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The Association of British Drivers
DISCLAIMER
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.
2007
ECHR Abandons Justice
The European Court of Human Rights as shown 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 decsion 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”
Support Our Defence of Our Right to Silence
We seek your support in protecting our centuries-old right to silence, whether you are, have been or fear that you might be involved in speed camera cases, and believe as we do that our fundamental rights, now under ever increasing threat, must be preserved.
If you are already involved in a speed camera case we recommend that you take legal advice on whether to join our fight. Even if you decide against defending your own case, pleasecould consider offering moral support or a contribution to our fighting fund towards the legal costs involved. In considering whether to help us fight this specific issue, remember that many other fundamental rights from habeas corpus to free speech, from jury trial to extradition, are now under imminent threat. We are now only at the start of this process, and much worse will follow if we do not stand up for our rights at every opportunity.
If you have incurred within the last 6 months penalties under S172 of the 1988 Road Traffic Act, either by incriminating yourself or by refusing to do so, whether for speed camera or other offences, you may be eligible as a 'victim' of this unfair law, to make an application to the ECHR for removal of the penalties and/or compensation. Contrary to previous information here, it is not possible for new applicants to 'join' an existing application, as all such applications must be made by individuals. We are however looking urgently for a small number of additional cases to take to the ECHR where:
(a) anyone has been charged with refusing to identify the driver, has pleaded 'not guilty' on the grounds that S172 is invalid, and has been found guilty within the last 6 months.
Subject to a number or factors it may be the case that these cases could incur little or nothing by way of legal costs.
Clearly we would like also to hear of anyone who has been found innocent on the basis that S172 is invalid!
Please contact Idris Francis by email or the ABD urgently if you are in this position.
and
(b) anyone, who prosecuted in court, pleaded 'not guilty' on the grounds that the only evidence against them was obtained under duress and was therefore inadmissible, but has been found guilty in the last 6 months.
There will of course be complaints that if our challenge to speed camera law (and by implication all other devices which rely on self-incrimination) is successful, accident rates will rise. There is, however, no clear evidence to support that view, or that cameras have brought about a reduction in the overall accident rate. Indeed, there appears to be some evidence that the reverse may be true. In Essex in 2001, fatalities rose by 30% despite ( or arguably because of) speed cameras.
Our objectives are twofold — to defend the right of silence against this and future attacks by the State, and, by eliminating speed cameras, force the authorities to pay attention to the real causes of accidents — inadequate training, bad and dangerous driving and their inadequate policing, bad road layout and maintenance and all the other factors which are being largely ignored in the current simplistic and counter-productive campaign against speed per se.
Below we set out our case. Please read it with an open mind. If you disagree, tell us why. If you wish to help you will find below all the information you need.
Timetable
Our application has been lodged at the ECHR and allocated a case number. The detailed submission is now being prepared.
The first stage is that three ECHR judges will decide whether or not this is an issue that the court should decide. We are confident that the decision will be positive, but that is likely to be made 12 to 18 months.
The final decision will take up to two further years. During this period the application may be updated. Contrary to previous information, no additional applicants can be added, but new and separate applications are possible.
Some believe that constitutions exist to protect the State against the people but their proper purpose is to protect the people from the potential tyranny of the State. It was for this reason that Magna Carta was signed by King John in 1215, not to give us rights, but to recognise that they are inherent and may not be removed.
Winston Churchill wrote in 1956 in "A History of the English Speaking Peoples"
"The facts embodied in Magna Carta and the circumstances giving rise to them were buried or misunderstood. The underlying idea of the sovereignty of the law, long existent in feudal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject it is to this doctrine that appeal has again and again been made, and never as yet, without success."We are appealing in the same way to retain our right to silence.
