Report and Recommendations - Scottish Government

diet. Alternatively, a court may regard a failure to provide an exculpatoryexplanation at interview as an indication that, in relation to what was said bythe accused in evidence, no truthful explanation exists. The Review hastherefore considered what significance, if any, can be attached by a judge orjury to the failure of a suspect to answer questions prior to the trial diet. Put inthe interrogative, what significance can be attached to the fact that animportant line of defence, subsequently advanced at trial, was not stated fromthe outset, at police interview? Although no-one can be compelled to answer aquestion prior to trial or to incriminate himself/herself at trial, should the courtbe entitled to interpret silence in either situation as, some would say, commonsense permits?Current Law7.5.4 As a generality, silence of an accused, at any time, cannot amount to a sourceof evidence capable of proving, or assisting to prove, a fact. Furthermore, itcannot be used as corroboration of other testimony so as to provide asufficiency of evidence.7.5.5 In relation to police questioning prior to trial, no adverse inference at all canbe drawn from a failure to respond 3 . This is also the law in severalCommonwealth countries, including Canada 4 and Australia. This prohibitionapplies particularly because of the antecedent caution, which expressly warnsthe suspect of his/her right not to answer questions. It is different if a person3 Robertson v Maxwell 1951 JC 114 R v Chamber (1990) 780 CR (3d) 235, (infra)316