Douglas McConnell

For decades, Scottish defence solicitors have offered a piece of advice so consistently it became almost instinctive: Say nothing.

That guidance reflected the long-standing relationship between the right to silence, the privilege against self-incrimination and the requirement for corroboration. Silence ensured that nothing was inadvertently added to strengthen the prosecution position.

Nicola Sturgeon’s recent experience shows why that advice once carried such weight and how it, to an extent, still does. When interviewed under caution during the investigation into SNP finances, she said nothing. Legally, it was sound. Silence was the safest option available to her.

Yet there is an irony at the heart of that decision. The former first minister relied on a right whose practical strength has been significantly reduced over the last 20 years, including during her own time in government. The erosion of corroboration, once a defining safeguard of Scots criminal law, has in turn weakened the real protective value of silence.

Although corroboration has not disappeared entirely, its practical application has narrowed. Behavioural evidence, digital communications and contextual material are now routinely used to support a single account. As a result, the evidential environment in which the right to silence operates is very different from the one in which the traditional advice developed.

Where silence once preserved gaps in proof, it may now simply leave the Crown’s narrative untested at an early stage. This shift is particularly evident in domestic and sexual abuse cases, where competing accounts are central. In such cases, an absence of explanation can allow one version of events to gain traction long before matters reach a courtroom.

There is also the unavoidable question of perception. Jurors, complainants, police officers and the wider public do not always treat silence as legally neutral. A persistent instinct remains that an innocent person will offer some explanation. That expectation can influence how evidence is received. It is reinforced by familiar police phrasing such as: “This is YOUR chance to tell us what happened.” As a defence solicitor, this framing frustrates me greatly. It not so subtly suggests accused silence as evasive.

Taken together, these factors suggest that silence no longer carries the same strategic advantage it once did. In some cases, providing a clear and consistent account at an early stage may offer real benefits. Where an accused person sets out a position and maintains it, that consistency can later be relied upon in their defence.

This could be the critical point when a judge or jury is deciding on credibility.

None of this undermines the fundamental importance of the right to silence. Nor does it mean that speaking is always the better course. Sturgeon’s case itself shows why silence can still be entirely appropriate. But the question for defence solicitors is no longer whether silence should be the automatic starting point. It is now a matter of judgment and weighing the risks of speaking against the risks of saying nothing.

Douglas McConnell is director at Duncan & McConnell solicitors in Dundee

This article first appeared in The Scotsman.