Imagine a State which tells suspects, "Because we do not have evidence to convict you beyond reasonable doubt, we insist that you confess. If you refuse we will impose penalties similar to those applicable to the original offence". Is that not intolerable in a supposedly free country? Has that not been considered intolerable for centuries, not just here (where the police caution starts, "You are not obliged to say anything…") but in many other countries including America, where such duress is explicitly prohibited by the Fifth Amendment of their constitution?
Is that not intolerable in a supposedly free country? Has that not been considered intolerable for centuries, not just here (where the police caution starts, "You do not have to say anything…") but in many other countries including America, where such duress is explicitly prohibited by the Fifth Amendment of their constitution? The right to silence is one claim of the 1689 Bill of Rights and is inherent under Article 6 of the European Convention of 1951 to which Britain has been a signatory since 1953. It is also inherently part of the corresponding part of the 1998 Human Rights Act by which that convention was incorporated into British law. It is important to remember that the Convention expressly states that Article 6 may be restricted only in times of war or grave threats to national life. In our view the Privy Council decision that the right to silence should be balanced against the rights of other road users was wrong in law.
Yet the Section 172 of the 1988 Road Traffic Act exerts precisely that duress. Any State which claims these draconian powers is already part way towards the tyranny that Churchill described, and if unchecked is likely — indeed certain — to apply the same duress to other issues. Why, after all, should motorists be denied their rights (in defiance not just of Magna Carta, but also of our 1688 Declaration and 1689 Bill of Rights, the 1951 European Convention of Human Rights, the 1998 Human Rights Act and 800 years of common law) but not murderers, rapists or arsonists? On reason is of course that motorists represent a large, lucrative and easy target — but no one else is safe if this breach of our rights goes unchallenged.
An old legal maxim is that "hard cases make bad law"- that general law based on specific problems is usually counterproductive. There will always be superficially plausible reason for removing fundamental rights from football fans, drug dealers or terrorists, but the consequences will prove to be adverse for our freedom and democracy.
Although we do not know where this progressive denial of our rights might end, we certainly know where it is heading. The draconian Terrorism Bill currently before Parliament will lead to extradition without habeas corpus or intervention by British courts, without even prima facie evidence and even for 'offences' which are not illegal in Britain, to face indefinite detention even without trial in other countries. But what has this to do with you, you wonder? Being unlikely to become a drug dealer of football hooligan, why should you worry about our rights being removed? This is why:
"...Then they came for the Jews and I didn't speak up because I wasn't a Jew.
Then they came for the trade unionists but I didn't speak up because I was not a trade unionist.
Then they came for the Catholics and I didn't speak up because I am a Protestant.
Then they came for me but by that time no one was left to speak up."
Rev. M Niemoller (1892-1984) Dachau 1945
Today the motorist is the easy target. Tomorrow — who knows?How the Speed Camera System Works
Because few, if any, speed camera photographs identify drivers the authorities have to rely on Section 172 of the 1988 Road Traffic Act, that requires the registered keeper of the vehicle identified by its number plate to tell the authorities of the name of the driver at the time the photograph was taken. To ensure compliance the Notice of Intended Prosecution (NIP) states that "failure to provide the information may render you liable to prosecution", the penalty being "similar to that for the offence itself i.e. a fine and penalty points."
Thus the system relies on threats to obtain what (in the great majority of cases) is self-incrimination, and secondly compliant motorists who usually prefer the privacy of the fixed penalty system to the costs and inconvenience of a hearing in open court. The system also depends on most motorists preferring the privacy and lower cost of a fixed penalty than the costs, expense and publicity of a court hearing. If even a modest proportion of the 3,000 cases every day did go to courts, the system would seize up completely.
Summary of the Legal Position to Date
(a) Legal principles, evidence and onus of proof
No lawyer or court could sensibly argue that the right to silence does not exist, or that the NIP procedure is anything but duress to secure self-incrimination, or that this is not a breach of the fundamental right to silence.
