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Re-evaluating the right to silence in Scotland; is there a case for a qualified right?

In this article, Emma-Jayne Scullion (4th year LLB) critiques the Carloway Review's rejection on allowing adverse inferences to be drawn from a suspect's silence in criminal investigations. The pierce seeks to dissect and rebut the reasons given in the Review for upholding an unqualified right to silence, making the case that such an absolute right is more of a sword than a shield...

Re-evaluating the right to silence in Scotland; is there a case for a qualified right?

 

  1. INTRODUCTION

 

 Advocating due process and adversarialism, Scottish criminal law upholds the suspect’s right of silence; a cornerstone of the privilege against self-incrimination.[1] Criminal courts have branded adverse inferences (AIs hereinafter) ‘improper[2] and ‘inappropriate;’[3] a stance reaffirmed in the Criminal Justice (Scotland) Act 2016, following the Carloway Review.[4] Keeping the right unqualified may be morally and practically desirable; it’s retention supports principles such as the presumption of innocence[5] and the accused’s right to a fair trial,[6] whilst arguably preventing wrongful convictions.[7] Yet there is speculation that generous suspect rights hinder the pursuit of the truth in criminal cases,[8] adversely affecting the administration of justice. Hence there is warranted concern in disallowing AIs; I seek to argue that we must not be blinkered by fear of moral upset and complexity. It is vital we contemplate that Scotland’s resistance of AIs in the name of a ‘fair playing field’[9] may have quietly tipped the scale towards the accused; an issue which, in spite of complications, calls for re-examination of the scope of the right to silence.

 

II. ADVERSE INFERENCES; NULLIFYING THE ‘FAIR TRIAL’ AND PRESUMPTION OF INNOCENCE – OR AN EMPTY THREAT?

 

 The significance of Human Rights

 The European Convention of Human Rights (ECHR hereinafter) explicitly provides for the right of charged individuals to be treated as ‘innocent until proven guilty’ in Article 6(2), with Strasbourg affirming that a right to silence is inherent within this.[10] This ECHR jurisprudence has remained consistent, conceding no trial can be fair within the meaning of Article 6 where the suspect is compelled to contribute, or communicate information which may later be used against them.[11]

 Bound by law to take account of Convention jurisprudence,[12] it is clear why Scottish courts have been vocally unwilling to budge.[13] The introduction of provisions to allow AIs would edge towards what critics have branded a ‘method of compulsion;’[14] trapping individuals in a choice between the risk of self-incrimination, and the risk of fatally weakening their defence through exercising silence  subject to later inferences. Clearly at odds with Strasbourg’s notion of a non-prejudicial trial,[15] utilising AIs in Scots law and increasing the vulnerability of the accused is a matter I admit not to be taken lightly.

 

 

 

A presumption of guilt?

 It is deduced, then, that AIs do have potential to dilute the protection a suspect’s silence may provide, facilitating future jury decision-making based not on evidence from questioning, but on the lack thereof; an issue going to the heart of the presumption of innocence. The presumption, at its core, requires that the guilt of the accused must be established by the prosecution; it is not the responsibility of the accused to prove their own innocence through providing explanations, the suspect under no obligation to assist prosecutors in discharging their burden of proof.[16]

  Adjusting the law in Scotland to allow a suspect’s own silence to aid the prosecution could, I acknowledge, upset this long-standing principle, and in turn the fair balance between the State and the individual. Silence is intended as a neutraliser; with one accused facing numerous experienced investigators, it grants the suspect ‘the benefit of the doubt.’[17] On the surface, the allowance of AIs seems to overturn this protection, possibly alleviating the prosecution’s burden, allowing them to dispute the credibility of defence explanations and  ‘bring their case up’ to the necessary benchmark of proof. [18] This leaves us in the uncomfortable position of shifting our presumption towards one of guilt,[19] creating an unfair burden on the accused’s defence to resist this extra tool of State prosecutors.

 

Fears of complexity; Realistic consequences for the Privilege and Presumption

 Having seen how introducing AIs into Scots law would in principle clash with the privilege against self-incrimination and the presumption of innocence, we must now ponder how apparent these moral implications would be in practice; and if they truly justify rejection of change. The reasoning behind leaving these rights untouched is classified as a ‘Conceptualist’ rationale;[20] upholding fairness and rights of due process for the accused discussed above. Although praised as one of the most persuasive objections to allowing AIs in Scotland,[21] it seems unwise to overstate the practical damage which the privilege and presumption would actually suffer at the hands of regulated AIs.

