ECHR Right to silence appeal upheld???
Discussion
See here for some interesting news from Mika at Pepipoo.
http://pepipoo.com/NewForums2/viewtopic.php?t=1968
Hope it's correct. There could be some refunds due.
T
http://pepipoo.com/NewForums2/viewtopic.php?t=1968
Hope it's correct. There could be some refunds due.
T
puggit said:
Tafia,
As usual I haven't understood a word on the pepipoo forum
Care to explain in simpleton language what's going on?
That made me smile; cheers. I do enjoy a larf.
Well, you recall that Idris Francis took his "Right to silence" case to the European Court of Human Rights (ECHR) He was objecting to the fact that the usual right to silence to avoid self-incrimination was removed by some dopey judge who said that in speeding cases, the safety of society came before individual rights. But it's OK to stay silent if charged with murder apparently
Idris had been asked to identify the driver of his car in a speeding case under S172, as we all are when we get a speeding ticket from a speed camera trap.
According to Pepipoo, the case has been heard and Idris has won. This surprises me as I assumed the Euro judges would go with the anti-car brigade.
More here www.abd.org.uk/righttosilence.htm
>> Edited by Tafia on Friday 4th June 20:10
Tafia said:
Tafia,
As usual I haven't understood a word on the pepipoo forum
Care to explain in simpleton language what's going on?
That made me smile; cheers. I do enjoy a larf.
Well, you recall that Idris Francis took his "Right to silence" case to the European Court of Human Rights (ECHR) He was objecting to the fact that the usual right to silence to avoid self-incrimination was removed by some dopey judge who said that in speeding cases, the safety of society came before individual rights.
Idris had been asked to identify the driver of his car in a speeding case under S172, as we all are when we get a speeding ticket from a speed camera trap.
According to Pepipoo, the case has been heard and Idris has won. This surprises me as I assumed the Euro judges would go with the anti-car brigade.
More here www.abd.org.uk/righttosilence.htm
There's too many words to read on that page.
If your summary is correct (which I hope it is) this is the first piece of good car related news that I have heard for a LONG time.
I think Mika is referring to a very similar case heard recently where although the case was lost the reasons given basically say that "if the circumstances were *this* then we would rule in favour". The circumstances they outlined were exactly those faced by Idris, hence he should win.
The ruling was quite lengthy, but if it can be explained it might work.
edit: Link to Weh vs Austria, the case I was talking about:
http://tinyurl.com/3gssx
Gareth
>> Edited by g_attrill on Friday 4th June 17:11
The ruling was quite lengthy, but if it can be explained it might work.
edit: Link to Weh vs Austria, the case I was talking about:
http://tinyurl.com/3gssx
Gareth
>> Edited by g_attrill on Friday 4th June 17:11
g_attrill said:
I think Mika is referring to a very similar case heard recently where although the case was lost the reasons given basically say that "if the circumstances were *this* then we would rule in favour". The circumstances they outlined were exactly those faced by Idris, hence he should win.
The ruling was quite lengthy, but if it can be explained it might work.
edit: Link to Weh vs Austria, the case I was talking about:
http://tinyurl.com/3gssx
Gareth
>> Edited by g_attrill on Friday 4th June 17:11
I wonder if plod knew this was going to happen, which would explain why they are making a big fuss about their new cameras which will reveal the driver and also makes sense of their sudden dislike of tinted windows which are surely no more dangerous than the wearing of sunglasses.
Guess it's time I started wearing my fake beard and glasses when driving ... 
JOINT DISSENTING OPINION OF JUDGES LORENZEN, LEVITS AND HAJIYEV
For the reasons stated below we are not able to share the majority's opinion that there has been no violation of Article 6 § 1 of the Convention:
1. The present case differs in the majority's opinion from the group of cases in which persons, against whom criminal proceedings were pending or were at least anticipated, were compelled on pain of a penalty to give potentially incriminating information (cf. § 52 above). Even if we agree that the applicants in the various cases were not in an identical situation, we cannot find that a distinction between the cases in respect of the existence of a “criminal charge” is justified. Looking behind the appearances at the reality of the situation, criminal proceedings for speeding were with some probability contemplated against the applicant. In our opinion the request under section 103 § 2 was no more than a preliminary to such proceedings against the applicant (see Deweer v. Belgium, judgment of 27 February1980, Series A no. 35, p. 23-24, §§ 44-45). When the applicant was requested to disclose who had been the driver of his car at a specific time when it had been speeding, he was in a situation in which he was compelled on pain of a fine up to ATS 30,000 to give potentially incriminating information or to be punished for remaining silent. There is little doubt that the proceedings for speeding which were so far conducted against unknown offenders would have been turned into proceedings against the applicant had he admitted to having driven the car and, thus, furnished the prosecution with a major element of the case against him. In these circumstances the applicant was in our opinion “substantially affected” and therefore “charged” within the autonomous meaning of Article 6 § 1 (see Heaney and McGuinness, cited above, § 41, with a reference to Serves, also cited above, p. 2172, § 42) with the offence of speeding, once the request to divulge the driver of the car was made. The fact that eventually no criminal proceedings for speeding were brought against the applicant, does not remove his victim status (Funke, cited above, p. 20, § 39 and Quinn v. Ireland, no. 36887/97, §§ 43-46, 21 December 2000, unreported; see also, mutatis mutandis, Heaney and McGuinness, cited above, §§ 43-46).