The only argument available to the prosecution seeking to justify S172 is therefore that of a public interest that overwhelms the right to silence. As above, it is our view that the European Convention allows no such limitation, but in any case, given that breaking (often arbitrary and often inappropriate) speed limits is not of itself harmful, the only possible 'overwhelming public interest' argument would be that the use of speed cameras achieves a clear and unequivocal reduction in accidents, injuries and deaths. In any such argument the onus of proof would surely rest on the authorities.
Unfortunately for them, the authorities have singularly failed to produce any such statistical evidence, and it is our belief that they do not exist. Indeed, Gwyneth Horner, a statistics lecturer at Cardiff University, recently described the authorities' manipulation of accident statistics in this way:
"This is how to lie with statistics. It is very naughty to claim this is making a big reduction when there's a blip in the figures. To attribute the reduction to speed cameras is not justifiable. Statisticians would not approve of using figures in this way".
Quoted in Motorcycle News, 24/08/2001
ABD on the other hand publish on this site detailed analysis of those figures that are available and demonstrate beyond reasonable doubt that there is no evidence of any such 'overwhelming public interest' justification — or for the planned proliferation of cameras. Other ABD analysis shows that taxpayer and motorist funded expenditure on (ineffective) speed cameras would be 1000 times more cost-effective if spent on the NHS. ABD's figures and analysis will form part of the written submission to the EHCR and will confirm that the authorities' claim of public interest cannot meet the burden of proof necessary to overturn such a fundamental right.We are not aware of any relevant cases regarding the right of silence in relation to motoring until the 1999 case Stott v Brown in Scotland. Mrs. Brown's right of silence defence succeeded in having her self-incrimination in a drink-driving (not speed camera) case declared inadmissible as evidence, in the Scottish High Court (5th November 1999 and 6th/7th January 2000). Note however that the police did not in this case use threats to secure self-incrimination, and that the strength of the 'public interest' arguments may well be different for drink driving than for speeding. In effect this decision was that the right to silence was absolute.
Birmingham Magistrates delivered the same verdict (13 July 2000, LTL 28/7/2000) in two related cases, R v Chauhan and R v Hollingsworth. They held that
(1) The right to a fair hearing, enshrined in both domestic law and Article 6 European Convention on Human Rights, included the privilege against self-incrimination. That right was primarily concerned with respect for the will of an accused person to remain silent. Ernest Saunders v United Kingdom (1996, ECHR 26 December 1996 (was) considered.
(2) The court was bound by Brown v Procurator Fiscal because …….the addressee of the S172 enquiry was entitled to the immunity of an accused person. The Crown's position on the present case was weaker because there was ….a notice of intended prosecution which clearly defined the recipient as a suspect."
Note that in 2001, the ECHR declared the trial of Saunders and other Guinness affair defendants to have been unfair because their right of silence had been refused and as a consequence the relevant parts of the Serious Fraud Act have had to be amended to allow the right to silence.
It should be also be noted that the Privy Council decision was explicitly based on the 1998 Human Rights Act not having come fully into being in Scotland at the relevant time. It is clearly arguable that now these provisions are fully in place they overturn conflicting sections of the 1988 Road Traffic Act by the principle of implied repeal.
It is surely significant, and in our view unacceptable, that from January 2000 (and in particular from July 2000) until the Privy Council decision on 5th December (below), the authorities continued to use the NIP threats to secure self-incrimination when they knew, or should have known, that the law as it stood made it improper to do so. Anyone who incriminated himself under duress during that period may be eligible for compensation even if we lose, as indeed may everyone penalised to date if we win.
On December 5th 2000 the Privy Council (the appeal court for Scottish law) reversed the Scottish High Court decision and allowed Mrs. Brown's self-incrimination to be used to convict her. We understand that Mrs. Brown decided not to apply to the ECHR although advised by her lawyers that she could win there.
A further case against Wilson in April 2001 decided (wrongly in our view) that the right to silence could be restricted.
Despite the significant differences between Mrs. Brown's drink-driving case and speed camera law, the authorities have ever since quoted these two cases to argue that there is no right to silence defence in speed camera issues. No magistrates court now has the power to decide otherwise.