 It has been suggested that attempting to comfortably fit AI provisions around these principles would inflict ‘labyrinthe’ and ‘unnecessary’ complexity upon our law.[22] The alleged complications have been identified primarily as concerning the ample qualifications which AI provisions would need to ensure the rules remain compatible with Article 6, and the implications of these for legislators, judges and juries.[23] I aim to illustrate that these implications, although complex, are not so overbearing or futile that they provide strong reason to reject AI provisions.

 

Labyrinthe?’

  The Strasbourg court has confirmed that many safeguards do need to be implemented to justify the use of AIs. For instance, it has endorsed requirements that a conviction may never be ‘based solely upon inference from silence,’[24] that inference may not be drawn where there is good reason for silence,[25] and that adequate jury directions on these restrictions are ensured by the judge[26]. Of course, these numerous requirements and safeguards which Scottish AI provisions would need are the apparently overwhelming complications cited as a ground for avoiding change. The legislation itself would indeed require meticulous drafting, whilst laying out the lengthy restrictions on AIs to the jury could be a prolonged and arduous process for the courts.[27] However, I would insist this is nothing the Scottish system is unprepared for. Our legislators and courts are well-rehearsed in enacting and enforcing laws in a way that is Convention-compliant; bound to so for almost two decades.[28] Furthermore, the Scottish criminal justice procedure is already renowned for its unique, complex traits; our judiciary experienced in directing juries on deeply intricate areas of Scots criminal procedure such as the requirement of corroboration, and the ‘not proven’ verdict.[29] Thus complexity is no stranger to our system; it is a system built on it.

 

‘Unnecessary?’

 Maintaining that the complications of implementing AIs are not as overwhelming as feared, they do remain implicit in overhauling our procedure. It must be considered if they could bring value, or if the numerous implications are as needless as Lord Carloway predicts. As stated, a main concern is the long list of extra qualifications which must accompany AI reforms. For instance, their operation must function on a discretionary basis; no system of AIs requires or encourages inferences to be drawn, allowing them only on the basis that silence was exercised where answers may ‘reasonably have been expected’ to be given.[30] Due to such qualifications, AIs would avoid penalising every accused, only being lawfully utilised where other circumstances of the case also indicate guilt,[31] and as stated above, may never be used as a primary source of evidence.[32] Dismissed as unneeded complications, I would argue these in fact rebut the argument that AIs only reverse the burden of proof and invalidate the presumption of innocence across the board. By restricting their operation to a discretionary, qualified scheme, we reserve their impact to appropriate cases where they truly assist in achieving justice, pinpointing the guilty individuals at risk of escaping conviction.

 Therefore, I oppose the view that these extra qualifications represent an unnecessary, complex nightmare which could never ‘fit’ alongside our system’s principles. Under Strasbourg authority, they are instead what could allow the presumption of innocence and privilege against self-incrimination to stay intact, coinciding with the incorporation of AIs to increase the efficiency of our procedure.

 

A complementary co-existence

 In light of the above, I maintain the practical implications of introducing AIs are not as far-reaching and complex as principle-based arguments anticipate. There appears little evidence that a change to the law on AIs would repeat the same convolution as in England. It has been suggested that alternatively, we draw our evidence from the Northern Irish system of AI provisions,[33] which has existed since 1988 with no record of challenge or significant difficulty.[34] As a system of closer likeness to our own than the English model, this seems a more credible comparator; one which illustrates AI provisions running smoothly within a similarly adversarial procedure.[35] I therefore argue it need not be one or the other, and that the associated ‘complexities’ are a misplaced concern;  more accurately perceived as ways to ensure the Privilege and Presumption may survive side-by-side with AI reforms, than as reasons to reject them.

