It came as no surprise that the European Court decided against the premise that the requirement to respond to a Notice of Intended Prosecution and section 172 request for a driver’s details did not breach an individual’s human rights.
In particular, the rights to silence and against self-incrimination. We have been aware of this argument for a number of years but have never advocated its use because we always believed the decision from the European courts would be unfavourable.
There remain a number of arguments that can be raised by people who have received notices of intended prosecution and it is always advisable to speak to an expert lawyer, and preferably an AMOL member, about the various options that can be pursued.
See Judgement below;
CASE OF O’HALLORAN AND FRANCIS
v. THE UNITED KINGDOM
(Applications nos. 15809/02 and 25624/02)
29 June 2007
This judgment is final but may be subject to editorial revision.
In the case of O’Halloran and Francis v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr J.-P. Costa, President,
Mr L. Wildhaber,
Mr C.L. Rozakis,
Sir Nicolas Bratza,
Mr B.M. ZupanÄiÄ,
Mr R. Türmen,
Mr V. Butkevych,
Mr J. Casadevall,
Mr M. Pellonpää,
Mrs S. Botoucharova,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego,
Mrs A. Gyulumyan,
Ms L. MijoviÄ‡,
Mr E. Myjer,
Mr J. Šikuta, judges,
and Mr V. Berger, Jurisconsult,
Having deliberated in private on 27 September 2006 and on 23 May 2007,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in two applications (nos. 15809/02 and 25624/02) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr Gerard O’Halloran and Mr Idris Richard Francis (“the applicants”), on 3 April 2002 and 15 November 2001 respectively.
2. The applicants, one of whom had been granted legal aid, were represented by Mr J. Welch of Liberty, London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office, London.
3. Mr O’Halloran alleged that he was convicted solely or mainly on account of the statement he was compelled to provide under threat of a penalty similar to the offence itself. Mr Francis complained that being compelled to provide evidence of the offence he was suspected of committing infringed his right not to incriminate himself. Both applicants relied on Article 6 §§ 1 and 2 of the Convention.
4. The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 26 October 2004 the applications were joined and on 25 October 2005, they were declared admissible by a Chamber of that Section composed of the following judges: Mr J. Casadevall, Sir Nicolas Bratza, Mr M. Pellonpää, Mr S. Pavlovschi, Mr L. Garlicki, Mrs L. MijoviÄ, Mr J. Šikuta, and also of Mr M. O’Boyle, Section Registrar. On 11 April 2006 the Chamber relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
5. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. On 19 January 2007 Mr Wildhaber’s term as President of the Court came to an end. Mr Costa succeeded him in that capacity and took over the presidency of the Grand Chamber in the present case (Rule 9 § 2). Mr. Wildhaber and Mr. Pellonpää continued to sit following the expiry of their terms of office, in accordance with Article 23 § 7 of the Convention and Rule 24 § 4.
6. The applicants and the Government each filed written observations on the merits.
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 27 September 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr D.Walton, Agent,
Mr D. Perry, Counsel,
Ms L. Clarke,
Mr M. Magee,
Mr J. Moore, Advisers;
(b) for the applicants
Mr B. Emmerson QC, Counsel,
Mr J. Welch, Solicitor,
Mr D. Friedman, Adviser,
Mr G. O’Halloran,
Mr I. Francis, Applicants.
The Court heard addresses by Mr Emmerson and Mr Perry and their answers to questions put by judges.
I. THE CIRCUMSTANCES OF THE CASE
8. The applicants were born in 1933 and 1939 and live in London and Petersfield, respectively.
A. Mr O’Halloran (application no. 15809/02)
9. On 7 April 2000, at 04.55 hours, a vehicle of which the applicant was the registered keeper, registration number T61 TBX, was caught on a speed camera driving at 69 miles per hour (mph) on the M11 motorway where the temporary speed limit was 40 mph.
10. On 17 April 2000, the police camera enforcement unit of the Essex Constabulary wrote to the applicant:
“I have photographic evidence that the driver of T61 TBX failed to comply with the speed limit … It is intended to institute proceedings against the driver for the offence of failing to comply with the speed limit … You have been named as the driver of the vehicle at the time of the alleged offence and have a legal obligation to comply with the provisions of the notice contained on page 2. I must warn you that if you fail to comply with this demand within 28 days you will commit an offence and be liable on conviction to a maximum penalty similar to that of the alleged offence itself – a fine of £1,000 and 3-6 penalty points.”
11. The attached notice of intention to prosecute (NIP) informed the applicant that it was intended to institute proceedings against the driver of the vehicle. He was asked to furnish the full name and address of the driver of the vehicle on the relevant occasion or to supply other information that was in his power to give and which would lead to the driver’s identification. He was again informed that a failure to provide information was a criminal offence under section 172 of the Road Traffic Act 1988.
12. The applicant answered the letter confirming that he was the driver at the relevant time.
13. On 27 March 2001, the applicant was summoned to attend North Essex Magistrates’ Court where he was tried for driving in excess of the speed limit. Prior to the trial, the applicant sought to exclude the confession made in response to the notice of intention to prosecute, invoking sections 76 and 78 of the Police and Criminal Evidence Act 1984 read in conjunction with Article 6 of the Convention. His application was refused in the light of the decision of the Privy Council in Brown v. Stott  2 WLR 817. Thereafter the prosecution relied upon the photograph of the speeding vehicle and the admission obtained as a result of the section 172 demand. The applicant was convicted and fined GBP 100, ordered to pay GBP 150 costs and his licence endorsed with six penalty points.
