Legal Article: ‘Special warnings – Are they still being used?’

25 November 2019

Written by: Helen Hanley, PNLD Legal Adviser
Not reviewed after the date of publication

The voluntary attendance procedure has become an increasingly used tool in police investigations as a method of dealing with suspects without arrest.  It provides convenience and flexibility for both suspects and interviewers.  However, at this year’s PNLD conference, Anthony Edwards LLP, defence solicitor, highlighted that this increased use of the voluntary interview has led to a significant reduction in the use of special warnings and that he very rarely sees any cases at trial where adverse inferences are drawn.  He explained how an adverse inference, if well delivered, could aid the prosecution of a case and ‘rattle’ a criminal trial.

The purpose of this article is to:

Detail the legislative provisions that allow for adverse inferences to be drawn at court and the requirement for the special warning to be given by the police to enable this.

Discuss whether officers can take into consideration the benefit / need to issue a special warning in interview, when deciding whether to offer the voluntary attendance procedure and determining the necessity to arrest.

Which legislative provisions allow for the drawing of inferences at court?

Sections 36 and 37 of the Criminal Justice and Public Order Act 1994 allow a court to draw inferences in certain circumstances.

Section 36 allows an inference to be drawn by a judge, court or jury, when an arrested person fails or refuses to account for objects, substances or marks found:

On his person;

In/on his clothing or footwear;

Otherwise in his possession; or

In any place at the time of his arrest.

An investigating officer must reasonably believe that the presence of such a mark, substance or object may be attributable to that person's participation in the commission of an offence specified by the officer, have informed the person of this belief, and have requested that the person account for the presence of the object, substance or mark.

It should be noted that marks and substances could include fingerprints and body fluids found at a crime scene, if the suspect was arrested there. Further information on this is provided on PNLD’s FAQ ‘Warnings – section 36 CJPOA 1994’.

In relation to objects 'otherwise in his possession', this could be interpreted to mean near to the suspect when arrested. However, the full legal meaning of 'possession' for other legislation would include property that is, for example, in his desk at his residence twenty miles away. Until the definition is clarified, it would be wise for officers to give a special warning in all circumstances where objects, which are the subject of questioning, are in the possession of the suspect. A Court is likely to be more critical if a special caution is not given than circumstances where it is given unnecessarily.

Section 36 should be read in conjunction with paragraph 11.4A of Code C, and Code E, which create a procedure for putting certain matters to the suspect in interview, if it is thought he has previously failed to mention relevant facts regarding any objects.

Section 37 allows an inference to be drawn when an arrested person fails or refuses to account for his presence at the place where he was arrested, at or around the time that an offence was committed there. An investigating officer must reasonably believe 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, have informed the person of this belief, and have requested the person to account for his presence there.

This section should be read in conjunction with paragraphs 10.10, 10.11 and 11.4 of Code C, which create procedures for putting certain matters to the suspect in interview, if it is thought they have previously failed to explain their suspicious presence when arrested.

What is an adverse inference?

An ‘adverse inference’ is a conclusion based on evidence and reasoning, that can be harmful or unfavourable to a defence case, and when used, can be quite damning to a trial and an important tool for prosecutors.  However, in order for a prosecutor to request the court draw adverse inferences under sections 36 or 37, the police constable must issue a special warning to the suspect in interview following arrest.  The police constable cannot give the special warning in a voluntary interview.

Special warnings

A special warning is the constable telling the suspect, in ordinary language, in interview following arrest, the following points as per note 10D of Code C:

The details of the offence.

The specific facts that the suspect is being asked to account for.

Why the investigator thinks these facts may link the suspect to the offence.

That a court may draw an inference if the suspect fails to account for these facts.

That a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial.

There is no specific form of wording to be used for a special warning, but there are suggested wordings on PNLD that may be used:

Section 36 wording for the warning to account for objects, substances or marks.

Section 37 wording for the warning to account for presence at a particular place.

The interviewer can introduce the special warning at the end of a relevant topic, in the early stages of an interview, or in the latter stages of the interview, prior to the challenge phase.  The College of Policing have provided some guidance that may assist on how to plan and prepare for the interview.

The special warning is very important, as a prosecutor cannot direct the court to draw adverse inferences without it.

Is the requirement for a special warning a sufficient reason to arrest?

PACE, Code of Practice G, paragraphs 2.4 to 2.9 deal with the necessity criteria in respect of the power of arrest. Paragraph 2.9(e)(i) states:

‘2.9 When it is practicable to tell a person why their arrest is necessary (as required by paragraphs 2.2 3.3 and Note 3), the constable should outline the facts, information and other circumstances which provide the grounds for believing that their arrest is necessary and which the officer considers satisfy one or more of the statutory criteria in sub-paragraphs (a) to (f), namely: ……

(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question. …… Examples of such actions include: ……

(i) interviewing the suspect on occasions when the person's voluntary attendance is not considered to be a practicable alternative to arrest, because for example: ……

arrest would enable the special warning to be given in accordance with Code C paragraphs 10.10 and 10.11 when the suspect is found:

in possession of incriminating objects, or at a place where such objects are found;

at or near the scene of the crime at or about the time it was committed.’

Therefore, it is our view that where an officer considers that the investigation into an offence requires that they give the suspect a special warning, paragraph 2.9(e) above provides this as a reason for arrest.  Should an officer satisfy both elements of the necessity test, then an arrest would be lawful.

Special warnings are a useful tool in an investigation and officers should ensure that they are aware of the provisions surrounding them and when they can be used. Although voluntary interviewing should be considered, it should not automatically override the possibility of adverse inferences being made; officers should consider all options before making a decision on whether to arrest.

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