Report and Recommendations - Scottish Government

is so even if seasoned offenders may still elect to say nothing. The secondaryeffect is the obvious one; that silence at interview will entitle a prosecutor tocross-examine on the failure to mention the relevant fact and will invite thejudge or jury to draw the inference at trial. But the Review discovered,through its investigations, that inviting the jury to do this is not a regularfeature of trials in England and Wales or elsewhere. The two effects are, ofcourse, mutually exclusive. If the object of adverse inference is attained andthe suspect does speak at interview, there is no silence and no adverseinference can be drawn.7.5.22 The introduction of a near absolute right of access to a lawyer in advance ofpolice interview is likely, if exercised, to promote an increase in those electingto remain silent. This will certainly be the case if the requirement ofcorroboration is retained. Adverse inference has, it has been argued, thecapacity to balance this perceived effect of legal advice in the context of theneed for effective investigation and prosecution of crime. Its proponentsmaintain that it is reasonable to expect a suspect to answer certain fundamentalquestions, such as where he/she was at a particular time or whom he/she waswith or why he/she was carrying a particular thing or how his/her clothingcame to be stained or marked in a particular fashion. These are admittedly allquestions which a suspect ought usually to be in a position to answer.7.5.23 The main argument against adverse inference is that it encroaches on the rightto silence and the privilege against self-incrimination. Put simply, if anadverse inference can be drawn from silence, a suspect may feel compelled to326