 

 

 

 

II. SILENCE; A SAFEGUARD AGAINST WRONGFUL CONVICTION OR A BARRIER TO RIGHTFUL CONVICTION?

 

Police Pressures and False Confessions

 Over and above the arguments of principle and practical implications, there is the possibility that AI provisions may disturb a separate, ‘Instrumental’ role of the right to silence;[36] protecting the innocent from wrongful conviction. It is recognised that under interrogation in an isolated, police station environment, individuals will feel severely emotionally distressed.[37] This has been strongly linked to incidences of false confessions and incriminating statements; suspects viewing them as the ‘immediate’ escape route from intense police questioning and custody.[38] The concern for most critics of AIs is that this occurs even with an unqualified right to silence available, highlighting an ‘inadequacy’ of the right in shielding innocent suspects from the dangers of police pressure.[39] Thus, by rescinding this right even further, we may only expose innocent individuals to an ‘increased risk’ of wrongful conviction, as the threat of AIs being drawn from silence  creates ‘extra pressure’ to unduly confess or answer questions on the spot.[40] There is indeed evidence that, in England and Wales, upon introducing AI provisions there has been increased dishonesty on the part of suspects during questioning.[41] Therefore, it is fair to say that introducing them in Scotland would not be advisable unless we have adequate measures in place to curb this risk.

 

 

Sufficiency of Safeguards

 Assessing the potential safeguards must begin with the absolute right of access to a solicitor for all suspects under questioning [42]. This significantly lowers the chance of nervous slip-ups under pressure, with the presence of a solicitor ensuring guidance for suspects about the scope of their rights and how to make informed choices about exercising them.[43] Lawyers would have better understanding of the consequences of AIs, counteracting the increased vulnerability of suspects if they were indeed to be introduced.

  The safeguards for vulnerable suspects do not end there. It has been confirmed, for example, that the recording of police interviews is common practice in most ‘serious’ cases in Scotland,[44] thus even where the RLA is waived, it can be ensured the suspect is adequately cautioned on the scope of their right. In addition, Scottish police already have lower maximum detention periods than in England and Wales.[45] Thus by default, interviews may be shorter and less intense, combating risks of coerced-compliant confessions. To round off these protections, Scottish law of evidence requires corroboration,[46] thus confessions or self-incriminations caused by the ‘increased pressure’ of AIs would not be as fatal as in other jurisdictions,[47] where confession alone may secure conviction.

 

A shield or a sword?

 Unfortunately, the right to silence and safeguards placed around it are not exclusive to vulnerable, innocent suspects. These measures also provide a sanctuary for guilty individuals;[48] with research suggesting it could indeed be the ‘hardened’ guilty suspects who benefit most from this privilege.[49] This raises concern that the right to silence intrudes upon the ‘normal process’[50] of fact-finding interrogation carried out by police. It is crucial to arriving at the truth[51] and taking a step closer to justice; thus by obstructing it, we could be letting the guilty slip through the cracks.

 An example of this in practice is the low conviction rate in sexual offence crimes.[52] Particularly prevalent in rape cases, suspect statements can often be the only source of evidence aside from the victim’s account;[53] making it increasingly hard to secure conviction. Here, the unqualified right to silence can be perceived as severely disadvantaging the prosecutor, causing difficulties in collating evidence and giving offenders an upper hand. Hence, I assert that controlled AIs, utilised appropriately, would hold beneficial value in this respect.

 Concluding that the above safeguards are satisfactory in protecting innocent suspects from false confession and conviction, I argue their sufficiency demands a measure preventing their exploitation. The allowance of AIs could ensure that protections for the innocent do not simultaneously aid the guilty in ‘escaping’ a rightful conviction.[54]

 

       IV. CONCLUSIONS

 Taking account of all the addressed objections to AIs, arguments seeking to defend the moral rights of the accused, protect the innocent, and keep our law free of complications are all fair concerns. However upon closer analysis, they guard elements of the status quo which need not actually be sacrificed to allow the change. The potential complexities of the reform would be nothing not faced before by the Scottish legislature, courts or juries - and by accommodating them, we may at the same time preserve the values feared to clash with the change. Furthermore, it seems the separate risk for the innocent is neutered by the abundance of safeguards already in place, with the perils of leaving the guilty free to abuse these very safeguards sitting much higher. I would thus propose revision of the right to silence in Scotland, allowing limited inferences to be drawn to rectify the benefit it currently offers guilty individuals in its unqualified state.

 

 

[1] See Lord Carloway, ‘The Carloway Review’ para 7.5.26, sourced www.gov.scot/About/Review/CarlowayReview; referring to RTS and Privilege in tandem, as values with which changes should “fit well.”

