Author Topic: Implications of the ECtHR Judgement for the Privilege Against Self-Incrimination  (Read 406 times)

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How does the ECtHR judgement change things?

In light of the:

    Unprecedented judgement of the European Court of Human Rights in O'Halloran and Francis v. the UK;
    Apparent increasing propensity of certain so-called "Safety Camera Partnerships" to "dual charge" in order to exert undue pressure to plea bargain;
    Most recently the change in the law that results in the penalty for failing to identify the driver increasing to 6 points;

we feel that it is no longer prudent to advise members to [] argue that admitting to being the driver under statutory compulsion makes the confession inadmissible.

The fundamental issue behind the PACE statement was the privilege against self incrimination, which has been severely damaged (not only for "mere" motoring offences) by what we view as the appallingly authoritarian judgement of the majority in the ECtHR verdict. While we certainly haven't given up on this particular battle, any chance of getting this injustice set straight is quite far off.

Also while we do not believe that dual charging in such circumstances is lawful, and dual convictions (albeit extremely rare) even more so, we are painfully aware that the law is not applied equally at all magistrates' courts, and that not everyone has the means, time or inclination to appeal bad decisions to the Higher Courts.

As a result we have decided that to continue to recommend use of the PACE Witness Statement exposes you our members to too great a risk (in the short term at least), and for too little likely gain.

Since the ECtHR has now (bizarrely) decided to throw out all of its previous case law and adopt the line of Lord Bingham in Brown v Stott, we have also reluctantly decided that, as the fundamental issues raised in any subsequent appeals would be compromised by the ECtHR judgement, we should withdraw the current High Court appeal that we were expecting ultimately to take forward to the ECJ. In doing so we can conserve funds for fighting other appeals where the prospects of success are greater.

What about my PACE Witness Statement now?

One very important question we wanted to address is "where does this leave me if I've submitted a PACE Witness Statement?".

In short, in pretty much the same position as if you had completed the s172 form. In the light of the ECtHR judgement, we would expect magistrates to admit a signed PACE Witness Statement as a statement in writing...purporting to be signed by the accused that the accused was the driver of that vehicle on that occasion in the same way that they would admit a completed and signed s172 form.

If there are other issues in your case, or if the prosecution fail to properly adduce the necessary evidence (as is often the case), then we may still be able to assist you to defend yourself, but if your sole defence is the disclaimer in the PACE statement, we feel that you are unlikely to succeed in the magistrates' court or at an appeal in the near future.

If you have a current Conditional Offer of Fixed Penalty, whether you have used a PACE statement or the s172 form to name yourself as the driver, you have the option of accepting the fixed penalty, or ignoring it. If you ignore it, it is likely, although by no means certain, that you will receive a summons. The Magistrates' guidelines provide an indication of the penalty you are likely to face if you lose.

Your chances of winning depend on a number of factors (including the facts of the alleged offence), but often depend largely on the amount of time and effort you are willing and able to put into it.

The future

Just because there's been a setback to one of the avenues of defence open to us as motorists doesn't mean that we just have to roll over and take it - and we certainly won't be! We will continue to work to restore the fundamental privilege against self-incrimination to motorists, and on other fronts get the record set straight that dual-charging is unjust and unlawful, ensure that people carrying out road traffic enforcement must be competent, and of course challenge the validity of "evidence" provided by unreliable detection devices!
I am responsible for the accuracy of the information I post, not your ability to comprehend it.

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