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

In this article, 4th year LLB student and Commercial Law sub-editor Sarah Drummond discusses the right to silence in Scotland and whether or not we should draw adverse inferences from the exercise of this right. 

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

 

 

The right to silence and whether adverse inferences should be drawn to indicate guilt is a contentious issue. Supporters of adverse inferences find justification in efficient fact-finding and securing conviction of the guilty. Whilst prima facie there seems to be nothing inherently wrong with this position, I believe that practically, we should not draw adverse inferences from a suspect’s right to silence in Scotland.  In order to justify this opposing position, an analysis shall be be made of the right to silence in relation to protecting the innocent from wrongful conviction. Next, the cruel choices account shall be explored, followed by a scrutiny of the justification founded on the right to privacy. An argument shall be made that connects the right to silence with the presumption of innocence and finally, an examination of the unnecessary practical complexity of inferences shall be presented.

 

In the face of police questioning, a suspect has the right to remain silent which finds justification from the overarching principle of the privilege against self-incrimination. The privilege provides that no one should be required to provide evidence that might incriminate themselves. The right to silence, in general, allows a suspect to remain silent in response to questions put to him during questioning. In Scotland, a suspect in police custody is only obliged to provide basic information regarding his identity[1] but otherwise, is under no obligation to answer any other questions put to him. Unlike in England and Wales,[2] no adverse inference can be drawn from a suspect’s failure to provide information during police questioning, that is subsequently relied on at trial.[3] This is the crux of the right to silence which is drawn into contention by various commentators.

 

Protection of Innocent Suspects from Wrongful Conviction

The privilege against self-incrimination and the right to silence both provide an instrumental justification to minimise the risk of erroneously convicting an innocent individual.[4] Which outcome is more morally repugnant: wrongly convicting the innocent or, potentially acquitting the guilty? It is clear that a balance must be struck between liberty and justice, but compromising the rights of the innocent is an indefensible solution.

 

Jeremy Bentham[5] believed that the privilege against self-incrimination only served to protect the guilty, since an innocent suspect’s primary interest would be to absolve all suspicions of guilt held against him. However, this deduction fails to recognise that there are various reasons that an innocent suspect would remain silent during questioning. Police questioning by nature is intimidating, and research identifies police pressure, susceptibility to suggestion, fear of custody and protection of other people as potential grounds for false confessions.[6]  Therefore, theoretically the privilege serves an important procedural protection that safeguards vulnerable and innocent suspects.

 

However, for a distressed suspect, it may require extraneous willpower to exercise the privilege effectively.[7] Every suspect remains at liberty to waive their privilege and submit to police questioning - which thereafter permits any statements made to be admissible at trial - and many of them do.[8] Scots law requires that suspects are offered a consultation with a solicitor before and at any time during questioning.[9] However, the right can also be waived.[10] It is inadequate that two imperative safeguards can be abandoned - encouraged by the pursuit of fact-finding - as the protection afforded to innocent and vulnerable suspects is notably diminished.[11] Roberts and Zuckermann suggest that a ‘comprehensive duty solicitor scheme’[12] could resolve this issue; attached to unrealistic economical and political costs. However, if suspects had a clearer understanding of their rights (free access to legal assistance, via telephone etc), the right to silence could be exercised more effectively, to protect the innocent from wrongful conviction.

 

Redmayne suggests that the innocent are protected elsewhere through; recording interviews, identification of vulnerable witnesses[13] and jury directions indicating why an innocent suspect might remain silent.[14] This reasoning is devoid of any recognition for what is truly at stake. If an individual does not know, or cannot access his rights, the criminal justice system lacks credibility and public confidence.

 

An alternative argument was presented by Seidmann and Stein.[15] They propose that without absolute protection under the right to silence, those who are guilty would tell exculpatory lies instead. This is counter-intuitive to fact-finding, since testimony evidence would therefore become unreliable and discredited. However, if innocent suspects told the truth, there is no indication that they would be convicted as a result. Therefore, this analysis isn’t convincing to justify the protection of the innocent.

 

Since there are various reasons that an innocent suspect may choose to remain silent it is therefore irresponsible to rely on silence as an inference of guilt. The right to silence safeguards vulnerable witnesses from wrongful admissions and self-incriminating testimonies. The awareness of the right to silence and its permissible exercise without consequences should be made more available and attainable to suspects, who would otherwise lack such knowledge, and waive their right to exercise it.

