The right to silence & identification
A suspect has a right to silence, but adverse inferences may be drawn in defined circumstances under the Criminal Justice and Public Order Act 1994. Identification evidence is regulated by PACE Code D to reduce the risk of mistaken identification.
What "The right to silence & identification" covers
- s.34 CJPOA 1994: an inference may be drawn where the accused failed to mention, when questioned, a fact later relied on at trial which they could reasonably have been expected to mention.
- s.36 and s.37 CJPOA: inferences from failure to account for objects/marks/substances or presence at a place, following a special warning.
- No conviction may be based solely on a s.34-37 inference (s.38(3) CJPOA 1994), and no inference may be drawn from silence where the suspect had not been allowed to consult a solicitor (YJCEA 1999 s.58, which inserted CJPOA s.34(2A); Condron; Argent).
- Legal advice to remain silent does not automatically prevent an inference, but genuine reliance on it is relevant (Betts and Hall; Howell).
- Identification procedures under Code D (video identification, identification parade, group identification) must be held where identification is disputed and a suspect is known and available.
- Turnbull guidelines: where identification evidence is disputed, the judge must warn the jury of the special need for caution and direct on the quality of the identification (assessed via factors like distance, lighting, duration - ADVOKATE).
- Breaches of Code D may lead to exclusion of identification evidence under PACE s.78 or a strengthened Turnbull warning.
Key cases & statutes
The authorities and provisions most likely to matter for this subtopic:
How it's tested in SQE1
SQE1 uses single best answer questions: a short factual scenario, one precise question, and five options of which only one is the best answer on the law applied to the facts. For the right to silence & identification, expect to be asked what the correct legal position is, what a party may or must do, or which outcome follows — with more than one option looking arguable. Reading the facts carefully and eliminating the near-misses is the skill that earns the mark.
Where candidates lose marks
- Thinking silence alone can convict — a s.34 inference cannot be the sole basis for conviction.
- Assuming reliance on legal advice always blocks an inference — the jury may still draw one if silence was not genuinely based on that advice.
- Forgetting the Turnbull warning applies to disputed identification generally, not only to formal parades.
Learn this subtopic in the course
A video lesson, notes and exam-style practice on the right to silence & identification.
FAQ
Is the right to silence & identification tested on SQE1?
Yes — the right to silence & identification is part of the SQE1 Criminal Litigation syllabus (FLK2) and can appear in single best answer questions.
How is the right to silence & identification examined in SQE1?
SQE1 tests it by application: you're given a realistic scenario and choose the single best answer from five options. The focus is on using the law correctly, not reciting it — knowing the leading authorities (s.34 CJPOA 1994, s.36 CJPOA 1994) helps.