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Cite as: [2000] ScotHC 14
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MARGARET ANDERSON BROWN v. PROCURATOR FISCAL, DUNFERMLINE [2000] ScotHC 14 (4th February, 2000)
APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General Lord Marnoch Lord Allanbridge
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Appeal No: 1652/99 OPINION OF THE LORD JUSTICE GENERAL in NOTE OF APPEAL TO COMPETENCY AND RELEVANCY by MARGARET ANDERSON BROWN Appellant; against PROCURATOR FISCAL, Dunfermline Respondent: _______ |
Appellant: Alonzi; Balfour & Manson
Respondent: Solicitor General, Boyd, Q.C.; Crown Agent
For the Advocate General, Sutherland, Q.C.; R. Henderson
4 February 2000
The Facts
On 3 June 1999 the Asda superstore at the Halbeath Retail Park in Dunfermline was open all night. At about 3 a.m. the store called the police because, they alleged, the appellant, Margaret Anderson Brown, had stolen a bottle of gin. When the police officers arrived, the appellant was still in the store and they spoke to her there. They noticed that both her breath and her clothing smelled of alcohol. When they asked her how she had come to the shop, she said that she had travelled by car. At some point, according to a security officer, the appellant expressed anxiety about the welfare of a kitten which was in the car. At about 3.40 a.m. the appellant was charged with theft and taken to the police station. As she was leaving with the officers to go to the police station, the appellant indicated a blue Ford Fiesta in the superstore car park and said that it was her car. At the police station the police officers checked the appellant's handbag in which they found a set of keys for her car. At about 4 a.m., by virtue of the police officers' powers under Section 172(2)(a) ("Section 172") of the Road Traffic Act 1988 ("the 1988 Act"), the appellant was required to say who had been driving her car at about 2.30 a.m. - when she would have travelled in it to the Asda car park. She replied "It was me". The police then required her to give a specimen of breath, which she did. The breath test was positive.
In due course the appellant was served with a complaint at the instance of the procurator fiscal at Dunfermline. The complaint contained two charges, the first of theft of a bottle of gin and the second of driving her car after consuming an excess of alcohol in contravention of Section 5(1)(a) of the 1988 Act. The appellant's agent lodged a minute indicating an intention to raise a devolution issue and, although it was late, the Sheriff decided to consider it. Having done so, he refused to hold that the minute had raised a devolution issue. The appellant has appealed against the Sheriff's decision. Before this court the Solicitor General did not seek to support the Sheriff's reasoning which, though based on the arguments presented to him by the Crown, was manifestly untenable. I need therefore say no more about it except to confirm that the minute discloses a sharp devolution issue in terms of paragraph 1(d) of Schedule 6 to the Scotland Act 1998.
The Devolution Issue
The devolution issue relates to the reply which the appellant gave to the police when questioned under Section 172. As is plain from the narrative which I have given, by the time when she was asked the question, the appellant must have been under suspicion of having driven her car after consuming an excess of alcohol: there were indications that she had driven her car to the store and the police officers had smelled alcohol from her person and on her clothing. In those circumstances, if Section 172 had not been enacted and the matter had been governed purely by the common law, the police would have been unable to compel the appellant to tell them who had been driving the car. Moreover, if they had wanted to ask her who had been driving the car, they would have required to caution her that she did not require to answer and that any answer could be used in evidence against her. The purpose of the caution would have been to remind the appellant of the right which she enjoyed under the common law to remain silent and not to incriminate herself.
Section 172 is the current embodiment of a provision which has formed part of the code of road traffic legislation since Section 113(3) of the Road Traffic Act 1930. It alters the common law position in the case of many road traffic offences, including any contravention of Section 5(1)(a). Subsections (2)(a), (3) and (4) of Section 172 (as amended) provide:
"(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies -
(a) the person keeping the vehicle shall give such information as to
the identity of the driver as he may be required to give by or on behalf of a chief officer of police...
(3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.
(4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."
As this court held in Foster v. Farrell 1963 J.C. 46, dealing with the equivalent provision under the Road Traffic Act 1960, Section 172 changes the common law position in two respects. First, the keeper of a vehicle has no right to remain silent in the face of a question put under the section and, secondly, the reply can be used in evidence against the keeper if it turns out that he was the driver. It follows that the police do not caution the keeper when they make the requirement. In effect the common law is overridden by the statute. The law has been regarded as settled and has been applied in this way for decades.
The appellant contends that, by enacting the Scotland Act and the Human Rights Act 1998, Parliament has once more altered the law on the Crown's right to use any reply at a trial. She contends that on this matter Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms embodies the same approach as the common law - since the appellant was compelled to give the answer, it would infringe her right to a fair trial if the Crown were allowed to rely on it as a significant part of their case against her. By relying on her answer in this way, the procurator fiscal, as the Lord Advocate's representative, would therefore be seeking to do an act which would be incompatible with the appellant's Convention rights and which the Lord Advocate would have no power to do under Section 57(2) of the Scotland Act.
I should mention two points which the Solicitor General made at the start of the hearing before this court.
First, he stated that the Lord Advocate had issued an instruction that the Crown should present no argument to the effect that, when acting under summary procedure, a procurator fiscal does not act as his representative and hence does not act as the representative of a member of the Scottish Executive for the purpose of Section 57(2) of the Scotland Act. The Lord Advocate's instruction relieves us of any need to explore the exact nature of the relationship between the Lord Advocate and procurators fiscal in summary cases. I therefore proceed on the basis that, subject to Section 57(3), the procurator fiscal in this case has no power to do any act which would be incompatible with the appellant's Convention rights.
Secondly, the Solicitor General indicated, in deliberately unequivocal terms, that at any trial it was the procurator fiscal's settled intention to lead the evidence of the appellant's reply under Section 172 and to rely on it in seeking the appellant's conviction on the second charge. In that situation it would form an important element of the Crown case. The Solicitor General's approach is realistic since in practice the Crown often treat an admission in terms of Section 172 as the basic adminicle of evidence pointing to the accused as the driver of a car and use other adminicles as corroboration of that admission. It has indeed been said more than once that, where there is a plain, unqualified and credible admission under this procedure "very little indeed in the way of corroborative evidence is required": McDonald v. Smith (1978) S.C.C.R. Supp. 219 at p. 221. We can readily anticipate, accordingly, that the evidence of the appellant's admission would constitute a significant element of the evidence showing that she had driven her car on the occasion in question. For that reason it is convenient in this particular case to decide the devolution issue relating to this evidence before the trial.
Section 6 of the Human Rights Act
At the hearing of the appeal we gave leave to Mr. Sutherland, Q.C., to appear for the Advocate General, even though she had not intervened or been represented in the court below. On her behalf he presented an argument about the operation of Section 57(2) and (3) of the Scotland Act and Section 6 of the Human Rights Act. It is convenient to deal with that argument at this point.
In terms of Section 44(1) of the Scotland Act, the Lord Advocate is a member of the Scottish Executive. Section 57(2) and (3) therefore apply to him:
"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.
(3) Subsection (2) does not apply to an act of the Lord Advocate -
(a) in prosecuting any offence, or
(b) in his capacity as head of the systems of criminal prosecution
and investigation of deaths in Scotland,
which, because of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section."
By virtue of Section 126(1) the expression "the Convention rights" is given the same meaning as it has in the Human Rights Act where it is defined in Section 1. The Human Rights Act is not yet in force but Section 129(2) of the Scotland Act provides:
"If any of the following provisions come into force before the Human Rights Act 1998 has come into force (or come fully into force), the provision shall have effect until the time when that Act is fully in force as it will have effect after that time: sections 29(2)(d), 57(2) and (3), 100 and 126(1) and Schedule 6."
It follows that subsections (2) and (3) of Section 57 of the Scotland Act are to have effect in the same way as they will have effect once the Human Rights Act is fully in force. Section 6(1) and (2) of the Human Rights Act provide:
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if -
(a) as the result of one or more provisions of primary legislation,
the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under,
primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
In presenting his argument Mr. Sutherland urged us, correctly, that we should be mindful that the entire scheme of the Human Rights Act has been constructed on the basis that the Parliament of the United Kingdom is sovereign and that the courts are bound by the provisions of a United Kingdom statute even if they are incompatible with Convention rights. When once the Human Rights Act is in force Section 3(1) will provide that
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights"
but, by Section 3(2)(b), that section will not
"affect the validity, continuing operation or enforcement of any incompatible primary legislation".
But if the court determines that a provision of primary legislation is incompatible with a Convention right, then it will be able to "make a declaration of that incompatibility" in terms of Section 4(1) and (2). Section 4(6) provides, however, that
"A declaration under this section ("a declaration of incompatibility") -
(a) does not affect the validity, continuing operation or
enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is
made."
The overall effect of Sections 3 and 4 is to require the courts to read and give effect to primary legislation, so far as possible, in a way which is compatible with Convention rights, but, even where that cannot be done, the legislation remains in force and binds the courts and the parties to the proceedings. The power is given to certain courts in the three jurisdictions of the United Kingdom to declare that legislation is incompatible with Convention rights. This court will have that power. When the power is used, in a case like the present where the relevant legislation is a reserved matter, it will then be for the Government and ultimately for Parliament to consider whether the legislation should be amended and, if so, whether by primary legislation or by means of an order made by the Secretary of State. The importance of respecting Parliament's intention that any declaration of incompatibility should not affect the validity, continuing operation or enforcement of the provision in question and should not be binding on the parties to the proceedings was emphasised in the House of Lords in R. v. D.P.P., ex parte Kebeline [1999] 3 WLR 972, especially in the speech of Lord Hobhouse at pp. 1007 B - 1008 G, to which I respectfully refer.
