Report and Recommendations - Scottish Government

England and Wales, Ireland, South Africa and Singapore. In particular, inEngland and Wales there are statutory provisions permitting an inference to bedrawn at trial from a suspect’s silence, whether at interview, at the point ofcharge or during trial. Similar provisions apply to a failure by a suspect toaccount for marks on a suspect’s body or his/her presence at a particular place(e.g. the locus) 23 . These provisions are complex and have been subject toconsiderable judicial scrutiny, resulting in a substantial restriction in thecircumstances in which any adverse inference can be drawn.7.5.14 Silence during a police interview does not, of itself, permit an adverseinference to be drawn at trial in England and Wales. It is necessary that theaccused seeks to rely on a fact which he/she did not mention when questionedby the police or when charged with the offence. The inference can be drawnby the judge or jury when determining guilt or by the judge when determiningwhether there is a case to answer 24 . In R v Argent 25 , Lord Binghamsummarised no less than six conditions that must be satisfied before anadverse inference can be drawn. The English jurisprudence has developedfurther so that no inference can be drawn from silence if: (a) at the time thepolice had already made up their mind to charge the suspect 26 ; (b) theallegations were complex or old and no sensible immediate response wasappropriate 27 ; (c) the facts in question were not known to the defendant at the23 Criminal Justice and Public Order Act 1994 ss 34, 35, 36 and 3724 ibid s 3425 [1997] 2 Cr App R 27; following R v Cowan [1996] QB 373, Taylor CJ at 37926 PACE Code C para 11.6 & CPS Guidance at:http://www.cps.gov.uk/legal/a_to_c/adverse_inferences/#a0227 CPS Guidance (supra)322