Special Warnings — CJPOA 1994 ss.36 & 37
Separate from the standard caution. Used in interview when a suspect fails or refuses to account for an object/substance/mark on them, or for their presence at a place at/around the time of the offence. Without a special warning, no adverse inference can be drawn under s.36 / s.37.
The steps
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When to use s.36 (objects, substances, marks)
On arrest, the suspect has on them — or in/on their clothing or footwear — or otherwise in their possession, or in any place where they are at the time of arrest, an object, substance or mark (or a mark on such object) which the officer reasonably believes is attributable to their participation in the offence.
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When to use s.37 (presence at a place)
On arrest, the suspect was found at a place at or about the time the offence is alleged to have been committed, and the officer reasonably believes their presence there at that time may be attributable to participation in the offence.
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Pre-conditions (must ALL be met)
Suspect must be: (1) under arrest, (2) interviewed under caution at an authorised place of detention (or recorded interview in approved circumstances), (3) given a clear chance to account, and (4) the special warning given in ordinary language. PACE Code C 10.11.
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Five things the warning MUST contain (Code C 10.11)
1) The offence being investigated. 2) The fact you reasonably believe may be attributable to participation in that offence (the object / substance / mark / presence). 3) That you want them to account for that fact. 4) That a court may draw a proper inference if they fail or refuse to account. 5) That a record is being made of the interview and it may be given in evidence at trial.
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Script — s.36 (object / substance / mark)
"You are under arrest for [offence]. I can see / I have found [describe the object, substance or mark and where — e.g. 'blood on the cuff of your jacket' / 'a screwdriver in your right pocket' / 'a fresh cut on your right knuckle']. I reasonably believe this may be because you took part in [offence]. I am asking you to account for [the object/substance/mark]. If you fail or refuse to account for it, a court may draw such inference as appears proper. A record is being made of this interview and it may be given in evidence if you are brought to trial. Do you understand? Can you account for [the object/substance/mark]?"
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Script — s.37 (presence at a place)
"You are under arrest for [offence]. You were found at [place] at [time]. I reasonably believe that your presence there at that time may be because you took part in [offence]. I am asking you to account for your presence there at that time. If you fail or refuse to account for it, a court may draw such inference as appears proper. A record is being made of this interview and it may be given in evidence if you are brought to trial. Do you understand? Can you account for your presence at [place] at [time]?"
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How it differs from the standard caution
The standard caution (Code C 10.5) covers ss.34, 36 and 37 generally — silence on something later relied on at trial. A special warning is a SECOND, additional warning that specifically unlocks ss.36 / 37 inferences. Without it, no s.36 / s.37 inference is available, even if the suspect was cautioned. Both must be given — caution first, then special warning at the relevant point in interview.
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Recording
Must be on a recorded interview (audio/visual) at an authorised place of detention, or otherwise in line with Code E / Code F. Record verbatim what was said, the suspect's reply, and any clarification given. If unrecorded (very rare), make a contemporaneous note and have the suspect sign it.
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Repeating where necessary
If new objects/marks/locations come to light later in the interview or in a subsequent interview, give a fresh special warning for each — do not assume one warning covers everything.
Watch outs
- Special warnings are NOT a substitute for the standard caution — give the caution first, then the special warning at the right point.
- Must be in ordinary language the suspect can understand. If they don't understand, explain again — Code C Note 10D principles apply.
- Juveniles (under 18) and vulnerable adults: only give the special warning in the presence of an appropriate adult.
- If a solicitor was requested but not yet provided, the restricted caution applies and adverse inferences (including under ss.36/37) are NOT available — do not give a special warning until the solicitor position is resolved.
- Belief must be REASONABLE and stated — vague suspicion is not enough. Be ready to articulate the grounds in your statement and at court.
- An inference under s.36/s.37 is corroborative only — there must still be a case to answer on other evidence (s.38(3) CJPOA).