14. On 11 April 2001, the applicant asked the magistrates to state a case for the opinion of the High Court:
“Whether in the circumstances of this case, the admission that the defendant was indeed the driver should have been excluded under sections 76 and 78 of the Police and Criminal Evidence Act 1984 having regard to the Human Rights Act and the recent cases decided by the European Court as he had been obliged to incriminate himself?”
15. On 23 April 2001, the magistrates’ clerk informed the applicant that the magistrates refused to state a case as the issue had already been decided definitively by the Privy Council in Brown v. Stott (cited above) and the High Court in Director of Public Prosecutions v. Wilson ( EWHC Admin 198).
16. On 19 October 2001, the applicant’s application for judicial review of the magistrates’ decision was refused.
B. Mr Francis (application no. 25624/02)
17. A car of which the applicant was the registered keeper was caught on speed camera on 12 June 2001 driving at 47 mph where the speed limit was 30 mph.
18. On 19 June 2001, the Surrey Police sent the applicant a NIP in the following terms:
“In accordance with section 1, Road Traffic Offenders Act 1988, I hereby give you notice that proceedings are being considered against the driver of Alvis motor vehicle registration mark EYX 622 …
This allegation is supported by means of photographic/recorded video evidence. You are recorded as the owner/keeper/driver or user for the above vehicle at the time of the alleged offence, and you are required to provide the full name and address of the driver at the time and location specified. Under section 172 of the Road Traffic Act you are required to provide the information specified within 28 days of receipt of this notice. Failure to supply this information may render you liable to prosecution. The penalty on conviction for failure to supply the information is similar to that for the offence itself i.e. a fine and penalty points.”
19. On 17 July 2001, the applicant wrote to the Surrey Police invoking his right to remain silent and privilege against self-incrimination.
20. On 18 July 2001, the Surrey Police informed the applicant that the appeal in Brown v. Stott  2 WLR 817 held that section 172 did not infringe the said rights.
21. The applicant refused to supply the information.
22. On 28 August 2001, the applicant was summoned to the Magistrates’ Court for failing to comply with section 172(3) of the Road Traffic Act 1988. He obtained an adjournment.
23. On 9 November 2001, the Magistrates’ Court agreed to further postponement, apparently with reference to the applicant’s proceeding with an application in Strasbourg. The applicant wrote to the Court on 15 November 2001, invoking Articles 6 §§ 1 and 2 of the Convention.
24. On 8 February 2002, the Magistrates’ Court cancelled the postponement and fixed the trial for 15 April 2002, on which date the applicant was convicted and fined GBP 750 with GBP 250 costs and 3 penalty points. He states that the fine was substantially heavier than that which would have been imposed if he had pleaded guilty to the speeding offence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Road traffic legislation
25. Section 172 of the Road Traffic Act 1988 (“the 1988 Act”) deals with the duty to give information of a driver of a vehicle in certain circumstances. Subsection (1) refers to the traffic offences to which the section applies. They include parking on a cycle track (under section 21 of the 1988 Act) and causing death by reckless driving (section 1), offences under a number of other provisions, including speeding, and manslaughter by the driver of a motor vehicle.
Subsection 2 provides:
“Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies-
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and
(b) any other person shall if required as stated above give any information which it is in his power to give and may lead to the identification of the driver.”
Subsection 3 provides:
“Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.”
Subsection 4 provides:
“A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.”
26. A person guilty of an offence under subsection 3 can be disqualified or have his licence endorsed with three penalty points; he may also be fined up to level three on the standard scale, i.e. GBP 1,000.
27. Section 12(1) of the Road Traffic Offenders Act 1988 provides that on summary trial for a relevant offence, including speeding offences, a statement in writing signed by the accused under section 172(2) of the 1988 Act that he was the driver of the vehicle on that occasion may be accepted as evidence of that fact.
B. The Police and Criminal Evidence Act 1984
28. Section 76 provides
“(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section;
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained
by oppression of the person who made it; or
in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”
29. Section 78 provides:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given, if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
C. Relevant domestic case-law
30. In Brown v. Stott  2 WLR 817 the Privy Council considered the case of a woman arrested for shoplifting in the vicinity of a car that appeared to be hers. She was breathalysed and tested positive for alcohol consumption. With a view to ascertaining whether she had been guilty of driving her car while under the influence of alcohol (contrary to section 5 of the 1988 Act) the police served her with a section 172 notice. The Procurator Fiscal sought to use her answer that she had been driving as the basis for a prosecution for driving with excess alcohol. The High Court of Justiciary allowed the defendant’s appeal, finding that the prosecution could not rely on evidence of the admission which she had been compelled to make.
31. On appeal by the Procurator Fiscal, the Privy Council found that the use of the admission did not infringe the requirements of Article 6. Lord Bingham, giving the leading judgment, held inter alia:
“The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies. The need to address it in an effective way, for the benefit of the public, cannot be doubted. Among other ways in which democratic societies have sought to address it is by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying, prosecuting and punishing offending drivers. Materials … incomplete though they are, reveal different responses to the problem of enforcement. Under some legal systems (Spain, Belgium and France are examples) the registered owner is presumed to be the driver guilty of minor traffic infractions unless he shows that some other person was driving at the relevant time or establishes some other ground of exoneration. There being a clear public interest in enforcement of road traffic legislation the crucial question in this case is whether section 172 represents a disproportionate response, or one that undermines a defendant’s right to a fair trial, if an admission of being the driver is relied on at trial.
