Report and Recommendations - Scottish Government

If the accused does not give evidence at his/her trial, no adverse inference canbe drawn from his/her silence at judicial examination 14 . If he/she does testify,a comment can be made at trial on his/her earlier failure to answer questionsquantum valeat. In practice, such comment is equally rarely, if ever, made.Both the Crown and the court appear to regard it as unfair, especially wherethe accused has stated that, in declining to comment, he/she was acting uponlegal advice.The Convention7.5.11 It bears repeating that the Convention does not expressly provide a right tosilence, but such a right has been implied by the European Court as central tothe concept of a fair trial 15 . As to the extent of the right, the Court, underreference to a trilogy of cases 16 , recently explained in Adetoro v UnitedKingdom that 17 :“The Court recalls at the outset that the right to silence is not anabsolute right… The fact that a trial judge leaves a jury with the optionof drawing an adverse inference from an accused's silence duringpolice interview cannot of itself be considered incompatible with therequirements of a fair trial. However, as the Court has previouslyemphasised, the right to silence lies at the heart of the notion of a fairprocedure under Article 6 and particular caution is required before adomestic court can invoke an accused's silence against him 18 .It would be incompatible with the right to silence to base a convictionsolely or mainly on the accused's silence or on a refusal to answer14 Dempsey v HM Advocate 1995 SCCR 43115 Saunders v United Kingdom (1996) 23 EHRR 313 and Murray v United Kingdom (1996) 26 EHRR2916 Murray (supra) at para 47; Condron v United Kingdom (2001) 31 EHRR 1 at para 56; and Beckles vUnited Kingdom (2003) 6 EHRR 162 at para 57)17 20 April 2010 (no 46834/06) at para 47 - 4918 the Court referred to Beckles, (supra), at para 58; Condron (supra), at para 56)320