Cruel Choices

Bentham satirises the privilege against self-incrimination: “tis hard upon a man to be obliged to criminate himself.[16] For him, only the guilty face the hardship of cruel choices -  telling the truth self-incriminates, remaining silent results in adverse inferences or telling deceptive lies could evade punishment. However, this operates on the assumption that the suspect is guilty.[17] On this premise, it is therefore difficult to find a moral justification, in support of an absolute right to silence, if it only exists to save guilty suspects from a difficult decision. In Murray,[18] the court recognised this conundrum, and under the ‘fairness enshrined in Article 6 required legal assistance to be available to the accused - which alarmingly cannot be guaranteed. Roberts and Zuckermann[19] recognise that difficult choices made by ordinary witnesses can be just as challenging (such as testifying against family members). In criminal proceedings there is an expectation to “aid the process of retribution by co-operating with the criminal process[20] and it thereby follows that such choices, weighted against the moral pursuit of justice, are no less cruel than denying the combined interests of society in an efficient criminal justice system. A more convincing justification may therefore be recognised in evaluating the outcome of the ‘cruel choice’ doctrine.

 

Surely, it is preferable for suspects to exercise their absolute right to silence than actively mislead police investigations? Congruent to Stein and Seidmann’s game theory analysis, if most guilty suspects lie, the value of testimonies is diminished. Therefore, the intention of securing co-operation to a greater degree, is turned on its head, when fact-finding procedures are hindered by false accounts. A research study conducted on the system in place in England and Wales supports this position : “suspects are talking more, but more just means more untruthful accounts.[21] This is only beneficial if suspects are proven false on the evidence, or found later inconsistent with a defence raised at court, although this appears to have had no discernible impact on conviction rates.[22] The efficiency of fact-finding is undeniably compromised and therefore, one struggles to justify permitting adverse inferences it they hinder fact finding and consume time and resources without securing conviction.

 

Privacy Rights

 It is well documented by legal commentators that the privilege against self incrimination protects substantive interests in an individual’s right to privacy, in terms of its distinctive contribution to personal autonomy and personal identity.[23] Galligan compares compelling police questioning, with plugging the suspect into a painless mind-reading machine,  and condemns both.[24]  The state’s power is disproportionately great compared to the suspect,[25] therefore if privacy can operate as a distancing mechanism - between the state and the suspect - this is an important function of the right to silence that should not be under-estimated.

 

However, the scope of this justification is questionable. The investigative process, by its nature, infringes upon an individual’s right to privacy in the interests of crime prevention and effective administration of justice.[26] Article 8 of the ECHR provides an explicit exception to this extent.  Dennis[27] questions why the privilege against self-incrimination does not extend to protect an individual’s privacy from an arguably more intrusive subjection to extraction bodily samples from a suspect in custody.[28]Although we can distinguish between the probative value of hard evidence compared to silence; this in itself does not justify the disparity in treatment of bodily samples, to protecting an individual’s silence. Additionally, the extent of surveillance in our modern ‘Big-Brother’ society impeaches upon our right to privacy for the greater public interest and is not objected to in the same respect. Police questioning is central to establishing a narrative to a crime, not a suspect’s inner-most thoughts. Accordingly, for as long as the police avoid mind-reading machines, it is difficult to see how drawing adverse inferences from silence could damage a special interest in privacy that is uniquely protected by the privilege against self-incrimination.[29]

 

Presumption of Innocence

The presumption of innocence argument provides a stronger justification for why we should not draw adverse inferences. In Lord Carloway’s Review, he states:

                        it is for the prosecution to demonstrate the guilt of the

                        accused, there is no            obligation on the accused to establish

                        his/her innocence, or to take an active part in the trial

                        proceedings at all particularly in a way that might aid

                        the prosecution case[30]

An absolute right to silence isn’t required under Article 6(2) or the presumption of innocence; adverse inferences will be judged alongside the current safeguards in place for the suspect.[31] This is difficult to reconcile if the accused’s silence can form a significant part of the prosecution’s case.[32] The resources available to the state offer a particular advantage and it follows that the defence should not be compelled to assist in this fact-finding.[33] If all suspects are to be presumed innocent, until proven guilty, it is paradoxical to compel a suspect to be a source of incriminating evidence.[34] Bentham coined this ‘fair play’ sentiment as the “fox hunters reason”.[35] He parallels the concept of sportsmen giving the fox a ‘fair chance’ to escape, with that of the suspect under the law. This is particularly provocative and addresses the imbalance of power within our justice system, since the odds certainly seemed stacked against the ‘fox’ from the outset. The privilege against incrimination thereby acts as a check against the power of the state. A suspect can be arrested under ‘reasonable grounds’ and detained for up to 12 hours, with limited information regarding the suspicion against them,[36] thus it’s essential that the presumption of innocence is upheld.

