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In Scotland, no 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?

February 20, 2017

In this essay, Nicole Hannah (4th year LL.B ) discusses the recent Lord Carloway review, and whether the right to silence ought to be qualified to allow adverse inferences to be drawn from a suspect's silence during police questioning. 

In Scotland, no 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

In Scotland today there is an almost, absolute right to silence,[1] and the law provides that adverse inferences may not be drawn from a suspects silence during police questioning.[2] However, in England and Wales it has been the case for a number of years that adverse inferences can be drawn from this type of silence.[3] The Lord Carloway review recently considered adopting this position in Scotland, but ultimately, Lord Carloway recommended that the proposals be rejected.[4] He did not feel the provisions would fit well with the Scottish principles on the presumption of innocence, the right to silence and the privilege against self-incrimination.[5] It was also felt that that the provisions would “bring unnecessary complexity to the criminal justice system.[6] Overall, I agree with Lord Carloway’s recommendation, but I do not agree with all of the reasoning behind his decision, and in this essay I will seek to demonstrate why.

The privilege against self-incrimination

The first reason which Lord Carloway gave for rejecting adverse inference provisions was that they could conflict with the protection of three important principles: the right to silence, the presumption of innocence, and the privilege against self-incrimination.[7] I would argue the former two principles fall under the overarching ‘umbrella’ of the privilege against self-incrimination, as the right to silence is regarded by many as “a component of the over-arching privilege against self-incrimination”,[8] and the presumption of innocence provides one of the main rationales behind the privilege.[9] Therefore, I will focus on this principle when making my argument.

A basic definition of the privilege is that a suspect shall not be forced to provide evidence against themselves in the course of a criminal investigation and trial.[10] At the stage of police questioning, Mirfield stated that it meant the police should not “engage the will of the suspect so as to compel him to provide evidence against himself.”[11] It could be argued that any qualification to the right of silence – such as introducing adverse inference provisions – would conflict with this principle. However, I do not think adverse inference provisions should be rejected on this basis. I will begin my argument by critically examining the main rationales behind the privilege against self-incrimination (as outlined by Roberts and Zuckerman),[12] and demonstrating that the protection of the privilege is not a valid reason for rejecting adverse inference provisions.

The Presumption of Innocence

One of the main rationales behind the privilege against self-incrimination is that it is ‘conceptually implied’ by the presumption of innocence.[13] A basic interpretation of the presumption of innocence is that it requires “the State to prove its case beyond reasonable doubt”,[14] and Roberts and Zuckerman make the point that drawing adverse inferences from a suspect’s silence doesn’t “dilute” the burden of proof, it merely “contributes to discharging” it.[15]  This suggests that adverse inference provisions would not conflict with the presumption of innocence. However, another interpretation of the presumption of innocence, the “no assistance principle”,[16] is the State should have to prove its case without the help of the suspect.[17] So, it would logically follow that the state may not rely on a suspect’s silence as evidence. However, if this was the true meaning of the presumption of innocence in Scotland, then why does the law allow the police to take bodily samples from suspects?[18] This is a clear example of the suspect being forced to assist the State, and potentially provide evidence against him or herself. If this conforms with the presumption of innocence, then there is no reason in principle, why adverse inference provisions would not also. Furthermore, the “purpose of the presumption of innocence is not to make the State’s job difficult”,[19]  and this is arguably the position which the ‘no assistance’ principle is putting forward.

The European Convention on Human Right provides that for a fair trial to occur there must be a presumption of innocence[20]. Furthermore, the European Court of Human Rights (hereafter the ECtHR), has previously suggested that the privilege against self-incrimination could be implied into the presumption of innocence provision in Article 6(2) of the Convention.[21] However, the ECtHR has made it clear that qualifications to the right of silence – such as the adverse inference provisions introduced in England - will not automatically breach Article 6.[22] The fact that the ECtHR has “afforded legitimacy”[23] to adverse inference provisions in terms of Article 6(2), arguably demonstrates that the presumption of innocence would be no barrier to Scotland implementing similar provisions.

