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“In Scotland, no adverse inference may be drawn at trial from the fact that a suspect refused to answer questions put to him or her by the police. Should this rule be changed?”

In this article, Ikra Bhatti (4th year LLB) discusses the rationales for the privilege against self-incrimination and argues that it may be worthwhile to reform the current position and allow adverse inferences to be drawn from a suspects refusal to answer questions put to them.

 

 

“In Scotland, no adverse inference may be drawn at trial from the fact that a suspect refused to answer questions put to him or her by the police. Should this rule be changed?”

 

Introduction

The right to silence,[1] and in particular the fact that no adverse inferences may be drawn from a suspect’s decision to exercise this right[2], has been a longstanding principle in the Scottish criminal justice system. The fact that adverse inferences cannot be drawn, sometimes referred to as the ‘privilege against self-incrimination’[3], whereby a suspect cannot be compelled to provide information, which may be damaging to him at trial[4], has been the subject of much debate. This essay will consider the reasons why we have this rule and what the effects would be if it were to be altered to allow adverse inferences to be drawn from its exercise. An evaluation will be made of the prominent arguments both in favour of the introduction of adverse inferences and the continuance of the current position. Finally, a conclusion will be drawn to say whether, considering these arguments, adverse inferences should be drawn from a suspect’s refusals to answer police questions.

 

The current position

The law of Scotland as it currently stands affords suspects the right to silence during police questioning[5] and, beyond this, affords suspects the right not to have this silence negatively affect them in court[6]. Although a review of this position was undertaken by Lord Carloway, he rejected the introduction of adverse inference being drawn from the exercise of the right to silence. He argued that this would not comply with the presumption of innocence, the right to silence and the privilege against self-incrimination and that this would bring complexity to the process[7].

 

One of the main rationales, therefore, for allowing such a right includes adhering to Article 6 of the European Convention on Human Rights[8].  Although not expressly mentioned in the wording of the Convention, per the European Court of Human Rights, the right to silence and privilege against self-incrimination are “generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6”[9].

 

The Scottish position differs from the position in England and Wales where adverse inferences may be drawn from the silence of a suspect in certain circumstances[10].

 

Why have the privilege?

 

Allowing adverse inferences to be drawn from a suspect’s refusal to answer questions put to them would be an indirect qualification of the suspect’s right to silence[11]. To conclude on whether this should be allowed in the Scottish criminal justice system, we must consider why we have the existing rule on the unqualified right to silence.  Roberts and Zuckerman[12] break down the reasons for the right into three main categories:

  1. Intrinsic rationales
  2. Conceptualist rationales
  3. Instrumental rationales.

Each of these will be considered in turn. 

 

1. Intrinsic Rationales          

The intrinsic rationales for the privilege against self-incrimination can be broadly divided into two categories: the protection of privacy and the protection from cruel choices[13].

Although it is a qualified right[14], Article 8 of the ECHR protects a person’s right to private and family life.  It is argued that the introduction of adverse inferences will effectively force suspects into providing information which may be disadvantageous to their case[15]. This is an infringement of this Article 8 right.

 

This argument lacks vigour in justifying the privilege. It forces one to balance the interests of one individual against those of society as a whole, as prosecution is in the public interest. This argument has a utilitarian centre and when we approach the question of whether adverse inferences should remain prohibited, it must be said that this is not one of the stronger arguments for this proposition – there is a human instinct to protect the interests of many in comparison to protecting the interests of a single individual.

 

As well as this, privacy is not completely protected in any case. A suspect does not have the right to prevent bodily samples, fingerprints or breath samples from being taken[16]. Evidently, the privacy of the individual is not protected completely and if this is already the case, it is unclear why one would consider the introduction of adverse inferences to be the single factor which pushes the criminal justice system into the position of breaching a suspect’s right.

 

Insofar as the protection from cruel choices is concerned, the main argument here is that by allowing adverse inferences to be drawn from a suspect’s exercise of the right to silence, we are effectively forcing the suspect to give information that will be harmful to his defence[17]. An alternative to this is that the suspect gives false information and thereby opens himself up to the possibility of a perjury charge. The current position allows suspects not to mislead the police and at the same time not to harm their own defence.

