, why “no comment” is not a free pass, and how the decision to charge is actually made.
An interview under caution is not only limited to police stations. An interview becomes an 'interview under caution' where the interviewer, at the start of the interview, explains the caution in clear terms, often breaking the caution into three separate parts:
Caution = 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.
Caution explained and broken down further:
The caution, and the protections that come with it, applies whenever a body with criminal investigation powers questions a suspect about an offence. The setting changes; the stakes do not.
You can be interviewed under caution by:
One important distinction sits alongside this. Some of these bodies also hold compelled-questioning powers, where you are required by law to answer and, the right to silence does not apply. The clearest example is the Serious Fraud Office's power to compel answers under section 2 of the Criminal Justice Act 1987. A compelled interview is not an interview under caution, and the strategy is entirely different. Knowing which kind of interview you are facing, before you walk in, is the first decision that matters.
These choices are made in a specific setting. A police interview under caution is conducted at a police station, or by arrangement in a voluntary interview suite, run by an interviewing officer to a structured method known as the PEACE model, audio recorded, and governed by PACE Code C. Whether or not you are under arrest, you are entitled to free and independent legal advice (the duty lawyer) before and during the interview, and exercising that right is the single most important protection a suspect has.
Before the interview, your legal advisor should receive pre interview disclosure and also have a pre-interview briefing about the alleged offence and the evidence. That briefing is what allows the legal advisor to advise on which of the three responses is right. Going into a police interview without legal representation, and without that briefing, is how avoidable mistakes are made.
You are held in police detention only if you have been arrested. However, in a voluntary interview you attend voluntarily and can leave freely. The police's questions, the caution and the consequences are the same. In a serious case, for example, an allegation involving sexual offences, the stakes of the interview are higher, and having expert legal advice with a solicitor present is essential. A good legal team will recognise the key points the police are driving at, and the legal process that follows. A pre charge expert further strengthens the chances of success in an interview, given that we would know exactly what the strength of the evidence is from the pre interview disclosure and briefing. This helps protect your position, early on.
When you are interviewed under caution, whether under arrest or as a voluntary interview under caution, you have three realistic ways to respond.
The first, is to answer police questions. The second is a no comment interview, answering “no comment” to each question, or simply exercising your right to silence. The third option is to provide a prepared statement. This is a written statement of your 'version of events' drafted by your solicitor, and handed/read to the interviewing officer. Any further questions after the statement is read, you remain silent on.
Each of these can be the right choice. Which one is, depends on the facts, the strength of the case, what the police have disclosed, and the advice you receive. The no comment vs prepared statement decision, and whether instead to answer questions, is one of the most consequential calls in the whole case. There is no 'default' that is safe in every case, which is the single most important point to understand.
The right to respond with 'no comment' and silence is a genuine protection, recognised under Article 6 of the European Convention on Human Rights, and a no comment interview can be the right way to avoid self-incrimination. The popular belief, though, is that saying nothing can never hurt you. That belief is wrong, and the reason is the adverse inference that can be drawn against you.
Under section 34 of the Criminal Justice and Public Order Act 1994, if you fail to mention, when questioned under caution, a fact that you later rely on in your defence at trial, a court may draw an adverse inference from that silence. In plain terms, if you stay silent at the police station and then advance an explanation in court, the prosecution can ask the jury to conclude that you made the explanation up as the case progressed to court. The caution itself spells this out: “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”.
This is why a blanket 'no comment interview' is not automatically the cautious choice. It can be exactly the right choice, and many solicitors advise a no comment interview to protect the right to silence and avoid self-incrimination. However, the protection is not unconditional: a poorly judged no comment interview can leave the adverse-inference door open. The risk has to be weighed, and weighing it requires knowing what your defence is likely to be.
From a prosecution perspective, when a case is tested against the Full Code to examine whether charges should be brought against an individual, it is much easier to justify criminal charges where there is a 'no comment interview' because the potential defence is not put forward to be considered. Therefore, the chances of a realistic prospect of conviction based on only the prosecution's evidence, remains high.
A prepared statement, also known as a pre-prepared statement is a way of putting your account on the record without submitting to live questioning. You and your solicitor draft a written account of your position, it is then read into or handed in at the interview. You are then advised to answer no comment to any questions thereafter.
Done well, it captures the benefit of both other options. Given that your account has been confirmed on record, the foundation for a section 34 adverse inference is removed or weakened: i.e. you have mentioned the facts you rely on, when questioned. At the same time, you avoid the dangers of a live interview, where unfamiliar questions, pressure and tactical disclosure can produce answers that are unclear, incomplete or simply wrong. Put simply, it is a position which helps you from falling into the trap of being caught out with questions in real time.
It is a controlled way to say what needs to be said, and nothing more.
