Proceed with Caution(s): A Critique of the Carloway Review’s Rejection of Statutory Adverse Inference Provisions in Scottish Criminal Law

Scottish criminal procedure (unlike the rest of the United Kingdom and the Republic of Ireland) currently contains no statutory provisions permitting courts to draw adverse inferences from an accused's silence during police questioning or at their subsequent trial. This was recently examined in the Carloway Review, which rejected the introduction of statutory adverse inference provisions on two principal grounds, both of which are analysed in depth and contested in this article. This article contends that the Review Team's reasoning was problematic, insofar as it ran contrary to the opinions of many Consultation respondents and employed analysis and final decision-making based on selective quotation from leading academic analysis on the subject. It is suggested that Scotland can and should enact adverse inference provisions using an amended system of cautions that are compliant with the European Convention on Human rights ('ECHR'). Carefully constructed cautions, in conjunction with the new statutory disclosure and legal assistance regimes now in place in Scotland, would ensure that an accused person's vulnerability would not be unduly compromised.