YOU DO NOT HAVE TO SAY ANYTHING: Adverse Inferences at Trial

“You do not have to say anything…” – the familiar police caution opens this episode, but Colin Beaumont and Clive Smith unpack what those words really mean in practice, and how adverse inferences can transform the course of a trial.

From the erosion of the absolute right to silence since the Criminal Justice and Public Order Act 1994, through to pre-prepared statements, special warnings, and defence statements, this episode traces the piecemeal development of the erosion of the absolute right to silence and its impact on everyday practice.

The discussion covers the police station interview, where decisions about silence, admissions, or prepared statements can later affect jury perceptions. It moves through the special warning provisions of sections 36 and 37 (objects, substances, marks and presence at the scene), and examines the strategic dilemmas around intimate samples, non-intimate samples, x-rays, and ultrasounds. Colin and Clive highlight key authorities including Knight, Harewood & Raymond, Green, and Hackett, showing how context and judicial discretion shape the drawing of inferences.

They also explore the Crown Court stage under section 35: when a defendant chooses not to testify, how endorsements and practice directions safeguard fairness, and whether “double inferences” are permissible (Chenier). The conversation rounds off with analysis of adverse inferences from failure to serve defence statements and failure to notify witnesses under CPIA provisions, with practical insights for defence practitioners operating at the coalface.

In short, this episode considers the balance between a suspect’s right to silence and the court’s ability to draw adverse inferences, illustrating how both statutory framework and case law have reshaped trial advocacy.

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Referenced Information:

1. Samples at the Police Station

Adverse inferences may be drawn at trial against a defendant who fails, without reasonable cause, to provide intimate samples – see Section 62 (10) of the Police and Criminal Evidence Act 1984

Adverse inferences may be drawn at trial against a defendant who fails, without reasonable cause, to undergo an x-ray or ultrasound scan – see Section 55A (9) of the Police and Criminal Evidence Act 1984

2. Criminal Justice and Public Order Act 1994

Section 34 – Failure to mention when questioned

R v Harewood & Rehman [2021] EWCA Crim 1936

Section 35 – Failure to give evidence

Physical or mental condition makes it undesirable…

Double inferences? R v Chenia [2002] EWCA Crim 2345

Adverse inference or lies direction – R v Hackett [2011] EWCA Crim 380

Section 36 – Failure to account for objects, substances or marks

Section 37 – Failure to account for presence

Can the prosecution refuse to adduce the interview

R (Gonzales) v Folkstone MC [2010] EWHC 3428 (Admin)

2. Witness Notices – Criminal Procedure and Investigations Act 1996

Section 6C – R (Tinnion) v Reading Crown Court [2009] EWHC 2930 (Admin)

3. Defence Statements – Section 6

Can you refuse to serve a defence statement?

R v Rochford [2010] EWCA Crim 1928

Contempt of Court or Adverse Inference?

Admissibility of the defence statement – R v Roehrig [2024] EWCA Crim 539