Thursday 18th November 2004

Right to silence upheld?

Court accepts speeding case on human rights grounds

---

Picture Courtesy of www.speedlimit.org.uk

The European Court of Human Rights has accepted eight motorists' applications claiming that S172 of the 1988 Road Traffic Act breaches the right to silence implicit in Article 6 of the European Convention on Human Rights. Given that 90 per cent of applications are rejected at this first stage, this is an important step in a process which, if successful, will make the speed camera system unworkable.

Legal background

The great majority of speed camera photographs do not identify drivers, and so S172 of the 1988 Road Traffic Act is used to extract confessions by threatening "similar" (but in practice more severe) penalties for failure to do so. Several million fixed and other penalties, and the Safety Camera Partnerships, rely on these forced confessions, under a 2001 Privy Council judgement (Brown v Stott) citing the public interest in road safety as justification for removing the right to silence not only implicit in Article 6 of the European Convention but explicit in centuries of British common law.

The eight applicants claim that evidence obtained under duress should not be admissible in court, and that convictions based on such admissions should be quashed, as should penalties imposed for failing to identify the driver. The British government has been asked by the European Court of Human Rights to respond to these applications by January 18th and 19th. The applicants will then be able to respond in turn and a court verdict is expected some time in 2006.

Idris Francis, whose case involving a 1938 Alvis Speed 25 received national publicity in 2001/2, comments that:

"Contrary to the verdict of the Privy Council, Article 6 of the Convention does not allow the public interest to be cited as justification for breaches of such fundamental rights to a fair trial. Further, casualty data shows that speed cameras act against the public interest, causing more accidents than they prevent, not least because they have been used as an excuse for cuts in more effective police patrols and other measures.

"The past decade of increasing use of speed cameras has been uniquely dreadful in terms of road fatality trends, while the data presented by the authorities, far from being "robust" as they claim, is seriously flawed, misleading, highly selective, partisan and increasingly dishonest".

Links:
www.righttosilence.org.uk
www.abd.org.uk

[JamieT]

Good on 'em. I wonder who they are? I only wish I had the finances required to go all the way to the European Courts. OK, so its not over yet, but it just goes to show how much justice can be bought if you have enough money.

[will_t]

JamieT said:

Good on 'em. I wonder who they are? I only wish I had the finances required to go all the way to the European Courts. OK, so its not over yet, but it just goes to show how much justice can be bought if you have enough money.

I hope as this article suggests that "Scameras" will go by 2006 but it does beg the question, do we only use "European" law when it suites us ? There are many PHers on here who are anti Europe. Cake & eat it ?

Will

[FourWheelDrift]

Good news but what will they try to bring in to replace the camera's? They will not want to let the cash cow go that easily.

[Plotloss]

FourWheelDrift said:

Good news but what will they try to bring in to replace the camera's? They will not want to let the cash cow go that easily.

Yep, sad to say but one has to expect a whitewash...

[deeen]

will_t said:

I hope as this article suggests that "Scameras" will go by 2006 but it does beg the question, do we only use "European" law when it suites us ? There are many PHers on here who are anti Europe. Cake & eat it ? Will

You are right of course Will. Let's get rid of the Scameras first, then get rid of Europe! [/rosetintedglasses]

[Robbo SPS]

I think you maybe a little short-sighted on this one !!

If s172 RTA 1988 is deemed un-usable by the Eurpean Court of Human Rights, all will do so for all NIP offences ( Notice of Intended Prosecution).

All those people who leave the scene of an accident will no longer have to produce themselves and will be able to hide behind a bit of pink and fluffy Euro Law.

I dont like scamera's, but this wont get rid of them.

What it may do is affect the way the Police can do their job, when some muppet crashes into your parked car and runs off.

I have a case at the moment where i am prosecuting the company MD as HE refuses to say which employee was driving as the van stoved into 4 parked cars. And so The 4 people and their insurance companies will get a result.

Would you like to be one of those 4 people if the laws change ?

Losing your No Claims Bonus, Insurance Hikes ?