A prepared statement is powerful, but it should not be considered as a default position either. It commits you to an account at an early stage, before all the evidence is known, and that account can be tested later. If such a statement turns out to be inconsistent with evidence that emerges, or with what you later rely on in court, the inconsistency can itself be used against you, and may harm your defence as much as silence would. A prepared statement also does not stop the interviewing officer asking further questions or seeking further information; though your lawyer may advise you to simply decline to answer them.
It tends to work best where the account is clear, truthful and unlikely to be contradicted, and where putting it on record early heads off an adverse-inference argument. It is more dangerous where the facts are uncertain, where the interview have disclosed very little regarding the allegation or incident, or where committing to significant detail now risks closing off positions that might matter later. The judgement is fine, and it is exactly the kind of judgement that benefits from experience on both sides of these cases.
You should never make this decision blind. Before an interview, the police should provide some disclosure through the investigating officer. This is an outline of what the investigation is about and the nature of the case against you. The extent of that disclosure varies, and part of a legal advisor’s job is to press for enough of it, and to gauge whether the police in fact hold sufficient evidence, before advising.
The level of disclosure directly shapes the right approach. Where the police have revealed a clear, evidenced allegation that calls for an answer, a prepared statement may be sensible. Where they have disclosed almost nothing, advising a client to commit to a detailed account would often be premature, and silence may be the better-protected position. The decision is a response to what is in front of you, not a fixed rule applied in advance.
There is an important protection that people rarely know about. Where you genuinely stay silent following advice from your solicitor, because it is in your best interests to do so, that reliance on legal advice can answer a later argument that your silence should count against you The court looks at whether the reliance was genuine and reasonable, not merely tactical, so the legal adviser’s role in protecting your best interests is real, not just a formality.
This matters for two reasons. It means that silence, taken on proper advice and for proper reasons, is far more defensible than silence taken alone, in a panic. And, it is a concrete illustration of why having a solicitor before the interview, especially one who understands pre charge, can significantly change your position for the better. The advice is not only about what to say. It can become part of the answer to how your silence is later viewed in court.
We treat the interview as one of the most important moments in the whole case, because it often is. Before any interview, we press for disclosure, work through the likely shape of the defence, and weigh the three options against the specific facts to provide a tailored and specific defence. Sometimes, the right course is a prepared statement. Other times, a careful “no comment” may be the right tactical decision. Occasionally answering questions may be. What does not vary is that the decision is made deliberately, with the consequences for trial in mind, and not left to the pressure of the moment.
Having prosecuted these cases as well as defended them, we know how silence and prepared statements are used by the other side, and we use that to protect our clients. What is said, or not said, in a interview under caution shapes everything that follows, whether you are released on pre-charge bail, the case proceeds to criminal charges, or it ends in no further action. In professional discipline cases, it could be the difference between whether your regulator allows you to continue your practice, and remain employed. In regulatory cases, it could be the difference of whether your business continunes trading. Such proactive representation is the heart of pre-charge representation, with legal representation from the outset: getting the early decisions right, before they harden into problems.
We offer confidential consultations, in person at our London offices or remotely by secure call. Initial enquiries are handled discreetly and quickly.
If you have been asked to attend a police interview, speak to us before you do. The decision about what to say is not one to make alone.
Neither is right in every case. “No comment” protects you from the traps of live questioning, but under section 34 of the Criminal Justice and Public Order Act 1994 a court can draw an adverse inference if you stay silent and later rely on something in your defence that you did not mention. Answering police questions can be the right course where there is a clear, innocent account to give, but every answer is given to a police officer building a case that the prosecution must still prove beyond reasonable doubt, and a live police interview carries its own risks. The decision depends on the facts, the disclosure, and your legal advice, ideally with legal representatives present.
It is a written account of your position, drafted with your solicitor and handed to the police at the interview, after which you decline to answer questions. It lets you put your account on record, which can remove the basis for an adverse inference, while avoiding the dangers of live questioning.
In defined circumstances, yes. Section 34 of the Criminal Justice and Public Order Act 1994 allows a court to draw an adverse inference (think you are lying) where you fail to mention, when questioned under caution, a fact you later rely on in your defence. This is why silence is a decision to be taken on advice, not a guaranteed safe option.
It can. Where you genuinely and reasonably relied on legal advice to remain silent, that can answer an argument that your silence should count against you. It is one of the clearest reasons to have a solicitor with you before the interview.
Yes. The interview decision is the same whether you attend under arrest or voluntarily, and the protections, including legal advice at the police station, apply in both. You can contact our team directly before you attend.
Lex Vindico Group is regulated by the Solicitors Regulation Authority. We represent individuals and businesses nationally across England and Wales in criminal, regulatory, and parallel-proceedings defence at every stage, and most decisively, at the pre-charge stage.
This article is written by Akram Mula, LLM, Solicitor Advocate and CPS-approved Prosecutor, founder of Lex Vindico Group. It is general legal information about police interview strategy, not legal advice on any specific case. Statutory references in this article are flagged for editorial verification before publication. For advice on your individual circumstances, contact our team directly.
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