I do not for my part consider that section 172, properly applied, does represent a disproportionate response to this serious social problem, nor do I think that reliance on the respondent’s admission in the present case, would undermine her right to a fair trial. I reach that conclusion for a number of reasons.
(1) Section 172 provides for the putting of a single, simple question. The answer cannot of itself incriminate the suspect, since it is not without more an offence to drive a car. An admission of driving may, of course, as here, provide proof of a fact necessary to convict, but the section does not sanction prolonged questioning about facts alleged to give rise to criminal offences such as understandably was held to be objectionable in Saunders, and the penalty for declining to answer under the section is moderate and non-custodial. There is in the present case no suggestion of improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice, and if there were evidence of such conduct the trial judge would have ample power to exclude evidence of the admission.
(2) While the High Court was entitled to distinguish … between the giving of an answer under section 172 and the provision of physical samples, and had the authority of the European Court in Saunders … for doing so, this distinction should not in my opinion be pushed too far. It is true that the respondent’s answer whether given orally or in writing would create new evidence which did not exist until she spoke or wrote. In contrast, it may be acknowledged, the percentage of alcohol in her blood was a fact, existing before she blew into the breathalyser machine. But the whole purpose of requiring her to blow into the machine (on pain of a criminal penalty if she refused) was to obtain evidence not available until she did so and the reading so obtained could, in all save exceptional circumstances, be enough to convict a driver of an offence … it is not easy to see why a requirement to answer a question is objectionable and a requirement to undergo a breath test is not. Yet no criticism is made of the requirement that the respondent undergo a breath test.
(3) All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime. This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the State but because the possession and use of cars (like, for example, shotguns …) are recognised to have the potential to cause grave injury. It is true that section 172(2)(b) permits a question to be asked of “any other person” who, if not the owner or driver, might not be said to have impliedly accepted the regulatory regime, but someone who was not the owner or driver would not incriminate himself whatever answer he gave. If, viewing this situation in the round, one asks whether section 172 represents a disproportionate legislative response to the problem of maintaining road safety, whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual, whether (in short) the leading of this evidence would infringe a basic human right of the respondent, I would feel bound to give negative answers. If the present argument is a good one it has been available to British citizens since 1966, but no one in this country has to my knowledge, criticised the legislation as unfair at any time up to now.”
The decision was adopted by the English High Court in Director of Public Prosecutions v. Wilson  EWHC Admin 198.
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION
32. The applicants complained that they had been subject to compulsion to give incriminating evidence in violation of the right to remain silent and the privilege against self-incrimination. Article 6 of the Convention provides, so far as relevant, as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal…
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
A. Applicability of Article 6 § 1 of the Convention
33. The applicants submitted that the criminal limb of Article 6 § 1 was applicable in their case because each of them had received a Notice of Intended Prosecution, and each of them was fined, Mr O’Halloran for driving in excess of the speed limit, and Mr Francis for refusing to give the name of the driver on the occasion at issue.
34. The Government did not suggest that Article 6 § 1 was not applicable to the cases.
35. The Court finds that the applicants were “substantially affected” by the Notices of Intended Prosecution they received, such that they were “charged” with their respective speeding offences within the autonomous meaning of that term in Article 6 of the Convention (see Serves v. France, judgment of 20 October 1997, Reports of Judgments and Decisions 1997-VI, p. 2172, § 42). In any event, Article 6 of the Convention can be applicable to cases of compulsion to give evidence even in the absence of any other proceedings, or where an applicant is acquitted in the underlying proceedings (Funke v. France, judgment of 25 February 1993, Series A no. 256-A, §§ 39 and 40 and Heaney and McGuinness v. Ireland, no. 34720/97, §§ 43-45, ECHR 2000-XII).
36. The Court accepts that Article 6 is applicable in the present case.
B. Compliance with Article 6 § 1 of the Convention
1. The parties’ submissions
37. The Government submitted that the privilege against self-incrimination and the right to remain silent were not absolute and their application could be limited by reference to other legitimate aims in the public interest. In addition to the cases on the right to remain silent (e.g. Saunders v. the United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, § 62), they referred to the limitations on access to court (e.g. Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, § 58), to case-law showing that in certain circumstances Contracting States were permitted to reverse the onus of proof of certain matters provided that this did not disturb the fair balance between the interests of the individual and the general interests of the community (e.g. Salabiaku v. France, judgment of 7 October 1988, Series A no. 141-A, § 28), to acceptable limitations on the rights of the defence in cases on equality of arms (Fitt v. the United Kingdom [GC], no. 29777/96, § 45, ECHR 2000-II) and the questioning of witnesses (S.N. v. Sweden, no. 34209/96, § 47, ECHR 2002-V) and also to the general principle that it is primarily for national law to regulate the admissibility of evidence, including incriminating evidence (e.g. Khan v. the United Kingdom, no. 35394/97, § 38, ECHR 2000-V).