[drv112]

Although I am, in many ways, against the EU it is only in a federal sense, a united states of Europe.
However the ECHR has on many occasions proved to uphold what I believe to be fundamental human rights. We should have the Human rights act, in full, incorporated into British law with no overriding authority, at the moment Blunkett can suspend and/or dismiss parts of it as he sees fit.
Although we have the 1998 Human Rights Act at the moment it does not stand for anything.
If there is anything to be gained from Europe it has to be to show what a rip-off the UK really is.
The use of speed cameras, the way courts and scamera partnerships use s172 to just convict anyone and take the money off people at will.
I am all for this succeeding ASAP. Can we then go round and blow these damn things into oblivion.

[Cooperman]

Don't be cynical chaps!
The Euro courts have over-ridden UK legislation before, typically in the area of employment legislation, which happens to be something of concern to me. Although not necessarily in the best interests of the UK economy, we have put this mandated legislation in place and it is being enforced.
It would be of no surprise if the Euro courts ruled against 'forced confessions'.
That would mean that the focus for electronic speed enforcement would move to Talivans with police officers stopping offenders just down the road to identify and caution the drivers and/or check for jammers.

[Adam B]

I was wondering:

so is there a precedent for this in other EU countries, ie some countries are worse than UK (eg. hiding cameras in fake wheelie bins)
so how do those governments force car owners to identify drivers?
is there something unique abut UK law that contravenes EU huan rights law?
if not why haven't other countries laws been challenged in EU courts?

[autismuk]

Robbo SPS said:

I think you maybe a little short-sighted on this one !! If s172 RTA 1988 is deemed un-usable by the Eurpean Court of Human Rights, all will do so for all NIP offences ( Notice of Intended Prosecution). All those people who leave the scene of an accident will no longer have to produce themselves and will be able to hide behind a bit of pink and fluffy Euro Law. I dont like scamera's, but this wont get rid of them. What it may do is affect the way the Police can do their job, when some muppet crashes into your parked car and runs off. I have a case at the moment where i am prosecuting the company MD as HE refuses to say which employee was driving as the van stoved into 4 parked cars. And so The 4 people and their insurance companies will get a result. Would you like to be one of those 4 people if the laws change ? Losing your No Claims Bonus, Insurance Hikes ?

Maybe if the law was used openly, fairly and honestly by the Police you'd have fewer problems. If the Cops cheat, why on earth should anyone else not ?

[cdp]

will_t said:

JamieT said: Good on 'em. I wonder who they are? I only wish I had the finances required to go all the way to the European Courts. OK, so its not over yet, but it just goes to show how much justice can be bought if you have enough money. I hope as this article suggests that "Scameras" will go by 2006 but it does beg the question, do we only use "European" law when it suites us ? There are many PHers on here who are anti Europe. Cake & eat it ? Will

The European Court of Human Rights is nothing to do with the EU and was setup before it in response to the second world war. The UK signed up to the ECHR when it was first formed many years before we embarked on the European misadventure and would still be subject to it if we left.

[safespeed]

Robbo SPS said:

All those people who leave the scene of an accident will no longer have to produce themselves and will be able to hide behind a bit of pink and fluffy Euro Law.

Do you really think it's "pink and fluffy" to preserve the centuries-old right to silence?

I don't. I think it's most important to preserve standards of justice.

[spaximus]

This is good news perhaps but as other have said this goverment will ride rufshod over anything they don't like, and at the moment that is the motorist. What I dislike is that the "normal criminal" ie rapist, murderer, drug dealer, muggers etc have rights which are denied to a motorist. Teams of people ensure their rights are not breached but for motorists we are guilty by the fact that they say so. When cameras first came out a guy was banned for speeding on the picture of the rear of a car bearing his number. It was not him it was a disgrunteled ex employee who had deliberatly driven a "clone" through a camera. eventually it was put right but the guy had a 6 month ban for a crime he did not commit. The only evidence was a picture of a car. This would be circumstantial in any other case but more than enough in speeding. It is wrong. There is little justice in this country at the moment and this ruling might help to show the scamera system for what it is worth, but whilst police can earn £150 overtime for siting in a van and people who would be failures in any other business building self financing empires for them to run, all trying to justify this travisty, the motorist has little chance of getting the truth or a fair hearing.

[Mrr T]

Robbo SPS said:

If s172 RTA 1988 is deemed un-usable by the Eurpean Court of Human Rights, all will do so for all NIP offences ( Notice of Intended Prosecution).