2. In cases concerning the use of compulsory powers to obtain information, the Court has examined whether the degree of compulsion imposed on the accused destroyed the very essence of the privilege against self-incrimination and the right to remain silent (see Heaney and McGuiness, cited above, §§ 48 and 55 with a reference to the Funke, cited above, p. 22, § 44 and to John Murray, cited above, p. 50, § 49). What is decisive for the finding of a violation is that the accused had no other choice than either to break his silence and to provide possibly incriminating information or to have a fine or term of imprisonment imposed on him for failure to do so. It is true that the applicant was not punished for remaining silent, but for giving the name and incomplete address of a third person. However, he may have done so to protect himself from prosecution for speeding and there is no other evidence in the case which excludes that the applicant could himself have been the driver. We are, therefore, not convinced by the Government's argument that, on the facts of the case, the applicant was not the driver and could therefore not incriminate himself. When assessing a possible risk of incriminating oneself, we see no reason to distinguish between situations where the owner of the car has refused to give any information and where he has given wrong or insufficient information. However, the situation is different where on the basis of the evidence it is clear that the owner of the car could not have been the driver and therefore would not risk to incriminate himself of speeding by being compelled to identify the driver.
3. The Government appear to argue that the degree of compulsion involved in the present case was not sufficiently important, as they pointed to the minor nature of the sanction. It is true that that the Court has found that not every measure taken with a view to encouraging individuals to give the authorities information which may be of potential use in criminal proceedings must be regarded as improper compulsion (see Allen cited above). In the present case the applicant risked being fined up to ATS 30,000 and was in fact sentenced to pay a fine of ATS 900 with 24 hours' imprisonment in default. We consider that these sanctions, though being less severe than the penalties in comparable cases (accumulating fines in Funke, a six months' prison term in Heaney and McGuiness and repeated fines in J.B), were not negligible and, therefore, brought a degree of compulsion to bear on the applicant which was capable of destroying the very essence of the privilege against self-incrimination and the right to remain silent.
4. Finally, we are not convinced by the Government's argument that the registered car owner's obligation to divulge the driver was a proportionate response to the public interest in the prosecution of speeding which outweighs a car owner´s interest in not being compelled to incriminate himself of having committed such an offence. The general requirements of fairness contained in Article 6 including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex (see Saunders, cited above, p. 2066, §74). It certainly should not be overlooked that the prosecution of traffic offences like speeding, though they are in themselves often of a minor nature, serves to prevent traffic accidents and thus to prevent injury and loss of life. Nevertheless, a provision like section 103 § 2 of the Motor Vehicles Act possibly obliges the registered car owner, on pain of a fine, to admit to having driven the car at the time a specific offence was committed. He will thus have to provide the prosecution with a
major element of evidence, being left with limited possibilities of defence in the subsequent criminal proceedings. Seen in this light the infringement of the right to remain silent does not appear proportionate. Consequently, the vital public interest in the prosecution of traffic offences cannot in our opinion justify the departure from one of the basic principles of a fair procedure (see, mutatis mutandis, Saunders, cited above, § 74, relating to corporate fraud and Heaney and McGuinness, cited above, § 58, relating to terrorist offences).
5. In conclusion, we find that there has been a violation of the applicant's right to remain silent and his right not to incriminate himself guaranteed by Article 6 § 1 of the Convention.
Lets hope these guys are part of Idris hearing.
>> Edited by deltaf on Friday 4th June 23:16
For the reasons stated below we are not able to share the majority's opinion that there has been no violation of Article 6 § 1 of the Convention:
1. The present case differs in the majority's opinion from the group of cases in which persons, against whom criminal proceedings were pending or were at least anticipated, were compelled on pain of a penalty to give potentially incriminating information (cf. § 52 above). Even if we agree that the applicants in the various cases were not in an identical situation, we cannot find that a distinction between the cases in respect of the existence of a “criminal charge” is justified. Looking behind the appearances at the reality of the situation, criminal proceedings for speeding were with some probability contemplated against the applicant. In our opinion the request under section 103 § 2 was no more than a preliminary to such proceedings against the applicant (see Deweer v. Belgium, judgment of 27 February1980, Series A no. 35, p. 23-24, §§ 44-45). When the applicant was requested to disclose who had been the driver of his car at a specific time when it had been speeding, he was in a situation in which he was compelled on pain of a fine up to ATS 30,000 to give potentially incriminating information or to be punished for remaining silent. There is little doubt that the proceedings for speeding which were so far conducted against unknown offenders would have been turned into proceedings against the applicant had he admitted to having driven the car and, thus, furnished the prosecution with a major element of the case against him. In these circumstances the applicant was in our opinion “substantially affected” and therefore “charged” within the autonomous meaning of Article 6 § 1 (see Heaney and McGuinness, cited above, § 41, with a reference to Serves, also cited above, p. 2172, § 42) with the offence of speeding, once the request to divulge the driver of the car was made. The fact that eventually no criminal proceedings for speeding were brought against the applicant, does not remove his victim status (Funke, cited above, p. 20, § 39 and Quinn v. Ireland, no. 36887/97, §§ 43-46, 21 December 2000, unreported; see also, mutatis mutandis, Heaney and McGuinness, cited above, §§ 43-46).
