RE: Court hears scamera case today
Tuesday 26th September 2006
Violating your human rights?A key speed camera court case will be heard at the European Court of Human Rights (ECHR) in Strasbourg today, that of Francis and O'Halloran v UK.
Court hears scamera case today
Right to silence asserted to human rights court
Violating your human rights?
Francis and O'Halloran claim that S172 of the Road Traffic Offenders Act 1988 (as amended) violated their 'right to silence'.
Paul Smith, founder of the Safe Speed road safety campaign said: "Despite rapidly mounting evidence that speed cameras have proved to be a deadly mistake, the government appears to be incapable of seeing the damage that's being done.
"The so called 'right to silence' is ancient and worthy. It was a severe blow to British justice when it was undermined for the sake of nothing more than needless mass prosecutions by speed camera. I hope and expect that the ECHR will end the madness. And it won't be a moment too soon.
"I am certain that speed cameras have made our roads considerably more dangerous by diverting attention from more important safety factors."
The European Court of Human Rights was set up just after WWII, following the Nuremburg trials, with the aim of helping to ensure that the atrocities of the previous ten years could not reoccur.
The Convention for the Protection of Human Rights and Fundamental Freedoms was drawn up within the Council of Europe. It was opened for signature in Rome on 4 November 1950 and entered into force in September 1953. Taking as their starting point the 1948 Universal Declaration of Human Rights, the framers of the Convention sought to pursue the aims of the Council of Europe through the maintenance and further realisation of human rights and fundamental freedoms.
The Court is not under the control of the EU.
Discussion
peterh2 said:
So IF they win this case does this mean that they can’t continue with S172 in the UK or can the UK just ignore the verdict of this court?
I believe that the UK government has signed up to something that means that any verdict of this court becomes law. Someone will come along soon...
puggit said:
peterh2 said:
So IF they win this case does this mean that they can’t continue with S172 in the UK or can the UK just ignore the verdict of this court?
I believe that the UK government has signed up to something that means that any verdict of this court becomes law. Someone will come along soon...
If that is the case then surely I could claim I was illegally forced to incriminate myself when I received a S172 and they would have to reassess my case and potentially award me damages?
I can’t see it happening because if everyone then contested past cases where a S172 had been used it would cause absolute mayhem.
peterh2 said:
puggit said:
peterh2 said:
So IF they win this case does this mean that they can’t continue with S172 in the UK or can the UK just ignore the verdict of this court?
I believe that the UK government has signed up to something that means that any verdict of this court becomes law. Someone will come along soon...
If that is the case then surely I could claim I was illegally forced to incriminate myself when I received a S172 and they would have to reassess my case and potentially award me damages?
I can’t see it happening because if everyone then contested past cases where a S172 had been used it would cause absolute mayhem.
The ECHR is seemingly independent of government... so there's a damn good chance of winning.
Of course, politicians are so corrupt that who knows which way this will swing. I can't believe the papers aren't reporting this more.
According to the ECHR website, the case is tomorrow:
www.echr.coe.int/ECHR/EN/Header/Pending+Cases/Pending+cases/Calendar+of+scheduled+hearings/
www.echr.coe.int/ECHR/EN/Header/Pending+Cases/Pending+cases/Calendar+of+scheduled+hearings/
[quote=puggitI'm looking forward to it
The ECHR is seemingly independent of government... so there's a damn good chance of winning.
Of course, politicians are so corrupt that who knows which way this will swing. I can't believe the papers aren't reporting this more.[/quote]
Aye, it's not had a great deal of press...which makes me think that the chances of success are slim and that it's importance is being over-hyped. Even if the 172 is no longer used, there'd be ways for "the law" to circumvent it.
The ECHR is seemingly independent of government... so there's a damn good chance of winning.
Of course, politicians are so corrupt that who knows which way this will swing. I can't believe the papers aren't reporting this more.[/quote]
Aye, it's not had a great deal of press...which makes me think that the chances of success are slim and that it's importance is being over-hyped. Even if the 172 is no longer used, there'd be ways for "the law" to circumvent it.
