FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 15809/02 and 25624/02 
by Gerard O’HALLORAN and Idris R. FRANCIS 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 25 October 2005 as a Chamber composed of:

Mr J. Casadevall, President
 Sir Nicolas Bratza
 Mr M. Pellonpää
 Mr R Maruste
 Mr K. Traja
 Mr S. Pavlovschi, 
 Mr L. Garlicki, judges
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above applications lodged on 3 April 2002 and 15 November 2001 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant in application no. 15809/02, Gerard O’Halloran, is a United Kingdom national, who was born in 1933 and lives in London. The applicant in application no. 25624/02, Idris Richard Francis, is a United Kingdom national who was born in 1939 and lives in Petersfield. They are represented before the Court by Mr J. Welch of Liberty, London.

A.      The circumstances of the cases

The facts of the case, as submitted by the parties, may be summarised as follows.

1. O’Halloran 15809/02

On 7 April 2000, at 04.55 hours, 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.

On 17 April 2000, the police camera enforcement unit of the Essex Constabulary wrote to the first 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.”

The attached notice of intention to prosecute (NIP) 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.

The applicant answered the letter confirming that he was the driver at the relevant time.

On 27 March 2001, the applicant was summoned to attend North Essex magistrate’s 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 intention to prosecute, invoking 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 GBP 100, ordered to pay GBP 150 costs and his licence endorsed with six penalty points.

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?"

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 the High Court in Director of Public Prosecutions. v. Wilson ([2001] EWHC Admin 198).

On 19 October 2001, the applicant’s application for judicial review of the magistrates’ decision was refused.

2. Francis 25624/02

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.

On 19 June 2001, the Surrey Police sent the applicant a NIP 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 vehicle 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."

On 17 July 2001, the applicant wrote to the Surrey Police invoking his right to silence and privilege against self-incrimination.

On 18 July 2001, the Surrey Police informed the applicant that the appeal in Brown v. Stott [2001] 2 WLR 817 held that section 172 did not infringe the said rights.

The applicant refused to supply information.

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.

On 9 November 2001, the Magistrates’ Court agreed to 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, invoking Articles 6 §§ 1 and 2 of the Convention.

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 3 penalty points. He states that the fine was substantially heavier that that which would have been imposed if he had pleaded guilty to the speeding offence.

B.  Relevant domestic law and practice

Road traffic legislation

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) sets out the offences to which the section applies, including the more serious driving offences, including manslaughter and speeding, and excluding offences of a less serious and more regulatory nature.

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 the 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”

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, i.e. GBP 1,000.

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.

The Police and Criminal Evidence Act 1984

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

by oppression of the person who made it; or

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."

Section 78 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."

Relevant domestic case-law

In Brown v. Stott [2001] 2 WLR 817 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 affirmative answer as the basis for a prosecution for driving with excess alcohol. In the High Court of Justiciary, Lord Rodger allowed the defendant’s appeal, finding that the prosecution could not rely on evidence of the admission which she had been compelled to make.

On appeal by the Procurator Fiscal, the Privy Council found that the use of the admission did not infringe the requirements of Article 6. Lord Bingham, 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 ... it 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 Prosecution v. Wilson [2001] EWHC Admin 198.

COMPLAINTS

1. O’Halloran 15809/02

The applicant complains under Article 6 §§ 1 and 2 of the Convention that he was convicted solely or mainly on account of a statement which he was compelled to provide in accordance with section 172 of the Road Traffic Act 1988 under threat of a penalty similar to the offence itself. At the time he was compelled to make the statement, he was informed that the police were already in possession of information to confirm that he was the driver of the car and that a decision to prosecute him had already been arrived at. In those circumstances, the applicant was subject to a "criminal charge" for the purposes of Article 6 and the compulsion to provide the statement breached his privilege against self-incrimination and the reliance of the prosecution on the evidence at trial and the magistrates’ refusal to exclude it breached Article 6.

