Notes from Idris :
Idris - References wrote:
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.
COMMENT In the present context, threats of far higher fines and 6 points not 3 are clealrt corercion or oppression.
. The right not to incriminate oneself is an important right, but not an absolute right, and it is directed (as suggested by the Court in Saunders) to improper compulsion, coercion and oppression likely to result in forced confessions and miscarriages of justice. In the absence of any evidence of compulsion, coercion or oppression, mere invocation of section 172 does not infringe a suspect’s right to a fair trial even where it leads to an admission relied on at a later trial: the admission here was made in response to a single unthreatening question, and although providing the prosecutor with proof of a fact necessary to convict did not of itself involve any admission of criminal
COMMENT
the point here is that the threats in the NIPs, and the real possibility of higher fines and definitely double the points DOES amount to oppression and duress.
Effect has been given to the right not to incriminate oneself in a variety of different ways. The fifth amendment to the Constitution of the United States provides that no person shall be compelled in any criminal case to be a witness against himself. The Indian Constitution (article 20(3)) provides that no person accused of any offence shall be compelled to be a witness against himself. The International Covenant on Civil and Political Rights 1966 provides in article 14(3)(g) that in determination of any criminal charge everyone shall be entitled to certain minimum guarantees, including a right not to be compelled to testify against himself or to confess guilt. The Canadian Charter of Rights and Freedoms confers on a person charged with an offence the right not to be compelled to be a witness in proceedings against himself in respect of that offence (section 11(c)). The New Zealand Bill of Rights Act 1990, in section 25(d), grants to everyone who is charged with an offence, in relation to the determination of the charge, certain minimum rights which include the right not to be compelled to be a witness or to confess guilt. The recently adopted constitution of South Africa grants rights to a suspect on arrest to remain silent and not to be compelled to make any confession or admission that could be used in evidence against him (section 35(1)(a) and (c)) and also a right to a fair trial, which includes rights to remain silent and not to testify during the proceedings and not to be compelled to give self-incriminating evidence (section 35(3)(h) and (j)).
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(1) Section 172 provides for the putting of a single, simple question. The answer cannot of itself incriminate the suspect, since it is not without more an offence to drive a car. An admission of driving may, of course, as here, provide proof of a fact necessary to convict, but the section does not sanction prolonged questioning about the facts alleged to give rise to criminal offences such as was understandably held to be objectionable in Saunders, and the penalty for declining to answer under the section is moderate and non-custodial.
COMMENT In the real world,. pressure if often - and routinely - brought to bear on those who refuse to identify - repeated correspondence, offers to accept admissions of guilt long after the 28 day time limit has expired, and in at least one case I heard of, a policeman hammering on the door insisting to be allowed in to gain a confession.
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Section 172(2) does not authorise general questioning by the police to secure a confession of an offence. On the other hand, section 172(2) does, depending on the circumstances, in effect authorise the police officer to invite the owner to make an admission of one element in a driving offence. It would, however, be an abuse of the power under section 172(2) for the police officer to employ improper or overbearing methods of obtaining the information. He may go no further than to ask who the driver was at the given time. If the police officer strays beyond his power under section 172(2) a judge will have ample power at trial to exclude the evidence.
COMMENT - but they do it anyway!
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"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."
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On the other hand there is the question whether the means which it employs are proportionate to that aim and are compatible with the right of the accused to a fair trial. Has a fair balance been achieved? In order to answer this question it is necessary to examine the provision in question more closely. It has several very important characteristics.
First there are the qualifications which are written into section 172(2)(a) itself. The provision may be operated only when it is alleged that an offence has been committed of the kind to which the section applies: section 172(1). Then there is the fact that the requirement in section 172(2)(a) to give information as to the identity of the driver may be addressed only to the person keeping the vehicle. The expression "keeping the vehicle" is not defined, but I take this to be a reference to the person in whose name the vehicle is registered under the Vehicle Excise and Registration Act 1994: see section 172(7) and (9) and the definition of the expression "registered keeper" in section 172(10). A person who submits to registration as the keeper of a motor vehicle must be taken to have accepted responsibility for its use and the corresponding obligation to provide the information when required to do so. Furthermore the requirement for which provision is made is directed to one issue only, the identity of the driver of the vehicle. It is proper to recognise that the identity of the driver is likely to be an important and indeed crucial issue at any trial. But the provision does not permit open-ended questioning of the person keeping the vehicle in order to secure an admission of guilt as to the offence. It seems to me that, bearing in mind the difficulties that may arise in tracing the driver of a vehicle after the event, this limited incursion into the right of silence and the right of the driver who is alleged to have committed an offence not to incriminate himself is proportionate.
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Under Scots law the driver’s admission must be corroborated, and there must be other evidence to show beyond reasonable doubt that the driver committed the offence with which he is charged. All the usual protections against unreliable evidence and evidence obtained by oppression or other improper means remain in place.
COMMENT - he was dealing with Scots law not English law - English law has not requirement for corroboration, and 100s of penalties are imposed every day with no corroboration whatever
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While the statutory power to require an answer is fortified by a criminal sanction, the penalty is relatively light, not involving imprisonment except in the failure to pay the fine which may be imposed. I consider that the Solicitor-General was correct in submitting that compulsion by itself is not necessarily fatal to the admission of a self-incriminatory admission, but that improper compulsion would be. There is no suggestion in the present case of any improper compulsion. Indeed in the present case it does not appear that any mention was made of the sanction which could be invoked on a failure to provide the information.
COMMENT In all cases these days the threat of severe penalties is explicit or in any case well known, and is not infrequently used to force confessions
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In the present case it is common ground that the respondent was a suspect when she was required to provide information as to the identity of the driver under section 172 and there is no doubt that at common law she could not have been compelled to admit to a police officer that she had been the driver of the car at the time the alleged offence was committed.
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. Further, while she was compelled to provide the information required of her under section 172(2)(a), and her failure to comply with that requirement would have meant that she would be guilty of an offence under section 172(3), it has to be borne in mind that the offence is a summary one and that the maximum sentence is a level three fine (at present £1,000), disqualification being discretionary and endorsement obligatory. A custodial sentence cannot be imposed.
COMMENT - But custodial sentences ARE imposed on those who give false information - mamy are in jail now.
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In Murray v. United Kingdom (1996) 22 E.H.R.R. 29 (at p. 60, para. 45) and in Saunders (at paragraph 68) the court stated that an accused had to be protected against "improper compulsion" by the authorities, examples of improper compulsion being coercion and oppression, in order to contribute to avoiding miscarriages of justice and to securing the aims of Article 6. In the present case there was no suggestion of coercion or oppression
. If there was evidence of coercion, oppression, unfair inducement or other improper compulsion having been used, the evidence of the admission would be rejected.
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