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Criminal Justice and Public Order Act 1994

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Point in time view as at 19/06/2023.

Changes to legislation:

Criminal Justice and Public Order Act 1994, Cross Heading: Inferences from accused’s silence is up to date with all changes known to be in force on or before 11 December 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Inferences from accused’s silenceU.K.

34 Effect of accused’s failure to mention facts when questioned or charged.U.K.

(1)Where, in any proceedings against a person for an offence, evidence is given that the accused—

(a)at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b)on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

[F1; or

(c)at any time after being charged with the offence, on being questioned under section 22 of the Counter-Terrorism Act 2008 (post-charge questioning), failed to mention any such fact,]

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.

(2)Where this subsection applies—

F2( a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(b)a judge, in deciding whether to grant an application made by the accused under[F4 paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998]

(c)the court, in determining whether there is a case to answer;

and

(d)the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure as appear proper.

[F5( 2A )Where the accused was at an authorised place of detention at the time of the failure, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged or informed as mentioned in subsection (1) above.]

(3)Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.

(4)This section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above “officially informed” means informed by a constable or any such person.

(5)This section does not—

(a)prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from this section; or

(b)preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.

(6)This section does not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.

F6(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2S. 34(2)(a) repealed (18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 64(2)(a), Sch. 37 Pt. 4; S.I. 2012/1320, art. 4(1)(c)(d)(2)(3) (with art. 5) (see S.I. 2012/2574, arts. 4(2), 2, Schedule and S.I. 2013/1103, art. 4)

F3Words in s. 34(2)(b) substituted for s. 34(2)(b)(i)(ii) (9.5.2005 for specified purposes, 18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 64(2)(b); S.I. 2005/1267, art. 2(1)(2)(a), Sch. Pt. 1; S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, arts. 4(2), 2, Schedule and S.I. 2013/1103, art. 4)

F4S. 34(2)(b): words substituted for s. 34(2)(b)(i)(ii) (9.5.2005 for specified purposes, otherwise prosp.) by Criminal Justice Act 2003 (44), 41, 336, {Sch. 3 para. 64(2)(b)}; S.I. 2005/1267, art. 2(2), Sch. para. 1(1)(p)

F5S. 34(2A) inserted (1.4.2003) by 1999 c. 23, ss. 58(2), 68(3) (with Sch. 7 paras. 5(2), 8); S.I. 2003/707, art. 2(a)

F6S. 34(7) repealed (5.7.1996) by 1996 c. 25, ss. 44(4)(7), 80, Sch. 5 Table 1, Note 2 (with s. 78(1))

Modifications etc. (not altering text)

C1S. 34: power to apply (with modifications) conferred (E.W.) (1.10.2002) by 2002 c. 30, s. 36(1)(c); S.I. 2002/2306, art. 2(c)(iii)

S. 34: power to apply (with modifications) conferred (E.W.) (1.10.2002) by 1997 c. 50, s. 37(2A)(d) (as inserted (1.10.2002) by 2002 c. 30, s. 88(2); S.I. 2002/2306, art. 2(f)(iv))

S. 34: power to apply (with modifications) conferred (E.W.) (1.10.2002) by 1997 c. 50, s. 81(2A)(d) (as inserted (1.10.2002) by 2002 c. 30, s. 89(2); S.I. 2002/2306, art. 2(f)(iv))

C2Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

35 Effect of accused’s silence at trial.U.K.

(1)At the trial of any person F7. . . for an offence, subsections (2) and (3) below apply unless—

(a)the accused’s guilt is not in issue; or

(b)it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;

but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.

(2)Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment [F8with a jury] , in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3)Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.

(4)This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.

(5)For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless—

(a)he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or

(b)the court in the exercise of its general discretion excuses him from answering it.

F9(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)This section applies—

(a)in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section;

(b)in relation to proceedings in a magistrates’ court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.

Textual Amendments

F8Words in s. 35(2) inserted (24.7.2006 for E.W. and 8.1.2007 for N.I., otherwise prosp.) by Criminal Justice Act 2003 (c. 44), ss. 331, 336, Sch. 36 para. 63; S.I. 2006/1835, art. 2(h) (subject to art. 3); S.I. 2006/3422, art. 2(c)(i)

Modifications etc. (not altering text)

C11Ss. 34-38 applied in part (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch. (as amended (26.9.2006) by S.I. 2006/2326, art. 2(2))

36 Effect of accused’s failure or refusal to account for objects, substances or marks.U.K.

(1)Where—

(a)a person is arrested by a constable, and there is—

(i)on his person; or

(ii)in or on his clothing or footwear; or

(iii)otherwise in his possession; or

(iv)in any place in which he is at the time of his arrest,

any object, substance or mark, or there is any mark on any such object; and

(b)that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and

(c)the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and

(d)the person fails or refuses to do so,

then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, subsection (2) below applies.

(2)Where this subsection applies—

F10(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(b)a judge, in deciding whether to grant an application made by the accused under[F12 paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998]

(c)the court, in determining whether there is a case to answer; and

(d)the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure or refusal as appear proper.

