Report and Recommendations - Scottish Government

7.5 ADVERSE INFERENCE FROM SILENCEIntroduction7.5.1 The “right to silence” is derived from one of the most readily understood andfundamental facets of criminal justice systems throughout the democraticworld; that an accused is presumed innocent until proven guilty. As it is forthe prosecution to demonstrate the guilt of the accused, there is no obligationon the accused to establish his/her innocence, or to take an active part in thetrial proceedings at all, particularly in a way that might aid the prosecutioncase.7.5.2 This translates into two related and overlapping elements: first, there is theright of a suspect to remain silent when asked questions by the police in theinvestigative phase; and secondly, there is the privilege of an accused againstself-incrimination at trial (which extends to statements at interview 1 ).Although there is no explicit reference to either of these in the Convention,they are clearly understood as essential, if implied, elements of the Article 6right to a fair trial 2 .7.5.3 The decision of an accused to exercise these rights can have a significanteffect on the trial. A cunning and sophisticated accused may, for example,attempt to manipulate the trial process by remaining silent at police interviewand then later springing an “ambush”, perhaps fabricated, defence at the trial1 Funke v France (1993) 16 ECHR 2972 see Chapter 3.0 – Convention Considerations315