It follows, of course, that we must treat Section 172 as a provision in a United Kingdom statute which is binding upon this court and on the parties to the present proceedings.
Mr. Sutherland sought to argue that the issue in this case could be disposed of without the court having to decide whether, by relying on the evidence of the reply given by the appellant under Section 172, the Crown would be doing an act which would be incompatible with the appellant's right to a fair trial under Article 6(1). Suppose that the Crown's act would not be incompatible with the appellant's right: in that event the appellant's challenge must fail. Suppose, on the other hand, that the Crown's act in relying on the evidence would be incompatible with the appellant's right under the Convention: in that event, he said, the Crown would none the less be "acting so as to give effect to" Section 172 and so, in terms of Section 6(2)(b) of the Human Rights Act, Section 6(1) would not apply. Therefore, by virtue of Section 57(3) of the Scotland Act, Section 57(2) would not apply to the act of the Crown. In that event also the appellant's challenge must fail.
That argument must be rejected. The flaw is that it fails to take account of the full terms of Section 6(2)(b) of the Human Rights Act. That subsection disapplies subsection (1) only if the public authority - in this case the Lord Advocate's representative - is acting so as to give effect to one or more provisions of primary legislation "which cannot be read or given effect in a way which is compatible with the Convention rights". Although Mr. Sutherland sought to argue otherwise, those words clearly refer to the obligation under Section 3(1) to read and give effect to primary legislation in a way which is compatible with Convention rights. While Section 3 itself is not in force at present, if the terms of Section 57(2) and (3) of the Scotland Act are to have effect as they will have effect once the Human Rights Act is in force, then before holding that Section 6(1) of the Human Rights Act is disapplied by subsection (2), we must consider whether the provision to which the Crown is giving effect is indeed one "which cannot be read or given effect in a way which is compatible with the Convention rights."
Three stages seem to be envisaged. First, we must test whether, on an ordinary construction, the provision is compatible with Article 6 of the Convention. If it is not, we must then see whether it can be read and given effect in the manner envisaged in Section 6(2) of the Human Rights Act. Only if it cannot be so read or given effect, will Section 6(1) fall to be disapplied. Contrary to Mr. Sutherland's submission, the first two stages of that exercise inevitably require the court to identify the scope of the Convention right in question. Indeed, by missing out the second stage, his approach would in effect destroy a vital element in the scheme of the Human Rights Act since it is only by "reading down" in terms of Section 3 that the courts will be able to give practical effect to Convention rights in a case involving the compatibility of a provision in a United Kingdom statute. As Lord Hobhouse observed in ex parte Kebeline [1999] 3 W.L.R. at 1007 E, irremediable incompatibility will not assist an accused. To put the same point in another way, in the context of a particular case, at least, irremediable incompatibility assists the Crown.
Following the approach which I have indicated, the court must first identify the scope of any right of silence or right against self-incrimination which the appellant enjoys under Article 6(1) in the circumstances of this case. We must then consider whether Section 172 is compatible with that right, either on its established construction or, failing that, if read and given effect in the particular manner envisaged by Section 6(2)(b) of the Human Rights Act.
Article 6(1) of the Convention
Article 6 of the Convention is now headed "Right to a fair trial". The first sentence of Article 6(1) provides:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Although he advanced a particular argument about the regulatory nature of road traffic legislation, the Solicitor General accepted that the proceedings against the appellant are designed to determine a "criminal charge" against her within the autonomous meaning of that expression in Article 6(1).
The lex specialis, Article 6(3), contains a number of specific rights. They do not include either a right to remain silent or a right against self-incrimination. None the less the European Court of Human Rights has recognised that "anyone charged with a criminal offence" within the autonomous meaning of this expression in Article 6 has a right under the lex generalis, Article 6(1), to remain silent and not to contribute to incriminating himself: Funke v. France Series A No. 256-A (1993) at paragraph 44. The existence of this right and its derivation from Article 6(1) were confirmed in two cases involving the United Kingdom: Murray v. United Kingdom Reports of Judgments and Decisions 1996-I, p. 30 at paragraphs 45 - 47 and Saunders v. United Kingdom Reports of Judgments and Decisions 1996-VI, p. 2044 at paragraphs 68 and 69. It follows that a right of silence and a right against self-incrimination are among the Convention rights mentioned in Section 1(1) of the Human Rights Act. The issue in the present case concerns not the existence but the scope of those Convention rights.
Right of Silence and Right not to Incriminate Oneself
The jurisprudence of the European Court of Human Rights on the right of silence and the right not to incriminate oneself is not extensive. It is therefore not altogether easy to discover the scope of these rights simply from the judgments of the Court. The fullest description of the rights is to be found in Saunders 1996-VI at paragraphs 68 - 69:
"68. The Court recalls 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...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 is closely linked to the presumption of innocence contained in Article 6(2) of the Convention.
69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.
In the present case the Court is only called upon to decide whether the use made by the prosecution of the statements obtained from the applicant by the inspectors amounted to an unjustifiable infringement of the right. This question must be examined by the Court in the light of all the circumstances of the case. In particular, it must be determined whether the applicant has been subject 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(1) of which the right not to incriminate oneself is a constituent element."
Both in this passage and in its earlier judgment in Murray (1996-I at paragraph 45) the Court characterises the right of silence and the right against self-incrimination as being generally recognised international standards. It is therefore legitimate for this court to supplement any guidance to be derived from the decisions of the Court itself by having regard to constitutional texts from other countries and to decisions of their courts on the interpretation and application of those texts. Some of these documents, such as the Bill of Rights in Chapter 2 of the Constitution of the Republic of South Africa, are more detailed than the Convention and therefore contain specific rights to remain silent and not to incriminate oneself (Sections 35(1) and (3)). Such express rights may in themselves provide guidance as to the generally accepted international standards. Moreover, even though the provisions are different, the reasoning of the judges may also give pointers to the relevant international standards. On the other hand, the differences in the various constitutional documents may reflect differences in the societies to which they apply. Similarly, the judges who interpret the relevant provisions will interpret them in the light of the values of that society. These factors require to be kept in mind when considering the weight to be given to decisions from other systems.
The right of silence and the right against self-incrimination are not lately minted. In Scots law, for instance, a right against self-incrimination was recognised in "capitall crymes" in the Claim of Right 1689. By the beginning of the nineteenth century it had become more generally recognised: Hume, Commentaries Vol. II, pp. 336 - 337. Alison says in his Criminal Law Vol. II, pp. 586 - 587:
"It being a general principle of law, nemo tenetur jurare in suam turpitudinem, it follows, that all attempts to prove a criminal libel by the oath of the pannel, whether emitted in the earlier or latest stage of a case, is inadmissible and illegal. It is accordingly laid down, as already noticed in the claim of right, that to oblige the lieges to depone in capital cases, albeit the libel is restricted, is contrary to law. And, though not declared by the same high authority, it is held to be equally unlawful to exact an oath from any one on any charge affecting his person or liberty, or which, though not insisted on to that extent in the particular case, is of a base or infamous nature. Accordingly, in several late cases, all attempts of this nature have been utterly disowned and rejected in cases of a criminal nature, or arising out of a criminal delinquence, though insisted in ad civilem effectum. It was accordingly held by the Court, in a case for the infringement of certain revenue statutes in the matter of distilling, which declared it competent to prove the libel by the oath of witnesses, or confession of the party, that this confession meant a free and voluntary confession, and not one extorted by an oath; and the sentence accordingly following on a reference to oath was suspended."
In this passage Alison is concerned with the right of an accused to remain silent and not to swear an oath as to the issue at any stage in the proceedings against him. In R. v. Director of Serious Fraud Office, ex parte Smith [1993] A.C. 1 at p. 30 F, however, referring specifically to English law, Lord Mustill said of the right of silence:
"In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute."
He went on to identify a number of manifestations of the principle and to examine the values, such as liberty and privacy, which underpin it ([1993] A.C. 1 at pp. 30 F - 32 E). Similarly, in the Supreme Court of Canada in R. v. White [1999] 2 S.C.R. 417 at p. 438 Iacobucci J. could observe:
"[44] The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. The principle can also be the source of new rules in appropriate circumstances."
He went on to list a number of sections in the Canadian Charter of Rights and Freedoms which embody the principle.
While the principle may indeed show itself in different forms in different contexts, the essential idea has been summarised in some kind of Latin - for example, nemo tenetur seipsum prodere and nemo tenetur armare adversarium contra se - and, more elegantly, in the English of Wigmore on Evidence (McNaughton rev. 1961) Vol. 8, p. 318, describing a significant purpose of the principle as being
"to comply with the prevailing ethic that the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself...."
In Lamb v. Munster (1882) 10 QBD 110 at p. 113 Stephen J. vividly summed up the privilege in this way:
"The extent of the privilege is I think this: the man may say, 'If you are going to bring a criminal charge, or if I have reason to think a criminal charge is going to be brought against me, I will hold my tongue. Prove what you can, but I am protected from furnishing evidence against myself out of my own mouth.'"
Although the language of the Court in Saunders may be less vivid, the description of the right to silence and the right not to incriminate oneself is essentially to the same effect. The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent (Saunders 1996-VI at paragraph 68).