 

The presumption of innocence exists to protect the accused until the prosecution adduces sufficient evidence against him, establishing guilt beyond reasonable doubt.[37] Roberts and Zuckermann emphasise that where silence is probative, the traditional standard of proof is not in fact diluted[38] but is perhaps more attainable, which is an important distinction. Given that it is for the prosecution to establish guilt in court, allowing adverse inferences to be drawn would move part of the trial out of the courtroom and into the police station.[39] The distancing mechanism[40] performed by the right to silence is an essential feature of our criminal justice system, since the prosecution should be able to establish and prove evidence independently against the accused, at trial. It logically follows that the safeguards in place maintain the accountability of the system’s fact finders, to ensure that real evidence is obtained to convict guilty individuals, rather than relying on a suspect’s absence of explanation as evidence.

 

Using Bentham’s “fox hunting terminology, in a system of well-equipped hunters, we require effective investigations that can distinguish - on the facts, beyond reasonable doubt - between a guilty fox and an innocent one; without having to ask him. The privilege against self-incrimination and presumption of innocence offer procedural protection for the individual against the power of the State; which is a fundamental principe of the criminal justice system.[41]

 

Unnecessary Complexity

The final reason for rejecting adverse inferences is the introduction of unnecessary complexity to the law.[42] Complex disclosure arrangements would be required - or the suspect may unfairly answer questions based on unsubstantiated suspicions. Therefore drawing inferences would only be permissible if the suspect had full awareness of his rights and of the evidence known against him available to the police, at all stages of investigation.[43]  This is impractical and in some instances against the interests of the case, as a guilty suspect could prepare careful rebuttals of evidence known against him. However, using England and Wales as an example, police are under no obligation to disclose such information before adverse inferences are drawn. This is precarious territory since the ECtHR permitted drawing inferences from silence ‘in situations which clearly call for an explanation[44] from the suspect. This suggests that the suspect must be made aware of the evidence against him to be Article 6 compliant. However, it is this uncertainty and complexity that is worth avoiding.

 

The second issue presented by Birch, is that the law becomes unnecessarily complicated which thereby incurs great costs to the public purse.[45] Extensive judicial directions must be delivered to ensure Article 6 compliance[46] which risks confusing the jury, undermining the accused’s fair trial and wasting judicial time.

                        “It is a matter of some anxiety that, even in the simplest

                        and most straightforward of cases to require a direction

                        of such length and detail that it seems to promote the           

                        adverse inference question to a height it does not merit[47]

This is echoed in Birch’s analysis of the value of silence. She states that there is no intrinsic weight to silence itself; and it should not be over-relied upon. Birch’s concern was that misapplication of the provisions[48] may lead to success on appeal where a conviction would otherwise be quashed - all to the futile expense of the public purse.[49]

                                   

In England, a jury can still draw an inference of guilt even if the accused was advised to remain silent by his solicitor.[50] Otherwise, reliance on legal advice could excuse the jury from drawing an inference in such a manner to undermine the legislation. This places a fundamental principle at stake: the right to legal assistance (which is frequently waived by suspects anyway). If genuine reliance on legal advice - amidst confusing and complex provisions regarding the right to silence, in pursuit of your best interests - could contribute to the case against you, it defies the reasoning to seek legal assistance in the first place, which turns the outcome of Cadder[51] on its head. This position is not desirable; legal advice honestly given and genuinely received shouldn’t culminate a stronger case against the accused.[52]

                       

There appears to be no practical benefit of drawing inferences at trial, given that the conviction rate in England and Wales has not been affected. Based on this analysis, the English system is no model for reform, but it is unclear what measures could be introduced that are realistically attainable, to ensure that the efficiency of the system and the safety of its essential principles aren’t outweighed by means to incriminate the guilty.

 

Conclusion

In theory, adverse inferences justify holding the guilty to account under an efficient criminal justice system. However in practice, it is clear that this unattainable feat cannot be guaranteed. Whilst the right to silence should safeguard innocent suspects from incriminating testimonies, it is clear that those most in need of protection are currently at neglect of the system. Greater efforts should be made to prioritise their position and inform them of their rights, in a more comprehensive manner, or the system lacks credibility and public confidence. When a suspect is confronted with cruel choices, false testimonies provided may simply hinder fact-finding and consume investigative and judicial time and resources - without positively securing conviction. In objection to compelled testimonies, an individual’s right to privacy should be respected to operate as a distancing mechanism between the power of the state and the suspect. It is therefore reasonable that a suspect will be presumed innocent until real evidence establishes otherwise, beyond reasonable doubt, without requiring the suspect to contribute to the prosecution’s case. Most convincingly, in practice, it is unclear how our system could preserve our fundamental rights and ensure effective and efficient justice is administered by introducing an unacceptably complex qualification to the right to silence; which cannot even be justified practically as a means of securing conviction of the guilty.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Criminal Justice (Scotland) Act 2016 s34(4)

