Scots Criminal Law and the Right of Silence

Author:Robert Shiels
Position:Robert Shiels (MA LLB Dundee, LLM PhD Glasgow) is a solicitor in Scotland. I am grateful to the anonymous reviewer for the helpful comments made about an earlier draft. I alone am responsible for the final paper.
Pages:1-14
Dundee Student Law Review, Vol. 4(2), No.3
Scots Criminal Law and the Right of Silence
Robert Shiels
Introduction
The extent to which the police are restrained by law in their dealings with a suspect is and
always has been a sensitive matter in practice. The Criminal Justice (Scotland) Act 2016 (asp
1) consolidated the relevant law.1 In plain terms, in Scotland on arrest a suspect need not say
anything to the police, beyond providing some personal details. That limited requirement seems
reasonable in a jurisdiction that does not require the production of an identification card on
demand by anyone in authority and silence beyond that carries no penalty or adverse judicial
comment.
The substantial differences between the law in England and Wales, and separately in Scotland,
on evidence of admissions and the procedure around the right of silence afforded in degrees to
an arrested person, is arguably an example of the legislative and judicial pluralism of the
centralised State of the United Kingdom.2 The modern statutory basis of English law and Scots
law differ widely in detail and in context.3 This short survey of the new law in Scotland is
intended to introduce the 2016 Act to be applied in place of previous statutory provisions. It is
likely that the new law will be challenged in due course in appeals. The law in Scotland is
examined to confirm the underlying policy of the legislation as to silence by an accused.
A recent study in English law of the legal concept of the right of silence has regard to a wide
range of legal authorities from elsewhere in the world and yet, disappointingly, makes no
Robert Shiels (MA LLB Dundee, LLM PhD Glasgow) is a solicitor in Scotland. I am grateful to the
anonymous reviewer for the helpful comments made about an earlier draft. I alone am responsible for the final
paper.
1 The 2016 Act came into force substantially on 25 January 2018: see the Criminal Justice (Sco tland) Act 2016
Commencement No. 5, Transitional and Saving Provisions) Order 2017 (SSI No. 345 (C.25)).
2 The law of Northern Ireland seems in essentials to be the same as that of England and Wales.
3 R v Manchester Stipendiary Magistra te ex parte Grana da Television Limited [2001] 1 AC 300 HL.

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