Few expressions in criminal justice attract as much scrutiny as this one, and in recent days it has moved to the centre of controversial public debate, writes Cameron Irons.
In the wake of widespread reporting on former First Minister Nicola Sturgeon’s police interview, two words have been dissected, criticised, and, in many quarters, plainly misunderstood.
It is, then, an apt moment to move beyond the noise and examine what “no comment” really means, and why it remains so significant in Scots criminal law.
In public discourse, those words are rarely treated as neutral. They are often framed as evasive, strategic, even incriminating. They invite speculation and narrative. In a political context, they quickly become the subject of commentary that says more about perception than law.
But step inside a Scottish police interview room, and the meaning of those two words changes entirely.
A “no comment” interview is neither unusual nor exceptional. It is not, in legal terms, a tactic designed to frustrate the process. It is the routine exercise of a core right, engaged at a critical stage: before charge, often before full disclosure, and always within a setting controlled by the police.
To better understand that one should move away from the headlines and return to what actually happens at the outset of the interview.
The beginning: what the police actually say
Before any questions are asked in a Scottish police station, the interview begins in a structured way that defines the legal framework for everything that follows.
The officer will introduce themselves, confirm who is present, and ensure the interview is being recorded. What follows is the formal setting of the legal stage.
They will often begin in these terms:
“Before beginning this interview… I must remind you of certain information. Please listen carefully.”
The suspect is then told:
“You are under no obligation to say anything other than to provide your name, date of birth, place of birth, nationality and address.”
That reflects the requirement under section 31 of the Criminal Justice (Scotland) Act 2016 that a person is informed they are under no obligation to answer questions beyond basic identifying details.
The officer then reinforces the framework of rights:
“While you are in police custody you have the right to a private consultation with a solicitor at any time…You have the right to have a solicitor present while being interviewed by police.”
The suspect is reminded they may request breaks, seek further legal advice, or indicate if they do not understand a question.
Only then does the interview turn to the moment that arguably matters most - the common law caution:
“I am now going to ask you questions about [the offence]. You are not obliged to answer any questions, but anything you do say may be noted, may be recorded, and may be used as evidence. Do you understand that?”
Only when that is confirmed does questioning begin.
Why that wording matters
Those words are deliberate and precise. They establish three essential propositions: the suspect does not have to speak; anything said will be recorded and used; and the decision rests with them.
Just as important is what is not said.
There is no warning that silence may harm a defence. There is no suggestion that failure to answer will carry consequences. That omission is deliberate. It reflects a legal system in which silence remains protected.
Crucially, a “no comment” interview is not defiance or obstruction. It is a direct and repeated answer, given after the suspect has been told, clearly, that they are entitled not to respond.
The officer may ask. The suspect may answer. Or they may choose not to do so.
How the interview unfolds in practice
The structured beginning does not detract from the intensity of the questioning that may follow.
Police interviews are very structured, and the questions are routinely prepared well in advance. In HMA v Hawkins, [2017] HCJAC 79, evidence demonstrated that officers prepared and followed a plan for questioning. The interview proceeded in stages, including what was described as an “impact” phase, during which the tone became firmer, and the allegation was put directly.
In Hawkins, more than 200 questions were asked on the allegation, and the accused was repeatedly invited to reconsider his position of answering “no comment”, which he eventually did.
The court ultimately excluded what he said, with Lady Scott stating:
“It should be obvious to the police that to seek to undermine a solicitor’s advice to a suspect is wholly improper…I have concluded the repeated and prolonged questioning here… combined with repeated suggestions he should re-consider his exercise of that right constituted undue pressure.”
The principle is therefore clear. Questioning may be robust, but it may not be coercive. Where pressure, particularly where it undermines legal advice, crosses that line, the consequence may be that the evidence is not used.
A different approach from England
The Scottish position becomes clearer when set alongside that of England and Wales. South of the border, the standard caution includes an additional warning:
“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court…”
That single line reflects a statutory regime, principally sections 34 to 37 of the Criminal Justice and Public Order Act 1994, which allows adverse inferences to be drawn from silence.
Scotland has not adopted that approach. A Scottish court cannot invite a jury to conclude that a defence is fabricated simply because it was not disclosed in interview, nor can silence be used to supply proof. That reflects a deliberate choice to preserve the principle that the burden rests entirely with the Crown.
In Scotland, there is no adverse inference from silence in interview. The accused is under no obligation to assist the Crown, and what is sometimes characterised as a tactic is simply the exercise of a right.
Legal advice: timing and protection
The right to silence is rarely exercised in isolation.
Since the landmark case of Cadder v HM Advocate, [2010] UKSC 43, access to legal advice before questioning has been recognised as essential to fairness. Cadder concerned an accused who was detained and interviewed without access to a solicitor, and whose admissions were subsequently relied upon by the Crown at trial. The Supreme Court allowed the appeal, holding that the lack of access to a solicitor before police questioning breached the accused’s right to a fair trial under Article 6 of the ECHR, and ruled that the use of those admissions rendered the conviction unsafe.
In Condron v United Kingdom, (2001) 31 EHRR 1, the European Court of Human Rights reaffirmed that the right to silence and the privilege against self-incrimination lie “at the heart of the notion of a fair procedure”, and made clear that where silence is exercised on legal advice, that position must be properly taken into account in assessing fairness.
That very much matters in practice. A suspect may be asked to respond to an evidential case they only partially understand. Disclosure may be limited. The risks of speaking, of giving an incomplete or inconsistent account, are immediate and irreversible.
Advice to answer “no comment” is therefore not disengagement. It is often the only way to preserve position until the evidential picture becomes clear.
Beyond the headlines
From the outside, particularly in the glare of political commentary, “no comment” is easily turned into something it is not.
Inside the interview room, it is a clear and deliberate exercise of a right, invoked at the point where the individual faces the full authority of the state, often without sight of the evidence said to exist against them.
The courts have been consistent. Silence is not suspicion. It cannot be used to fill gaps in the Crown case, and it does not alter where the burden of proof lies.
What may be portrayed publicly as strategy is, legally speaking, something much simpler. It is a protection afforded to every suspect, regardless of the allegation or indeed the suspect’s status and profile.
A police interview in Scotland is not a demand for answers, but a legal process in which the individual retains the choice whether to provide them. And whatever is made of that choice beyond the interview room, the protections afforded by the law remain unequivocal.
Cameron Irons is a solicitor at Levy & McRae
