European Court of Human Rights
Case Of O'Halloran And Francis v The United Kingdom
Dissenting Opinion of Judge Pavlovschi

 
The case before us is both interesting from a legal point of view and important for the cause of human rights protection.
 
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.
 
In its judicial practice this Court has already had a chance to examine some aspects of the prohibition of compulsory self-incrimination and the presumption of innocence as they exist in different European states, and also to express its vision on what is and is not acceptable in this field in a democratic society and in the circumstances of our daily lives.
 
The circumstances of the present case give us a further opportunity to examine these rather difficult questions.
 
The applicants' cars were photographed by police speed cameras at a speed trap, whereupon the applicants received a notice of intended prosecution (NIP) which informed them that proceedings were to be instituted against them as actual or potential defendants in connection with a specified road traffic offence for which the police had technical and photographic evidence. In accordance with section 172 of the Road Traffic Act 1988 the applicants were asked in each case - as registered keepers of the vehicles in question, which had been photographed - who had been the driver of the car on the occasion in question. Failure to comply with this statutory request constitutes a criminal offence.
 
Under the threat of criminal prosecution, Mr O'Halloran informed the police that he had been the driver, and was fined for speeding. His attempts to have the evidence excluded were unsuccessful.
 
Mr Francis, on being required to furnish the name and address of the driver of his car, refused to do so, relying on his right to silence and the privilege against self-incrimination, and was fined for failure to supply the information.
 
The penalties for the substantive offence and for failure to supply the information are similar.
 
The applicants claim that their right not to incriminate themselves was violated - either because they gave the information under threat of a fine, and were convicted on the strength of that confession, or because they were convicted for refusing to give self-incriminating information. They allege a violation of Article 6 Sec.Sec. 1 and 2.
 
In my opinion there are some issues of crucial importance to understanding and correctly adjudicating the present case. Allow me here to repeat the words of Judge Walsh in his concurring opinion in the case of Saunders v. the United Kingdom: "...it is important to bear in mind that this case does not concern only a rule of evidence but is concerned with the existence of the fundamental right against compulsory self-incrimination ...". I fully subscribe to these words.
 
The emergence of the privilege against compulsory self-incrimination in English common law can be traced back to the thirteenth century, when ecclesiastical courts began to administer what was called the "oath ex officio" to suspected heretics. By the seventeenth and eighteenth centuries in England the oath ex officio was employed even by the Court of Star Chamber to detect those who dared to criticise the king. Opposition to the oath became so widespread that there gradually emerged the common-law doctrine whereby a man had a privilege to refuse to testify against himself, not simply in respect of the special kind of procedure referred to above but, through evolution of the common law, as a principle to be upheld in ordinary criminal trials also (see the concurring opinion of Judge Walsh in Saunders v. the United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI).
 
Particular attention was paid to the development of this issue by common-law legal systems and, first of all, by the authorities in the United States.
 
In the second part of the eighteenth century the Fifth Amendment to the Constitution of the United States was enacted. In so far as it relates to the issue at stake here, the amendment reads as follows: "No person shall be ... compelled in any criminal case to be a witness against himself."
 
The United States Supreme Court Opinion in the case of Miranda v. Arizona, delivered in 1966, was a landmark ruling concerning confessions. In that case the Supreme Court stated as follows:
 
"...Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him...."1
 
Since that time, in the overwhelming majority of jurisdictions, if not quite all, this Miranda rule has become a fundamental legal provision enshrined in national legislation.
 
Now, a typical Miranda warning goes as follows: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."
 
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. Before being questioned a person should be told the nature of the offence of which he is accused and that he has the right not to make any statement, and that if he does it can be used against him in court. No statement obtained by threats or trickery can be used as evidence in court.
 
In this respect the US Uniform Code of Military Justice is very illustrative. Article 31 of the Code provides that no person may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him. No person may interrogate, or request any statement from, an accused or a person suspected of an offence without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offence of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial. No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial2.
 
Nowadays the prohibition of compulsory self-incrimination has become a generally recognised standard in the field of criminal procedure.
 
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.
 
Of course the majority is right in stating that the right to remain silent is not absolute.
 