[2]Larkin v HM Advocate’ 2005 S.L.T. 1087, para 11.

[3]  ‘Dick v HM Advocate’ 2013 HCJAC 5, para 10.

[4] See section headed ‘Adverse Inferences’ paras 7.5.1-7.5.26, ‘The Carloway Review,’ as ref.

[5] RTS considered a consequence of presumed innocence; See G. O’Reilly, ‘England Limits the Right to Silence and Moves towards an Inquisitorial System of Justice,’ Journal of Criminal Law and Criminology, Vol 85 Issue 2 (1994/95), Northwestern University, p420.

[6] Article 6(1)/(2), European Convention of Human Rights, encompassing RTS and protection from self-incrimination; see ‘Funke v France’ 1993 16 EHRR 297, implemented via S2 Human Rights Act 1998.

[7] See ‘The Report of the Royal Commission of Criminal Justice’ (Cm 6623), Ch 4 para 22, sourced https://www.gov.uk/government/publications/report-of-the-royal-commission-on-criminal-justice.

[8] See M. Redmayne, ‘Re-thinking the Privilege against Self-Incrimination,’ Oxford Journal of Legal Studies, Vol. 27, No. 2 (2007), Oxford University Press, page 209 para 1; silence causes ‘obvious restrictions on criminal investigation.’

[9] See P.B. Glover, ‘Proceed with Caution(s): A critique of the Carloway Review’s Rejection of Statutory Adverse Inference Provisions in Scottish Criminal Law,’ Aberdeen Student Law Review 1 (2013),at p3; referring to the ‘unwritten doctrine of fair play.’

[10]Funke v France’ as ref.; See further comments of P. Mahoney, ‘Right to a Fair Trial in Criminal Matters Under Article 6 ECHR,’ Judicial Studies Institute Journal, 4.2 (2004) at p121-122, sourced www.jsijournal.ie/html.

[11] See ‘Saunders v United Kingdom’ (1997) 23 E.H.R.R. 313 at para 1(b); highlights interdependence of the RTS, presumption of innocence and privilege against self-incrimination, and their stance as ‘international standards’ of a fair trial.

[12] S2(1)(a) Human Rights Act 1998.

[13] See ‘Larkin’ and ‘Dick’ as ref.; and ‘Hoekstra v HM Advocate (No 7)’ (2002) S.L.T. 599, at para 107.

[14] See K.A. Cavanaugh, ‘Emergency Rule, Normalcy Exception: The Erosion of the Right to Silence in the United Kingdom,’ Cornell Intl. Law Journal, Vol 35 No 3 (2002), at p 494 sourced www.scholarship.law.cornell.edu.

[15] See ‘Saunders v UK’ as ref. at para 1(b); scorning the prosecutors use of evidence ‘obtained through methods of coercion.’

[16] See Lord Carloway’s summary of the presumption, ‘The Carloway Review’ as ref. 7.5.11-12.

[17] P. Mahoney, ‘Right to a Fair Trial,’ as ref. p120; see further his comments on the elements of Article 6 providing ‘equality of arms,’ p112.

[18] J.D. Jackson, ‘Silence and Proof: Extending the Boundaries of Criminal Proceedings in the UK,’ Intl. Journal of Evidence & Proof Vol 5 (2001) p155, on the drawing of inferences in the Northern Irish jurisdiction.

[19] See K.A. Cavanaugh, ‘Emergency Rule, Normalcy Exception,’ as ref. p493.

[20] See the rationales of P. Roberts and A. Zuckerman, ‘Criminal Evidence,’ 2nd Edn (2010), Oxford University Press, ap549-563.

[21] Classed the ‘strongest’ of Roberts and Zuckerman’s categories of justification; J. Chalmers and F. Leverick, ‘Substantial and Radical Change: A New Dawn for Scottish Criminal Procedure,’ The Modern Law Review, Vol 75 No 5 (2012), The Modern Law Review Ltd p858.

[22] See ‘The Carloway Review,’ as ref., 7.5.24 and 7.5.26.

[23] See J. Chalmers and F. Leverick, ‘Substantial and Radical Change,’ as ref. at p859.

[24]Adetoro v UK’ (2010) E.C.H.R 46834/06.

[25]Condron v UK’ (2001) 31 E.H.R.R. 1.

[26]Condron,’ as ref.