However at least two subsequent cases in Europe and other legal opinions have cast considerable doubt on the Privy Council decision and our lawyers are confident of our case.
Idris Francis' Application to the ECHR
One of our members, Idris Francis, on legal advice, decided to challenge the Privy Council's decision by refusing to identify the driver, and on 9th November at SW Surrey Magistrates' Court, Guildford (case 4163930) the Clerk of the Court adjourned the prosecution case against Mr. Francis, pending an application to the ECHR. This application is now in hand and will be copied to the Guildford Court by their deadline of 8th February.
Legal and other costs are of course substantial and for that reason the ABD are setting up an Article 6 Appeal Fighting Fund to help cover the costs of Mr. Francis and others who join their cases to his. Support would be welcomed from others who choose to plead the same defence, with a view to joining their cases to that of Mr. Francis, and from those not (yet) in a position to do so, but who support this challenge.
Mr. Francis' solicitors have advised the Association of Chief Police Officers of this application and have suggested that they consider again the text of their NIPs, and that they ensure that their prosecutors and the courts are made aware of this challenge. A similar letter has been sent to the newsletter 'The Magistrate'
How to Fight Your Own Case
(AFTER TAKING INDEPENDENT LEGAL ADVICE).
If and when you receive a speed camera NIP you may choose whether to identify the driver as the NIP demands, or refuse to do so on the basis of your right to silence under common law, the 1998 Human Rights Act and Article (6) of the European Convention on Human Rights.
Given the Francis' application to the ECHR, it is unlikely that the authorities would fail to prosecute such a refusal. It should be understood from the outset that even pleading guilty to failing to identify the driver might well incur higher costs than pleading guilty to the speeding charge, while pleading not guilty to the refusal and fighting the case could cost considerably more, even if successful at the ECHR. Anyone potentially eligible for legal aid should seek advice.
The reasons for refusing, and fighting this issue are:
1. on principle, in defence of this and other rights.
2. to try to force the authorities to tackle the real road safety issues.
3. to lend weight to the Francis application to the ECHR (the more cases the better the chance of success)
4. to avoid penalty points and possible disqualification if we win.
5. to delay penalty points or possible disqualification if we lose. (The delay could be 1 to 3 years)
6. to share the costs of the Francis appeal.
7. to replace a 'moving motoring offence' with a procedural offence making refusal of car hire here or overseas less likely. Note however that in other circumstances (or more draconian regimes, naming no names) to be seen to be fighting the authorities can be more of an issue than speeding)
Beware however, that large numbers of refusals could paralyse the court system and potentially force the authorities to stay or not even start prosecutions pending the result of the application to the ECHR.
Those with few or no points on their licenses or to whom driving is not essential, would be unlikely to justify refusing to identify the driver in the case of relatively minor offences, and might instead feel that a donation to the Fund would be more appropriate. Those facing substantial fines and penalty points, including disqualification, could more readily justify that refusal. In deciding how best to proceed, note that it is better to refuse now, and plead not guilty, than to confess and hope to have the penalties quashed in months or years to come, if and when we win this battle. Pleading guilty could be a bar to subsequent quashing of convictions or recovery of penalties, despite such confessions having been obtained improperly under duress. Others might feel that, as has happened over the years, evidence of illegal duress being applied to obtain confessions can, in the absence of other significant evidence, be sufficient of itself to quash convictions.
That is not to say that those who have been penalised these past six of seven years will have no claim for compensation (including for lost income if put out of work by loss of licenses) if we win and the authorities are forced to climb down. It is at least arguable that such claims could succeed and likely that many will be made. But as in most aspects of life it is easier not to give way in the first place than to secure compensation afterwards.
