Special warnings (s36/s37): what to record in the attendance note

A special warning can lead to an adverse inference at trial. Whether it was given properly, and how you advised, should be clear from your note.

In the police stations I attend as a defence solicitor, which I have done since 2001, special warnings come up most often in no comment interviews where officers want to put a specific object, mark or presence to the client. They are easy to give badly and easy to record badly.

The legal framework

Sections 36 and 37 of the Criminal Justice and Public Order Act 1994 allow a court to draw inferences where an arrested person fails or refuses to account for an object, substance or mark (s36), or for their presence at a place (s37), after being asked to do so.

PACE Code C paragraphs 10.10 and 10.11 set out how the warning must be given. Under 10.11, the officer must tell the suspect in ordinary language what offence is being investigated, what fact they are being asked to account for, that the officer believes the fact may be due to the suspect taking part in the offence, that a court may draw a proper inference if they fail or refuse to account for it, and that a record is being made of the interview and may be given in evidence.

Note fields

• The fact to account for: the object, substance, mark or presence, described as the officer described it
• The wording: as close to verbatim as possible, and whether each element of 10.11 was covered
• Timing: when in the interview the warning was given, and whether it was raised in disclosure beforehand
• Clarity: whether the client appeared to understand, and any request for clarification

Advice given and reasons

Record what you advised about the warning and why. If the matter was raised in disclosure, you will usually have discussed it in consultation, so note that discussion. If it was not, record that it came up for the first time in interview and whether you asked for a break to advise. See the no comment interview notes post for how I record advice to remain silent.

The client's response

Note whether the client accounted for the fact, declined to, or gave a partial answer, and anything said in a break about the warning. Keep instructions separate from advice so it is clear what came from whom.

Post-interview review

Straight after the interview, I check the warning against 10.11 while it is fresh, and record any defect I noticed: a missing element, unclear language, or a warning about a fact that was never actually put. Those points may matter if the prosecution later invites the court to draw an inference. The PACE interview note template has a dedicated field for special warnings.

Frequently asked questions

Was the special warning given correctly?

Check it against Code C 10.11. The officer should have explained, in ordinary language, the offence, the fact to be accounted for, the officer's belief that it may be linked to the offence, that a court may draw an inference, and that the interview is being recorded.

How do I record a special warning in my attendance note?

Record the fact the client was asked to account for, the wording used as near verbatim as possible, when it was given, your advice and reasons, and the client's response.

What is the difference between a section 36 and section 37 warning?

Section 36 concerns objects, substances or marks on the person, their clothing or in their possession, or at the place of arrest. Section 37 concerns the person's presence at a place at or about the time of the offence.