A clear distinction is sometimes drawn (e.g. by McLachlin J., as she then was, in the Supreme Court of Canada in R. v. Hebert [1990] 2 S.C.R. 151 at pp. 164 e - 175 g) between the right of silence and the right against self-incrimination. For present purposes at least, the distinction is not of practical importance because, as she said (at p. 164 i),
"a common theme can be said to unite these two quite separate rules - the idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent."
Since, in applying the Convention, the Court does not seem to have maintained any clear distinction between the rights, I do not propose to deal with them separately in this opinion.
As the authorities stress, the rights operate in various ways in different contexts in different systems, but the area in which they operate most clearly in all systems is during the trial itself. The accused is entitled to remain silent and cannot be forced to go into the witness box to give evidence against himself. So, for instance, the Solicitor General accepted (inevitably) that a provision which required an accused person to go into the witness box and to admit that he had been driving his car at a particular time would infringe the accused's right to a fair trial under Article 6(1). The fact that this right applies at trial, when the accused has full notice of the charge against him and has the right to a legal representative to advise and protect him, is most striking. It underlines the central role which the right plays in the procedures required for a fair trial.
This right of an accused at trial would, however, be worthless if the accused did not enjoy a right of silence at the earlier stage when he is the subject of the criminal investigation leading to the court proceedings but does not enjoy all the advantages which he has at a trial. At the stage of such a criminal investigation, at least, the person under investigation must have a right to remain silent and not to incriminate himself. Unless he has that right, the police could force him to give an incriminating answer which would assist their investigation and the Crown could lead evidence of the answer at his trial. In Wigmore's words the police and the Crown could conscript the accused to defeat himself. In that way the police and Crown could circumvent the accused's right not to incriminate himself at trial.
The Scottish common law is guided by just that very consideration, as can be seen from the opinion of Lord Justice General Cooper in Chalmers v. H. M. Advocate 1954 J.C. 66 at p. 79:
"The accused cannot be compelled to give evidence at his trial and to submit to cross-examination. If it were competent for the police at their own hand to subject the accused to interrogation and cross-examination and to adduce evidence of what he said, the prosecution would in effect be making the accused a compellable witness, and laying before the jury, at second hand, evidence which could not be adduced at first hand, even subject to all the precautions which are available for the protection of the accused at a criminal trial."
Likewise in a discussion of Section 7 of the Canadian Charter in R. v. Hebert [1990] 2 S.C.R. 151 at pp. 174 e - f, McLachlin J. observed:
"From a practical point of view, the relationship between the privilege against self-incrimination and the right to silence at the investigatorial phase is equally clear. The protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory."
See also [1990] 2 S.C.R. at pp. 177 i - 178 b. Ackermann J. referred to McLachlin J.'s comments with approval in the South African Constitutional Court in Ferreira v. Levin N.O. 1996 (1) S.A. 984 at p. 1071 note 265.
It is therefore apparent that, according to recognised international standards, to be effective, the right of silence and the right not to incriminate oneself at trial really imply the recognition of similar rights at the stage when the potential accused is a suspect being questioned in the course of a criminal investigation. In particular the accused's right to silence and not to incriminate himself under the Convention would be infringed if the Crown could lead evidence of an answer which the accused was obliged to give in response to police questioning in those circumstances. To hold otherwise would be to undermine the central right of an accused under the Convention not to incriminate himself at trial.
When applied to the facts of the present case, that approach points strongly to the conclusion that the appellant's rights under Article 6(1) would be infringed if the Crown used evidence of her reply given under Section 172 in order to incriminate her at her trial.
That provisional conclusion can be reached by reasoning from the central right of an accused under Article 6(1) not to incriminate himself at trial. In Saunders (1996-VI at paragraph 69) the Court held that the application of Article 6(1) must be examined in the light of all the circumstances of the case. Here the police used Section 172 as part of their criminal investigation of a possible contravention of Section 5(1) of the 1988 Act at a time when it was already centred on the appellant who was in custody on another matter. In that situation, when the appellant was questioned, Article 6(1) was already applicable to the investigation, since she was a suspect and was "substantially affected" by the investigation which the police officers were carrying on. See Deweer v. Belgium Series A No. 35 (1980) at paragraph 46; Eckle v. Germany Series A No. 51 (1982) at paragraph 73. The fact that the appellant was required to provide the information to the police as part of their criminal investigation to which Article 6(1) applied is, in my view, a relevant factor to take into account when considering whether the Crown can lead evidence of her reply without infringing her rights under Article 6(1).
But the decision of the Court in Saunders shows that this is not a necessary factor, since Article 6(1) may apply to the leading of evidence of statements which an accused was forced to give in an investigation to which Article 6(1) did not apply. In that case the applicant was interviewed on nine occasions by Inspectors appointed by the Secretary of State for Trade and Industry to investigate possible corporate fraud. Refusal to answer any question put by the Inspectors was punishable in the same way as contempt of court. Before the interviews were carried out, there had been consultations among the Inspectors, officials of the Department of Trade and Industry and a representative of the Director of Public Prosecutions. The applicant had been identified as a potential accused and it was agreed that the Inspectors and the officials would work together with a view to preparing the way for bringing charges as soon as possible. None the less it was not until after the seventh interview that the D.P.P.'s office instructed the police to carry out a criminal investigation. The trial judge held that the answers given at the eighth and ninth interviews, after the criminal investigation had begun, were inadmissible.
The Court held (1996-VI at paragraph 67) that Article 6(1) did not apply to the Inspectors' investigation since
"a requirement that such a preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6(1) would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities."
A similar approach seems to have been applied by the Commission in Abas v. Netherlands Application No. 27943/95, 26 February 1997. The Commission held that Article 6(1) did not apply to answers given by the applicant to a letter sent by the Dutch Inspector of Direct Taxes who was investigating possible tax evasion by the applicant and other K.L.M. pilots since, at the time when he answered the letter, the applicant had not been "charged with a criminal offence" within the meaning of Article 6(1). The investigation was being carried on for fiscal purposes and not for a legal determination as to the applicant's criminal liability. In Abas the applicant made no complaint about the use of his replies in his subsequent trial and appeal.
In Saunders, by contrast, the applicant's complaint related to the use of his statements at his trial. Even though Article 6(1) of the Convention did not apply to the investigation by the D.T.I inspectors, it did, of course apply to the applicant's subsequent trial at which the Crown led evidence of the statements obtained by the Inspectors with their powers to compel answers. Applying Article 6(1) in that context, the Court held that the Crown's use of the statements to incriminate the applicant amounted to an unjustifiable infringement of his right not to incriminate himself. The fact that Article 6 had not applied to the Inspectors' investigation itself was not decisive. Having rejected the Government's argument that the applicant's statements were not incriminating, the Court observed (1996-VI at paragraph 74):
"Nor does the Court find it necessary, having regard to the above assessment as to the use of the interviews during the trial, to decide whether the right not to incriminate oneself is absolute or whether infringements of it may be justified in particular circumstances.
It does not accept the Government's argument that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could justify such a marked departure as that which occurred in the present case from one of the basic principles of a fair procedure. Like the Commission, it considers that 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. It is noteworthy in this respect that under the relevant legislation statements obtained under compulsory powers by the Serious Fraud Office cannot, as a general rule, be adduced in evidence at the subsequent trial of the person concerned. Moreover the fact that statements were made by the applicant prior to his being charged does not prevent their later use in criminal proceedings from constituting an infringement of the right" (emphasis added).
Since the Court distinguishes so clearly between the requirement to answer questions in a preliminary investigation and the use of any answers at a trial, I do not derive assistance for present purposes from the decisions of the Commission in Tora Tolmos v. Spain No. 23816/94 17 May 1995, D. N. v. Netherlands No. 6170/73 26 May 1975 and J.P., K.R. and G.H. v. Austria Application No. 15135/89, 15136/89 and 15137/89, 5 September 1989.
In Tora Tolmos the applicant had been caught speeding by a police radar trap. The provincial traffic authorities brought proceedings in respect of the driver of the vehicle and called upon the applicant, as owner of the car, to furnish the name and address of the driver at the relevant time, while indicating that, if he failed to give this information, he could be held responsible for a serious offence. The applicant replied, saying that it was impossible for him to identify the driver, seeing that on the day in question he had lent his car to several of his relatives. He was fined for having refused to identify the driver. He appealed on the ground that he had been driving the car himself and he invoked his constitutional rights against self-incrimination and against giving evidence against himself. His appeals were rejected on the basis that he had not been fined for speeding but for refusing to co-operate with the authorities. He had not been forced to give evidence against himself or to admit that he had been speeding. The applicant complained to the Commission that the fine had infringed the right of every accused not to admit his guilt and he founded on Article 6(1) of the Convention.
The Commission held that his complaint was inadmissible. They cited their decision in D. N. v. Netherlands, holding that there was no breach of Article 6(1) where the applicant, as owner of a car, was convicted of a parking offence on the basis that the owner was to be held responsible unless he was able to prove that the car had been used against his will and that he could not have prevented its use. The applicant had not been willing or able either to name the driver or to establish that the car had been used against his will. The Commission in Tora Tolmos held that the same approach applied, in that the owner of the vehicle had to take responsibility for its use or give the name of the actual driver. That being so, the person concerned was not obliged in every case to admit his guilt or to accuse a relation but, depending on the circumstances, he could prove that he had nothing to do with the infringement committed by the driver by showing that the car had been used either by someone whom he did not know or without his authority. In giving their decision the Commission indicated that it was similar to the decision which they had reached in J.P., K.R. and G.H. v. Austria.
