CASE OF O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM
No violation of Art. 6-1;No separate issue under Art. 6-2
Alvina Gyulumyan;Christos Rozakis;Egbert Myjer;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luzius Wildhaber;Matti Pellonpää;Nicolas Bratza;Snejana Botoucharova;Stanislav Pavlovschi;Volodymyr Butkevych
8. The applicants were born in 1933 and 1939 and live in London and Petersfield respectively. 9. On 7 April 2000, at 4.55 a.m., 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 Intended Prosecution 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 Intended Prosecution, relying on 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 [2001] 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 100 pounds sterling (GBP), ordered to pay GBP 150 costs and his licence was 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 by the High Court in Director of Public Prosecutions v. Wilson ([2001] EWHC Admin 198). 16. On 19 October 2001 the applicant’s application for judicial review of the magistrates’ decision was refused. 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 Notice of Intended Prosecution 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, cited above, 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 a 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, relying on Article 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 three 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. 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 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, that is, 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. 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 – (a) by oppression of the person who made it; or (b) 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(1) 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.” 30. In Brown v. Stott, cited above, 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 of the Convention. Lord Bingham of Cornhill, 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 ... [I]t 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, cited above.