[27] See J. Chalmers and F. Leverick, ‘Substantial and Radical Change,’ as ref. at 858-859; highlighting the likelihood confusion and lack of clarity in the provisions; see further ‘R v Bresa’ [2005] EWCA Crim 1414 para 4, on the ‘length and detail’ of jury directions required on English AIs.

[28] See S29 Scotland Act 1998; S6 HRA 1998.

[29] Both historical elements of our system; NP verdict dating back to Madeline Smith case 1857; Corroboration established 17th century (See Mackenzie: ‘Laws and Customs of Scotland in matters Criminal,’ (2nd (Seton) ed) 1699 (p 269) c 26 para 14).

[30] S34(1) Criminal Justice and Public Order Act 1994; giving English law on AIs; ART 3(1) Criminal Evidence (Northern Ireland) Order 1988; gives NI equivalent; see further ‘Condron v UK,’ as ref. on when answers can be reasonably refused.

[31] See ‘Condron v UK’ as ref.

[32]  See ‘Adetoro’ as ref.; and ‘Murray v UK’ (1996) 22 E.H.R.R. 29, para 51.

[33] See P.B. Glover on Criminal Evidence (Northern Ireland) Order 1988, in ‘Proceed with Caution(s),’ as ref. p9; it has ‘stood the test of time.’

[34] C. Hamilton, ‘Threats to the Presumption of Innocence in Irish Criminal Law: an Assessment,’ International Journal of Evidence and Proof , Vol 15 No 3 (2011) sourced www.pure.qub.ac.uk/portal/en/publications; cites no challenges at Strasbourg or Irish Supreme Court.

[35] P.B. Glover, ‘Proceed with Caution(s),’ as ref. p20; argues NI system ‘can and does’ strike a balance.

[36] Another justification category of Roberts and Zuckerman,‘Criminal Evidence,’ as ref.

[37] I. Dennis, ‘Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege against Self-Incrimination?’ Cambridge Law Journal, Vol 54 No 2 (1995) p371, sourced www.journals.cambridge.org; circumstances noted as creating ‘psychological pressure.’

[38]Report of the Royal Commission,’ as ref. p69, on ‘Coerced-compliant’ confessions.

[39] I. Dennis, ‘Instrumental Protection,’ as ref. p350; claims it is ‘doubtful’ protection.

[40] See ‘Report of the Royal Commission,’ as ref. p66 para 22.

[41] J. Chalmers and F. Leverick, ‘Substantial and Radical Change,’ as ref. p858-859.

[42]Cadder v HM Advocate;’ [2010] U.K.S.C. 43 para 63; s15A Criminal Procedure (Scotland) Act 1995.

[43] F. Leverick, ‘The Right to Legal Assistance during Detention,’ Edinburgh Law Review, Vol 15 No 3 (2011), p365.

[44] Ibid.

[45] 12-24 hour maximum (S14(2)/14A(2) Crim. Proc. (S) Act 1995); cf 96 hour max. (S41-44 Police and Criminal Evidence Act 1984).

[46] AJ Alison, ‘Principles and Practice of the Criminal Law of Scotland,’ 1833, p.551.

[47] A. Sanders and L. Bridges, “The right to legal advice”, in C Walker and K Starmer (eds), ‘Miscarriages of Justice: A Review of Justice in Error,’ (1999) 83 p98; main cause of wrongful conviction.

[48]Report of the Royal Commission,’ as ref. p64 para 12; considers exploitation by ‘unscrupulous offenders.’

[49] I. Dennis, ‘Instrumental Protection,’ as ref. p350, drawing from G. Gudjonsson, ‘The Psychology of Interrogations, Confessions and Testimony,’ (1992), Chicester, Ch 4.

[50] See D. Dixon, ‘Politics, Research and Symbolism in the Criminal Justice System,’ Anglo-American Law Review, Vol 20 (1991), p38.

[51] I. Dennis, ‘Instrumental Protection,’ as ref. p349; discusses ‘central investigative strategy’ of police.

[52]Criminal Proceedings in Scotland 2013/14’ (2014), Table 2b p32, sourced www.gov.scot/publications/2014.

[53] ASPS Response, Carloway Consultation ‘Responses Report,’ sourced www.gov.scot/resource/doc/925/0120161,p119 para 27.

[54]Report of the Royal Commission,’ as ref. p64 para 12.

 

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