Not all of the reasoning in the Commission cases is easy to follow. It is, however, sufficient for present purposes to note that none of the decisions concerned the use of any reply as evidence in a trial. They do not therefore add to the guidance which can be derived from the judgment of the Court in Saunders.
The Court's decision in Saunders, that the applicant enjoyed a use immunity in respect of the statements made to the D.T.I. inspectors, is in some respects similar to that of La Forest J. in Thomson Newspapers Ltd. v. Canada [1990] 1 S.C.R. 425. The Supreme Court were considering orders on officers of Thomson Newspapers Ltd. to appear before the Restrictive Trade Practices Commission to be examined under oath and to produce certain documents. The orders had been issued under Section 17 of the Combines Investigation Act, R.S.C. 1970 in connexion with an inquiry to determine whether evidence existed that Thomson Newspapers or its subsidiaries had committed the indictable offence of predatory pricing. The Supreme Court held that the orders did not violate the officers' rights under Section 17 of the Canadian Charter.
La Forest J. said ([1990] 1 S.C.R. at pp. 540h - 542 f):
"I agree with Sopinka J. that an accused's right to silence must extend beyond the actual trial itself, but I do not think it must be extended to those who are ordered to testify in a proceeding such as that provided by s. 17 of the Combines Investigation Act. Such an extension would seriously complicate the already difficult task of investigating the type of conduct with which the Act is concerned. In cases where information of value to an investigation can most easily be obtained by asking questions of those responsible for the decisions and actions of particular business organizations, an absolute right to refuse to answer questions would represent a dangerous and unnecessary imbalance between the rights of the individual and the community's legitimate interest in discovering the truth about the existence of practices against which the Act was designed to protect the public.
As noted earlier, this Court has made it clear that the community's interest is one of the factors that must be taken into account in defining the content of the principles of fundamental justice. A right to prevent the subsequent use of compelled self-incriminating testimony protects the individual from being 'conscripted against himself' without simultaneously denying an investigator's access to relevant information. It strikes a just and proper balance between the interests of the individual and the state. An absolute right to refuse to answer questions, however, does not do so. It makes certain information inaccessible while at the same time allowing the individual to refuse to divulge information regardless of whether it is potentially prejudicial to his or her personal interests.
As also noted earlier, in assessing whether a measure violates the principles of fundamental justice, the specific context in which it operates must be steadily kept in mind. The application of these principles must be attuned to that context. Here it must be kept in mind that inquiries under s. 17 are inquisitorial rather than adversarial in nature, a distinction I have borrowed from E. Ratushny, Self-Incrimination in the Canadian Criminal Process ([Toronto: Carswells] 1979), at p. 21. They are investigations in which no final determination as to criminal liability is reached. As I pointed out in discussing s. 8 of the Charter, unlike standard criminal investigations where the question is whether X has committed offence Y, the questions confronting investigators under the Combines Investigation Act are more likely to take the form of whether offence Y has occurred, and if so, who is likely to be responsible for its commission. In other words, inquiries held under the Act do not focus on the conduct of a single individual in the way in which ordinary criminal investigations typically do. They are more open ended, in the sense that the scope of the information gathering activity is not as narrowly directed to the probability of any particular individual's legal culpability. Relative to ordinary forms of criminal investigations, the investigations conducted under s. 17 do not involve the use of state power in the interests of securing the conviction of a particular individual.
I see a significant difference between investigations that are truly adversarial, where the relationship between the investigated and investigator is akin to that between accused and prosecution in a criminal trial, and the broader and more inquisitorial type of investigation that takes place under s. 17 of the Act. The lower probability of prejudice the latter represents to any particular individual who comes within its reach, together with the important role such investigations play in the effective enforcement of anti-combines and possibly other regulatory legislation, suggests that a more appropriate balance between the interests of the individual and the state can be achieved by retention of the power to compel testimony and the recognition of the right to object to the subsequent use of so much of the compelled testimony as is self-incriminatory."
The passage is helpful because of the distinction which His Honour draws between the type of inquisitorial investigation being conducted in that case - which sought to discover whether any offence had been committed and, if so, by whom - and a truly adversarial criminal investigation, which would be concerned to discover whether a particular individual had committed a particular crime. In an inquisitorial investigation, it was not necessary to recognise a right not to answer questions: in that case the appropriate balance had been struck by Section 20(2) of the Combines Investigation Act which prevented witnesses' testimony from being used against them in subsequent criminal proceedings. On the other hand, the clear implication of His Honour's reasoning is that, in the case of a truly adversarial criminal investigation focusing on a particular individual or particular individuals, it would be necessary to recognise the individuals' right to remain silent and to decline to answer questions.
Similarly, in Saunders the Court held that the investigation being carried on by the Inspectors was of a preliminary nature and that Article 6(1) did not apply. The Court held none the less that the use of his statements against the applicant amounted to an unjustifiable infringement of his right not to incriminate himself under Article 6(1). In other words the Court held that the applicant had the same kind of use immunity as was given to the witnesses in Thomson Newspapers by Section 20(2) of the Combined Investigation Act. A fortiori in a case, like the present, where the accused is compelled to give the incriminating reply in the course of an adversarial criminal investigation, that factor will strengthen the argument for holding that the right of silence and the right against self-incrimination should prevent the Crown from using the accused's reply to incriminate her at her trial.
In considering whether to adhere to my provisional conclusion, that the appellant's rights under Article 6(1) would be infringed if the Crown used evidence of her reply given under Section 172 in order to incriminate her at her trial, I must consider a number of particular arguments which the Solicitor General deployed against it.
The Self-Incriminating Nature of the Appellant's Reply
The Solicitor General argued that the appellant's reply to the Section 172 question was not a confession or admission that she had contravened Section 5(1) of the 1988 Act. It merely provided a link in the chain of testimony and therefore was not properly to be regarded as self-incriminating for the purposes of Article 6(1).
That submission flies in the face of the reasoning of the Court in Saunders. Having outlined the United Kingdom's argument that nothing said by the applicant could properly be regarded as self-incriminating, the Court continued at paragraph 71:
"The Court does not accept the Government's premise on this point since some of the applicant's answers were in fact of an incriminating nature in the sense that they contained admissions to knowledge of information which tended to incriminate him...In any event, bearing in mind the concept of fairness in Article 6, the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful. It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is put in the course of the criminal trial."
The Court holds that the right not to incriminate oneself is to be interpreted by reference to the concept of fairness in Article 6. It is therefore not confined to statements of admission of wrongdoing or to remarks which are directly incriminating. The essential consideration is the use to which evidence obtained under compulsion is put in the course of the criminal trial. If evidence of a statement can be used to incriminate the accused, then the statement can properly be regarded as self-incriminating for the purposes of Article 6(1). Since the Solicitor General stipulated that the appellant's reply would indeed be used as a significant element in the Crown case against the appellant, on the Court's approach, the reply must be regarded as self-incriminating under Article 6(1).
The Solicitor General's submission, that the reply would provide only a link in the chain of evidence and so should not be regarded as self-incriminating, appeared to be based on a misunderstanding of a passage in the opinion of Chief Justice Burger in California v. Byers 402 U.S. 424 (1971) at p. 432. Contrary to his submission, according to the classic exposition of Chief Justice Marshall in the old case, In re Willie 25 F. 38 (C.C. Va. 1807) at p. 40:
"Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction."
His conclusion was that a witness could refuse to answer and thereby
"disclose a fact which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crimes."
In Scots law, where any admission requires to be corroborated, an admission, however extensive, can never of itself be sufficient to found a conviction. But, depending on the extent of the admission, it can provide one strand of evidence about one or more of the crucial facts in the Crown case. In the present case the reply would contribute to the proof that the appellant had driven her car on the occasion in question and would thus provide one of the essential links in the chain of testimony against her. In that sense it would provide "a link in the chain of evidence needed to prosecute" in the words of the Supreme Court in Hoffman v. United States 341 U.S. 479 (1950) at p. 486 quoted in California v. Byers 402 U.S. at p. 432. Even adopting the test laid down in the American authorities, therefore, the appellant's reply would be self-incriminating for the purposes of Article 6(1).
Samples and Other Incriminating Material
On the assumption that the appellant's reply could be regarded as self-incriminating, the Solicitor General sought to argue that there was none the less a certain illogicality in holding that the appellant had a right against self-incrimination in respect of her reply to the police when, in the passage from paragraph 69 of its judgment in Saunders quoted above, the Court had recognised that certain equally incriminating matters are not covered by the right against self-incrimination. In particular the right against self-incrimination does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect - such as documents recovered under a warrant, breath, blood and urine samples and samples for D.N.A. testing. This understanding of the scope of the right is in line with the current interpretation of the Fifth Amendment to the Bill of Rights in the United States and with the interpretation of Section 7 of the Canadian Charter of Rights and Freedoms. I refer to California v. Byers 402 U.S. at pp. 431 - 432 with the authorities cited there and to Thomson Newspapers Limited v. Canada.
The Solicitor General sought to found on this limitation to argue that, similarly, a mere requirement to answer a particular question should not be regarded as infringing the appellant's rights under Article 6(1). In my view, however, the Court's reasoning does not in any way support his argument.
