European Court of Human Rights
Case Of O'Halloran And Francis v The United Kingdom
Dissenting Opinion of Judge Myjer, Strasbourg, 29 June 2007

 
1. I disagree with the opinion of the majority that there has been no violation of Article 6 Sec. 1 of the Convention.
 
2. The dissenting opinion of Judge Pavlovschi contains many elements to which I fully subscribe. Even so, I have chosen to write my own dissenting opinion. This enables me to elaborate on points which are not mentioned in the dissenting opinion of Judge Pavlovschi. Besides, it saves me from indicating where I dissent from his dissent.
 
3. I take the Government's point that the definition in criminal law of driving offences is intended to deter dangerous conduct that may well cause serious harm and even injury to members of the public, that deterrence depends on effective enforcement, and that the authorities should have the power to investigate and prosecute traffic offences effectively. And it is clear that this is the case in all Contracting States. But I also agree with the applicants that the serious problem caused by the misuse of motor vehicles is not sufficient to justify a system of compulsion which extinguishes the essence of the rights under Article 6.
 
4. Practice shows that in order to be able to investigate and prosecute traffic offences effectively without unduly limiting the rights of the defence, a number of Contracting States have used various legislative techniques avoiding the pitfalls at issue in the present case. They have, for example, chosen to draw adverse inferences from a failure to answer questions, or established a statutory but rebuttable presumption of fact that the registered owner of the motor vehicle was the driver in question (see, for instance, Falk v. the Netherlands (dec.), no. 66273/01, 19 October 2004). The Government's argument that "the very fact that other legislative techniques could bring substantially about the same result indicates that questions of proportionality - rather than the absolute nature of the rights suggested by the applicants in cases of direct compulsion - were at issue" (paragraph 39) is unconvincing. To put it plainly, if the desired result can be achieved by proceeding in a way that is both effective and right, then one should not choose a wrong way, however effective it may be. In my opinion the applicants were right in submitting that the United Kingdom has just chosen the wrong legal solution to deal with the problems caused by the misuse of motor vehicles.
 
5. Although this has not been expressly mentioned in the judgment, the majority find no violation because this case is about "implied consent". In paragraph 57 of the judgment the majority - having quoted and endorsed the views of Lord Bingham in the case of Brown v. Stott - accept that "[t]hose who choose to keep and drive motor cars can be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor violations, and in the legal framework of the United Kingdom, these responsibilities include the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion." I do not agree with that view. Our own case-law makes it very clear that some rights under Article 6 can indeed be waived, provided that this is done unambiguously and in an unequivocal manner. But I sincerely doubt whether the majority accept the corollary which is unavoidable if the judgment in the present case is to be consistent with that case-law: under the British system, when it comes to the identity of the driver of a car, all those who own or drive cars are automatically presumed to have given up unambiguously and unequivocally the right to remain silent. Just to make this point clear: I accept that the driver of a car may be obliged to carry his driving licence with him and to surrender it to a police officer immediately when so requested, and also that the failure to do so may in itself be an offence. But, to use another phrase from the Court's case-law (Saunders v. the United Kingdom, judgment of 17 December 1996), a driving licence has "an existence independent of the will" of the driver concerned. The licence may be read but the lips of the owner may remain sealed. In the criminal context the use of the right to remain silent should not be an offence in itself.
 
6. In quoting and endorsing the views of Lord Bingham, the majority in fact also seem to play the "public interest" card in the form of a rather tricky new criterion which was first stated in Sec. 117 (but not in Sec. 101) of the Jalloh judgment in order to determine whether the right not to incriminate oneself has been violated: "the weight of the public interest in the investigation and punishment of the offence at issue". This is, moreover, a new criterion which is incompatible with the established case-law that the use of incriminating statements obtained from the accused under compulsion in such a way as to extinguish the very essence of the right to remain silent, cannot in principle be justified by reference to the public interest served. Surprisingly, however, paragraph 55, which sets out the criteria on which the Court bases its examination "[i]n the light of the principles contained in its Jalloh judgment and in order to determine whether the essence of the applicant's right to remain silent and privilege against self-incrimination was infringed", makes no mention of the public interest criterion: it only mentions the other Jalloh criteria (the nature and degree of compulsion used to obtain the evidence; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained was put).
 
7. I accept that, having regard especially to this new Jalloh criterion, the present judgment might be considered as a legal continuum to that judgment. However, in my opinion, today's judgment also shows what may happen if "the weight of the public interest" is allowed to play a role in deciding whether or not the right to remain silent should be upheld.
 
It is clear that I do not agree with the majority in this respect. Since, in paragraphs 35 and 36, the majority rightly accepted that (the criminal limb of) Article 6 is applicable in the present case (which is consistent with the reasoning in the 'zt'rk v. Germany judgment, 21 February 1984, Series A no. 73) it should, in my opinion, also have accepted that the right to remain silent ought to have been respected. That is not the case under the system in the United Kingdom, where Section 172 of the Road Traffic Act provides that where the driver of a vehicle is alleged to be guilty of an offence, the registered owner of that vehicle (or any other person) must give information as to the identity of the driver, even when he himself was the driver, and the registered owner who fails to give such information is guilty of an offence.
 
8. It is well known that the Court is faced with an enormous backlog. This has prompted, among other things, the new admissibility criterion that is due to be introduced by Protocol No. 14 to the Convention (the new Article 35 Sec. 2 (b) of the Convention) which, if one will, the present judgment appears to anticipate for a particular category of cases. If in fact the majority had decided unequivocally that, in order to be able to deal with the real core human rights issues, a de minimis non curat praetor rule for this "Treaty of Rome" was inevitable, which would mean reversing 'zt'rk and accepting that from now on the handling of traffic offences would no longer fall within the ambit of Article 6, then I might have agreed with such an approach. But my consent to such an approach would have had to be conditional on the provision of safeguards against abuse - and express, not implied.
Judge Eric Myjer, Strasbourg, 29 June 2007
 
Eric Myjer is Associate Professor of Public International Law at the Faculty of Law of Utrecht University. He is a member of the Netherlands Government Advisory Committee on Issues of Public International Law and he is a judge (locum) to the The Hague Court of Appeal.

 

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