38. The Government argued that the power under section 172 to obtain an answer to the question who was driving a car when a suspected motoring offence was committed and to use that answer as evidence in a prosecution or, alternatively, to prosecute a person who failed to provide information was compatible with Article 6. There were very good reasons why the owner should be required to identify the driver: driving offences are intended to deter dangerous conduct which causes risk to the public and deterrence depended on effective enforcement (research showed that speed cameras etc had reduced crashes by up to 28%), there was no obvious generally effective alternative to the power contained in section 172 and without such a power it would be impossible to investigate and prosecute traffic offences effectively, and the simple fact of being the driver of a motor car was not in itself incriminating. Nor did section 172 breach the presumption of innocence as the overall burden of proof remained on the prosecution. It provided for the putting of a single question in particular circumstances and all the usual protections against the use of unreliable evidence or evidence obtained by improper means remained in place, while the maximum penalty was only a fine of GBP 1,000.
39. The Government considered that the use of section 172 was more limited in its effect on drivers than would-be alternatives such as the drawing of adverse inferences from a failure on the part of a registered keeper to provide the name of the driver when required to do so, or a statutory presumption of fact that the registered driver was the driver at the material time unless he showed otherwise. The Government also considered that the very fact that other legislative techniques could bring about substantially the same result indicated that questions of proportionality – rather than the absolute nature of the rights suggested by the applicants in cases of direct compulsion – were at issue.
40. The applicants submitted that the serious problem caused by the misuse of motor vehicles was not sufficient to justify a system of compulsion which extinguished the essence of the rights under Article 6. The relatively minor nature of the penalties was irrelevant as the Article 6 rights, including the principle against self-incrimination and right to remain silent, applied to criminal proceedings of all kinds without distinction. They disputed that there was no obvious alternative, asserting that methods of indirect compulsion, or the use of incriminating information obtained compulsorily outside the context of the criminal proceedings themselves, would achieve the same end. They argued that an actual or potential defendant could not be compelled on pain of penalty to provide information which only he was capable of providing and which could not be provided by documents or physical evidence independent of his will. The prosecution were required to prove their case without recourse to coercion in defiance of the will of the accused.
41. The applicants considered that the existence of other legislative techniques in bringing about the same or similar results but in a manner less intrusive of the rights of the accused (the drawing of adverse inferences from a failure to answer questions, or establishing a statutory presumption of fact that the registered owner was the driver unless he or she provided evidence to the contrary), confirmed that the existing regime was not strictly necessary in a democratic society.
42. They recalled that in the cases of Saunders and Heaney and McGuinness (both cited above) the Court had held that the public interest could not be invoked to justify the use of answers compulsorily obtained. They rejected the Government’s arguments that there was any protection against use of the material in the provisions of the Police and Criminal Evidence Act 1984 (PACE) as sections 76 and 78 of PACE could not exclude testimony collected in accordance with a statutory provision. As the applicants had been subject to pending criminal proceedings and not a purely regulatory inquiry when subjected to direct compulsion, there had therefore been breaches of both Article 6 §§ 1 and 2 of the Convention.
2. The Court’s assessment
43. The Court first notes that the applicants were in different factual situations. Mr O’Halloran accepted that he had been the driver on the occasion at issue, and attempted, unsuccessfully, to have that evidence excluded from his trial. He was then convicted of speeding. Mr Francis refused to give the name of the driver at the time and date referred to in his Notice of Intended Prosecution, and was convicted for the refusal. The case of Mr O’Halloran appears at first sight to resemble the case of Saunders (referred to above), in which the applicant complained of the use in criminal proceedings of evidence which, he claimed, had been obtained in breach of Article 6. Mr Francis’ case, on the other hand, would seem to be more similar to the cases of Funke (cited above), J.B. v. Switzerland (no. 31827/96, ECHR 2001-III), Heaney and McGuinness (cited above), and Shannon v. the United Kingdom, (no. 6563/03, 4 October 2005), in each of which the applicant was fined for not providing information, and in each of which the Court considered the fine independently of the existence or outcome of underlying proceedings.
44. The central issue in each case, however, is whether the coercion of a person who is the subject of a charge of speeding under section 172 of the Road Traffic Act 1988 (“the 1998 Act”) to make statements which incriminate him or might lead to his incrimination is compatible with Article 6 of the Convention. To the extent possible, the Court will therefore consider the two cases together.
(b) The Court’s case-law
45. In the case of Funke, the applicant was convicted for his failure to produce “papers and documents … relating to operations of interest to [the customs] department” which they believed must exist (Article 65 of the Customs Code). The Court found that the attempt to compel the applicant himself to provide the evidence of the offences he had allegedly committed infringed his right to remain silent and not to contribute to incriminating himself (Funke, cited above, § 44). The Court elaborated no further on the nature of the right to remain silent and not to contribute to incriminating oneself.
46. The John Murray (judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I) case concerned, amongst other things, the drawing of inferences from a person’s silence during questioning and trial. The Court found that there was no doubt that “the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair trial … By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6” (John Murray, cited above, § 45). The Court saw two extremes. On the one hand, it was self-evident that it was incompatible with the immunities to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. On the other hand, the immunities could and should not prevent the accused’s silence from being taken into account in situations which clearly called for an explanation. The conclusion was that the “right to remain silent” was not absolute (ibid., § 47). In discussing the degree of compulsion in the case, the Court noted that the applicant’s silence did not amount to a criminal offence or contempt of court, and that silence could not, in itself, be regarded as an indication of guilt (ibid.,§ 48). The Court thus distinguished the case from Funke, where the degree of compulsion had, in effect, “destroyed the very essence of the privilege against self-incrimination” (ibid.,§ 49).