The distinction between self-incriminating testimony and, for example, samples that the accused is obliged to give derives from the very nature of the right to silence and of the right not to incriminate oneself: they are designed to protect an individual from being forced to speak and to give evidence as a witness against himself. In other words they confer a "testimonial immunity". Since the taking of samples does not involve the accused in saying anything, it does not infringe these rights of an accused. Similarly, if the accused is forced to produce documents or to permit a search, that again involves an act rather than any speech on his part. Moreover, any statements by the accused in the documents recovered are not statements which the accused was forced to make during an investigation. He will already have made the statements. All that he is forced to do is to produce or locate documents which contain the statements or to allow such documents to be recovered. Here, by contrast, the appellant's reply was actually created by the requirement made in the criminal investigation and it would not have existed but for that criminal investigation.
Again, the distinction drawn by the Court corresponds to a similar line which is drawn in other systems. I refer to the opinion of La Forest J. in Thomson Newspapers Limited v. Canada [1990] 1 S.C.R. at pp. 548 j - 549 c where he distinguishes between compelled testimony and information derived from compelled testimony:
"There are serious grounds on which objection can be raised to an absolute rule that testimonial immunity must always extend to evidence derived from compelled testimony. While allowing the Crown to use such evidence in criminal proceedings may in a formal sense be equivalent to permitting direct reliance on the compelled testimony itself, there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence that could have been obtained only from the accused."
La Forest J.'s full analysis of the topic is cited, again with approval, by Ackermann J. in Ferreira v. Levin N.O. 1996 (1) S.A. at pp. 1050 - 1052. The present case involves no issue about the use of information derived from compelled testimony and it is not therefore necessary to consider whether the court would apply the approach taken by La Forest J. The analysis is, however, helpful in showing why the use of the appellant's reply would infringe her right against self-incrimination when the use of certain other incriminating material would not. Adopting that analysis, I would reject the Solicitor General's argument.
The Appellant's Rights not Absolute
The Solicitor General argued generally that it would be going too far to hold that the right against self-incrimination applied to the appellant's reply in the context of a trial for a road traffic offence. In support of that argument he pointed out that in Murray (1996-I at paragraph 47) the Court had recognised that the right to silence was not absolute, while it had left the point open when considering the right against self-incrimination in Saunders (1996-VI at paragraph 62). Since the rights were not to be regarded as absolute, we should consider the whole circumstances of the present case and hold that the appellant's reply could be admitted in evidence without infringing her rights under Article 6(1).
In developing the point the Solicitor General did not really found on the circumstances of this case. His principal argument related to the more general need for a provision such as Section 172 for the effective prosecution of road traffic offences. In particular he emphasised the difficulties and dangers of enforcing speed-limits on motorways without the use of cameras and without a procedure which relied on answers provided under Section 172. In this connexion he prayed in aid the Report of the Road Traffic Law Review (Chairman, Sir Peter North, 1988), paragraphs 3.17 - 3.24. The ability to prosecute road traffic offences successfully had contributed, at least, to the decline in the number of recorded fatal accidents on our roads. The prosecution of such offences could therefore be seen as one way in which the United Kingdom complied with its positive obligation under Article 2 of the Convention to safeguard life.
So far as the argument based on Article 2 is concerned, we heard no detailed submissions on the interpretation of the Article. It appears to me, however, that accepting the argument would involve this court in adopting a particularly expansive interpretation of that Article - one which the Court of Human Rights itself has not so far adopted and one which, in other circumstances, both the Solicitor General and Her Majesty's Government might be at pains to dispute. The more cautious approach of the Court is apparent from Osman v. United Kingdom Reports of Judgments and Decisions 1998-VIII, p. 3124. I do not therefore attach weight to that particular argument. For the rest, I acknowledge that speed cameras may indeed be an effective way of obtaining evidence of high-speed motoring offences but I doubt whether, in itself, that would justify an infringement of an accused's rights under Article 6(1). The argument comes close to saying that certain offences have to be prosecuted in a manner which infringes a central requirement of a fair trial under the Convention. There is no need to decide the point, however, since we are not dealing with that kind of situation in this case. I detect nothing exceptional, either in the nature of the offence or in the difficulties of proof, which would justify any infringement of the appellant's rights under Article 6(1) in the present case.
In fact the Solicitor General's argument is incompatible with the actual approach of the Court in Saunders. The Court held that 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 Court's conclusion on this point can be derived simply from the generality of the wording of Article 6 which applies to the determination of "any criminal charge". If the right not to incriminate oneself is inherent in the right to a fair hearing under Article 6, then it must apply to all criminal trials covered by the Article. More importantly, however, the Court's conclusion is justified by the very nature of the right. If, as the Court held, it lies at the heart of the notion of a fair procedure, then it must be a central right which applies to any criminal trial. Moreover, it is hard to see how there could be gradations of fairness depending on the seriousness of the charges in any given case. In any event, any central right would necessarily apply to the trial of an offence, such as a contravention of Section 5(1) of the 1988 Act, which carries a possible penalty of imprisonment. In my view therefore there is nothing in the circumstances of the present case which would justify a restrictive interpretation or application of the right conferred by Article 6(1).
Regulatory Schemes
The principal argument advanced by the Solicitor General relied on the nature of the statutory regime applying to motoring. He pointed out that, although driving is a universal activity carried out by all kinds of people, it is none the less highly regulated. As the volume of traffic and the size and power of vehicles have increased, so also has the extent of the relevant regulations. Speed limits had appeared on the scene early. Then had come drivers' licences and pedestrian crossings with Belisha beacons. Much later still had come the M.O.T. test for older vehicles. Vehicles cannot be driven lawfully on the roads unless they comply with various regulations on their construction and use - which now cover such varied matters as lights, seat-belts, the level of emissions and the depth of tyre treads. Every vehicle must have a registered keeper and every driver must meet certain standards as to health and in particular as to eye-sight. Drivers must have passed a test and hold the type of licence which applies to the vehicle in question. As they proceed on their way, drivers' activities are regulated in a host of different respects: they must drive on the left, must observe road signs, must drive with due care and attention and must not have consumed an excess of alcohol.
All these measures have been brought into operation, the Solicitor General argued, in order to promote the safety of members of the public and to prevent accidents. That was the aim of the system, which was enforced by means of criminal sanctions. The detection and prosecution of offences led to the detection and punishment of those who infringed the regulations. Such prosecutions deterred others from infringing the regulations. In addition, the penalties included endorsement of penalty points and disqualification from holding a licence, which might lead to the requirement to sit a new test. The system of prosecution could therefore be seen as a method of regulating the potentially dangerous activity of driving. By choosing to register a vehicle in his own name, a person became the keeper of the vehicle and voluntarily entered into the obligations, including the obligation under Section 172, which the law imposed upon keepers. So, when a keeper, such as the appellant, was called upon to name the driver of a vehicle which had been involved in an alleged offence, she was simply performing that particular obligation imposed on keepers as part of the overall scheme of regulating traffic in the public interest. In some cases, this might involve the keeper in naming herself, but that would not always be the case. The appellant did not criticise the provision in so far as it might require her to name a close member of her family and so might lead to her giving evidence against that member of her family. There was no good reason to treat it as objectionable simply because it might sometimes provide evidence against the keeper herself: that was simply an indirect consequence of a measure which was fully justified as a means of ensuring that the system of traffic regulation could be properly enforced in the interests of society as a whole.
The Solicitor General's submission was directed at the purpose of the procedure for requiring information to be given under Section 172. Since the purpose of the road traffic legislation was essentially to regulate the use of vehicles on public roads, in requiring the appellant to say who had been driving her car at the relevant time, the police officers were to be seen as seeking information which was required for the purpose of the scheme for regulating traffic rather than as carrying on any kind of criminal investigation, whether preliminary or otherwise. The Solicitor General referred to two cases, one American and the other Canadian, where a distinction of this kind had been recognised.
The American case was the decision of the Supreme Court in California v. Byers. The defendant Byers was driving a car which was involved in an accident resulting in property damage. Under a provision in California's Vehicle Code, in that situation the driver required to stop at the scene, locate the owner of the damaged property and give his name and address to that person. The defendant failed to stop and was subsequently charged with two counts: passing another vehicle without maintaining a safe distance and failing to comply with the provision requiring him to stop and give his name and address. The defendant demurred to the second charge, asserting a violation of his privilege against self-incrimination. His demurrer was overruled but he then sought a writ of prohibition to restrain prosecution of the second count. The Supreme Court of California upheld the decision of the lower court to issue the writ. The State Supreme Court held that the privilege against self-incrimination applied to a motorist, like the defendant, who reasonably believed that compliance with the statute would result in a substantial risk of self-incrimination. They therefore held that the statute should be limited by a restriction preventing use of information disclosed under the statute, and of the fruits of such information, in subsequent criminal prosecutions arising from the motorist's conduct. But they held that it would be unfair to punish the defendant for failing to comply with the statute since he could not have known that use restrictions would be imposed by the courts. The Supreme Court vacated the judgment of the California Supreme Court on the basis that the hit-and-run statute did not violate the constitutional privilege against compulsory self-incrimination.
For present purposes the significance of the decision lies in the fact that the majority of the Supreme Court treated the California hit-and-run statute as being "essentially regulatory, not criminal". It was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities arising from automobile accidents. That characterisation of the legislation constituted the substratum of the Court's reasoning.
