This factual information and informed opinion are provided to allow the reader better to understand their right to silence in relation to speed cameras and similar devices. Nothing on or related to this website should be read or taken as being legal advice. Neither the Association of British Drivers nor any other person or organisation accepts any responsibility for actions taken or decisions made on the basis of this information. The Association of British Drivers does not condone the potentially lethal misuse of speed under inappropriate circumstances.
ECHR Abandons Justice
In 2007, the European Court of Human Rights showed itself to be a worthless government lacky by ignoring fundamental principles of 'justice'.
The court ruled that the human rights of drivers were not breached by UK law forcing them to incriminate themselves if charged with exceeding a speed limit.
The judges said that UK law makes it clear that no offence has been committed if a car owner can prove that he or she did not know, or could not be expected to know, who was driving the vehicle. How that might be achieved was not stated.
We can at least be assured by Judge Stanislav Pavlovschi of Moldova, and Judge Eric Myjer of the Netherlands, who both felt so strongly opposed to the decision of the majority that they elected to issue dissenting statements.
“This case is not just about police cameras and speed traps, it is about much more important issues such as the fundamental principles governing modern criminal procedure and the basic elements of the notion of a fair trial, most of the free world accepts the procedures embodied in the Miranda rule regarding the giving of evidence. The general understanding of this procedural rule is that nobody can be forced to answer questions or to give evidence that may help to prove his own guilt. In my opinion, the majority has committed a fundamental mistake in accepting the Government's position that obtaining self-incriminating statements under the threat of criminal prosecution can be considered as a permissible method of prosecution in certain very specific circumstances, such as those of the present case. This is not only wrong, but is also an extremely dangerous approach.”
“In my view, the provisions of section 172 of the Road Traffic Act 1988 amount to a deviation from the principle of prohibition of "compulsory self-incrimination" and a breach of the right to silence, and can be considered as subjecting the individuals concerned to a legal compulsion to give evidence against themselves”
Judge Stanislav Pavlovschi
Current Advice in Relation to Failure to Provide Information Allegations and Human Rights
This information was provided by Emma Patterson, Principal Solicitor, Patterson Law, July 2009.
If you are asked by the Police to name the driver of a vehicle when an alleged offence occurs, be very careful when you make the decision as to how to respond.
Section 172 of the Road Traffic Act provides the Police with the power to ask anybody (who they feel may hold information) to name the driver of a vehicle when an alleged offence occurs.
Numerous arguments have been raised over the last ten years along the lines that this request for information breaches the Doctrine against Self Incrimination. The basic principle being that the Police should not be allowed to ask people to incriminate themselves or others in relation to alleged offences.
This issue has been "batted" around at the Human Rights Court over and over again. The bottom line is that the European Court of Human Rights states that the request for information under Section 172 is proportionate to the need to manage road safety. Therefore if you are asked to name the driver you must do so!!
If you simply respond by stating that you are not willing to provide this information because it breaches your human rights you will be convicted of an offence of failing to provide information which carries up to a £1,000 fine and 6 penalty points. These points are mandatory.
There are ways to defend an allegation under Section 172. Sub section 4 of the Act allows the Magistrates to decide whether or not the person asked has used reasonable diligence to figure out who was driving at the time. This means that if you are unable to identify the driver but you have done your best to figure it out and you have nominated any potential drivers providing the full contact details, you will have a defence. In order to defend yourself you will have to show that on the balance of probabilities you did your best. If you succeed in doing this then the Magistrates must find you not guilty.
There is a further statutory defence under Section 172 that allows for the situation when you do not actually receive the request for information in the first place. Section 172 (7)(b) states that if it was not reasonably practicable for you to supply the information that was required of you, you shall not be convicted. Therefore if you do not receive the request for information (bear in mind the Police often send a reminder) and the Magistrates believe you when you say this on oath you will be found not guilty.
There are lots of websites trying to sell you letters that they claim are guaranteed to help you avoid conviction in relation to Road Traffic offences. These often require you to pervert the course of justice. I have dealt with many people who have got themselves into really deep water by nominating people who were not the driver at the time of the alleged offence and been accused of attempting to pervert the course of justice.
For the sake of a minor speeding offence the potential consequences of perverting the course of justice are simply not worth it. If you want to ask a specific question in relation to this area of law then please feel free to email Emma Patterson who will be happy to provide you with a free advice email dealing with the specifics of your particular case.
Alternatively you can contact any of the solicitors listed in our directory of solicitors.