To those who might say that refusal to obey the law as it is believed to be is foolish or improper, we can only say that it is not only the right of the people of this country to challenge through the courts laws which they believe to be wrong, but the right and indeed the duty of juries to acquit in defiance of the evidence and the law if they believe the law to be unjust, under the well-established legal principle of jury nullification. In our case we believe not only that the law is unjust, but that it is counterproductive and, for some, lethal, in that it allows the authorities to ignore the real road safety issues.
Your Options if You Receive a Statutory Notice of Intended Prosecution are:
(a) comply with the NIP, pay the fine and incur the penalty points. If you do so, and you were the driver, state on the form that you are supplying this information under duress, in conflict with your right to silence under common law and Article 6 of the European Convention of Human Rights.
You will then be given the choice of paying the appropriate fixed penalty by post and having your licence endorsed, or going to court for a hearing, which will incur extra costs. There is no point in going to court to plead guilty, other perhaps than to make a public statement that your right to silence is being denied.
The alternative is to go to court to plead not guilty, on the grounds that S172 is invalid as it is in breach of Article 6 of the European Convention, and that for that reason your earlier admission of having been the driver is inadmissible as evidence. If you make it clear that you intend to plead not guilty you will probably be asked to attend a pre-trial review rather than a hearing. At either you should refer the authorities to the Francis case and ask that your case be similarly postponed until either the ECHR makes a decision in the Francis case, or in your case if you choose to make your own application to the ECHR. The clerk of the court at a pre-trial review, or the magistrates at a hearing have the power to allow that postponement at their discretion. They have no power to acquit, being bound by the decisions in the Privy Council and the Wilson case.
If no postponement is allowed and you are therefore found guilty, you have 6 months in which to make an application to the ECHR as a 'victim' of a law in conflict with the Convention.
If, having decided to fight, you wish to liase either directly or through your lawyer with Mr. Francis' defence team or the ABD's solicitors, in the first instance please contact Idris Francis by email, or the ABD.
Please understand that nothing written here is advice to you to break the law. This is intended to clarify the legal options, including how you may properly challenge a law that you believe to be in breach of your constitutional rights.
It is possible (and surely desirable) that the existence of the Francis application to the ECHR causes the authorities to put on hold immediately their plans for a massive expansion of the present system.
If the ECHR confirms our view and our right of silence (applying not only to speed camera but most or all other motoring cases) the authorities will be forced to recognise that the present system is unworkable. The expense involved could not remotely be justified by those very few cases where the photographs identify the driver or the registered keeper chooses to confess in the absence of penalties for refusal.
We have been told in recent months that a new generation of speed cameras taking photographs from the front, and so identifying the drivers is under development. Quite apart from the fact that motorcyclists wear opaque visors and carry no front number plates and so would be immune, the reality is that the combination of steeply tilted windscreens, glare, reflections, tinted screens and perhaps a proliferation of Jack Straw face masks would make any such system unviable. Neither does it seem a good idea to fire bright lights into the eyes of drivers.
That is not to say of course that other systems would not be viable but in most cases they would require vehicles to be stopped by policemen for identification, imposing a practical limit on the number of devices and cases, and removing the bizarre threat of massive numbers of penalties, penalty points and disqualifications for what in the vast majority of cases is neither dangerous nor careless driving.
Again, we must stress that you should not decide to commit a criminal offence without taking legal advice. But then again, the police should not have sent out a million Notices of Intended Prosecution in 2000 when they knew or should have known that the law at that time did not allow them to use such threats.
The Article 6 Right to Silence Fighting Fund
The Trust Fund Deeds are now being put in place. Pending completion of that work, substantial donations have already been received and further donations may be sent to ABD, marked
Click here to make a donation |
New Supporters and Publicity
From January 3rd considerable publicity has been achieved in The Times, The Daily Express, The Guardian. Radio 5 Live, Meridian TV, BBC News from 7.40 am until 10.30 pm. This has led to many messages of support and offers of help.
In particular a major Human Rights campaigning organisation has offered support, as will be confirmed once details are agreed.
We are increasingly confident that this case can and will be won.
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