Compulsion to identify driver does not prejudice right to fair trial

It followed that the degree of compulsion used in the case of the first applicant, and the attempt to obtain evidence as concerned the second applicant did not, in all the circumstances, amount to a violation of the right to a fair trial as guaranteed by article 6.1 of the European Convention on Human Rights.

Gerard O’Halloran and Idris Francis were United Kingdom nationals born in 1933 and 1939 respectively. Mr O’Halloran lived in London and Mr Francis lived in Petersfield.

On April 7, 2000 Mr O’Halloran’s vehicle was caught on a speed camera driving at 69mph on the M11, where the temporary speed limit was 40mph. On June 12, 2001 Mr Francis’ car was caught on speed camera driving at 47mph, where the speed limit was 30mph.

In each case the applicant was subsequently informed that the police intended to prosecute the driver of the vehicle. He was asked for 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. Each applicant was further informed that failing to provide information was a criminal offence under section 172 of the 1988 Act.

Mr O’Halloran answered his letter confirming that he was the driver at the relevant time. Mr Francis, however, wrote to the police invoking his right to silence and privilege against self-incrimination.

Before his trial before magistrates on March 27, 2001, Mr O’Halloran sought unsuccessfully to have his confession excluded as evidence, relying on sections 76 and 78 of the Police and Criminal Evidence Act 1984 read in conjunction with article 6 of the Convention.

He was convicted of driving in excess of the speed limit and fined £100, ordered to pay £150 costs and had his licence endorsed with six penalty points. On October 19, 2001 his application for judicial review of the magistrates’ decision was refused.

On August 28, 2001 Mr Francis was summoned by the magistrates court for failing to comply with section 172(3) of the 1988 Act. On April 15, 2002 he was convicted and fined £750 with £250 costs and three penalty points. He maintained that the fine was substantially heavier than that which would have been imposed had he pleaded guilty to the speeding offence.

The applications were declared admissible by the Human Rights Court on October 25, 2005. On April 11, 2006 the Chamber of the Court dealing with the case relinquished jurisdiction in favour of the Grand Chamber.

In its judgment, the Grand Chamber held:

Alleged violation of article 6.1 and 6.2

Mr O’Halloran complained 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 (right to a fair trial) and 6.2 (presumption of innocence) of the Convention.

Article 6.1

The Court did not accept the applicants’ argument that the right to remain silent and the right not to incriminate oneself were absolute rights and that to apply any form of direct compulsion to require an accused person to make incriminatory statements against her or his will of itself destroyed the very essence of that right.

It was not the case that any direct compulsion would automatically result in a violation of the Convention.

Concerning article 6.1, what constituted a fair trial could not be the subject of a single unvarying rule but had to depend on the circumstances of the particular case.

In order to determine whether the essence of the applicants’ right to remain silent and privilege against self-incrimination was infringed, the Court focused 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.

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 1988 Act. The penalty for failure to give information was a fine of up to £1,000, and disqualification from driving or an endorsement of three penalty points on their driving licence.

The Court accepted that the compulsion was of a direct nature. It also noted that anyone who chose to own or drive a car knew that they subjected themselves to a regulatory regime, imposed because the possession and use of cars was recognised to have the potential to cause grave injury.

Those who choose to keep and drive cars could 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, those responsibilities included 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.

A further aspect of the compulsion applied in the applicants’ cases was the limited nature of the inquiry which the police were authorised to undertake. Section 172(2)(a) applied only where the driver of the vehicle was alleged to have committed a relevant offence, and authorised the police to require information only as to the identity of the driver.

In cases where the coercive measures of section 172 of the 1988 Act were applied, the Court noted that by section 172(4), no offence was committed under section 172(2)(a) if the keeper of the vehicle showed that he did not know and could not with reasonable diligence have known who the driver of the vehicle was. The offence was therefore not one of strict liability, and the risk of unreliable admissions was negligible.

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, and he was duly convicted of speeding.

At his trial, he attempted unsuccessfully to challenge the admission of the statement under sections 76 and 78 of the 1984 Act.

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.

The identity of the driver was only one element in the offence of speeding, and there was 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).

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.

Having regard to all the circumstances, including the special nature of the regulatory regime at issue and the limited nature of the information sought by a notice under section 172, the Court considered that the essence of the applicants’ right to remain silent and their privilege against self-incrimination had not been destroyed.

Accordingly, the Court held, with Judges Pavlovschi and Myjer dissenting, there had been no violation of article 6.1.

Article 6.2

The Court held, unanimously, that no separate issue arose under article 6.2.

Full text at www.echr.coe.int