 

Again, it must be said that this is a weak rationale. The theory here grows from the assumption that the suspect is guilty[18]. After all, would an innocent suspect refuse to give information that would prove their innocence? This is highly unlikely, especially when we consider the fact that a suspect’s words are less likely to be taken out of context with the provisions on the right to legal assistance[19]. Furthermore, the view that the suspect is “in a vulnerable position”[20] and therefore merits extra protections, fails to be as strong as it may once have been because of this assistance.

 

Dennis argues persuasively that in allowing the suspect to remain silent and not putting pressure on him to answer we are prioritising the interests of guilty suspects over the interests of victims[21]. Recognising this, Glover argues that the Scottish criminal justice system should not give suspects “an early advantage in obstructing the pursuit of the truth”[22]. The entire justice system faces the prospect of being considered frail if this is to be the case.

 

On the other hand, it can be argued that by not allowing adverse inferences and therefore not putting suspects in a position where they may feel their only option is to give false information, we can save valuable police resources. Again, this argument can be rejected. We should be able to rely on trained police members to understand when a suspect is providing misleading information. As well as this, although possibly a naive and idealistic view, we should not be compromising the attainment of justice for the sake of saving money.

 

Overall, considering Roberts and Zuckerman’s intrinsic rationales for the privilege against self-incrimination, it cannot be said that adverse inferences should not be introduced. We are at risk of presenting too many protections to the guilty and, considering this, losing focus of the true goal of the process- justice.

 

 

 

2. Conceptualist Rationales

The key conceptualist rationale for the right to silence identified by Roberts and Zuckerman stems from the presumption of innocence[23] and the idea that allowing adverse inferences would fall foul of the presumption as outlined in Article 6 of the ECHR[24].

 

There is an argument that by allowing inferences to be drawn from silence, we are effectively suggesting the suspect is guilty and needs to prove their innocence and we are lessening the burden on the prosecution to (i) make their case against the accused, and (ii) to prove guilt beyond reasonable doubt[25]. As there is no requirement for the suspect to prove their innocence in any way,[26] it can be said that the by allowing adverse inferences to be drawn from their silence, the suspect is somewhat aiding the prosecution’s case by providing an extra source of evidence.

 

One the one hand, it can be seen that this argument may have merits. The state has far greater resources and expertise at its disposal to prove the guilt of the suspect without requiring any contribution from him[27]. Furthermore, Redmayne argues that a suspect who chooses to remain silent “should not be treated with suspicion without good reason”[28].

 

Again, the arguments provided here can be rebutted. It is important to understand that the burden of proof the state must discharge would remain unaffected by any changes to the law to allow adverse inferences to be made[29]. Considering Redmayne’s argument, the mere fact that a person is a suspect suggests this person should be treated with suspicion. Staying silent does not save a suspect from such scepticism and the introduction of adverse inferences would not make any dramatic changes to this view. 

 

As well as this, the ECtHR have themselves said that allowing adverse inferences to be drawn is not in itself incompatible with the requirements of a fair trial[30]. Considering this is the current position of the court with the most expertise on Convention issues, surely if done correctly, the introduction of adverse inferences cannot be denied on this ground alone.

 

Therefore, when we consider the arguments above, it must be said that the idea that the introduction of adverse inferences would interfere with a suspect’s right to be presumed innocent is not strong.

 

3. Instrumental Rationales

Roberts and Zuckerman’s instrumental rationales for the right to silence focus on the prevention of wrongful conviction[31].

 

It is argued that “the wrongful conviction of the innocent is considered a species of moral harm so severe as to warrant special measures to prevent its occurrence”[32] and that by not allowing adverse inferences to be drawn and effectively not compelling suspects to give information, miscarriages of justice can be prevented[33]. A case can be made to say that by introducing adverse inferences, a suspect is likely to give information which False confessions have been concluded to be a cause of wrongful conviction[34].

 

However, when we consider the protections already afforded to suspects in the Scottish criminal justice system to prevent wrongful conviction, it is unlikely that the introduction of adverse inferences would result in a sudden increase of wrongful convictions[35].

 

One such requirement is corroboration. This means that adverse inferences from silence alone will not be sufficient for a conviction; there must be more evidence beyond simple silence.  The function of the adverse inferences would not be so strong that miscarriages of justice would become more common through its introduction.