Privacy

A further rationale behind the privilege against self-incrimination is that it protects a person’s privacy, as it ‘permits the accused to keep his knowledge to himself’[24]. Galligan outlines the importance of privacy by describing how “it protects personal identity and autonomy. Without a zone of privacy, identity, personality, autonomy cannot exist”.[25] The importance of privacy is further demonstrated, by the fact it is protected under Article 8 of the European Convention on Human Rights.[26] However, privacy is clearly a qualified right under the Convention,[27] so an encroachment upon an individual’s privacy may be justified. In Scotland, the State may encroach upon a citizen’s privacy in a number of ways, in order to pursue criminal justice aims. Suspects can be detained for a period up to 24 hours,[28] there are statutory provisions which compel car owners to inform the police of a car’s driver at the time of a road traffic offence,[29] and taking bodily samples from a suspect is also permitted in Scotland.[30]

It is clear that the right to privacy – although important – is overwhelmingly qualified in Scotland when it comes to criminal justice. Privacy is all about the individual person and while this individualism is important, “it remains the case that civilisation requires an enormous amount of co-operative effort”.[31] Criminal justice serves an extremely important purpose for society as a whole, and it is clear that this will justify an incursion on the privacy of an individual. Furthermore, drawing adverse inferences from a suspects silence will not be as invasive on an accused person as many of the other investigative methods already permitted in Scotland. The principle of privacy is not a viable justification behind blocking the introduction of adverse inference provisions in Scotland.

Cruel Choices

Another rationale behind the privilege against self-incrimination is that, without it, accused persons could be forced into making a cruel choice between: “providing the authorities with incriminating information, or a lie”.[32] It is argued that the criminal justice system should make allowances for this “human failing”,[33] and not force suspects to make this choice, by allowing suspects to remain silent during questioning – without drawing adverse inferences. The main weakness in that argument is that it is based on the underlying presumption that the accused is guilty.[34] Although, it is true that innocent people can arguably be faced with a similar type of cruel choice.[35] Bentham argued that an innocent person will happily “claim the right of speaking”, and only guilty people who will want to stay silent,[36] but there are situations where an innocent suspect will not wish to incriminate the real culprit.[37] However, if we really want to protect people from having to “other-incriminate” then why do we not allow criminal trial witnesses this right to silence?[38]

The answer to that question is that whilst making a cruel choice demands some kind of “personal sacrifice”[39] from an individual, this is arguably justified by the need the criminal justice system has to access incriminating information. Bentham described the “hardship” faced by the cruel choice as the “old woman’s reason”[40]. Society chooses to inflict heavy punishment upon criminals therefore; it is “pusillanimous to recoil from the lesser hardship of questioning criminal suspects… and giving their silence whatever probative value it might merit”.[41] Allowing adverse inferences to be drawn from a suspect’s silence during police questioning may leave the suspect with a cruel choice - but as with other “harsh” measures which seek to deliver criminal justice - this is justified. Furthermore, it mustn’t be forgotten that adverse inference provisions wouldn’t actually force a suspect to make the choice, as suspects would still have the option to remain silent.

 

Wrongful Conviction

A significant rationale behind the privilege against self-incrimination is that it protects people from wrongful conviction.[42] The wrongful conviction of an innocent person is “considered a species of moral harm so severe as to warrant special measures to prevent its occurrence[43]. So, of course, if such an important aim was being served as a result of an unqualified right to silence then it would be more than justified. The obvious argument is that adverse inference provisions could “increase the pressure on suspects to talk”[44] during police questioning, and this could lead to innocent people accidentally incriminating themselves. However, one could make a case that the type of vulnerable suspects who will be at risk here, are likely to be the type of suspects who are particularly susceptible to waiving their right to silence anyway even if adverse inferences were not drawn.[45] It is unlikely that adverse inference provisions would make much of a difference in this respect. In any case, there are a number of other protections for suspects during police questioning available in Scotland anyway. Every suspect now has the right to legal advice when they are detained by the police[46]. Of course, only an estimated 25% of suspects will actually utilise this right,[47] but in England and Wales (where the right has existed for longer[48]) an estimated 45% of suspects take up legal assistance.[49] This figure is still low, but it does suggest that the Scottish uptake could improve in the future. In any case, there are other safeguards for suspects in Scotland such as a maximum 24 hour detention period[50] - which is far lower than the 72 hour limit in England and Wales.[51] Furthermore, the corroboration requirement is another unique safeguard from wrongful conviction in Scotland.[52] So, it could be argued that in Scotland there are already sufficient measures in place to protect innocent people from wrongful conviction, and adverse inference provisions are unlikely to remove any useful protections for suspects.

