Report and Recommendations - Scottish Government

time when he/she failed to disclose them 28 ; or (d) the charge at trial is for adifferent offence from that with which the defendant was charged, cautionedor arrested 29 . An inference cannot be drawn if the suspect was not affordedaccess to legal advice prior to the questions being put to him/her 30 .7.5.15 A court in England and Wales is required to look at the context in which thesuspect declined to answer. It applies a two stage test 31 : (1) a subjective testof whether the defendant genuinely relied on the advice; and (2) an objectivetest of whether it was reasonable for the defendant to rely on the advice.Following the Convention jurisprudence, the jury must be directed that, if theyconsider that the defendant was silent because he/she was genuinely andreasonably following legal advice, no adverse inference can be drawn. Afurther restriction applies where the defendant’s silence was maintainedbecause he/she, or his/her solicitor, knew little or nothing about the caseagainst him/her. It is recognised that, where only minimal information isprovided by the police, the proper advice from the solicitor to the suspect maybe to remain silent, in which case no inference can be drawn 32 .7.5.16 Although adverse inference cannot be the sole evidence on which a convictionis based 33 , it can be taken into account when determining whether there is acase to answer 34 . Accordingly, an inference from silence may, in England and28 Nickolson [1999] Crim LR 61; see also Betts and Hall [2001] 2 Cr App Rep 1629 CPS Guidance (supra)30 Murray v United Kingdom (1996) 22 EHRR 2931 R v Beckles [2005] 1 WLR 282932 R v Argent [1997] 2 Cr App R 27, R v Imran and Hussain [1997] Crim LR 754 CA and R v Roble[1997] Crim LR 44933 Criminal Justice and Public Order Act 1994 s 38(3)34 ibid s 34(2)(c)323