2. In cases concerning the use of compulsory powers to obtain information, the Court has examined whether the degree of compulsion imposed on the accused destroyed the very essence of the privilege against self-incrimination and the right to remain silent (see Heaney and McGuiness, cited above, §§ 48 and 55 with a reference to the Funke, cited above, p. 22, § 44 and to John Murray, cited above, p. 50, § 49). What is decisive for the finding of a violation is that the accused had no other choice than either to break his silence and to provide possibly incriminating information or to have a fine or term of imprisonment imposed on him for failure to do so. It is true that the applicant was not punished for remaining silent, but for giving the name and incomplete address of a third person. However, he may have done so to protect himself from prosecution for speeding and there is no other evidence in the case which excludes that the applicant could himself have been the driver. We are, therefore, not convinced by the Government's argument that, on the facts of the case, the applicant was not the driver and could therefore not incriminate himself. When assessing a possible risk of incriminating oneself, we see no reason to distinguish between situations where the owner of the car has refused to give any information and where he has given wrong or insufficient information. However, the situation is different where on the basis of the evidence it is clear that the owner of the car could not have been the driver and therefore would not risk to incriminate himself of speeding by being compelled to identify the driver.
3. The Government appear to argue that the degree of compulsion involved in the present case was not sufficiently important, as they pointed to the minor nature of the sanction. It is true that that the Court has found that not every measure taken with a view to encouraging individuals to give the authorities information which may be of potential use in criminal proceedings must be regarded as improper compulsion (see Allen cited above). In the present case the applicant risked being fined up to ATS 30,000 and was in fact sentenced to pay a fine of ATS 900 with 24 hours' imprisonment in default. We consider that these sanctions, though being less severe than the penalties in comparable cases (accumulating fines in Funke, a six months' prison term in Heaney and McGuiness and repeated fines in J.B), were not negligible and, therefore, brought a degree of compulsion to bear on the applicant which was capable of destroying the very essence of the privilege against self-incrimination and the right to remain silent.
4. Finally, we are not convinced by the Government's argument that the registered car owner's obligation to divulge the driver was a proportionate response to the public interest in the prosecution of speeding which outweighs a car owner´s interest in not being compelled to incriminate himself of having committed such an offence. The general requirements of fairness contained in Article 6 including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex (see Saunders, cited above, p. 2066, §74). It certainly should not be overlooked that the prosecution of traffic offences like speeding, though they are in themselves often of a minor nature, serves to prevent traffic accidents and thus to prevent injury and loss of life. Nevertheless, a provision like section 103 § 2 of the Motor Vehicles Act possibly obliges the registered car owner, on pain of a fine, to admit to having driven the car at the time a specific offence was committed. He will thus have to provide the prosecution with a
major element of evidence, being left with limited possibilities of defence in the subsequent criminal proceedings. Seen in this light the infringement of the right to remain silent does not appear proportionate. Consequently, the vital public interest in the prosecution of traffic offences cannot in our opinion justify the departure from one of the basic principles of a fair procedure (see, mutatis mutandis, Saunders, cited above, § 74, relating to corporate fraud and Heaney and McGuinness, cited above, § 58, relating to terrorist offences).
5. In conclusion, we find that there has been a violation of the applicant's right to remain silent and his right not to incriminate himself guaranteed by Article 6 § 1 of the Convention.
Lets hope these guys are part of Idris hearing.
>> Edited by deltaf on Friday 4th June 23:16
It's only a matter of time.............the UK can't "pick and choose" which european laws and rights it wants to enforce, or ignore.
However, how long will it be before forward facing gatsos are the norm???.......not long. How's this?.........new legislation??? any driver caught wearing a disguise will be prosecuted for attempting to pervert (????) the course of justice.
Philthy
However, how long will it be before forward facing gatsos are the norm???.......not long. How's this?.........new legislation??? any driver caught wearing a disguise will be prosecuted for attempting to pervert (????) the course of justice.
Philthy
TS! and my name is Paula! ..... Honest!
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