Surely all that will happen, is the Police will just fine the registered owner. if the owner want's to contest that he/she wasn't driving at the time, you will have to go to court to prove your innocents. Thus as the Police has already stated, you go to court and lose against the Police regarding Speeding, you could be liable for costs. Could be up to £4000.
They will just scare the owner into taking the fine & points rather than potentially raking up a £4k legal bill.
They will just scare the owner into taking the fine & points rather than potentially raking up a £4k legal bill.
The European Court of Justice (ECJ) rules on issues related to the European Convention on Human Rights. It has precedence in UK cases.
If the case is based only on the right to silence then it will be lost. This issue was considered by the ECJ in Weh V Austria. The case tends to be ignored because it was lost but the judgement is very informative and does give clear clues that the whole system of prosecuting speeding offences using NIP will collapse.
To summarise the facts. Weh’s vehicle was identified speeding and the Austrian version of an NIP was sent requesting details of the driver. Weh lied on NIP and submitted it. The lie was checked and Weh was fined. Weh claimed that the NIP infringed his right to silence. The Europe Court of Human Rights rejected his claim by a majority of 4 to 3.
The rejection was based on the Courts view that an individual had no specific right to silence. The Court held that there where many example where is was acceptable for a Government to require an individual to provide specific information under legal sanction.
The right to silence was only applicable if there was a clear link between the requirement to provide the information and on going legal proceeding. Since when the NIP was issued no proceed had been commenced this link did not exist, and Weh had no specific right to silence. In this case Weh had deliberately lied on the NIP which was an offence and the imposition of the fine was acceptable.
So while the case was rejected it was based on Weh’s actions in lying on the NIP The Judgement it did not consider any prosecution for speeding. If you read the judgement while the Court is clear that the ruling does not consider any subsequent criminal prosecution. It gives broad hints as to what view it will take.
The view of the Court seems to be that the NIP is not a breach of the act in itself, nor is the use of information gained in the NIP to obtain further evidence to support a criminal prosecution. However it clearly suggests that the Court would view the use of the NIP as the only evidence in any criminal proceeding would be a clear breach of the a defendants right to a fair trial.
The extent to which the NIP could be used to gather other evidence, and how much evidence should be gained from independent sources, the so called chain of evidence, is not considered in the Judgement. What is clear that the use of the NIP as the only source of evidence is a clear breach of human rights legislation.
If the case is based only on the right to silence then it will be lost. This issue was considered by the ECJ in Weh V Austria. The case tends to be ignored because it was lost but the judgement is very informative and does give clear clues that the whole system of prosecuting speeding offences using NIP will collapse.
To summarise the facts. Weh’s vehicle was identified speeding and the Austrian version of an NIP was sent requesting details of the driver. Weh lied on NIP and submitted it. The lie was checked and Weh was fined. Weh claimed that the NIP infringed his right to silence. The Europe Court of Human Rights rejected his claim by a majority of 4 to 3.
The rejection was based on the Courts view that an individual had no specific right to silence. The Court held that there where many example where is was acceptable for a Government to require an individual to provide specific information under legal sanction.
The right to silence was only applicable if there was a clear link between the requirement to provide the information and on going legal proceeding. Since when the NIP was issued no proceed had been commenced this link did not exist, and Weh had no specific right to silence. In this case Weh had deliberately lied on the NIP which was an offence and the imposition of the fine was acceptable.
So while the case was rejected it was based on Weh’s actions in lying on the NIP The Judgement it did not consider any prosecution for speeding. If you read the judgement while the Court is clear that the ruling does not consider any subsequent criminal prosecution. It gives broad hints as to what view it will take.
The view of the Court seems to be that the NIP is not a breach of the act in itself, nor is the use of information gained in the NIP to obtain further evidence to support a criminal prosecution. However it clearly suggests that the Court would view the use of the NIP as the only evidence in any criminal proceeding would be a clear breach of the a defendants right to a fair trial.