Chief Justice Burger and the Justices who concurred in his opinion held that, even if the act of stopping could in itself indicate that the driver had been involved in the accident, this was not protected by the Fifth Amendment which is a bar against compelling communication or testimony. So far as the requirement for the driver to give his name and address was concerned, this compulsion to reveal his identity might have led to a charge, but that was true only in the sense that a taxpayer can be charged on the basis of the contents of a tax return or the failure to file a tax form:
"There is no constitutional right to refuse to file an income tax return or to flee the scene of an accident in order to avoid the possibility of legal involvement" (p. 434).
Mr. Justice Harlan's concurring opinion is long and complex but his conclusion (402 U.S. at p. 458) was that:
"Considering the noncriminal governmental purpose in securing the information, the necessity for self-reporting as a means of securing the information, and the nature of the disclosures involved, I cannot say that the purposes of the Fifth Amendment warrant imposition of a use restriction as a condition on the enforcement of this statute."
While the analyses in the majority opinions may not be entirely consistent, I have no difficulty in accepting the Solicitor General's general contention that they proceed on the basis that a statement which is made under a system of compulsion for a non-criminal purpose is to be treated differently from a statement which is compelled for the purposes of a criminal investigation. In particular, the majority hold that, in these particular circumstances at least, the Fifth Amendment does not require the recognition of an immunity, preventing the use of information, given under compulsion for a non-criminal purpose, at any subsequent trial. Where I part company with the Solicitor General is when he argues that the reply obtained from the appellant under Section 172 was obtained for "noncriminal governmental purposes".
The requirement of the California statute that the Supreme Court were considering seems to me to have been more akin to the requirement on a motorist under Section 170 of the 1988 Act which applies where there has been an accident involving personal injury to a third party or various kinds of damage. The driver must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle. Failure to do so constitutes an offence. It might well be argued that a request under Section 170 is designed to assist those who have suffered injury or damage to recover compensation. The section applies to accidents where there may be no question of any criminal proceedings arising - indeed subsection (1) makes no mention of any alleged offence. In that situation it could be said that the requirement to give a statement would serve "a noncriminal governmental purpose" in much the same way as the requirement under the Californian statute.
Section 172 is significantly different, however. In particular it applies where, and only where, the driver of a vehicle is alleged to be guilty of a relevant offence. So, the precondition for the making of a request under the section is that the police are investigating an offence committed by the driver of the car. It has none of the wider regulatory purpose which was present in the Californian statute. Significantly, the only person who can make the request and to whom the information is to be supplied is a chief police officer or someone acting on his behalf. The purpose of the request is plainly to help in identifying the driver of the car at the time of the alleged offence. In that situation the only legitimate purpose of the request under Section 172 can be to assist the police in identifying the person who committed the specific offence - and hence in constructing a criminal case against that person.
For these reasons it appears to me that the decision in California v. Byers provides no support for the Solicitor General's argument that the requirement under Section 172 should be regarded as regulatory and not as made for the purposes of a criminal investigation. On the contrary, the request was made for the purpose of a criminal investigation into a specific offence.
The Canadian case to which the Solicitor General referred was R. v. White, but it is best understood against the background of an earlier Canadian case, R. v. Fitzpatrick [1995] 4 S.C.R. 154. The appellant in Fitzpatrick was the captain of a fishing boat who was under a statutory obligation to radio in reports (known as "hail reports") and to provide a daily fishing log to the Department of Fisheries and Oceans on the species, time, place and poundage of fish caught. Failure to do so could result in a fine or, in certain circumstances, in imprisonment. There was evidence from a fisheries officer that the principal purpose of the requirement that fishers make hail reports and submit fishing logs was to allow the department to manage the commercial fishery along the west coast of British Columbia efficiently, by monitoring exactly where pressure was developing on fish stocks and by instantaneously adjusting the quota. The appellant provided the hail reports and the fishing log.
The appellant was charged with three counts of catching and retaining certain species of fish in excess of the fixed quota and at his trial the Crown sought to introduce evidence of his hail reports and his daily log. Counsel for the appellant objected to the admission of this evidence on the ground that the reports were self-incriminatory and their admission would infringe the appellant's rights under Section 7 of the Charter. The trial judge upheld the objection and the appellant was acquitted. The Crown appealed and the Court of Appeal allowed the appeal from that decision. The Supreme Court of Canada refused the appellant's appeal.
In formulating the Supreme Court's decision ([1995] 4 S.C.R. at pp. 172 - 173, paragraph 33) La Forest J. quoted the words of Lamer C.J.C. in R. v. Jones [1994] 2 S.C.R. 229 at p. 249:
"Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent."
His Honour continued ([1995] 4 S.C.R. at p. 173):
"In applying this definition to the present case, two things should be immediately apparent. First, the information provided in this case was not provided 'in a proceeding in which the individual and the state are adversaries'. Instead, it was provided in response to a reasonable regulatory requirement relating to fishery management. Second, the 'coercion' imposed on the appellant is at best indirect, for it arose only after he had made a conscious choice to participate in a regulated area, with its attendant obligations."
La Forest J. went on to point out that the purpose of the self-reporting obligation was to provide fisheries officials with the up-to-date information necessary for the effective regulation of the fishery. Accurate information could help in fixing quotas and enforcement of quotas would benefit commercial fishers as a group, since it would ensure the continuing survival of the fishery and a fair distribution of its profits. The requirement to provide information in that context was fundamentally different from a requirement to give information in an adversarial or inquisitorial relationship with the state.
La Forest J. considered ([1995] 4 S.C.R. at p. 174, paragraph 37) that any coercion by the state was, to say the least, muted. He pointed out that no-one was compelled to participate in the groundfish fishery; they did so purely as a result of their own free decision. When they decided to participate, they were informed in great detail about all the obligations which attached to their participation in the industry. In accepting his licence, the appellant had to accept the terms and conditions associated with it, which included the completion of hail reports and fishing logs and the prosecution of those who overfished. If he considered that he was compelled against his will to produce hail reports and fishing logs, lest they one day be used against him in a prosecution for overfishing, the appellant was free to resign from the commercial fishery, and thereby to be released from this obligation. La Forest J. concluded ([1995] 4 S.C.R. at p. 178, paragraph 42):
"Surely it defies common sense to argue that the state, in seeking to regulate the commercial fishery by attaching certain conditions to a fishing licence, is coercing an individual to furnish information against himself. Quite the opposite in fact is true; the individual is furnishing information that is meant to benefit him or her, through proper and fair distribution of scarce fishing resources. Just because this information may later be used in an adversarial proceeding, when the state seeks to enforce the restrictions necessary to accomplish its regulatory objectives, does not mean that the state is guilty of coercing the individual to incriminate himself. The state required certain information to be provided, and the individual voluntarily assumed the obligation to do so in deciding to become a fisher in the first place. It ill lies in the mouth of someone who knowingly assumes an obligation for a beneficial purpose to argue later that this obligation has the effect of denying him his rights."
His Honour went on ([1995] 4 S.C.R. at p. 182, paragraph 50) to hold that the hail reports and fishing logs
"are produced by all the participants in the regulatory sphere, not just by one person in response to a criminal investigation; they are therefore similar to the pre-existing business records considered in Thomson Newspapers".
In Thomson Newspapers the Court had held that the right against self-incrimination did not apply to prevent the recovery of business records.
Again, I have no difficulty in accepting that, in applying the Canadian Charter, the Supreme Court have found it useful to distinguish between information sought for the purposes of a system of regulation and information sought for the purposes of an adversarial investigation. But, as the Solicitor General acknowledged, his attempt to characterise the reply in the present case as having been sought and given for the purposes of a system of traffic regulation really runs counter to the later Canadian decision in R. v. White [1999] S.C.R. 417.
In White the accused was charged with failing to stop at the scene of an accident, contrary to Section 252(1) of the federal Criminal Code. The charge arose out of a fatal accident in which a motorist who had been changing a tyre at the side of the road was struck by a vehicle which did not remain at the scene. At about 9 o'clock the following morning the accused telephoned the police and said that she wanted to report an accident in which she had been involved the previous evening. She said that she had swerved to miss a deer, had hit a jack and someone changing a tyre and had then panicked and taken off. The police officer went to the accused's home and, when asked by the accused, he told her that the other motorist had died. The accused became very upset and again said that she had swerved to miss a deer on the road and that she had hit the jack and panicked. The police officer read the accused her rights and added that she was not obliged to say anything but that anything which she did say could be given in evidence against her. The officer then went outside in order to let the accused decide on her course of action. She telephoned a lawyer and later went out and spoke to the officer. She said that she had decided not to provide a statement. The officer told her that she did not have to provide a written statement but then asked her if she had swerved to miss a deer, as she had previously said. The accused explained that there were actually two deer and that she had swerved and, when she thought that she had hit the jack, she panicked.
At her trial, the judge held that all three statements by the accused had been made under the statutory duty imposed on her by Section 61(1) of the British Columbia Motor Vehicle Act 1979 which requires a driver involved in an accident to report it where it has caused death or personal injury. The driver must provide information to the person who receives the accident report (usually the police) as required. The person receiving the report must secure the particulars of the accident, the persons involved, the extent of the injury or property damage and other information necessary to complete a written report on the accident. Neither the report nor any statement contained in it is admissible in evidence in a prosecution for a contravention of the provincial statute. The trial judge held that admission into evidence of the statements at her trial on a federal offence would violate the accused's rights under Section 7 of the Charter and he therefore excluded the statements. Since there was no other evidence of the identity of the driver of the vehicle, the accused was acquitted. The Crown eventually appealed to the Supreme Court, which refused the appeal.