2. Francis 25624/02

The second applicant complains under Article 6 §§ 1 and 2 that the threat of and actual conviction for a criminal offence represented improper duress to obtain information about him being the driver of his registered vehicle at the time it was caught speeding by a camera as the authorities suspected but could not prove that he was driving without his self-incrimination. This compulsion on the applicant to provide the evidence of the evidence of the offence he was suspected of committing infringed his right to silence and privilege against self-incrimination.

THE LAW

The applicants complained that they had been subject to compulsion to give incriminating evidence contrary to Article 6 §§ 1 and 2 of the Convention, which provide as relevant:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ..”

The Government submitted that the privilege against self-incrimination and the right to silence were not absolute and their application could be limited by reference to other legitimate aims in the public interest. In addition to the cases on the right to silence (e.g. Saunders v. the United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, § 62), they referred to the limitations on access to court (e.g. Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, § 58), to case-law showing that in certain circumstances Contracting States were permitted to reverse the onus of proof of certain matters provided that this did not disturb the fair balance between the interests of the individual and the general interests of the community (e.g. Salabiaku v. France, judgment of 7 October 1988, Series A no. 141-A, § 28), to acceptable limitations on the rights of the defence in cases on equality of arms (Fitt v. the United Kingdom [GC], no. 29777/96, § 45, ECHR 2000-II) and the questioning of witnesses (S.N. v. Sweden, no. 34209/96, § 47, ECHR 2002-V) and also to the general principle that it is primarily for national law to regulate the admissibility of evidence, including incriminating evidence (e.g. Khan v. the United Kingdom, no. 35394/97, § 38, ECHR 2000-V).

The Government argued that the power under section 172 to obtain an answer to the question who was driving a car when a suspected motoring offence was committed and to use that answer as evidence in a prosecution or, alternatively, to prosecute a person who failed to provide information was compatible with Article 6. There were very good reasons why the owner should be required to identify the driver: driving offences are intended to deter dangerous conduct which cause risk to the public and deterrence depended on effective enforcement (research showed that speed cameras etc had reduced crashes by up to 28%), there was no obvious generally effective alternative to the power contained in section 172 and without such a power it would be impossible to investigate and prosecute traffic offences effectively, and the simple fact of being the driver of a motor car was not in itself incriminating. Nor did section 172 breach the presumption of innocence as the overall burden of proof remained on the prosecution. It provided for the putting of a single question in particular circumstances and all the usual protections against the use of unreliable evidence or evidence obtained by improper means remained in place, while the maximum penalty was only a fine of GBP 1,000.

The applicants submitted that the serious problem caused by the misuse of motor vehicles was not sufficient to justify a system of compulsion which extinguished the essence of the rights under Article 6. The relatively minor nature of the penalties was irrelevant as the Article 6 rights, including the principle against self-incrimination and right to silence, applied to criminal proceedings of all kinds without distinction. They disputed that there was no obvious alternative, asserting that methods of indirect compulsion (the drawing of adverse inferences from a failure to answer questions or establishing a statutory presumption of fact that the registered owner was the driver unless he or she provided evidence to the contrary) or the use of incriminating information obtained compulsorily outside the context of the criminal proceedings themselves. They argued that an actual or potential defendant could not be compelled on pain of penalty to provide information which only he was capable of providing and which could not be provided by documents or physical evidence independent of his will. The prosecution were required to prove their case without recourse to coercion in defiance of the will of the accused.

The applicants recalled that in Saunders (referred to above) and Heaney and McGuinness v. Ireland (no. 34720/97, ECHR 2000-XII) the Court had held that the public interest could not be invoked to justify the use of answers compulsorily obtained. They rejected the Government’s arguments that there was any protection against use of the material in the provisions of the Police and Criminal Evidence Act 1984 (PACE) as sections 76 and 78 of PACE could not exclude testimony collected in accordance with a statutory provision. As the applicants had been subject to pending criminal proceedings and not a purely regulatory inquiry when subjected to direct compulsion, there had therefore been breaches of both Article 6 §§ 1 and 2 of the Convention.

The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the applications admissible, without prejudging the merits of the case.

Françoise Elens-Passos Josep casadevall 
 Deputy Registrar President

O'HALLORAN v. THE UNITED KINGDOM DECISION


O'HALLORAN v. THE UNITED KINGDOM DECISION