 

Another protection is the right to legal assistance. Although it may be the case that weak and vulnerable suspects may give up this right[36] and may therefore be more susceptible to the pressured environment of police interview stage, this will not prove to be the reality for most suspects.

 

Furthermore, “the most severe forms of police oppression have of course always been subject to direct legal sanction”[37] in the criminal law. Therefore, although the introduction of adverse inferences may increase the pressure on suspects to give information, there can still be no use of coercion or cruelty on the part of the police to obtain such information.

 

 

 

 

Carloway’s complexity argument

In rejecting the introduction of adverse inferences into the law of Scotland, Lord Carloway highlighted the complexity that would come with such a move as an argument for the status quo[38].

There is an argument that a change in the law would make the legal position “difficult for suspects to understand.”[39] Alongside this, as is often the case, we risk making the law even more difficult for the average person who may serve on a jury, who may lack an in-depth knowledge of the law, to understand.

 

These arguments, however, can also be rejected. Insofar as we are considering the impact of the change on the understanding of suspects, this “might be countered by legal assistance”[40] Furthermore, the law is complex[41]. Any provisions on adverse inferences being permissible will not be One way in which this may be countered is through clear and understandable jury directions or even by limiting the use of adverse inferences to judges alone.

 

 

Do adverse inferences work?

 

Naturally, the Scottish criminal justice system varies from those in other jurisdictions. However, if we are to consider fully the question of whether adverse inferences should be introduced in Scotland, we must look to other jurisdictions to understand if they are effective. Two legal systems will be considered to gain an insight into the impact of adverse inferences- the English and Welsh system and the Northern Irish system.

 

Adverse inferences from silence are permissible in the English and Welsh criminal justice system[42]. Here is it open to the court or jury to draw any inferences, which they deem to be proper from the silence[43]. In their study on the effects of the change in law and the impacts of this on conviction rates in England, Bucke, Street and Brown[44] found that since the introduction of adverse inferences, there was no substantial change in conviction rate[45]. The current position in Northern Ireland is such that adverse inferences may be drawn in certain circumstances[46].  However, unlike in England, this responsibility usually lies with the judge rather than jury[47].

In research undertaken as to the impact of these provisions, Jackson, Wolfe and Quinn found that more suspects were talking to the police[48] and in at least one case, the inference made the difference between acquittal and conviction[49].

 

If we are to consider these findings, alongside the assumption that one of the main reasons for introducing adverse inferences is to increase convictions, it must be said that the desired effect has clearly not been achieved. As well as this, the consensus among police officers seemed to be that although more suspects were talking, there was an increase in false accounts being given by suspects, which in turn led to resources being wasted in ascertaining the claims’ value[50].

 

Looking at this, it is clear there has not been much of a negative impact on the rights of suspects and the only real problem may be a waste of police resources in investigating false claims. However, this may be a worthwhile expense as the inferences do lead to more communication at least.

 

 

 

 

Conclusion

In conclusion, the law of Scotland should be changed to allow the introduction of adverse inferences. The law, as it currently stands, is very favourable from the view of a suspect and this is something that needs to be amended while remaining as fair as possible and the introduction of adverse inferences is one of the most effective ways to achieve this. As well as this, the introduction is unlikely to interfere with any suspect’s human rights any more than the (legitimate) means that are currently in operation.

 

One issue that may be considered further however is what form the Scottish law should take if the law was to be amended. The key issue in answering this question would be trying to strike the best balance for the suspect and the prosecutor. One way to do this, for example, may be allowing only judges to draw inferences. This will go a long way to ensuring juries are not erring due to the possible complexities which will undoubtedly come alongside any law reform.

 

[1] Criminal Procedure (Scotland) Act 1995 (CP(S)A) s.14(9) although certain facts e.g. name, address and date of birth must be given.

[2] Robertson v Maxwell (1951) JC 11 and more recently Larkin v HM Advocate 2005 SLT 1087 and Dick v HM Advocate [2013] HCJAC 5.

[3] M.Redmayne, “Rethinking the privilege against self-incrimination” (2007) 27 OJLS 209.

[4] Ibid.

[5] CP(S)A 1995 s.14(9).