47. The case of Saunders concerned the use at the applicant’s criminal trial of statements which had been obtained under legal compulsion under the Companies Act 1985. The domestic provisions required company officers to produce books and documents, to attend before inspectors and to assist inspectors in their investigation on pain of a fine or committal to prison for two years. The Court referred to the cases of John Murray and Funke, and found that the right not to incriminate oneself was primarily concerned with respecting the will of an accused person to remain silent. It did not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which had an existence independent of the will of the suspect, such as breath, blood and urine samples. The Court held that the question whether the use made by the prosecution of the statements obtained from the applicant by the inspectors under compulsion amounted to an unjustifiable infringement of the right “had to be examined in the light of all the circumstances of the case”: in particular, it had to be determined whether the applicant had been subjected to compulsion to give evidence and whether the use made of the resulting testimony offended the basic principles of a fair procedure under Article 6 § 1 (Saunders, cited above §§ 67 and 69).
48. The applicant in the case of Serves (cited above) was called as a witness in proceedings in which he had initially been charged as an accused, although at the date of the witness summons and the subsequent proceedings the relevant steps of the investigation had been declared void. He declined to take the oath as a witness under the Code of Criminal Procedure on the ground that evidence he might be called to give before the investigating judge would have been self-incriminating. The Court accepted that it would have been admissible for the applicant to refuse to answer questions from the judge that were likely to steer him in the direction of self-incriminating evidence, but found on the facts that the fine in the case was imposed in order to ensure that statements were truthful, rather than to force the witness to give evidence. Accordingly, the fines were imposed before a risk of self-incrimination ever arose (Serves, cited above, §§ 43-47).
49. In the case of Heaney and McGuinness, the applicants, who had been arrested in connection with a bombing, declined to answer questions under special legislation requiring an individual to provide a full account of his movements and actions during a specified period. They were acquitted of the substantive offence, and imprisoned for failing to give an account of their movements. After reviewing the case-law and finding Article 6 §§ 1 and 2 to be applicable, the Court accepted that the right to remain silent and the right not to incriminate oneself were not absolute rights. It then found, after considering the various procedural protections available, that the “degree of compulsion” imposed on the applicants, namely, a conviction and imprisonment for failing to give “a full account of [their] movements and actions during any specified period and all information in [their] possession in relation to the commission or intended commission … [of specified offences]”, “in effect destroyed the very essence of their privilege against self-incrimination and their right to remain silent”. Thereafter, the Court considered that the security and public order concerns relied on by the Government could not justify the provision (Heaney and McGuinness, cited above, §§ 47-58, with reference back to § 24).
50. The applicant in the case of Weh v. Austria (no. 38544/97, 8 April 2004) was fined for giving inaccurate information in reply to a request from the District Authority under the Motor Vehicles Act to disclose the name and address of the driver of his car on a particular date. Proceedings had already been opened against unknown offenders. The Court declined to rely on the earlier cases of P., R. and H. v. Austria (nos. 15135/89, 15136/89 and 15137/89, Commission’s decision of 5 September 1989, Decisions and Reports 62, p. 319), and it noted that the applicant had been required to do no more than state a simple fact – who had been the driver of his car – which was not in itself incriminating. The Court found that in the case before it, there was no link between the criminal proceedings which had been initiated against persons unknown and the proceedings in which the applicant was fined for giving inaccurate information (Weh, referred to above, §§ 32-56).
51. In the case of Shannon (cited above) the applicant was required to give information to an investigator into theft and false accounting under the Proceeds of Crime (Northern Ireland) Order 1996. He did not attend an interview to give the information, and was fined. Although the applicant was acquitted in the underlying proceedings against him for false accounting and conspiracy to defraud arising from the same set of facts, the Court concluded that it was open to the applicant to complain of an interference with his right not to incriminate himself. As to a justification for the coercive measures, the Court recalled that not all coercive measures gave rise to a conclusion of an unjustified interference with the right not to incriminate oneself. The Court found that neither the security context nor the available procedural protection could justify the measures in the case (Shannon, cited above, §§ 26-40).
52. The case of Jalloh v. Germany ([GC], no. 54810/00, ECHR 2006-…) concerned the use of evidence in the form of drugs swallowed by the applicant, which had been obtained by the forcible administration of emetics. The Court considered the right to remain silent and the privilege against self-incrimination in the following terms:
“94. …While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46; Teixeira de Castro v. Portugal, judgment of 9 June 1998, Reports 1998-IV, p. 1462, § 34). …
100. As regards the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court recalls that these are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom, […] § 68; Heaney and McGuinness, cited above, § 40; J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; and Allan [Allan v. the United Kingdom, no. 48539/99, ECHR 2002-IX], § 44).
101. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court will have regard, in particular, to the following elements: the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (see, for example, Tirado Ortiz and Lozano Martin v. Spain (dec.), no. 43486/98, ECHR 1999-V; Heaney and McGuinness, cited above, §§ 51-55; and Allan, cited above, § 44).