The extent to which the NIP could be used to gather other evidence, and how much evidence should be gained from independent sources, the so called chain of evidence, is not considered in the Judgement. What is clear that the use of the NIP as the only source of evidence is a clear breach of human rights legislation.
Mrr T said:
The European Court of Justice (ECJ) rules on issues related to the European Convention on Human Rights. It has precedence in UK cases.
If the case is based only on the right to silence then it will be lost. This issue was considered by the ECJ in Weh V Austria. The case tends to be ignored because it was lost but the judgement is very informative and does give clear clues that the whole system of prosecuting speeding offences using NIP will collapse.
To summarise the facts. Weh’s vehicle was identified speeding and the Austrian version of an NIP was sent requesting details of the driver. Weh lied on NIP and submitted it. The lie was checked and Weh was fined. Weh claimed that the NIP infringed his right to silence. The Europe Court of Human Rights rejected his claim by a majority of 4 to 3.
The rejection was based on the Courts view that an individual had no specific right to silence. The Court held that there where many example where is was acceptable for a Government to require an individual to provide specific information under legal sanction.
The right to silence was only applicable if there was a clear link between the requirement to provide the information and on going legal proceeding. Since when the NIP was issued no proceed had been commenced this link did not exist, and Weh had no specific right to silence. In this case Weh had deliberately lied on the NIP which was an offence and the imposition of the fine was acceptable.
So while the case was rejected it was based on Weh’s actions in lying on the NIP The Judgement it did not consider any prosecution for speeding. If you read the judgement while the Court is clear that the ruling does not consider any subsequent criminal prosecution. It gives broad hints as to what view it will take.
The view of the Court seems to be that the NIP is not a breach of the act in itself, nor is the use of information gained in the NIP to obtain further evidence to support a criminal prosecution. However it clearly suggests that the Court would view the use of the NIP as the only evidence in any criminal proceeding would be a clear breach of the a defendants right to a fair trial.
The extent to which the NIP could be used to gather other evidence, and how much evidence should be gained from independent sources, the so called chain of evidence, is not considered in the Judgement. What is clear that the use of the NIP as the only source of evidence is a clear breach of human rights legislation.
If the case is based only on the right to silence then it will be lost. This issue was considered by the ECJ in Weh V Austria. The case tends to be ignored because it was lost but the judgement is very informative and does give clear clues that the whole system of prosecuting speeding offences using NIP will collapse.
To summarise the facts. Weh’s vehicle was identified speeding and the Austrian version of an NIP was sent requesting details of the driver. Weh lied on NIP and submitted it. The lie was checked and Weh was fined. Weh claimed that the NIP infringed his right to silence. The Europe Court of Human Rights rejected his claim by a majority of 4 to 3.
The rejection was based on the Courts view that an individual had no specific right to silence. The Court held that there where many example where is was acceptable for a Government to require an individual to provide specific information under legal sanction.
The right to silence was only applicable if there was a clear link between the requirement to provide the information and on going legal proceeding. Since when the NIP was issued no proceed had been commenced this link did not exist, and Weh had no specific right to silence. In this case Weh had deliberately lied on the NIP which was an offence and the imposition of the fine was acceptable.
So while the case was rejected it was based on Weh’s actions in lying on the NIP The Judgement it did not consider any prosecution for speeding. If you read the judgement while the Court is clear that the ruling does not consider any subsequent criminal prosecution. It gives broad hints as to what view it will take.
The view of the Court seems to be that the NIP is not a breach of the act in itself, nor is the use of information gained in the NIP to obtain further evidence to support a criminal prosecution. However it clearly suggests that the Court would view the use of the NIP as the only evidence in any criminal proceeding would be a clear breach of the a defendants right to a fair trial.
The extent to which the NIP could be used to gather other evidence, and how much evidence should be gained from independent sources, the so called chain of evidence, is not considered in the Judgement. What is clear that the use of the NIP as the only source of evidence is a clear breach of human rights legislation.
I love this website at times, brilliant post that!
Mrr T said:
If the case is based only on the right to silence then it will be lost. This issue was considered by the ECJ in Weh V Austria. The case tends to be ignored because it was lost but the judgement is very informative and does give clear clues that the whole system of prosecuting speeding offences using NIP will collapse.
I disagree - the Weh V Austria judgement can be viewed here. There are a few differences to the Idris case, which may (hopefully) tip the balance..
Judgement said:
THE FACTS
<SNIP>
II. RELEVANT DOMESTIC LAW
<SNIP>
B. The Law on Administrative Offences
28. The 1987 amendment of the Law on Administrative Offences (Verwaltungsstrafgesetz) introduced a possibility to issue and serve an anonymous order (Anonymverfügung) in case of minor administrative criminal offences.
29. According to section 49a of the Law on Administrative Offences, the competent authority may determine by decree minor offences for which it may serve an anonymous order.
30. If the person who has committed a minor administrative criminal offence is unknown to the competent authorities, the latter may serve an anonymous order on the person who is supposed to know the offender. The fine imposed must not exceed ATS 1,000 and may not be converted into a prison term in default.
31. The anonymous order is not regarded as an act of prosecution. No remedy lies against it. If the fine imposed is not paid within four weeks, the anonymous order automatically becomes invalid and a normal prosecution against unknown offenders is to be commenced. If the fine imposed is paid within four weeks, no prosecution is to take place. The anonymous order is not entered into any register and may not be taken into account when determining the sentence for other administrative criminal offences.
Therefore there is an option in Austrian law of staying silent and just paying a fine with no further prosecution - different to English <SNIP>
II. RELEVANT DOMESTIC LAW
<SNIP>
B. The Law on Administrative Offences
28. The 1987 amendment of the Law on Administrative Offences (Verwaltungsstrafgesetz) introduced a possibility to issue and serve an anonymous order (Anonymverfügung) in case of minor administrative criminal offences.
29. According to section 49a of the Law on Administrative Offences, the competent authority may determine by decree minor offences for which it may serve an anonymous order.
30. If the person who has committed a minor administrative criminal offence is unknown to the competent authorities, the latter may serve an anonymous order on the person who is supposed to know the offender. The fine imposed must not exceed ATS 1,000 and may not be converted into a prison term in default.
31. The anonymous order is not regarded as an act of prosecution. No remedy lies against it. If the fine imposed is not paid within four weeks, the anonymous order automatically becomes invalid and a normal prosecution against unknown offenders is to be commenced. If the fine imposed is paid within four weeks, no prosecution is to take place. The anonymous order is not entered into any register and may not be taken into account when determining the sentence for other administrative criminal offences.
law.
Judgement said:
B. The Court's assessment
<SNIP>
50. The heart of the applicant's complaint is that he was punished for failure to give information which may have incriminated him in the context of criminal proceedings for speeding. However, neither at the time when the applicant was requested to disclose the driver of his car nor thereafter were these proceedings conducted against him.
Could be a crucial difference - Idris WAS "punished for failure to give information which may have incriminated him" (he has since confirmed he WAS the driver at the time of the offence). <SNIP>
50. The heart of the applicant's complaint is that he was punished for failure to give information which may have incriminated him in the context of criminal proceedings for speeding. However, neither at the time when the applicant was requested to disclose the driver of his car nor thereafter were these proceedings conducted against him.
judgement said:
55. In addition, although this is not a decisive element in itself, the Court notes that the applicant did not refuse to give information, but exonerated himself in that he informed the authorities that a third person had been driving at the relevant time. He was punished under section 103 § 2 of the Motor Vehicles Act only on account of the fact that he had given inaccurate information as he had failed to indicate the person's complete address. Neither in the domestic proceedings nor before the Court did he ever allege that he had been the driver of the car at the time of the offence.
Again - Idris DID refuse to give information. judgement said:
56. The Court reiterates that it is not called upon to pronounce on the existence or otherwise of potential violations of the Convention (see mutatis mutandis, Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 35, § 90). It considers that, in the present case, the link between the applicant's obligation under section 130 § 2 of the Motor Vehicles Act to disclose the driver of his car and possible criminal proceedings for speeding against him remains remote and hypothetical. However, without a sufficiently concrete link with these criminal proceedings the use of compulsory powers (i.e. the imposition of a fine) to obtain information does not raise an issue with regard to the applicant's right to remain silent and the privilege against self-incrimination.
Would the imposition of penalty points (and resultant increase in insurance premiums etc., also potential for a ban from driving (totting up)) in addition to a fine make any difference? Matt.
wab172uk said:
Surely all that will happen, is the Police will just fine the registered owner. if the owner want's to contest that he/she wasn't driving at the time, you will have to go to court to prove your innocents. Thus as the Police has already stated, you go to court and lose against the Police regarding Speeding, you could be liable for costs. Could be up to £4000.
They will just scare the owner into taking the fine & points rather than potentially raking up a £4k legal bill.
They will just scare the owner into taking the fine & points rather than potentially raking up a £4k legal bill.
I think that in most European countries they use this approach to coolect fines (similar I guess to parking, Road Tax etc in the UK) but they do not use it to handout points to the driver.
wab172uk said:
Surely all that will happen, is the Police will just fine the registered owner. if the owner want's to contest that he/she wasn't driving at the time, you will have to go to court to prove your innocents. Thus as the Police has already stated, you go to court and lose against the Police regarding Speeding, you could be liable for costs. Could be up to £4000.
They will just scare the owner into taking the fine & points rather than potentially raking up a £4k legal bill.
They will just scare the owner into taking the fine & points rather than potentially raking up a £4k legal bill.
Is that legal, how can the CPS sue for costs in a criminal case?
Narvanath said:
Also:
BBC news item about case
Beat me by 1 minute BBC news item about case
Edited by puggit on Wednesday 27th September 07:42
Did anyone see that silly bint in the telly just now?
"FOR GOD'S SAKE THINK OF THE CHILDREN!
IF YOU SPEED A CHILD WILL SURELY DIE!
IF YOU SPEED A CHILD WILL RUN OUT IN FRONT OF YOU!
EVERY TIME YOU SPEED GOD KILLS A KITTEN!"
So by that rationale speeding on a motorway should be fine then?
Or cameras should be switched off after dark, or after 7PM when all children should be safely locked up anyway?
Change the bloody record love!
Sounds more like you're worried about the devastating effect of the court's ruling on your job security.
Please don't ban me from the forum, but I was almost agreeing with her about small communities/villages etc needing better speed calming measures having seen how some folk drive in their own backyards, then she started up with the emotional bull####.
Not that rural cameras would be viable as they'd never earn enough revenue.
"FOR GOD'S SAKE THINK OF THE CHILDREN!
IF YOU SPEED A CHILD WILL SURELY DIE!
IF YOU SPEED A CHILD WILL RUN OUT IN FRONT OF YOU!
EVERY TIME YOU SPEED GOD KILLS A KITTEN!"
So by that rationale speeding on a motorway should be fine then?
Or cameras should be switched off after dark, or after 7PM when all children should be safely locked up anyway?
Change the bloody record love!
Sounds more like you're worried about the devastating effect of the court's ruling on your job security.
Please don't ban me from the forum, but I was almost agreeing with her about small communities/villages etc needing better speed calming measures having seen how some folk drive in their own backyards, then she started up with the emotional bull####.
Not that rural cameras would be viable as they'd never earn enough revenue.
Edited by DJFish on Wednesday 27th September 07:55
wab172uk said:
Surely all that will happen, is the Police will just fine the registered owner. if the owner want's to contest that he/she wasn't driving at the time, you will have to go to court to prove your innocents
I heard on the news this morning that the alternative was likely to be that the owner becomes the accused. However, I presume you wouldn't go to court to prove you were innocent, you'd go to court for the crown to prove you were guilty? Innocent until proven guilty? Oops, being stupid there, this is Bliar's Britain after all......guilty automatically if you're a middle class, (otherwise) law abiding taxpayer, as the conviction helps meet government crime and revenue targets.....
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