(3)Subsections (1) and (2) above apply to the condition of clothing or footwear as they apply to a substance or mark thereon.

(4)Subsections (1) and (2) above do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.

[F13( 4A )Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) above do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.]

(5)This section applies in relation to officers of customs and excise as it applies in relation to constables.

(6)This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for the presence of an object, substance or mark or from the condition of clothing or footwear which could properly be drawn apart from this section.

(7)This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

F14(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F10S. 36(2)(a) repealed (18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 64(3)(a), Sch. 37 Pt. 4; S.I. 2012/1320, art. 4(1)(c)(d)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c)(d), Sch. (with arts. 3 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(d)(2)(3) (with arts. 3 4)

F11Words in s. 36(2)(b) substituted for s. 36(2)(b)(i)(ii) (9.5.2005 for specified purposes, 18.6.2012 for specified purposes, 5.11.2012 for specified purposes, 28.5.2013 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 64(3)(b); S.I. 2005/1267, art. 2(1)(2)(a), Sch. Pt. 1; S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4); S.I. 2012/2574, art. 2(2)(3)(c), Sch. (with arts. 3 4) (as amended (4.11.2012) by S.I. 2012/2761, art. 2) (with S.I. 2013/1103, art. 4); S.I. 2013/1103, art. 2(1)(c)(2)(3) (with arts. 3 4)

F12S. 36(2)(b): words substituted for s. 36(2)(b)(i)(ii) (9.5.2005 for specified purposes, otherwise prosp.) by Criminal Justice Act 2003 (44), 41, 336, {Sch. 3 para. 64(3)(b)}; S.I. 2005/1267, art. 2(2), Sch. para. 1(1)(p)

F13S. 36(4A) inserted (1.4.2003) by 1999 c. 23, ss. 58(3), 68(3) (with Sch. 7 paras. 5(2), 8); S.I. 2003/707, art. 2(a)

F14S. 36(8) repealed (5.7.1996) by 1996 c. 25, ss. 44(4)(7), 80, Sch. 5 Table 1, Note 2 (with s. 78(1))

Modifications etc. (not altering text)

C16S. 36 applied (with modifications) (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 21; S.I. 2002/2750, art. 2(a)(ii)(d)

C17Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

C19S. 36(1)(b)(c) modified (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 23(b); S.I. 2002/2750, art. 2(a)(ii)(d)

C20S. 36(1)(c) extended (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 23(a); S.I. 2002/2750, art. 2(a)(ii)(d)

C23S. 36(4) modified (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 23(b); S.I. 2002/2750, art. 2(a)(ii)(d)

37 Effect of accused’s failure or refusal to account for presence at a particular place.U.K.

(1)Where—

(a)a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed; and

(b)that or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence; and

(c)the constable informs the person that he so believes, and requests him to account for that presence; and

(d)the person fails or refuses to do so,

then if, in any proceedings against the person for the offence, evidence of those matters is given, subsection (2) below applies.

(2)Where this subsection applies—

F15(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(b)a judge, in deciding whether to grant an application made by the accused under[F17 paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998]

(c)the court, in determining whether there is a case to answer; and

(d)the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure or refusal as appear proper.

(3)Subsections (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in subsection (1)(c) above what the effect of this section would be if he failed or refused to comply with the request.

[F18( 3A )Where the accused was at an authorised place of detention at the time of the failure or refusal, subsections (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to the request being made.]

(4)This section applies in relation to officers of customs and excise as it applies in relation to constables.

(5)This section does not preclude the drawing of any inference from a failure or refusal of the accused to account for his presence at a place which could properly be drawn apart from this section.

(6)This section does not apply in relation to a failure or refusal which occurred before the commencement of this section.

F19(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F15S. 37(2)(a) repealed (18.6.2012 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 64(4)(a), Sch. 37 Pt. 4; S.I. 2012/1320, art. 4(1)(c)(d)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4)

F16Words in s. 37(2)(b) substituted for s. 37(2)(b)(i)(ii) (9.5.2005 for specified purposes, 18.6.2012 for specified purposes) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 3 para. 64(4)(b); S.I. 2005/1267, art. 2(1)(2)(a), Sch. Pt. 1; S.I. 2012/1320, art. 4(1)(c)(2)(3) (with art. 5) (see S.I. 2012/2574, art. 4(2) and S.I. 2013/1103, art. 4)

F17S. 37(2)(b): words substituted for s. 37(2)(b)(i)(ii) (9.5.2005 for specified purposes, otherwise prosp.) by Criminal Justice Act 2003 (44), 41, 336, {Sch. 3 para. 64(4)(b)}; S.I. 2005/1267, art. 2(2), Sch. para. 1(1)(p)

F18S. 37(3A) inserted (1.4.2003) by 1999 c. 23, ss. 58(4), 68(3) (with Sch. 7 paras. 5(2), 8); S.I. 2003/707, art. 2(a)