Robbo and anybody else who is interested should read:-

WEH v. AUSTRIA (38544/97) [2004] ECHR 148 (8 April 2004)

Note this case was lost but read carefully the grounds for the decision.

It is highly unlikely the ECHR will reject s172 RTA 1988, so they will still be able to issue nips and based on the above judgement you will have to complete them correctly. What will be over turned is s12 RTOA 1988 which makes the nip a “statement in writing” and is on its own sufficient to obtain a conviction for speeding.

[lucozade]

Good news, a step in the right direction.

For your information, for those that don't know, check out:

www.abd.org.uk/righttosilence.htm

If you really want to help then make a donation, I have many times.

[bumpkin]

Robbo SPS said:

I think you maybe a little short-sighted on this one !! If s172 RTA 1988 is deemed un-usable by the Eurpean Court of Human Rights, all will do so for all NIP offences ( Notice of Intended Prosecution). All those people who leave the scene of an accident will no longer have to produce themselves and will be able to hide behind a bit of pink and fluffy Euro Law. I dont like scamera's, but this wont get rid of them. What it may do is affect the way the Police can do their job, when some muppet crashes into your parked car and runs off. I have a case at the moment where i am prosecuting the company MD as HE refuses to say which employee was driving as the van stoved into 4 parked cars. And so The 4 people and their insurance companies will get a result. Would you like to be one of those 4 people if the laws change ? Losing your No Claims Bonus, Insurance Hikes ?

sorry the idea that one must confess or be punished for not confessing is abhorant to me. i don't have a problem with the MD being done for failing to maintain proper records, but he wasn't guilty of the crash( assuming that's the case). also i fail to see how prosecuting a person who is known not to have been driving makes any differance to the insurance of the claimants. presumably he is not denying it was his van and a legitimate driver?

yes it will make life harder for the scameras, they will actually have to proove something, rather than frightening people into confessions. it may also take away the concept that the s172 offense carries a lesser punishment than the actual offense. ie if those who've been jailed for high speeds failed to identify they wouldn't be in jail would they?

finally why should every other criminal hide behind the legislation when they can and not the motorist?

[apache]

Past generations fought for our freedom, 'innocent till proven guilty' is one of the building blocks of that freedom. Good luck to them

[Muncher]

Mrr T said:

Robbo SPS said: If s172 RTA 1988 is deemed un-usable by the Eurpean Court of Human Rights, all will do so for all NIP offences ( Notice of Intended Prosecution). Robbo and anybody else who is interested should read:- WEH v. AUSTRIA (38544/97) [2004] ECHR 148 (8 April 2004) Note this case was lost but read carefully the grounds for the decision. It is highly unlikely the ECHR will reject s172 RTA 1988, so they will still be able to issue nips and based on the above judgement you will have to complete them correctly. What will be over turned is s12 RTOA 1988 which makes the nip a “statement in writing” and is on its own sufficient to obtain a conviction for speeding.

Agreed, I don't think the ECHR will uphold the complaint precisely because of those grounds.

[will_t]

cdp said:

will_t said: JamieT said: Good on 'em. I wonder who they are? I only wish I had the finances required to go all the way to the European Courts. OK, so its not over yet, but it just goes to show how much justice can be bought if you have enough money. I hope as this article suggests that "Scameras" will go by 2006 but it does beg the question, do we only use "European" law when it suites us ? There are many PHers on here who are anti Europe. Cake & eat it ? Will The European Court of Human Rights is nothing to do with the EU and was setup before it in response to the second world war. The UK signed up to the ECHR when it was first formed many years before we embarked on the European misadventure and would still be subject to it if we left.

Who said anthing about the EU ?

Will

[robert farago]

BIG NEWS. And about time too. While I would like to think this ruling will mark the end of the scamera plague, I'm sure the UK government will do something, ANYTHING to protect its ability to reap the rewards of its senseless automotive prohibition. Should be interesting to watch, in a horrific kind of way.

And I share PHers repulsion for the source of these glad tidings. It's a sad day indeed when UK subjects must rely on a non-democratically appointed European court to defend its democratic freedoms. What a sorry state of affairs-- literally.