There are indeed some jurisdictions which allow self-incriminating evidence to be obtained from the accused under compulsion. However - and I would like to emphasise this fact - this evidence cannot be used for the purposes of prosecuting that defendant.
 
Canadian criminal procedure, for instance, provides as follows:
 
"Where with respect to any question a witness objects to answer on the grounds that his answer may tend to criminate him...and is ...compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence." (Canada Evidence Act, C-5)
 
In the case of R .v. S. (R.J.), the Supreme Court of Canada ruled as follows:
 
"...The right of an accused not to be forced into assisting in his own prosecution is perhaps the most important principle in criminal law and the principles of fundamental justice require that courts retain the discretion to exempt witnesses from being compelled to testify, in appropriate circumstances. The person claiming the exemption has the burden of satisfying the judge that in all the circumstances the prejudice to his interests overbears the necessity of obtaining the evidence. ... Defining 'self-incrimination' over-inclusively as arising whenever the state obtains evidence which it could not have obtained 'but for' the individual's participation would take the notion of self-incrimination far beyond the communicative character that grounds it at common law. ... Both the common law and the Charter draw a fundamental distinction between incriminating evidence and self-incriminating evidence: the former is evidence which tends to establish the accused's guilt, while the latter is evidence which tends to establish the accused's guilt by his own admission, or based upon his own communication. The s. 7 principle against self-incrimination that is fundamental to justice requires protection against the use of compelled evidence which tends to establish the accused's guilt on the basis of the latter grounds, but not the former3."
 
In the US legal system the issue of obtaining confessions can be settled by means of a non-prosecution agreement, which provides partial immunity against prosecution in relation to self-incriminating evidence submitted by an accused under compulsion.
 
In general, as far as the US legal system is concerned, it is worth noting that the American judiciary treats the privilege against self-incrimination as a Constitutional principle.
 
In this respect the case of Malloy v. Hogan is of particular interest. In this case the US Supreme Court ruled as follows:
 
"Brown v. Mississippi ... was the first case in which the Court held that the Due Process Clause prohibited the States from using the accused's coerced confessions against him.... [I]n Bram v. United States, ... the Court held that '[i]n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person 'shall be compelled in any criminal case to be a witness against himself' (...) Under this test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was 'free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. ...'. In other words the person must not have been compelled to incriminate himself. We have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed (...)
 
The marked shift to the federal standard in state cases began with Lisenba v. California, ... where the Court spoke of the accused's 'free choice to admit, to deny, or to refuse to answer'... The shift reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. ... Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth. Since the Fourteenth Amendment prohibits the States from inducing a person to confess through 'sympathy falsely aroused' ... or other like inducement far short of 'compulsion by torture', ... it follows a fortiori that it also forbids the States to resort to imprisonment, as here, to compel him to answer questions that might incriminate him. The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement - the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining, for such silence4."
 
Our Court has also contributed to development of the doctrine of the privilege against compulsory self-incrimination. A recapitulation of the Court's case-law concerning this issue can be found in the Weh judgment.
 
In that judgment the Court reiterates that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, p. 49, Sec. 45).
 
The right not to incriminate oneself in particular presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right in question is closely linked to the presumption of innocence contained in Article 6 Sec. 2 of the Convention (see Saunders v. the United Kingdom, judgment of 17 December 1996, Reports 1996-VI, p. 2064, Sec. 68; Serves v. France, judgment of 20 October 1997, Reports 1997-VI, pp. 2173-74, Sec. 46; Heaney and McGuinness v. Ireland, no. 34720/97, Sec. 40, ECHR 2000-XII; and J.B. v. Switzerland, no. 31827/96, Sec. 64, ECHR 2001-III).
 
The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent (see Saunders, cited above, p. 2064, Sec. 69, and Heaney and McGuinness, cited above, Sec. 40).
 
A perusal of the Court's case-law shows that there are two types of cases in which it has found violations of the right to silence and the privilege against self-incrimination.
 
