Report and Recommendations - Scottish Government

7.5.19 It has already been noted that most Commonwealth jurisdictions do not permitinferences from silence. But it is perhaps worthy of remark that, in theirReport on the Right to Silence 39 , the Australian Northern Territories LawReform Committee made what they described as the shortest recommendationever recorded by any Law Reform Agency in Australia in dismissing the ideaof introducing adverse inference 40 .Consideration7.5.20 There are two principal questions to be answered in deciding whether tointroduce a rule permitting adverse inference. First, and perhaps mostimportant, can it be reconciled in principle with the proper application of aperson’s right to silence, in the context of the presumption of innocence andthe overall fairness of the trial process? Secondly, if it can be so reconciled,would it make a positive contribution to an efficient and effective system forthe investigation and prosecution of crime?7.5.21 The primary consequence of allowing an adverse inference is that, withappropriate adjustments to the caution, it may provoke responses at policeinterview. It is thought to do this in England and Wales, at least in caseswhere the solicitor advising is persuaded that there is a sufficiency of evidenceand that a prosecution is likely to follow. In that situation, where the suspecthas a colourable defence or strong mitigation, the advice might well be that thesuspect should state that defence or mitigation at the earliest opportunity. This39 Report No 25, 200240 see also New South Wales Law Reform Commission Report No 95, 2000325