Report and Recommendations - Scottish Government

Wales, be regarded at least as an adminicle of evidence. Finally, as inScotland, an adverse inference may be drawn from silence at trial 35 . But theaccused is given a warning to that effect by the judge at the conclusion of theCrown case. The inference is not restricted to cases in which the evidence“cries out” for an explanation.7.5.17 The Supreme Court in Ireland determined that the right to silence was acorollary of the freedom of expression contained in Article 40 of the IrishConstitution 36 . However, in terms of the Criminal Justice Act 1984 37 , whichapplies to most offences, where a suspect fails to account to a police officerfor his/her presence at a particular place or for an object, substance or markfound on him/her, the court:“…may draw such inferences from the failure or refusal as appearproper; and the failure or refusal may, on the basis of such inferences,be treated as, or as capable of amounting to, corroboration of anyevidence in relation to which the failure or refusal is material”.7.5.18 There must be an appropriate caution given in these circumstances. In termsof the 1984 Act 38 , the Court may also draw adverse inferences where anaccused has failed to mention a fact, later relied on in his/her defence at trial,while being questioned. The fact must be one which, in the circumstancesexisting at the time, “clearly called for an explanation”. An accused may notbe convicted on the inference alone.35 ibid s 35(1)36 Heaney v Ireland [1994] 1 IR 58037 ss 18 and 19 as amended by the Criminal Justice Act 200738 s 19A as inserted by the 2007 Act324