Special warnings under s36 and s37 of the Criminal Justice and Public Order Act 1994

26 June 2019

Not reviewed after the date of publication

Question:

What are 'Special Warnings' and when can they be given?

Answer:

Sections 36 and 37 of the Criminal Justice and Public Order Act 1994 outline the circumstances where an officer may issue a special warning during interview, thus placing an onus on a suspect to account for certain factors as follows;

Section 36 requires a suspect to account for object, substances or marks found on them at the time of their arrest.

Section 37 requires a suspect to account for their presence at a particular place, at the time of their arrest.

When a special warning has been issued but a suspect refuses or fails to account for the facts put to them, it will then be open to the jury and court to draw negative inferences from that if the matter should proceed to a trial.

Inferences cannot be drawn where a special warning has not been administered or where a warning has been administered incorrectly. Therefore, it is important that the legislative provisions governing special warnings are strictly adhered to by officers.

Section 36 of the Criminal Justice and Public Order Act 1994

Section 36 states inferences may be drawn -

36(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;

(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 request 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.

Interpretation:

Whilst the legislation does not specifically define object academic discussions suggest that object should be taken to have its usual meaning and would likely cover most physical items.

Substance has been previously interpreted to include traces of hair, bodily fluids and drugs.

Mark has been interpreted to include fingerprints.

PACE Code of Practice C

As well as the prerequisites under section 36, the administration of warnings must comply with paragraph 10.10 – 10.11 of PACE Code of Practice C.

Paragraph 10.10 states that an inference may only be drawn when:

1. The restriction on drawing adverse inferences from silence doesn't apply

No inferences can be drawn from a person's silence in specific circumstances outlined by the legislation one example of such being where they have not been permitted the opportunity to consult with a solicitor. For other examples, please see the full wording contained in Annex C.

Where the restriction on drawing inferences from silence does apply, a suspect may still be asked to account for any objects / marks / substances / marks on objects found within their interview, however a special warning cannot be given in the circumstances.

2. The suspect is arrested by a constable and fails or refuses to account for any objects, marks or substances or marks on such objects found:

on their person 
in or on their clothing or footwear
otherwise in their possession; or 
in the place they were arrested

It has been suggested that the phrase 'otherwise in their possession' may be interpreted in two different ways. The first being that the phrase refers to something that is close to a suspect at the time of their arrest. However, there is a secondary point of view that the phrase could be interpreted in a wider manner to include property that may be owned by a suspect but is stored miles away in a property owned by them ie. property not necessarily at the place the arrest takes place.

Unfortunately, the issue has not been ruled upon by the courts and so we would advise that in both circumstances, officers should be issuing a special warning. In our view, it would be better to give such a warning unnecessarily, than to not give one at all and lose the opportunity for inferences to be drawn.

Section 37 of the Criminal Justice and Public Order Act 1994

Section 37(1) details the four conditions which must exist for a special warning to be given and also, which must be satisfied before inferences can be drawn under section 37(2) and states as follows:

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) applies.

Interpretation:

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

PACE Code of Practice C

Warnings under section 37 must also comply with paragraph 10.10(c) and paragraph 10.11 of PACE Code of Practice C.

1. The arrested suspect was found by a constable at a place at or about the time the offence for which that officer has arrested them is alleged to have been committed, and the suspect fails or refuses to account for their presence there.

This will vary on a case-by-case basis, but previous examples include where a suspect failed to account for his presence at the scene of a robbery, despite there also being CCTV evidence proving their presence at the scene (see R v Benson Aluko 2016).

For the purposes of section 37(1)(a) the officer finding the suspect at the particular place must be the arresting constable, although this does not always make practical sense.

What effect does section 37(5) have on the administration of special warnings?

Section 37(5) states:

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.

The effect of section 37(5) is to widen the scope of section 37(1), meaning that it may be open for the jury or court to draw inferences in circumstances which are deemed to be outside the usual scope of the provision.

As noted above, the officer finding the suspect at the particular place should also be the arresting constable, however this does not always make practical sense. For example, where a suspect has been found by one officer, but then there is a chase and so they end up being arrested by a second officer.

Despite this limitation, as long as the arresting officer gives the suspect a special warning then section 37(5) permits that adverse inferences may still be drawn. However, the court are only permitted to do as such when it is relevant, not deemed 'circumstantial' and is fair to do so.

For further explanation on this section, please see our FAQ regarding 'evidential inferences'.

Practical points for the use of special warnings

Sections 36 and 37 specifically state that an individual must be under arrest for a special warning to be given – therefore a warning cannot be used in a voluntary interview.

PACE Code G outlines the grounds of necessity which must be justified when seeking to arrest someone. Paragraph 2.9(e)(i) states that an arrest may be deemed necessary where it 'would enable the special warning to be given in accordance with Code C paragraphs 10.10 and 10.11 when the suspect is found'.

A special warning may be given for any offence, as long as the prerequisites of section 36 or section 37 are satisfied.

In circumstances where a suspect has been advised by their solicitor to remain silent in interview, there is nothing preventing a special warning being used as long as it is justified. For example, where an officer believes that a suspect is remaining silent largely due to a lack of explanation, rather than out of following their representatives advice. However – this is something that will have to be decided on a case-by-case basis and should be the personal decision of the responsible officer.

The legislation does not specifically outline when a special warning should be given, however common practice is to introduce this towards the end of the interview and prior to any challenge phase.

Where officers have issued a special warning during interview and the case then proceeds to trial, it will be within the remit of the jury and court to draw a negative inference regarding the refusal or failure to mention facts. However, it is not within the power of the jury / court to convict a suspect solely on the evidence of the inference alone.

What wording should be used when giving a special warning?

The legislation does not outline that a specific wording which must be used when administering a special warning. However, paragraph 10.11 of PACE Code of Practice C does clarify that prior to any special warning being given (whether that is under section 36 or 37) the suspect must be told:

(a) what offence is being investigated; 
(b) what fact they are being asked to account for; 
(c) this fact may be due to them taking part in the commission of the offence; 
(d) a court may draw a proper inference if they fail or refuse to account for this fact; and
(e) a record is being made of the interview and it may be given in evidence if they are brought to trial.

A suggested form of words to be used when giving a special warning under section 36 may be accessed via the following documents on PNLD:

For section 36 warnings - Wording for warning to account for objects, substances or marks

For section 37 warnings - Wording for warning to account for presence at a particular place

Please also see further useful documents regarding the use of special warnings, below:

Investigative interviewing > No comment interview

Investigative interviewing > Special warnings

To read more legislation about this subscribe to PNLD.

Back to Legal Questions