F19S. 37(7) repealed (5.7.1996) by 1996 c. 25, ss. 44(4)(7), 80, Sch. 5 Table 1, Note 2 (with s. 78(1)))

Modifications etc. (not altering text)

C28Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

C30S. 37(1)(b)(c) modified (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 23(b); S.I. 2002/2750, art. 2(a)(ii)(d)

C31S. 37(1)(c) extended (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 23(a); S.I. 2002/2750, art. 2(a)(ii)(d)

C33S. 37(3) modified (E.W.) (2.12.2002) by 2002 c. 30, s. 38, Sch. 4 Pt. 2 para. 23(b); S.I. 2002/2750, art. 2(a)(ii)(d)

38 Interpretation and savings for sections 34, 35, 36 and 37.U.K.

(1)In sections 34, 35, 36 and 37 of this Act—

  • “legal representative” means [F20a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act); and]

  • “place” includes any building or part of a building, any vehicle, vessel, aircraft or hovercraft and any other place whatsoever.

(2)In sections 34(2), 35(3), 36(2) and 37(2), references to an offence charged include references to any other offence of which the accused could lawfully be convicted on that charge.

[F21( 2A ) In each of sections 34(2A), 36(4A) and 37(3A) “ authorised place of detention ” means—

(a)a police station; or

(b)any other place prescribed for the purposes of that provision by order made by the Secretary of State;

and the power to make an order under this subsection shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

(3)A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2), 35(3), 36(2) or 37(2).

(4)A judge shall not refuse to grant such an application as is mentioned in section 34(2)(b), 36(2)(b) and 37(2)(b) solely on an inference drawn from such a failure as is mentioned in section 34(2), 36(2) or 37(2).

(5)Nothing in sections 34, 35, 36 or 37 prejudices the operation of a provision of any enactment which provides (in whatever words) that any answer or evidence given by a person in specified circumstances shall not be admissible in evidence against him or some other person in any proceedings or class of proceedings (however described, and whether civil or criminal).

In this subsection, the reference to giving evidence is a reference to giving evidence in any manner, whether by furnishing information, making discovery, producing documents or otherwise.

(6)Nothing in sections 34, 35, 36 or 37 prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions being put or otherwise) at its discretion.

Textual Amendments

F21S. 38(2A) inserted (27.9.1999 for specified purposes and otherwise 1.4.2003) by 1999 c. 23, ss. 58(5), 68(3)(4) (with Sch. 7 paras. 5(2), 8); S.I. 2003/707, art. 2(a)

Modifications etc. (not altering text)

C38Ss. 34-38 applied (with modifications) (1.2.1997) by S.I. 1997/16, art. 2(1)(2), Sch.

39 Power to apply sections 34 to 38 to armed forces.U.K.

(1)The Secretary of State may by order direct that any provision of sections 34 to 38 of this Act shall apply, subject to such modifications as he may specify, to any proceedings to which this section applies.

[F22(2)This section applies to any proceedings before an officer or court in respect of a service offence (other than proceedings before a civilian court); and “service offence” and “civilian court” here have the same meanings as in the Armed Forces Act 2006.]

(3)An order under this section shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F22S. 39(2) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 130; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Modifications etc. (not altering text)

C45S. 39(2) modified (24.4.2009 for specified purposes, 31.10.2009 in so far as not already in force) by The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059), art. 1(3), Sch. 1 para. 33

[F2339APower to apply sections 36 and 37 in relation to food crime officersE+W

(1)The Secretary of State may by regulations provide for any provision of section 36 or 37 that applies in relation to a constable to apply in relation to a food crime officer.

(2)Regulations under subsection (1) may apply any provision of section 36 or 37 with any modifications specified in the regulations.

(3)Regulations under subsection (1) may not apply a provision of section 36 or 37 in relation to a failure or refusal which occurred before the regulations come into force.

(4)Regulations under subsection (1) are to be made by statutory instrument.

(5)Regulations under subsection (1) may make—

(a)different provision for different purposes;

(b)provision which applies generally or for particular purposes;

(c)incidental, supplementary, consequential, transitional or transitory provision or savings.

(6)A statutory instrument containing regulations under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.

(7)In this section “food crime officer” has the meaning given by section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers).]

Textual Amendments

Yn ôl i’r brig

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This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

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Rhagor o Adnoddau

Defnyddiwch y ddewislen hon i agor dogfennau hanfodol sy’n cyd-fynd â’r ddeddfwriaeth a gwybodaeth am yr eitem hon o ddeddfwriaeth. Gan ddibynnu ar yr eitem o ddeddfwriaeth sy’n cael ei gweld gall hyn gynnwys:

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liciwch ‘Gweld Mwy’ neu ddewis ‘Rhagor o Adnoddau’ am wybodaeth ychwanegol gan gynnwys

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  • dolenni i ddeddfwriaeth gysylltiedig ac adnoddau gwybodaeth eraill

The data on this page is available in the alternative data formats listed: