Update on the Right to Silence under S172.

[Tafia]

This was circulated by Idris F and is from Pepipoo:

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Hi all,

As you may already know, Idris Francis is
<www.abd.org.uk/righttosilence.htm>appealing the right to remain silent to the ECHR.

However, in the opinion of a scholar specialising in European law [Jackie], the ECHR has already decided the matter in our favour.

The argument was going to be tested at Bath Magistrates' Court yesterday, but there was an adjournment. The finished argument will come before the High Court as part of Commander Welton's appeal.

Would anyone like to try sending something like the following

If you do, don't forget to send the letter by special delivery:
+++++
Date:
NIP Ref:
Vehicle Registration:

Dear Mr [Chief Constable], (<www.police.uk/>you should be able to
get their contact details from this site )

Further to the above Notice of Intended Prosecution for an alleged motoring offence: I have been informed that the case law of the European Court of
Human Rights indicates that the fundamental and enduring principle of a person's right to silence and avoidance of self-incrimination is applicable
to Section 172 Road Traffic Act 1988.

I would like to exercise my fundamental right to remain silent, and draw your attention to Appendix I of this letter, which contains the case law
upon which my defence will rely.

Yours sincerely,
++++
Appendix I

Section 3(1) Human Rights Act UK

Kremzow v Austria 1997 ECR 2689

Regina v Lyons and others

House of Lords

[2002] UKHL 447, [2003] 1 AC 976

Brown v Stott (Procurator Fiscal, Dunfermline) and another

Privy Council [2001] 2 All ER 97

Saunders v UK (ECHR 43/1994/41990/572)

PR and H v Austrai ECHR (nos 15135/89, 15136/89 and 15137/89)

Tora Tolmos v Spain ECHR( no 23816/94)

John Murray V UK (ECHR 00018731/91)

Case of Funke v France (Application No 00010828/84) ECHR

JB v Switzerland- (Application no. 31827/1996) ECHR

Heaney and McGuiness v Ireland ECHR (Application no. 34720/97)

Report of the Secretary General pursuant to paragraph 2 of Security Council
Resolution 808 (1993) concerning the International Criminal Tribunal for
the Former Yugoslavia

Report submitted to the UN Human Rights Committee dated 11 April, 2000 with
reference to the ICCPR

Case of Weh v Austria- (Application no. 38544/1997) ECHR
_________________
<www.pepipoo.com/NewForums2/viewtopic.php?t=1316>Please help to fund
the 'fight'

Best regards, <http://news.bbc.co.uk/sport1/hi/sports_talk/1544179.stm>Mika

Last edited by Mika on Fri, 11 Jun 2004 21:32:03 +0000; edited 4 times in total



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[cptsideways]

I think I get the Jist of it, but could you explain what is likely to happen if I do send one in. Hypothetical of course & in English please

[Dwight VanDriver]

Whoa steady there Elmer.

Firstly if a decision HAD BEEN MADE by the ECHR then becuase of its implications it would have beeen shouted from the housetops and secondly Mr Francis would have given us a summary as he did re his High Court case that was unsuccessful. A dreadful judgement as it has no real grounds at law but maybe was given for expediency in that the repercussions of going the other way were enormous.

You seem to be relying on the OPINION of Jackie, who as far as I can see is not the presiding Judge of the case and who, as I understand it, has yet to pronounce his full judgement.

If anyone has information on the actual judgement would like to know.

DVD

[andygo]

As you said, DWD -

"A dreadful judgement as it has no real grounds at law but maybe was given for expediency in that the repercussions of going the other way were enormous".

In my opinion, that accurately sums the judgement up.

But how on earth can judges effectively 'make' the law. I appreciate that they can interpret the law with some small degree of latitude, but the laws of this land should be written in such a way that there is no abiguity.

I wonder what pressure was brought to bear on these judges (wern't there three of them?) to agree on such a ruling.

[Camera Shy]

All the above cases mentioned are cases that have been heard in the European and International courts. The Right To Silence is mentioned in all the cases in one form or another.

In the different cases above the levels of the crimes differ from minor to serious ( minor speeding to serious fraud) but the Right To Remain Silent is the same.

There has not been an individual case to settle the matter but referrences to all the above cases clearly gives an individual suspected of a crime the fundemental right not to say anything.

[jeffreyarcher]

Dwight VanDriver said:

<...> and secondly Mr Francis would have given us a summary as he did re his High Court case that was unsuccessful.

AIUI, tnis is nothing to do with Idris Francis, although he did circulate the comments on one of his mailing lists.

Dwight VanDriver said:

A dreadful judgement as it has no real grounds at law but maybe was given for expediency in that the repercussions of going the other way were enormous.

Apparently (I was not there), during the case, the prosecution said that since the Yorke & Maudesley case, unsigned forms had spread like a virus (or perhaps it was cancer) and had to be stopped. One of the judges (there were two) responded immediately to this comment, "Yes, yes." To think it is one thing, to say it in open court shows exactly where he stood on the issue, and it wasn't to judge the case on its merits, it was to close the loophole regardless.

Dwight VanDriver said:

If anyone has information on the actual judgement would like to know.

AFAIK there is no specific case.[/quote]

[kenp]

Having, at the time, read the Austrian case that everybody appears to be relying on, I distinctly recall that the issues relating to Idris type of circumstances were 'obiter dictum'. ie they are not binding on any court but strongly indicative how an appeal body would find should a case with Idris type of circumstances came before it. It is also not unknown for a later appeal body to disregard 'obiter' judgements, if only because they are not binding judgements and not fully explored at the time of handing down.

[tjmurphy]

Sunday Times today, article (sorry don't have link) said that they were going to increase the penalties for not identifying the driver (tucked into article on how they were back-pedalling on fixed cameras).
So, I can only presume they've found a way around the ECHR or have been advised that it won't be applicable.

[mcflurry]

A friend of mine works for plod (as a civvie).

She got caught doing 42 in a 30 (clear road etc etc) and sent back the NIP, filled out but unsigned, with a covering letter citing the various cases we all know from pepipoo and this site.

She was taken to court and was found guilty of failure to supply. Her legal representation argued that she had supplied the details, the mags declared back that the form was not filled in "in the manner requested by the Chief Super" and thus counted as though she had left the entire form blank. This was last week. Her licence now shows an MS90 and bank balance is £150 lighter plus costs

[jeffreyarcher]

mcflurry said:

A friend of mine works for plod (as a civvie). She got caught doing 42 in a 30 (clear road etc etc) and sent back the NIP, filled out but unsigned, with a covering letter citing the various cases we all know from pepipoo and this site. She was taken to court and was found guilty of failure to supply. Her legal representation argued that she had supplied the details, the mags declared back that the form was not filled in "in the manner requested by the Chief Super" and thus counted as though she had left the entire form blank. This was last week. Her licence now shows an MS90 and bank balance is £150 lighter plus costs

And this is relevent to the thread how?
The loophole was closed in march 2004 with Idris Francis's appeal.
I doubt if your friend cited any of the ECHR cases mentioned in te first post in the thread.

[mcflurry]

jeffreyarcher said:

And this is relevent to the thread how? The loophole was closed in march 2004 with Idris Francis's appeal. I doubt if your friend cited any of the ECHR cases mentioned in the first post in the thread.

I feel it is relevant for 2 reasons. Firstly, as it is a recent case. Secondly the mags advising that "not filling out the form correctly" is the same as "not filling it out at all". Therefore if the mags were to use a similar analogy then the offence still stands. Just my 2pence.

[mattd]

mcflurry said:

jeffreyarcher said: And this is relevent to the thread how? The loophole was closed in march 2004 with Idris Francis's appeal. I doubt if your friend cited any of the ECHR cases mentioned in the first post in the thread. I feel it is relevant for 2 reasons. Firstly, as it is a recent case. Secondly the mags advising that "not filling out the form correctly" is the same as "not filling it out at all". Therefore if the mags were to use a similar analogy then the offence still stands. Just my 2pence.

If the right to silience is upheld then the current form is null and void as filling it out would infringe on your right to silence.