First, there are cases relating to the use of compulsion for the purpose of obtaining information which might incriminate the person concerned in pending or anticipated criminal proceedings against him, in other words, in respect of an offence with which that person has been "charged" within the autonomous meaning of Article 6 Sec. 1 (see Funke v. France, judgment of 25 February 1993, Series A no. 256-A, p. 22, Sec. 44; Heaney and McGuinness, cited above, Sec.Sec. 55-59; and J.B., cited above, Sec.Sec. 66-71).
 
Second, there are cases concerning the use of incriminating information compulsorily obtained outside the context of criminal proceedings in a subsequent criminal prosecution (see Saunders, cited above, p. 2064, Sec. 67, and I.J.L. and Others v. the United Kingdom, no. 29522/95, Sec. 82-83, 2000-IX).
 
However, it also follows from the Court's case-law that the privilege against self-incrimination does not per se prohibit the use of compulsory powers to obtain information outside the context of criminal proceedings against the person concerned.
 
For instance, it was not suggested in Saunders that the procedure whereby the applicant was requested to answer questions on his company and financial affairs, with a possible penalty of up to two years' imprisonment, in itself raised an issue under Article 6 Sec. 1 (see Saunders, ibid.; see also I.J.L. and Others, cited above, Sec. 100). Moreover, in a recent case the Court found that a requirement to make a declaration of assets to the tax authorities did not disclose any issue under Article 6 Sec. 1, although a penalty was attached to a failure to comply and the applicant was actually fined for making a false declaration. The Court noted that there were no pending or anticipated criminal proceedings against the applicant and the fact that he may have lied in order to prevent the revenue authorities from uncovering conduct which might possibly lead to a prosecution did not suffice to bring the privilege against self-incrimination into play (see Allen v. the United Kingdom (dec.), no. 76574/01, ECHR 2002-VIII).
 
Indeed, obligations to inform the authorities are a common feature of the Contracting States' legal orders and may concern a wide range of issues (see for instance, as to the obligation to reveal one's identity to the police in certain situations, Vasileva v. Denmark, no. 52792/99, Sec. 34, 25 September 2003).
 
Furthermore, the Court accepts that the right to silence and the right not to incriminate oneself are not absolute; hence, for instance, the drawing of inferences from an accused's silence may be admissible (see Heaney and McGuinness, Sec. 47 with a reference to John Murray, cited above, p. 49, Sec. 47).
 
Given the close link between the right not to incriminate oneself and the presumption of innocence, it is also important to reiterate that Article 6 Sec. 2 does not prohibit, in principle, the use of presumptions in criminal law (see Salabiaku v. France, judgment of 7 October 1988, Series A no. 141, p. 15, p. 28). (See Weh v. Austria, no. 38544/97, 8 April 2004).
 
To this recapitulation some more rules could be added:
 
In Jalloh, the Court adopted what appears to be a wholly new approach to self-incrimination. For the first time, it considered the following factors: (a) the nature and degree of compulsion used to obtain the evidence; (b) the weight of the public interest in the investigation and punishment of the offence at issue; (c) the existence of any relevant safeguards in the procedure, and (d) the use to which any material so obtained is put (see Jalloh v. Germany [GC], no. 54810/00, Sec.Sec. 117-121, ECHR 2006-...).
 
The general requirements of fairness contained in Article 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction, from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings (see Saunders, cited above, Sec. 74).
 
The security and public order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants' rights to silence and against self-incrimination guaranteed by Article 6 Sec. 1 of the Convention (see Heaney and McGuiness, cited above, Sec. 58).
 
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. Moreover, the applicants in this case were actually subjected to legal compulsion to give evidence which incriminated them.
 
It is of crucial importance to provide an answer to the question whether or not the information which the applicants were requested to submit to the investigating authorities was really "self-incriminating".
 
In comparable circumstances in Rieg v. Austria (no. 63207/00, 24 March 2005), the First Section stated as follows:
 
"... It was merely in his capacity as the registered car owner that he was required to give information. Moreover, he was only required to state a simple fact - namely who had been the driver of his car - which is not in itself incriminating ..." (Sec. 54).
 
Personally, I cannot agree with the above statement, because no attempt was made to determine the meaning of the word "incriminating" and how it differs from "self-incriminating". Nevertheless, without answering this question it is not possible in abstracto to determine whether a statement is or is not incriminating.
 
