Report and Recommendations - Scottish Government

questions. However, it is obvious that the right cannot and should notprevent that the accused's silence, in situations which clearly call foran explanation from him, be taken into account in assessing thepersuasiveness of the evidence adduced by the prosecution...Whether the drawing of adverse inferences from an accused's silenceinfringes Article 6 is a matter to be determined in the light of all thecircumstances of the case, having regard to the situations whereinferences may be drawn, the weight attached to them by the nationalcourts in their assessment of the evidence and the degree ofcompulsion inherent in the situation... In practice, adequate safeguardsmust be in place to ensure that any adverse inferences do not gobeyond what is permitted under Article 6 § 1 of the Convention. Ofparticular relevance are the terms of the trial judge's direction to thejury on the issue of adverse inferences...”.7.5.12 As it had done earlier in Murray v United Kingdom 19 , the Court cited anumber of safeguards, which ensured that the overall scheme underconsideration operated fairly, notably that: the accused was under noobligation to answer questions 20 ; he/she had been cautioned; and theconviction was not based solely upon inference from silence. The decision isin contrast to Condron v United Kingdom 21 , where a violation of the right to afair trial was established because the Court considered that the jury had to betold that no adverse inference ought to be drawn if they were satisfied that theaccused had reasonably relied on legal advice not to answer questions.Other jurisdictions7.5.13 Most European and Commonwealth 22 jurisdictions do not draw adverseinferences at trial from an accused’s earlier silence or failure to mention arelevant fact. But they are permitted to do so in limited circumstances in19 para 5120 cf Funke v France (1993) 16 EHRR 29721 (2001) 31 EHRR 122 e.g. Canada and Australia. This also extends to silence at trial: Weissenteiner (1993) 178 CLR 217321