[2] See Criminal Justice and Public Order Act 1994, s34-35 for English position

[3] Larkin v HM Advocate 2005 SLT 1087

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

[5] Rationale of Judicial Evidence (1827) vol.5, 230

[6] G. Gudjonnson, The Psychology of Interrogations, Confessions and Testimony, (Chichester, 1992) ch4

[7] B. Irving, Police Interrogation : A Case Study of Current Practice (Royal Commission on Criminal Procedure Research Study No 2, London 1980) p153

[8] Research found right to silence was only exercised upon in <5% of cases : R Leng, The Right to Silence in Police Interrogation : A Study of Some of the Issues Underlying the Debate (RCCJ Research Study No 10, London, 1993

[9] Cadder v v HM Advocate [2010] UKSC 43 and see CJ(S)A 2016 s31(2)

[10] Research on two police stations found that 60% of suspect’s requested legal advice - but this doesn’t always mean it is received. : L. Skinns, Im a Detainee, Get Me Out of Here! (2009) 49 Brit J Criminol 399, 407

[11] Vulnerable suspects are most likely to waive the right to legal assistance : T. Bucke, R. Street and D. Brown, The Right to Silence : The Impact of CJPOA 1994 (2000) 36

[12] Roberts and Zuckermann, Criminal Evidence (2nd edn, 2010) 560

[13] CJ(S)A 2016 s42(c) : ‘mental disorder’ requirement doesn’t recognise vulnerable witnesses in general.

[14] M Redmayne, Rethinking the privilege against self-incrimination (2007) 27 OJLS 209 p220

[15] A Stein and D.J Seidmann, The Right to Silence Helps the Innocent : A Game Theoretic Analysis of the First Amendment Privilege (2000) 114 Harvard LR 431

[16] Bentham, n5 above

[17] Dennis, n4 above, 359

[18] Murray v UK, (1996) 22 EHRR 29, 67

[19] Roberts and Zuckermann, n13 above, 551

[20] Redmayne, n15 above, 223

[21] Bucke, Street and Brown, n12 above, 34

[22] England and Wales found that drawing adverse inferences had no effect on conviction rate, ibid, 66-67

[23] D Galligan, The Right to Silence Reconsidered (1998) C.L.P 69, 88

[24] Bucke, Street and Brown, n12 above, 89

[25] Roberts and Zuckermann, n13 above, 551

[26] Ibid

[27] Dennis, n4 above, 357

[28] Criminal Procedure (Scotland) Act 1995, s18

[29] Roberts and Zuckermann, n13 above, 552

[30] The Carloway Review, Report and Recommendations, (17 November 2011), para 7.5.1

[31] Adetoro v United Kingdom 20 April 2010 at [47]-[49] and ibid para 7.5.11

[32] R. Mundy, Inferences from Silence and European Human Rights Law [1996] Crim LR 370

[33] Roberts and Zuckermann, n13 above, 552

[34] Dennis, n4 above, 353

[35] Bentham, n5 above, 238-9

[36] CJ(S)A 2016 s1(1); 3 and 9

[37] Ibid

[38] n13 above, 554

[39] Carloway Review, n32 above, 7.5.24

[40] Redmayne, n15 above, 225

[41] B. Hocking and L. Manville, What of the Right to Silence : Still Supporting the Presumption of Innocence, or a Growing Legal Fiction?, Macquarie Law Journal (2001) Vol 1 No 1, 63.

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

[43] Royal Commission on Criminal Procedure, The Investigation and Prosecution of Criminal Offences in England and Wales (1981) 4.52

[44] Murray v UK, 47

[45] D Birch, Suffering in Silence : A Cost-Benefit Analysis of s34 of the CJPO Act 1994 [1999] Crim LR 769

[46] See Condron v United Kingdom (2001) 31 EHRR 1

[47] R v Bresa, [2005] EWCA, Crim 1414, 4

[48] s34 CJPO Act 1994

[49] Birch, n46 above

[50] R v Howell [2003] Crim LR 405

[51] [2010] UKSC 43

[52] Simon Cooper, Legal Advice and Pre-Trial Silence - Unreasonable Developments, International Journal of Evidence and Proof (2006)

 

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