# Silence and adverse inferences under PACE

> **Key takeaway:** Right to silence remains, but CJPOA ss.34–37 allow inferences if conditions met. Caution + legal advice critical. Cannot solely convict on silence. PACE Codes + s.78 exclusion. Condron/Petkar on fairness/directions.

- **Jurisdiction:** England & Wales
- **Practice area:** Criminal
- **Last reviewed:** 2026-08-04
- **Interactive page:** https://kttclegal.info/library/notes/Criminal/silence-inferences-pace
- **Keywords:** right to silence, adverse inferences, section 34, CJPOA 1994, PACE, Code C, no comment interview, Condron

## What is this about?

Suspects have a right to silence, but the Criminal Justice and Public Order Act 1994 permits adverse inferences from silence in defined interview and trial situations when statutory conditions are met. PACE Codes govern detention and interviewing practice.

## What is the core rule?

Under CJPOA 1994 ss.34–37, inferences may be drawn where a suspect fails to mention facts later relied on when questioned under caution (s.34), fails to account for objects/marks/presence (ss.36–37), or remains silent at trial after a prima facie case (s.35), subject to access to legal advice and proper cautions/warnings. Inferences cannot alone prove guilt; the jury must be carefully directed (Condron; Petkar). Exclusion of interview evidence may arise under PACE ss.76–78 for oppression or unfairness.

## What are the elements or test?

1. Was the suspect interviewed under caution with required warnings?
2. Legal advice offered/obtained (s.34(2A) themes)?
3. Which inference section is relied on?
4. Did the defendant later rely on a fact reasonably expected to be mentioned?
5. Fairness: exclude interview under s.78?
6. Jury directions adequate?

## Which authorities matter?

- **Criminal Justice and Public Order Act 1994, ss.34–38** — Statutory adverse inference scheme.
- **Police and Criminal Evidence Act 1984 and Codes of Practice (especially Code C)** — Detention, caution, and interview framework.
- **Condron v United Kingdom (2001) 31 EHRR 1; R v Petkar [2003] EWCA Crim 2668** — Fair trial limits and directions on silence inferences.
- **R v Argent [1997] 2 Cr App R 27** — Circumstances the jury may consider when assessing reasonableness of silence.

## How does this apply in practice?

Defence strategy on 'no comment' interviews must weigh inference risk against disclosure state. Prepared statements are a common middle path. Youth and vulnerable suspects need special care under the Codes.

## What are common pitfalls?

- Inviting inferences where legal advice access conditions fail
- Using silence as the sole basis of conviction
- Poor jury directions on the limited use of inferences
- Ignoring Code C breaches that support s.78 exclusion

## When would a practitioner use this?

Police station advice; trial objections and summing-up on s.34–35.

## Quick reference

Right to silence remains, but CJPOA ss.34–37 allow inferences if conditions met. Caution + legal advice critical. Cannot solely convict on silence. PACE Codes + s.78 exclusion. Condron/Petkar on fairness/directions.

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*Reference material from [KTTC Legal](https://kttclegal.info/), not legal advice. Work product supports instructing solicitors and barristers under their supervision. England & Wales.*