102. The Court has consistently held, however, that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect…
113. In the Court’s view, the evidence at issue in the present case, namely, drugs hidden in the applicant’s body which were obtained by the forcible administration of emetics, could be considered to fall into the category of material having an existence independent of the will of the suspect, the use of which is generally not prohibited in criminal proceedings. However, there are several elements which distinguish the present case from the examples listed in Saunders. Firstly, as with the impugned measures in the Funke and J.B. v. Switzerland cases, the administration of emetics was used to retrieve real evidence in defiance of the applicant’s will. Conversely, the bodily material listed in the Saunders case concerned material obtained by coercion for forensic examination with a view to detecting, for example, the presence of alcohol or drugs.
114. Secondly, the degree of force used in the present case differs significantly from the degree of compulsion normally required to obtain the types of material referred to in the Saunders case. To obtain such material, a defendant is requested to endure passively a minor interference with his physical integrity (for example when blood or hair samples or bodily tissue are taken). Even if the defendant’s active participation is required, it can be seen from Saunders that this concerns material produced by the normal functioning of the body (such as, for example, breath, urine or voice samples). In contrast, compelling the applicant in the instant case to regurgitate the evidence sought required the forcible introduction of a tube through his nose and the administration of a substance so as to provoke a pathological reaction in his body. As noted earlier, this procedure was not without risk to the applicant’s health.
115. Thirdly, the evidence in the present case was obtained by means of a procedure which violated Article 3. The procedure used in the applicant’s case is in striking contrast to procedures for obtaining, for example, a breath test or a blood sample. Procedures of the latter kind do not, unless in exceptional circumstances, attain the minimum level of severity so as to contravene Article 3. Moreover, though constituting an interference with the suspect’s right to respect for private life, these procedures are, in general, justified under Article 8 § 2 as being necessary for the prevention of criminal offences (see, inter alia, Tirado Ortiz and Lozano Martin, [(dec.), no. 43486/98, ECHR 1999-V]).
116. … [T]he principle against self-incrimination is applicable to the present proceedings.
117. In order to determine whether the applicant’s right not to incriminate himself has been violated, the Court will have regard, in turn, to the following factors: the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence at issue; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put.”
(c) The Court’s assessment
53. The applicants contended that the right to remain silent and the right not to incriminate oneself are absolute rights and that to apply any form of direct compulsion to require an accused person to make incriminatory statements against his will of itself destroys the very essence of that right. The Court is unable to accept this. It is true, as pointed out by the applicants, that in all the cases to date in which “direct compulsion” was applied to require an actual or potential suspect to provide information which contributed, or might have contributed, to his conviction, the Court has found a violation of the applicant’s privilege against self-incrimination. It does not, however, follow that any direct compulsion will automatically result in a violation. While the right to a fair trial under Article 6 is an unqualified right, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case. This was confirmed in the specific context of the right to remain silent in the case of Heaney and McGuinness and, more recently, in the Court’s Jalloh judgment, in which the Court identified the factors to which it would have regard in determining whether the applicant’s privilege against self-incrimination had been violated.
54. The applicants maintained that the Jalloh case was distinguishable from the present in that it concerned not the obtaining by compulsion of incriminatory statements but rather the use of “real” evidence of the kind indicated in the Saunders judgment such as breath, blood and urine samples and thus was an exception to the general rule laid down in that judgment. The Court accepts that the factual circumstances of Jalloh were very different from the present case. It is nevertheless unpersuaded by the applicants’ argument. Even if a clear distinction could be drawn in every case between the use of compulsion to obtain incriminatory statements on the one hand and “real” evidence of an incriminatory nature on the other, the Court observes that the Jalloh case was not treated as one falling within the “real” evidence exception in the Saunders judgment; on the contrary, the Court held that the case was to be treated as one of self-incrimination according to the broader meaning given to that term in the cases of Funke and J.B. v. Switzerland to encompass cases in which coercion to hand over incriminatory evidence was in issue (Jalloh, cited above, §§ 113-116).
55. In the light of the principles contained in its Jalloh judgment, and in order to determine whether the essence of the applicants’ right to remain silent and privilege against self-incrimination was infringed, the Court will focus on the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put.
56. The nature and degree of the compulsion used to obtain the evidence in the case of Mr O’Halloran, or to attempt to obtain the evidence in the case of Mr Francis, were set out in the Notice of Intended Prosecution each applicant received. They were informed that, as registered keepers of their vehicles, they were required to provide the full name and address of the driver at the time and on the occasion specified. They were each informed that failure to provide the information was a criminal offence under section 172 of the Road Traffic Act 1988. The penalty for failure by the applicants to give information was a fine of up to GBP 1,000, and disqualification from driving or an endorsement of three penalty points on their driving licence.
57. The Court accepts that the compulsion was of a direct nature, as was the compulsion in other cases in which fines were threatened or imposed for failure to provide information. In the present case, the compulsion was imposed in the context of section 172 of the Road Traffic Act, which imposes a specific duty on the registered keeper of a vehicle to give information about the driver of the vehicle in certain circumstances. The Court notes that although both the compulsion and the underlying offences were “criminal” in nature, the compulsion flowed from the fact, as Lord Bingham expressed it in the Privy Council in the case of Brown v. Stott (see paragraph 31 above), that “All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime. This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the State but because the possession and use of cars (like, for example, shotguns …) are recognised to have the potential to cause grave injury”. Those who choose to keep and drive motor cars can be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles, and in the legal framework of the United Kingdom, these responsibilities include the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion.