Unfortunately, our case-law does not provide us with a clear definition of this notion. On the other hand, we can find some indications which might help us to establish such a definition. In Saunders, the Court stated as follows:
 
"...there were clearly instances where the statements were used by the prosecution to incriminating effect in order to establish the applicant's knowledge of payments to persons involved in the share-support operation and to call into question his honesty ... They were also used by counsel for the applicant's co-accused to cast doubt on the applicant's version of events (see paragraph 32 above). In sum, the evidence available to the Court supports the claim that the transcripts of the applicants answers, whether directly self-incriminating or not, were used in the course of the proceedings in a manner which sought to incriminate the applicant." (emphasis added).
 
So, from this authority we are entitled to draw the conclusion that evidence supplied by a defendant and used or intended to be used in order to establish his or her guilt in committing a criminal act can be considered as "self-incriminating".
 
I agree with the applicants' argument that they were required to submit crucial information which would result in their conviction of the charges laid against them.
 
It is perfectly obvious that for an individual to state that he was the driver of a car which was speeding illegally is tantamount to a confession that he was in breach of the speed regulations.
 
Accordingly, the applicants were compelled by the authorities of the respondent State to commit an act of "self-incrimination".
 
With reference to the "degree of compulsion", I would like to draw readers' attention to the fact that the punishment laid down by the United Kingdom legislation for failure to disclose information about a person alleged to have committed a criminal offence is equal to the punishment laid down for the criminal offence itself. I find this "degree of compulsion" disproportionately high.
 
In my view, in the particular circumstances of this case, compelling an accused to provide self-incriminating evidence contrary to his will under the threat of criminal prosecution amounts to a kind of compulsion which runs counter to the notion of a fair trial and, accordingly, is incompatible with the Convention standards.
 
Coming back to the applicants, I feel it necessary to mention the following considerations.
 
As far as Mr O'Halloran is concerned, I would ask two questions: first, was a traffic offence committed and second, was that offence committed by Mr O'Halloran? While the prosecuting authorities did have evidence concerning his speeding car and - accordingly - concerning an offence that had been committed, the issue of Mr O'Halloran's role as defendant is not that simple. The Government failed to submit any other proof relating to the defendant apart from Mr O'Halloran's own statements.
 
It is clear from the judgment (see paragraph 57) that these statements were obtained by the prosecuting authority under compulsion of "a direct nature" - the threat of criminal punishment - and that it intended to and indeed did use them in order to prove the applicant's guilt. It is also obvious that the prosecution did not have any other evidence against the applicant as a defendant and that without his confession there would have been no conviction.
 
In Saunders, the Court ruled that it must be determined whether the applicant had been subjected to compulsion to give evidence and whether the use made of the resulting testimony at his trial offended the basic principles of a fair procedure inherent in Article 6 Sec. 1, of which the right not to incriminate oneself is a constituent element.
 
In the instant case, my answer to both these questions is in the affirmative. Yes, Mr O'Halloran was subjected to compulsion to give evidence and yes, the use made of this evidence did offend the principles of fundamental justice, including the basic principles of a fair trial.
 
Where Mr Francis is concerned the situation is slightly different. Unlike the first applicant, he chose to make use of his right not to incriminate himself and refused to provide information. As a result, he was punished for his refusal to give self-incriminating evidence. Put more simply - he was punished for making use of his fundamental right not to incriminate himself.
 
Despite this difference, I consider that the overall approach should be similar to that taken with regard to the first applicant.
 
In seeking to explain the deviation from the general principles established by the Court in its previous case-law the Government argued, inter alia, 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. In their view, there were very good reasons why the owner should be required to identify the driver: the punishment of driving offences was intended to deter drivers from dangerous conduct which caused risk to the public; deterrence depended on effective enforcement; 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 (see paragraph 38 of the judgment).
 
In my view, this argument is clearly based on policy considerations. This runs counter to the above-mentioned case-law, according to which "...the security and public order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants' rights to silence and against self-incrimination guaranteed by Article 6 Sec. 1 of the Convention..." (see Heaney and McGuiness, cited above, Sec. 58).
 