[6] Larkin v HM Advocate 2005 SLT 1087.

[7] The Carloway Review, Report and Recommendations, (2011) para 7.5.25.

[8] Article 6 protects a person’s right to a fair trial.

[9] Jean-Gustave Funke v France [1993] 1 CMLR. 897 para 44 and more recently Murray v United Kingdom (1996) 22 EHRR. 29 para 45.

[10] Criminal Justice and Public Order Act (CJPOA) 1994 s.34.

[11] J.Chalmers and F.Leverick, “Substantial and radical change: a new dawn for Scottish criminal procedure” (2012) 75 MLR 842 page 857; The Carloway Review, Report and Recommendations, (2011) para 7.5.23.

[12] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) pages 549-563.

[13] Ibid.

[14] A state may lawfully interfere with this right, “for the prevention of disorder or crime” – Article 8(2) ECHR.

[15] D.J.Galligan, “The Right to Silence Reconsidered” 1988 CLP 69 at page 89.

[16] CP(S)A 1995, s.18

[17] K.Greenawalt, “Silence as a Moral and Constitutional Right” (1981) 23 William and Mary Law Review 15.

[18] This is of course, contrary to the presumption of innocence protected by Article 6(2) of the ECHR.

[19] Cadder v HM Advocate [2010] UKSC 43 and CP(S)A 1995 s.15A.

[20] The Carloway Review, Responses to the Consultation Document, (2011) page 29.

[21] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 359.

[22] P.B.Glover, “Proceed with Caution(s): A Critique of the Carloway Review’s Rejection of Statutory Adverse Inference Provisions in Scottish Criminal Law” (2013) page 16.

[23] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) pages 549-563.

[24] ECHR Article 6(2).

[25] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) page 554.

[26] The Carloway Review, Report and Recommendations, (2011) para 7.5.1.

[27] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 354.

[28] M.Redmayne, “Rethinking the privilege against self-incrimination” (2007) 27 OJLS 209 page 219.

[29] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) pages 554-

555; I Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 355.

[30] Adetoro v United Kingdom 20 April 2010 (no 46834/06) at para 47–49.

[31] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) pages 549-563.

[32] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 348.

[33] M.Redmayne, “Rethinking the privilege against self-incrimination” (2007) 27 OJLS 209 page 219.

[34] J.Chalmers, F.Leverick and A.Shaw (eds), Post-Corroboration Safeguards Review: Report of the Academic Expert Group (2014), page 42.

[35] J.Chalmers and F.Leverick, “Substantial and radical change: a new dawn for Scottish criminal procedure” (2012) 75 MLR 842 page 858.

[36] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 350; M.Redmayne, “Rethinking the privilege against self-incrimination” (2007) 27 OJLS 209 page 220.

[37] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 350.

[38] The Carloway Review, Report and Recommendations, (2011) para 7.5.26.

[39] S.Fenner, G.Gudjonsson and I.Clare “Understanding of the Current Police Caution (England and Wales) Among Suspects in Police Detention” (2002) 12 Journal of Community and Applied Social Psychology page 83.

[40] J.Chalmers and F.Leverick, “Substantial and radical change: a new dawn for Scottish criminal procedure” (2012) 75 MLR 842 at page 859.

[41] P.B.Glover, “Proceed with Caution(s): A Critique of the Carloway Review’s Rejection of Statutory Adverse Inference Provisions in Scottish Criminal Law” (2013) page 22.

[42] CJPOA 1994 s.34-35.

[43] Ibid. s.35(3).

[44] T.Bucke, R.Street and D.Brown, “The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994” (Home Office Research Study 199, 2000)

[45] Ibid. pages 66-67.

[46] Criminal Evidence (Northern Ireland) Order 1988 Article 3.

[47] P.B.Glover, “Proceed with Caution(s): A Critique of the Carloway Review’s Rejection of Statutory Adverse Inference Provisions in Scottish Criminal Law” (2013) page 9.

[48] J.Jackson, M.Wolfe & K.Quinn, Legislating Against Silence: The Northern Ireland Experience (2002) page 127.

[49] Ibid, page 68-69 and M.Redmayne, “English Warnings” Cardozo Law Review Vol 30:3:2008 page 1083.

[50] Ibid. page 35. 

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