Section 61 of the Motor Vehicle Act deals with a requirement to report after an accident of a particular kind. The obligation therefore applies even in cases where no offence has been committed. In that respect it resembles the provision in Section 170 of the 1988 Act and the provision in the statute in California v. Byers. By contrast, Section 172 applies only where an alleged offence has been committed.
In support of their appeal in White, the Crown sought to found on the decision in Fitzpatrick but, for a variety of reasons, the Supreme Court declined to apply their reasoning in the earlier case to the circumstances in White. Two of these reasons in particular seem relevant for present purposes.
First, the Crown argued that the accused had not been coerced into making the statements. Referring to the argument in Fitzpatrick, Iacobucci J. said ([1999] 2. S.C.R. at pp. 442 - 443):
"[54] In this case, the Crown makes submissions to the same effect. Driving is a regulated activity. All drivers are required to obtain a licence to drive. In so doing, the Crown states, they give free and informed consent to all of the rules of the road, including the requirement to report a motor vehicle accident. In such a context, the Crown submits, it cannot be said that a driver is coerced to provide an accident report when the occasion to do so does arise. In support of this proposition, the Crown relies upon, inter alia, statements regarding the voluntary nature of driving contained in the decisions of this Court in Dedman v. The Queen, [1985] 2 S.C.R. 2, R. v. Hundal [1993] 1 S.C.R. 867 and R. v. Finlay, [1993] 3 S.C.R. 103.
[55] I agree with the Crown that drivers are deemed to be aware of their responsibilities on the road, and that driving is properly understood as a voluntary activity in the sense described by this Court in the cases cited by the Crown. However, driving is not freely undertaken in precisely the same way as one is free to participate in a regulated industry such as the commercial fishery. Driving is often a necessity of life, particularly in rural areas such as that where the accident occurred in this case. When a person needs to drive in order to function meaningfully in society, the choice of whether to drive is not truly as free as the choice of whether to enter into an industry. While the state should not be perceived as being coercive in requiring drivers to report motor vehicle accidents, the concern with protecting human freedom which underlies the principle against self-incrimination cannot be considered entirely absent in this context. As I view the matter, the issue of free and informed consent must be considered a neutral factor in the determination of whether the principle against self-incrimination is infringed by s. 61 of the Motor Vehicle Act."
The appellant in this case lives in Dunfermline and the alleged offence is said to have been committed in Dunfermline. We know nothing of any particular reasons why she has a car and drives it. I would in any event deprecate any suggestion that the application of Article 6(1) could depend on whether a particular accused had a more or less pressing need to drive a car. In my view the proper approach is indeed to acknowledge that the appellant, as the keeper of a vehicle, must be taken to know that she has an obligation to provide information under Section 172 but, like Iacobucci J., to hold that this factor is to be treated as neutral for the purposes of determining whether the Crown should be able to lead evidence of any information which she gives when required to do so under the section.
His Honour also distinguished Fitzpatrick on the ground that there the accused and the state had not been in an adversarial relationship at the specific time when the self-incriminatory statements were made. He commented ([1999] 2 S.C.R. at pp. 443 - 444):
"[57] The situation is very different under the Motor Vehicle Act. It is true, as the Crown suggests, that drivers and the state do participate in a form of partnership aimed at securing safe roads for the benefit of all citizens. The reporting requirement in s. 61 of the Act has the valid purpose of permitting the compilation of road safety information and accident statistics: see, e.g., Walker v. The King, [1939] S.C.R. 214 at p. 220. Yet the driver who provides an accident report under s. 61 is not in the same situation as the commercial fisher who radios in or documents the quantity of the day's catch.
[58] The provincial decision to vest the responsibility for taking accident reports in the police has the effect of transforming what might otherwise be a partnership relationship into one that is potentially adversarial. Very often, the police officer who is receiving the accident report is simultaneously investigating a possible crime, in relation to which the driver is a suspect. At the same time that the officer is required by s. 61(4) of the Motor Vehicle Act to obtain information about the accident from the driver, the officer may equally be required or inclined to inform the driver of possible criminal charges and of the driver's legal rights under the Charter, including the right to remain silent. The result is seemingly contradictory instructions from police. Importantly, also, the driver is generally in the officer's immediate physical presence. The result is, quite unlike the situation in Fitzpatrick, a context of pronounced psychological and emotional pressure."
In White the officers could be regarded as performing a twin role, receiving an accident report and investigating a possible crime in relation to which the driver was a suspect. In the present case, however, the police officers were not engaged in anything other than a criminal investigation in which the appellant was a suspect. The question which the appellant was asked and the reply which she gave formed part of that investigation. There was no suggestion in anything said by the Solicitor General that the police officers were simultaneously obtaining the information for the purpose, say, of compiling any kind of road traffic statistics. Moreover, in this particular case the requirement was made of the appellant not only when she was in the presence of the officers but when she was in custody. In my view these various considerations are destructive of the Solicitor General's argument that the court should regard the appellant as having given the reply simply as part of a scheme for the regulation of road traffic in the United Kingdom.
One other aspect of the decision in White is of some importance for present purposes. The Canadian case concerned a requirement to make a report which could cover a number of aspects of the accident. In the British Columbia Court of Appeal Southin J.A. had held that the right against self-incrimination was not engaged to the extent that the section required a driver to provide his or her name and address and to acknowledge that he or she had been driving at a particular place and time. Iacobucci J. rejected that distinction ([1999] 2 S.C.R. at p. 450):
"[70] In my view, and with respect, the distinction drawn by Southin J.A. is inappropriate. The protection afforded by the principle against self-incrimination does not vary based upon the relative importance of the self-incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement. Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter."
His Honour's reasoning is an apt basis for countering any suggestion that the limited terms of the reply required under Section 172 would be a basis for holding that the right against self-incrimination should not apply to it.
Conclusion
In accordance with the approach laid down by the Court in Saunders, I have considered the circumstances of this particular case. On that basis I adhere to my provisional conclusion. I am satisfied that the applicant was subject to compulsion to make an incriminating reply under threat of being found guilty of an offence and punished with a fine. The Crown propose to use evidence of the answer given by the appellant as a significant part of the prosecution case against her at her trial. For the reasons which I have given, the use that the Crown propose to make of the appellant's answer would offend her right not to incriminate herself, which is a constituent element of the basic principles of fair procedure inherent in Article 6(1).
The Solicitor General argued in terrorem that, if we were to allow the appellant's appeal, then any use of information obtained under Section 172 at trial would infringe an accused's right not to incriminate himself under Article 6(1). He pointed out that this could have momentous effects on the use of roadside cameras in the detection and prosecution of road traffic offences, since such prosecutions rely on the use of Section 172 for proof of the identity of the driver. That may or may not be so, but, in accordance with the guidance of the Court, I have reached my decision on the facts of this particular case. I have not considered the facts of other possible cases. But not all the features of the present case would be found, say, in cases where the police send out a written request to the keeper of a vehicle caught speeding by a roadside camera. I therefore reserve my opinion on such a case until it arises for decision.
"Reading down" Section 172
The discussion of Section 172 and Article 6(1) shows that, on the construction which has been applied by the courts hitherto, Section 172 is incompatible with the appellant's right to silence and right against self-incrimination under Article 6(1) since it permits the Crown to lead evidence of her reply in a subsequent prosecution. In terms of Section 6(2) of the Human Rights Act it is necessary next to consider whether Section 172 can be read or given effect in a way which is compatible with the appellant's Convention rights - in other words, whether it can be read or given effect in such a way as not to permit the Crown to lead evidence of the reply given by the appellant under Section 172. The Solicitor General accepted that, since the section does not say expressly that the Crown can use the information in a prosecution, it would be possible to read the section restrictively, as simply permitting the police officer to require the keeper to give the information and not as permitting the Crown to use the information to incriminate the keeper at any subsequent trial.
On the other hand Mr. Sutherland argued that to read the section in this way would be to disregard the intention of Parliament as revealed by Section 12(4) of the Road Traffic Offenders Act 1988 as amended:
"In summary proceedings in Scotland for an offence to which section 20(2) of the Road Traffic Act 1988 applies, where -
(a) it is proved to the satisfaction of the court that a requirement
under section 172(2) of the Road Traffic Act 1988 to give information as to the identity of a driver on a particular occasion to which the complaint relates has been served on the accused by post, and
(b) a statement in writing is produced to the court, purporting to be
signed by the accused, that the accused was the driver of that vehicle on that occasion,
that statement shall be sufficient evidence that the accused was the driver of the vehicle on that occasion."
This subsection showed, Mr. Sutherland said, that Parliament intended the Crown to be able to use the information obtained in a written request under Section 172 as evidence in the prosecution of the person admitting that he was the driver on the occasion in question.
The short answer to Mr. Sutherland's submission is that Section 12(4) of the Road Traffic Offenders Act has no bearing on the present case since it applies only to prosecutions for offences to which Section 20(2) applies and that subsection does not apply to contraventions of Section 5(1) of the 1988 Act. Therefore the subsection does not provide that information given under Section 172 can be used in evidence. In the present case the matter rests on the terms of Section 172 alone.
