In a report published yesterday, the Scottish Law Commission questions ministers' claims that 'professional criminals' are taking advantage of the right to refuse to answer questions put by investigating authorities. It rejects proposals in a Scottish Office consultation paper that jurors should be informed that the accused has chosen to remain silent.
In England and Wales, proposals in the Criminal Justice Bill to abolish a suspect's right to silence have received parliamentary approval. The Bill is due to receive Royal Assent shortly.
Criticism from the Government's advisers north of the border will make it difficult to force through changes in the law there, raising the prospect that people arrested in Scotland will enjoy rights denied to those in England and Wales.
Proposals to bring Scottish law into line with the planned changes in England and Wales were published last month by Ian Lang, the Secretary of State for Scotland.
In a consultation paper Scottish Office ministers expressed concern that 'the right to silence has been taken advantage of by professional criminals and terrorists and that the law as it concerns accused persons who remain silent, no longer strikes the correct balance between the interests of the accused and the need to convict the guilty'. Ministers asked the Law Commission to comment on the proposals.
In a pointed rebuke in yesterday's report, the commission asks: 'Who has expressed concern? Are they fully informed about the Scottish criminal justice system and representative of Scottish public opinion as a whole?'
Commissioners point out that the Scottish Office has failed to say 'how many accused persons, over a stated period, have been wrongly acquitted after exercising the right to silence . . .'
The Commission concludes: 'It is unclear from the consultation paper where the line is to be drawn beyond which a risk to the innocent is justifiable in the public interest . . .'
Ministers do not have to accept the commission's recommendations. A Scottish Office spokesman said last night that the commission's views were 'one of many'. An announcement is expected next month.