It continues to surprise me how few people know what their rights are when dealing with the police. Often too their "knowledge" and expectations are entirely wrong and based on what is seen on television.

Please forget the television. It is a medium for entertainment and most of what is seen is based on a foreign, and entirely different, legal system. Even Taggart takes liberties with Scots Law.

Let me start by removing two alleged rights. You do not have the right to have a solicitor present when being interviewed. You do not have a right to make a telephone call. These rights are found in England. They do not exist in Scotland.

There is also a very substantial difference over the border when considering the right of silence. In Scotland it is quite simple. With certain limited statutory exceptions, to which I will refer below, you have a right of silence. This is not a police state. You are not required to assist the police in their enquiries and you commit no crime by declining to do so. Please note that this does not permit you to hinder their enquiries as that could be an attempt to pervert the course of justice.

The right of silence means just what it says. You are under no obligation to answer questions or make any statement. If you are a suspect, you will be given a caution saying this precisely. If you choose to exercise your right of silence, no court can draw any adverse inference. This is entirely different South of the border and is one of the reasons you are entitled to have a solicitor present in England. Because you not only have the right of silence, but are reminded of that right by the police, there is no need for a solicitor to be present in Scotland. It follows that there is no right to have a solicitor present here.

As I have said before, rights are balanced with duties. If you are not a suspect, the right of silence also applies to you. However by choosing not to assist the police, that affects the victim’s rights to have the criminal brought to justice. Equally you cannot thereafter complain if you become a victim and no-one speaks up. Clearly if you are a suspect, the balance has to be weighted in favour of protecting your position. Even here it is not straightforward. You can be entirely innocent and still be a suspect. If you, as an innocent suspect, choose to say nothing, you are missing an important opportunity to clear your name. Furthermore even if that does not clear your name immediately, it goes a long way to adding to your credibility in court as you will be able to show that your story has been consistent from the very beginning.

There are two principal exceptions to the rule of silence. The police are entitled to be able to identify you if they believe you could be a witness or a suspect and thus to be told your name and address. They are entitled to require you to identify the driver of a car. Failure to comply is an offence. It is noteworthy that this exception in relation to identifying the driver is also an exception to the general rule preventing you from having to incriminate yourself if you were the driver. It is also not a breach of your Human Rights.

As to telephone calls, the right in Scotland, if you are detained or arrested, is to have a solicitor and one other person told that you have been detained or arrested. It is the duty of the police to inform these people. You have no right to tell the two people yourself. You have no right to speak to a solicitor before you are questioned. On the other hand if you made it clear that you required to speak to a solicitor and that solicitor was available and willing to speak to you, it would be a foolish policeman who did not allow that interview to take place as it would open up a challenge to the fairness of the interview and anything that flowed from it. If it is unfair, it may not be allowed in evidence.

Another story from the courts. To understand it, please read the part of the lawyer in a Morningside, Edinburgh accent and the witness in Glaswegian.

Lawyer: You have just told the prosecutor that the accused called upon you to borrow a cloak. That is ridiculous. It was the height of summer then. What on earth did he need a cloak for?

Witness: It was an alarm cloak.