In the light of the Solicitor General's concession, and simply having regard to the terms of Section 172, I consider that it can be read and given effect in a way which is compatible with the applicant's Convention rights to silence and not to incriminate herself. So reading it, I would hold that it does not permit the Crown to lead and rely on evidence of the appellant's reply "It was me" at her trial. Since Section 172 can be read and given effect in this way, Section 6(1) of the Human Rights Act applies and therefore Section 57(2) applies to the Lord Advocate and to the procurator fiscal as his representative. So, when effect is given to the appellant's Convention rights, the procurator fiscal has no power, either under statute or at common law, to lead evidence of the appellant's reply obtained under the powers of compulsion in Section 172.
Remedy
Section 8(1) of the Human Rights Act provides:
"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate".
The section is not yet in force, but it provides guidance as to the flexible approach which Parliament intends the courts to apply in providing remedies under the Act.
There was some debate about the appropriate remedy in this case. I agree with the Solicitor General that, since the Crown have not actually sought to lead the evidence of the appellant's reply, it would be premature for this court to make an actual ruling on the admissibility of the evidence. He suggested that the court should pronounce a declarator instead. Although it has not hitherto been the practice of the court to do so, I can see no objection in principle to making such an order where, as here, it appears to be the most appropriate remedy.
I therefore move your Lordships to allow the appeal and to declare that, in the circumstances of this case, the procurator fiscal has no power to lead and rely on evidence of the admission which the appellant was compelled to make under Section 172(2)(a) of the Road Traffic Act 1988 that she had been the driver of the motor vehicle registered number H716 WES at about 2.30 a.m. on 3 June 1999.
APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General Lord Marnoch Lord Allanbridge
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Appeal No: 1652/99 OPINION OF LORD MARNOCH in NOTE OF APPEAL TO COMPETENCY AND RELEVANCY by MARGARET ANDERSON BROWN Appellant; against PROCURATOR FISCAL, Dunfermline Respondent: _______ |
Appellant: Alonzi; Balfour & Manson
Respondent: Solicitor General, Boyd, Q.C.; Crown Agent
For the Advocate General, Sutherland, Q.C.; R. Henderson
4 February 2000
I am greatly indebted to your Lordship in the chair for having set out the jurisprudence and leading authorities in Europe and elsewhere in the large and difficult area of the law with which the present case is concerned. In the result I respectfully concur in your Lordship's analyses of the arguments advanced, in your Lordship's disposal of these arguments and in your Lordship's conclusion as to the disposal of this appeal. I desire only to add a word or two regarding the extent of what is said to be the right or privilege against self-incrimination.
As your Lordship has already made clear this so-called right is nowhere expressly to be found in the European Convention on Human Rights and Fundamental Freedoms. It is, on the contrary, simply one aspect of what is undoubtedly itself a fundamental right, namely the right to a "fair and public hearing" under Article 6(1) of the Convention. It has, therefore, its essential foundation in the wider concept of "fairness". As to the extent of the right, in common with your Lordship I do not derive much assistance from the decisions of the Commission to which we were referred and - again as your Lordship has already pointed out - there is remarkably little guidance to be found in the decisions of the European Court itself. Indeed, I think I am right in saying that Saunders v. United Kingdom is the only case in which the Court has considered the application of the right not to incriminate oneself at a stage earlier than the trial itself or, perhaps more accurately, at a stage earlier than forms of procedure construed as being part of the trial process.
It is accordingly to Saunders that I have directed my main attention when trying to discover the principle or principles which have guided the Court in determining at what stage prior to the trial process the right in question supposedly comes into existence. In the Judgment there is no direct guidance on this matter, presumably because it did not loom large as an issue in the case. However, it is, in my opinion, clear from paragraphs 19-25 of the Statement of Facts that the most salient feature of the case, by far, was that at the time of the Department of Trade investigation Mr. Saunders was the object of suspicion and a potential accused in subsequent criminal proceedings. I cannot but think that this background was very firmly in the minds of the Court when it reached its decision. That this was so is, indeed, borne out, in my opinion, by a number of express references to the status of "suspect" in certain of the individual opinions annexed to the Judgment, and it is nothing to the point that some of these were dissenting opinions if, as I think, they disclose the understanding of the judges who issued them of the true context of the Court's deliberations. Thus, for example, in the dissenting opinion of Judge Valticos, joined in by Judge Gölcüklü, criticism is made of those who seek to elevate to the status of an absolute rule the "right of persons suspected of criminal offences, including serious crimes, not to incriminate themselves". Clearly these judges thought that that, in essence, was the view or approach from which they saw fit to dissociate themselves. And in paragraph 10 of the dissenting opinion of Judge Martens, joined in by Judge Kuris, it is, in my opinion, even clearer that the Court had been understood to have been dealing throughout with persons in the position of "suspects". The essence of the dissent of Judge Martens and Judge Kuris is that "it is, in principle, open to the national law to compel (specific categories of) suspects by threat of punishment to contribute passively or actively to the creation of evidence, even decisive evidence, against themselves."
Having, therefore, read and re-read Saunders I confess that, speaking for myself, I can find nothing in the decision which adds significantly to what has long been the common law of Scotland in regard to the treatment of suspected persons. Scots Law has required that such persons should normally be cautioned that they are not obliged to say anything and, even with a caution, anything in the nature of cross-examination, let alone compulsion, will result in the answers being inadmissible in evidence - Chalmers v. H.M. Advocate 1954 J.C. 66. As an example of where these rules were breached by investigating officers of Customs & Excise and where the answers obtained were in consequence held inadmissible in a criminal trial I refer to H.M. Advocate v. Friel 1978 S.L.T. (Notes) 21. I conceive that, but for section 434(5) of the Companies Act 1985, the Scottish common law would have reached exactly the same result in relation to the answers extracted from Mr. Saunders by the D.T.I. inspectors. The only difference is that in its decision in Saunders the European Court categorised the protection given to suspects as being an aspect of the right or privilege against self-incrimination - that right being, itself, as we have seen, a development from the wider concept of a fair hearing or trial. There is, I think, nothing very surprising in all this since the need to protect persons suspected of crime is one that is widely recognised. In Abas v. The Netherlands, for example, (Application No. 27943/95, 26 February 1997), while it is difficult to detect the ratio of the Commission's decision, it is at least interesting to note that under Article 29 of the Netherlands Code of Criminal Procedure it is only "where a person is heard as a suspect" that "the questioning judge or civil servant shall refrain from everything which could have the effect of obtaining a statement of which it could be said it was not freely made".
Lastly, in the cases from Canada and the United States to which we were referred there is, of course, also some discussion regarding the nature of the right or privilege against self-incrimination as understood in these jurisdictions. However, in light of the rather different statutory, not to say constitutional, backgrounds in these countries I am, myself, reluctant to take over much from the dicta in question. It is, however, possibly instructive that in California v. Byers 402 U.S. 424 - a decision of the Supreme Court of the United States upholding the validity of a Californian statute requiring the driver of a motor vehicle involved in an accident resulting in damage to stop at the scene and give his name and address - one of the several strands of reasoning running through the decision relates to whether such a driver is, or is not, in the position of a suspect. Dealing with that particular matter Mr. Justice Harlan said this:
"It may be said that requiring the defendant to focus attention on himself as an accident participant is not equivalent to requiring the defendant to focus attention on himself as a criminal suspect."
From everything said above I am left in no doubt that the jurisprudence of the European Court of Human Rights does, indeed, recognise that, as part of the right to a "fair and public hearing" under Article 6(1) of the Convention, persons suspected of crime should not be obliged to incriminate themselves. As already explained by your Lordship in the chair, primary legislation in this country must now be read and given effect, so far as possible, in a way which is compatible with Convention rights as construed in the light of that jurisprudence. Accordingly I am clearly of opinion that, in order to be compatible with the appellant's Convention rights, section 172 of the Road Traffic Act 1988 must now be "read down" as no longer permitting the Crown to lead evidence of any reply given by a person who at the time was a suspect. However, I am not at present persuaded that either principle or precedent requires any broader approach to be taken. Nor, as at present advised, do I consider that the mere fact of a person being the registered keeper of a vehicle is, of itself, sufficient to put him or her into the category of a "suspect" in respect of an offence committed by a driver of that vehicle. Very often, nowadays, vehicles are driven by persons other than their registered keepers. In that connection, some assistance might, I think, be derived from the Commission's reasoning in Tora Tolmos v. Spain, Application No. 23816/94, 17 May 1995, as already summarised in your Lordship's Opinion. All that said, the agreed facts in the present case demonstrate that the appellant was very clearly a suspect at the time she was required to answer the question put to her under section 172 of the 1988 Act. In that situation I agree that this appeal should be allowed and that a declaration should be made as proposed by your Lordship.
APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General Lord Marnoch Lord Allanbridge
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Appeal No: 1652/99 OPINION OF LORD ALLANBRIDGE in NOTE OF APPEAL TO COMPETENCY AND RELEVANCY by MARGARET ANDERSON BROWN Appellant; against PROCURATOR FISCAL, Dunfermline Respondent: _______ |
Appellant: Alonzi; Balfour & Manson
Respondent: Solicitor General, Boyd, Q.C.; Crown Agent
For the Advocate General, Sutherland, Q.C.; R. Henderson
4 February 2000
I have read the opinion of your Lordship in the chair and, for the reasons expressed so clearly therein, I agree that this appeal should be allowed and that the suggested declaration should be made.
© 2000 Crown Copyright