58. A further aspect of the compulsion applied in the present cases is the limited nature of the inquiry which the police were authorised to undertake. Section 172 (2)(a) applies only where the driver of the vehicle is alleged to have committed a relevant offence, and authorises the police to require information only “as to the identity of the driver”. The information is thus markedly more restricted than in previous cases, in which applicants have been subjected to statutory powers requiring production of “papers and documents of any kind relating to operations of interest to [the] department” (Funke, referred to above, § 30), or of “documents etc. which might be relevant for the assessment of taxes” (J.B v. Switzerland, cited above, § 39). In the case of Heaney and McGuinness the applicants were required to give a “full account of [their] movements and actions during any specified period …” (referred to above, § 24), and in that of Shannon, information could be sought (with only a limited legal professional privilege restriction) on any matter which appeared to the investigator to relate to the investigation (see reference at § 23 of the Shannon judgment referred to above). The information requested of the applicant in the case of Weh was limited, as in the present case, to “information as to who had driven a certain motor vehicle … at a certain time …” (Weh judgment cited above, § 24). The Court found no violation of Article 6 in that case on the ground that no proceedings were pending or anticipated against him. It noted that the requirement to state a simple fact – who had been the driver of the car – was not in itself incriminating (ibid., §§ 53-54). Further, as Lord Bingham noted in Brown v. Stott (paragraph 31 above), section 172 does not sanction prolonged questioning about facts alleged to give rise to criminal offences, and the penalty for declining to answer is “moderate and non-custodial”.
59. The Court in the case of Jalloh referred to the existence of relevant safeguards in the procedure. In cases where the coercive measures of section 172 of the 1988 Act are applied, the Court notes that by section 172(4), no offence is committed under section 172(2)(a) if the keeper of the vehicle shows that he did not know and could not with reasonable diligence have known who the driver of the vehicle was. The offence is thus not one of strict liability, and the risk of unreliable admissions is negligible.
60. As to the use to which the statements were put, Mr O’Halloran’s statement that he was the driver of his car was admissible as evidence of that fact by virtue of section 12(1) of the Road Traffic Offenders Act 1988 (see paragraph 27 above), and he was duly convicted of speeding. At his trial, he attempted to challenge the admission of the statement under sections 76 and 78 of the Police and Criminal Evidence Act 1984, although the challenge was unsuccessful. It remained for the prosecution to prove the offence beyond reasonable doubt in ordinary proceedings, including protection against the use of unreliable evidence and evidence obtained by oppression or other improper means (but not including a challenge to the admissibility of the statement under section 172), and the defendant could give evidence and call witnesses if he wished. Again as noted in the case of Brown v. Stott, the identity of the driver is only one element in the offence of speeding, and there is no question of a conviction arising in the underlying proceedings in respect solely of the information obtained as a result of section 172(2)(a).
61. As Mr Francis refused to make a statement, it could not be used in the underlying proceedings, and indeed the underlying proceedings were never pursued. The question of the use of the statements in criminal proceedings did not arise, as his refusal to make a statement was not used as evidence: it constituted the offence itself (see Allen v. the United Kingdom (dec.), no. 76574/01, ECHR 2002-VIII).
62. Having regard to all the circumstances of the case, including the special nature of the regulatory regime at issue and the limited nature of the information sought by a notice under section 172 of the Road Traffic Act 1988, the Court considers that the essence of the applicants’ right to remain silent and their privilege against self-incrimination has not been destroyed.
63. Accordingly, there has been no violation of Article 6 § 1 of the Convention.
C. Article 6 § 2 of the Convention
64. The applicants referred to Article 6 § 2 of the Convention and the presumption of innocence in the course of their submissions, but made no separate complaint in respect of the provision.
65. The Court finds that no separate issue arises to be considered under Article 6 § 2 of the Convention.
FOR THESE REASONS, THE COURT
1. Holds by fifteen votes to two that there has been no violation of Article 6 § 1 of the Convention;
2. Holds unanimously that no separate issue arises under Article 6 § 2 of the Convention.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 29 June 2007.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Concurring opinion of Mr Borrego Borrego;
(b) Dissenting opinion of Mr Pavlovschi;
(c) Dissenting opinion of Mr Myjer.
CONCURRING OPINION OF JUDGE BORREGO BORREGO
Although I too voted against finding a violation, I regret that I am unable to subscribe to the approach and reasoning adopted by the majority in this judgment.
In 2004 there were 216 million private motor vehicles in the European Union alone. From that we can deduce that, for all the member States of the Council of Europe, the figure could now be in excess of 400 million. Consequently, the question of road traffic, including road traffic offences, is of very direct interest to, and has a very direct impact on, a considerable number of European citizens.
In my view, while the Court should always endeavour to draft its judgments in a simple and clear manner in order to make them easier to understand, a particular effort is called for where, as in the present case, the issue is one which affects hundreds of millions of citizens. The “wider public” becomes in this instance the “even wider public”.
It is true that the crucial component of a judgment is the operative provisions (the finding of a violation or no violation). However, in the present case, the route taken to arrive at the final result is, I believe, every bit as important.
The present judgment sets out and explores in detail the Court’s case-law concerning the right to remain silent and not to incriminate oneself. Eight cases are cited, all of which are placed on the same footing, with the result that all the issues concerned (terrorism, drug trafficking, road traffic offences and so on) are mixed up together. After an almost two-page-long citation from Jalloh, the Court attempts to justify its reasoning “[i]n the light of the principles contained in its Jalloh judgment” (paragraph 55).