 

However, there is a theory formulated by Seidmann and Stein which argues adverse inference provisions could encourage guilty suspects to just lie instead of staying silent, and this would then pool with the innocent suspects honest answers[53]. Consequentially, fact-finders would struggle to distinguish between guilty suspects and innocent suspects.[54] The obvious weakness to this theory is that, if guilty people are willing to lie then they would probably still lie even if adverse inferences were not drawn from their silence.[55] Furthermore, it is likely that investigators are already aware of this, so introducing adverse inference provisions would probably not lead to an innocent suspect’s answers being treated with any more scepticism than they already are.[56]

 

In any event, the major issue with the assertion that introducing adverse inference provisions could lead to more wrongful convictions is the fact that the conviction rates in England and Wales have remained static since adverse inference provisions were introduced there.[57] The number of confessions made has also remained unchanged.[58] If the provisions have not made any difference to the conviction rate, this suggests that they have probably not had any impact upon the number of wrongful convictions either, and they would be unlikely to have this effect in Scotland.

 

Practical Issues

So far, I have argued that Lord Carloway’s first reason for recommending against adverse inference provisions being introduced in Scotland was unjustified. However, I now hope to demonstrate that Lord Carloway still made the correct decision overall. The second reason which he gave for the decision was that adverse inference provisions had made the system in England and Wales too complicated in terms of disclosure arrangements.[59] However, I think a better argument would be that the provisions have made the law in England and Wales far too confusing,[60] and this has been done for no good reason as the provisions have arguably brought no practical benefits to the system. 

 

I have come to this conclusion from examining the situation in England and Wales where commentators have argued that the provisions have actually caused more trouble for the Courts than they have solved.[61] The main reason for this is that, in order for the adverse inference provisions to comply with Article 6 requirements, it has been necessary to introduce additional safeguards. In Murray the ECtHR made it clear that adverse inferences can be drawn in certain circumstances.[62] However, in the later case of Condron the ECtHR also made it clear that “particular caution is required” when drawing these inferences,[63] and sufficient safeguards for the defence were necessary – such as clear and detailed jury directions on the matter at trial.[64] In this case they decided the applicant had not had a fair trial as the jury directions given by the trial court were inadequate,[65] as a result, the guidance on jury directions in England and Wales now runs up to 12 pages long.[66] Furthermore, there has been a lot of “unsatisfactory” case law in England on the topic of whether adverse inferences should be drawn when a suspect stayed silent on the advice of a solicitor.[67] It is clear the Courts in England and Wales have struggled to interpret the provisions in line with the common law and Article 6, and the Court of Appeal has described the adverse inference provisions as a minefield.[68] The provisions have caused confusion and complications, and this is a situation which would most likely be replicated in Scotland if adverse inference provisions were implemented.

 

Furthermore, if we look at the situation in England and Wales it appears adverse inference provisions have made little difference to criminal justice. It appears there has been a slight decrease in suspects utilising their right to silence from 10% to 6%.[69] However, this has not resulted in any more confessions being made by suspects,[70] and the conviction rate has remained static.[71] So, it appears that not only have adverse inference provisions caused the law in England and Wales to become unnecessarily complicated, but they have also failed to actually bring any tangible benefits to the system there.

 

Conclusion

To conclude, I do not believe that Scotland should allow adverse inferences to be drawn from a suspect's silence during police questioning. However, I have not come to this conclusion on the same basis as the Carloway review did.   I do not believe that the protection of the privilege against self-incrimination – and the other principles which fall under the privilege ‘umbrella’ – is a justifiable reason for rejecting adverse inference provisions. I have outlined the four main rationales behind the privilege against self-incrimination, and adverse inference provisions wouldn’t conflict with important principles such as the presumption of innocence and the prevention of wrongful conviction. Adverse inference provisions may conflict with an individual’s privacy rights and it may force suspects to make cruel choices, but these are both principles which can be compromised, because society as a whole has an interest in ensuring criminal justice aims are met. Therefore, the Carloway review was not justified in their reasoning here.

 

Instead, my conclusion is based on the fact that adverse inference provisions would bring no practical benefit to the criminal justice system in Scotland. As far as can be seen in England and Wales, the provisions have made little difference in practice. Furthermore, the provisions have caused the law in England and Wales to become overly complicated, and the Courts have struggled to interpret the provisions correctly. Therefore, I think my proper conclusion is that while there is no good reason in principle why adverse inference provisions should not be implemented in Scotland, there is no real benefit to be had in pursuing the provisions either.