Given that, in Jalloh, the Court expressly found that the requirements of fairness applied equally to all types of criminal proceedings, it is very difficult for me to accept that the United Kingdom legislation permits deviation from the basic principles of a fair trial for minor offences which do not present any particularly serious threat to society. Furthermore, if we accept policy reasons as a valid ground for violation of the prohibition of compulsory self-incrimination or the presumption of innocence for offences which present a minor danger, why not accept the same approach to areas of legitimate public concern which might justify encroaching on the absolute nature of Article 6 rights: terrorism, banditry, murder, organised crime and other truly dangerous forms of criminal behaviour?
 
If the public interest in catching minor offenders (persons committing speeding or parking offences) is so great as to justify limitations on the privilege against self-incrimination, what would be the position when the issue concerned serious offences? Is the public interest in catching those who commit crimes which cost people's lives less great than in catching those who slightly exceed the speed limit?
 
In my view it is illogical for persons who have committed minor offences to find themselves in a less favourable situation than those who have committed acts which are truly dangerous to society.
 
I am very much afraid that if one begins seeking to justify departures from the basic principles of modern criminal procedure and the very essence of the notion of a fair trial for reasons of policy, and if the Court starts accepting such reasons, we will face a real threat to the European public order as protected by the Convention.
 
I understand the reasoning behind the departure from the basic principles of a fair trial in the case of speed violations: namely, that such offences represent hundreds of thousands if not millions of cases, and that the State is unable to ensure that in each of this vast number of cases all the procedural guarantees have been complied with. I repeat: I understand this line of reasoning, but I do not accept it. In my opinion, if there are so many breaches of a prohibition, it clearly means that something is wrong with the prohibition. It means that the prohibition does not reflect a pressing social need, given that so many people choose to breach it even under the threat of criminal prosecution. And if this is the case, maybe the time has come to review speed limits and to set limits that would more correctly reflect peoples' needs. We cannot force people in the twenty-first century to ride bicycles or start jogging instead of enjoying the advantages which our civilisation brings. Equally, it is difficult for me to accept the argument that hundreds of thousands of speeding motorists are wrong and only the government is right. Moreover, the government is free to breach the fundamental rights of hundreds of thousands of its citizens in the field of speed regulations. In my view, the saying "the ends justify the means" is clearly not applicable to the present situation.
 
My understanding is the following. I think that in such situations any Contracting State to the Convention has just two options - either to prosecute offenders in full compliance with the requirements of Article 6 or, if that is not possible owing to the huge number of offences committed by the population, to decriminalise an act which is so widely committed that it can be considered as normal rather than exceptional. In my view, there should be no "third way" in the field of criminal liability.
 
The last thing I would like to mention is the following. At the end of paragraph 57 the Court reaches the following conclusion:
 
"... Those 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 vehicles, 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 the occasion..." (see paragraph 57).
 
This is another argument with which I am unable to agree. In my opinion, it would run counter to the letter and the spirit of the Convention to allow member States to apply to a huge swathe of the population such a "blanket" statutory deprivation of their fundamental rights in the field of criminal law and criminal procedure.
 
Of course, and there should be no doubt about this, motor car drivers are under an obligation to comply with the various traffic regulations. However, when one of their number faces criminal prosecution and trial, he or she must enjoy all the guarantees provided by Article 6, regardless of how heavy a burden this entails.
 
These are the reasons which prevent me from sharing the position taken by the majority in the present case.
 
Judge Stanislav Pavlovschi, Strasbourg, 29 June 2007
 
Born on 24 January 1955 in Floresti
Law studies in the Kharkov Law Institute (Ukraine), 1977-80
Career within the Prosecutor-GeneralĂ­s Office of the Republic of Moldova, 1980-2001
Member of the multidisciplinary group on corruption, Council of Europe, 1996-2001
Co-drafter of the CE criminal and civil law conventions on corruption, 1996-2001
High representative of the prime minister of Moldova to the Stability Pact Anti-organised Crime Initiative, 1999-2001
Judge of the European Court of Human Rights since 1 November 2001.

 

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