I believe that the Court is on the wrong track in the present case. This is made no less true by the fact that the circumstances of the Jalloh case are very different to those of the present case (paragraph 54) – something which, moreover, seems obvious to me – or by the fact that the examination of the Jalloh judgment (paragraph 55) is confined to just some of the principles set out therein.
To my mind, the path chosen by the Court in the present judgment follows the individualist, sacrosanct approach which views human rights as abstract rights which are set in stone. According to this school of thought, human rights are not intended to enable the individual to live in society, but to place society at the service of the individual.
I do not share this view. Where human rights are concerned, we cannot and must not forget that, as far back as the French Revolution, the phrase used was “rights of man and the citizen”. Humans are individuals but, as members of society, they become human citizens.
This obvious fact would have been a good reason for making the judgment shorter and clearer. It would have been sufficient to say, in line with the approach adopted by the Privy Council (paragraph 31) and others, that by owning and driving a motor car, the human citizen accepts the existence of the motor vehicle regulations and undertakes to comply with them in order to be able to live as a member of society. These regulations clearly entail certain responsibilities, which form the subject of the applications we have examined today. End of story.
In the instant case, citing the entire case-law on the right to remain silent and the privilege against self-incrimination and then applying the resulting principles in order to arrive at a conclusion which merely adds a further shade of nuance complicates matters for no good reason. The Court, in paragraph 57, accepts the wise reasoning of Lord Bingham, a member of the Privy Council. I would point out that, according to that opinion, “[a]ll who own or drive motor cars know…”. If indeed, “[a]ll … know that by doing so they subject themselves to a regulatory regime…”, we must ask: why spend twelve pages trying to explain what everyone already knows?
Making simple things complicated is tantamount to choosing a path which is not only wrong but dangerous, and which might one day lead the Court to examine under Articles 5 and 8 of the Convention whether, when individuals are stuck in a traffic jam, the deprivation of their liberty and failure to respect their private lives on the part of the authorities might not amount to a breach by the State of its positive obligations.
Human rights constitute a tremendous asset to modern society. In order to preserve this extraordinary achievement, the fruit of countless efforts and sacrifices, we must continue to combat acts of tyranny. However, we must also, in my opinion, avoid playing with fire by placing on the same footing the duty to cooperate of car-owning citizens and the right not to incriminate oneself.
DISSENTING OPINION OF JUDGE PAVLOVSCHI
The case before us is both interesting from a legal point of view and important for the cause of human rights protection.
This case is not just about police cameras and speed traps, it is about much more important issues such as the fundamental principles governing modern criminal procedure and the basic elements of the notion of a fair trial.
In its judicial practice this Court has already had a chance to examine some aspects of the prohibition of compulsory self-incrimination and the presumption of innocence as they exist in different European states, and also to express its vision on what is and is not acceptable in this field in a democratic society and in the circumstances of our daily lives.
The circumstances of the present case give us a further opportunity to examine these rather difficult questions.
The applicants’ cars were photographed by police speed cameras at a speed trap, whereupon the applicants received a notice of intended prosecution (NIP) which informed them that proceedings were to be instituted against them as actual or potential defendants in connection with a specified road traffic offence for which the police had technical and photographic evidence. In accordance with section 172 of the Road Traffic Act 1988 the applicants were asked in each case – as registered keepers of the vehicles in question, which had been photographed – who had been the driver of the car on the occasion in question. Failure to comply with this statutory request constitutes a criminal offence.
Under the threat of criminal prosecution, Mr O’Halloran informed the police that he had been the driver, and was fined for speeding. His attempts to have the evidence excluded were unsuccessful.
Mr Francis, on being required to furnish the name and address of the driver of his car, refused to do so, relying on his right to silence and the privilege against self-incrimination, and was fined for failure to supply the information.
The penalties for the substantive offence and for failure to supply the information are similar.
The applicants claim that their right not to incriminate themselves was violated – either because they gave the information under threat of a fine, and were convicted on the strength of that confession, or because they were convicted for refusing to give self-incriminating information. They allege a violation of Article 6 §§ 1 and 2.
In my opinion there are some issues of crucial importance to understanding and correctly adjudicating the present case. Allow me here to repeat the words of Judge Walsh in his concurring opinion in the case of Saunders v. the United Kingdom: “…it is important to bear in mind that this case does not concern only a rule of evidence but is concerned with the
existence of the fundamental right against compulsory self-incrimination …”. I fully subscribe to these words.
The emergence of the privilege against compulsory self-incrimination in English common law can be traced back to the thirteenth century, when ecclesiastical courts began to administer what was called the “oath ex officio” to suspected heretics. By the seventeenth and eighteenth centuries in England the oath ex officio was employed even by the Court of Star Chamber to detect those who dared to criticise the king. Opposition to the oath became so widespread that there gradually emerged the common-law doctrine whereby a man had a privilege to refuse to testify against himself, not simply in respect of the special kind of procedure referred to above but, through evolution of the common law, as a principle to be upheld in ordinary criminal trials also (see the concurring opinion of Judge Walsh in Saunders v. the United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI).
Particular attention was paid to the development of this issue by common-law legal systems and, first of all, by the authorities in the United States.
In the second part of the eighteenth century the Fifth Amendment to the Constitution of the United States was enacted. In so far as it relates to the issue at stake here, the amendment reads as follows: “No person shall be … compelled in any criminal case to be a witness against himself.”
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