Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government 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
speak. His/her right to be silent is thereby compromised, indirectly at least.The idea that a failure to answer a question should permit an adverse inferenceto be drawn is, presumably, rooted in the intuitive response that the mostlikely explanation for a failure to give an account is that there is no goodaccount to give. But there are many other reasons for a suspect choosing toexercise his/her right to say nothing. He/she may not want to incriminateothers from whom he/she is at risk or to whom he/she has a degree of familialor social loyalty, however misplaced. He/she may not think that he/she will beable to articulate his/her defence effectively. He/she may not understand thathe/she has a defence.7.5.24 On the point of principle, it can be said with force that current Conventionjurisprudence permits a statutory scheme in which adverse inference canoperate. However, judging from the experience in England and Wales, thescheme would have to be of labyrinthine complexity. For it to have any utility,there would require to be a system whereby, in advance of interview, thesuspect were provided with far more information on the case against him/herthan is presently given or capable of being given in many cases, if themaximum period for questioning is to be as recommended. Solicitors wouldrequire to be afforded sufficient time to consider that information. This isunlikely to be a feasible option, at least in custody cases, without furtherextension of time limits. It also harks back to what has already been alluded to;that this type of system is effectively moving part of the trial out of the courtroom and into the police station. Rather, as appears to be the position in some327
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speak. His/her right to be silent is thereby compromised, indirectly at least.The idea that a failure to answer a question should permit an adverse inferenceto be drawn is, presumably, rooted in the intuitive response that the mostlikely explanation for a failure to give an account is that there is no goodaccount to give. But there are many other reasons for a suspect choosing toexercise his/her right to say nothing. He/she may not want to incriminateothers from whom he/she is at risk or to whom he/she has a degree of familialor social loyalty, however misplaced. He/she may not think that he/she will beable to articulate his/her defence effectively. He/she may not underst<strong>and</strong> thathe/she has a defence.7.5.24 On the point of principle, it can be said with force that current Conventionjurisprudence permits a statutory scheme in which adverse inference canoperate. However, judging from the experience in Engl<strong>and</strong> <strong>and</strong> Wales, thescheme would have to be of labyrinthine complexity. For it to have any utility,there would require to be a system whereby, in advance of interview, thesuspect were provided with far more information on the case against him/herthan is presently given or capable of being given in many cases, if themaximum period for questioning is to be as recommended. Solicitors wouldrequire to be afforded sufficient time to consider that information. This isunlikely to be a feasible option, at least in custody cases, without furtherextension of time limits. It also harks back to what has already been alluded to;that this type of system is effectively moving part of the trial out of the courtroom <strong>and</strong> into the police station. Rather, as appears to be the position in some327
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