 

 

[1] J Chalmers and F Leverick, “Substantial and radical change: a new dawn for Scottish criminal procedure” (2012) 75 MLR 842 p857

[2] Larkin V HM Advocate 2005 S.L.T. 1087 p 5

[3] Criminal Justice and Public order Act 1994 c. 33 s34

[4] The Carloway Review, Report and Recommendations, 17 November 2011, www.scotland.gov.uk/About/Review/CarlowayReview p328

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] J Chalmers and F Leverick, “Substantial and radical change” p858

[9] P Roberts and A Zuckerman, Criminal Evidence, 2nd ed. (Oxford, 2010, p552)

[10] M Redmayne, ‘Rethinking the privilege against self-incrimination’ (2007) 27 OJLS 209 p209

[11] I Dennis, The Law of Evidence, 4th ed., (London, 2010) p 153

[12] P Roberts and A Zuckerman, Criminal Evidence, p548

[13] P Roberts and A Zuckerman, Criminal Evidence, p552

[14] M Redmayne, ‘Rethinking the privilege ‘p218

[15] P Roberts and A Zuckerman, Criminal Evidence, p554

[16] M Redmayne ‘Rethinking the privilege’ p219

[17] I Dennis ‘International protection, human right, or fundamental necessity? Re-assessing the privilege against self-incrimination’ (1995) 54 Cambridge Law Journal 342  p354

[18] Criminal Procedure (Scotland) Act 1995 c.46,  s18

[19] M Redmayne, ‘Rethinking the privilege’ p219

[20] European Convention on Human Rights, Article 6(2)

[21] Saunders v United Kingdom No. 19187/91 (1997) 23 E.H.R.R. 313 p24

[22] Murray v United Kingdom No. 18731/91 (1996) 22 E.H.R.R. 29 p33

[23] PB Glover, “Proceed with caution(s): a critique of the Carloway Review's rejection of statutory adverse inference provisions in Scottish criminal law”  (2013) 4 Aberdeen Student Law Review 1 p14

[24] P Roberts and A Zuckerman, Criminal Evidence, p551

[25] I Dennis, ‘International protection, human right or functional necessity?’ p356

[26] ECHR, Article 8

[27] ECHR, Article 8(2)

[28] CPSA 1995, s14(2)

[29] Road Traffic Act 1988 c.52, s172

[30] CPSA 1995, s18

[31] P Roberts and A Zuckerman, Criminal Evidence, p552

[32] M Redmayne, ‘Rethinking the privilege’ p221

[33] P Roberts and A Zuckerman, Criminal Evidence, p549

[34] I Dennis, ‘International protection, human right or functional necessity?’ p359

[35] M Redmayne, ‘Rethinking the privilege’ p222

[36] A Sanders, R Young, and M Burton, Criminal Justice, 4th ed. (Oxford 2010) p260ish

[37] M Redmayne, ‘Rethinking the privilege’ p222

[38] Ibid

[39] M Redmayne, ‘Rethinking the privilege’ p224

[40] P Roberts and A Zuckerman, Criminal Evidence, p549

[41] Ibid.

[42] J Chalmers and F Leverick, ‘Substantial and radical change’ p 858

[43] I Dennis, ‘International protection, human right or fundamental necessity?’ p348

[44] M Redmayne, ‘Rethinking the privilege’ p220

[45] A Ashworth and M Redmayne ‘The Criminal Process’ 4th ed. (Oxford, 2010) p102

[46] CPSA 1995, s15

[47] J Chambers and F Leverick, ‘Substantial and radical change’ p847

[48] Police and Criminal Evidence Act 1984 c.60, s58(1)

[49] F Leverick, ‘The right to legal assistance during detention’ (2011) 15 Edin LR 352  p368

[50] CPSA 1995, s14(2A)

[51] PACE 1994, ss43-44

[52] CPSA 1995,  ss97 and 160

[53] M Redmayne, ‘Rethinking the privilege’ p220

[54] P Roberts and A Zuckerman, Criminal Evidence, p562

[55] Ibid.

[56] Ibid.

[57] A Ashworth and M Redmayne, The Criminal Process, p106

[58] Ibid.

[59] J Chalmers and F Leverick, ‘Substantial and radical change’ p859

[60] Ibid.

[61] A Sanders, M Young, and R Burton, Criminal Justice, p272

[62] Ibid.

[63] Condron v United Kingdom No. 35718/97 (2001) 31 E.H.R.R. 1 p21

[64] A Ashworth and M Redmayne, The Criminal Process, p103

[65] Condron V UK (2001) p23

[66] J Chalmers and F Leverick, ‘Substantial and radical change’ p859

[67] A Ashworth and M Redmayne, The Criminal Process, p104

[68] A Sanders, M Young and R Burton, Criminal Justice, p272

[69] 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  http://www.lawteacher.net/PDF/english-legal-system/Right%20to%20Silence.pdf p31

[70] T Bucke, R Street, and D Brown ‘The right of silence’ p34

[71] A Ashworth and M Redmayne, The Criminal Process, p106

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