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You are here: BAILII >> Databases >> European Court of Human Rights >> O'HALLORAN AND FRANCIS - 15809/02 [2007] ECHR 545 (29 June 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/545.html Cite as: [2007] ECHR 545, (2008) 46 EHRR 21

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EUROPEAN COURT OF HUMAN RIGHTS

463

29.6.2007

Press release issued by the Registrar

GRAND CHAMBER JUDGMENT
O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM

The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment¹ in the case of O’Halloran and Francis v. United Kingdom (application nos. 15809/02 and 25624/02).

The Court held, by 15 votes to two, that there had been no violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights.

(The judgment is available in English and French.)

1.  Principal facts

Gerard O’Halloran and Idris Francis are United Kingdom nationals who were born in 1933 and 1939 respectively. Mr O’Halloran lives in London and Mr Francis lives in Petersfield (United Kingdom).

On 7 April 2000 Mr O’Halloran’s vehicle was caught on a speed camera driving at 69 miles per hour (mph) (equivalent to 111 km/h) on the M11 motorway, where the temporary speed limit was 40 mph (equivalent to 64 km/h). On 12 June 2001 Mr Francis’ car was caught on speed camera driving at 47 mph (equivalent to 75 km/h), where the speed limit was 30 mph (equivalent to 48 km/h).

In each case the applicant was subsequently informed that the police intended to prosecute the driver of the vehicle. He was asked for the full name and address of the driver of the vehicle on the relevant occasion or to supply other information that was in his power to give and which would lead to the driver’s identification. Each applicant was further informed that failing to provide information was a criminal offence under section 172 of the Road Traffic Act 1988.

Mr O’Halloran answered his letter confirming that he was the driver at the relevant time. Mr Francis, however, wrote to the police invoking his right to silence and privilege against self-incrimination.

On 27 March 2001 Mr O’Halloran was tried before North Essex Magistrate’s Court. Prior to the trial, he sought unsuccessfully to have his confession excluded as evidence, relying on sections 76 and 78 of the Police and Criminal Evidence Act 1984 read in conjunction with Article 6 (right to a fair trial) of the Convention. He was convicted of driving in excess of the speed limit and fined 100 pounds sterling (GBP) (equivalent to 147.66 euros (EUR)), ordered to pay GBP 150 (EUR 221.49) costs and had his licence endorsed with six penalty points. On 19 October 2001 his application for judicial review of the magistrates’ decision was refused.

On 28 August 2001 Mr Francis was summoned to the Magistrates’ Court for failing to comply with section 172(3) of the Road Traffic Act 1988. On 15 April 2002 he was convicted and fined GBP 750 (EUR 1,107.49) with GBP 250 (EUR 369.16) costs and three penalty points. He maintains that the fine was substantially heavier than that which would have been imposed had he pleaded guilty to the speeding offence.

2.  Procedure and composition of the Court

The applications were lodged with the European Court of Human Rights on 3 April 2002 and 5 November 2001 and declared admissible on 25 October 2005. On 11 April 2006 the Chamber of the Court dealing with the case relinquished jurisdiction in favour of the Grand Chamber, under Article 30¹ of the Convention. A public hearing was held in the Human Rights building, Strasbourg, on 27 September 2006.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Jean-Paul Costa (French), President,
Luzius Wildhaber (Swiss),
Christos Rozakis (Greek),
Nicolas Bratza (British),
Boštjan M. Zupančič (Slovenian),
Riza Türmen (Turkish),
Volodymyr Butkevych (Ukrainian)
Josep Casadevall (Andorran),
Matti Pellonpää (Finnish),
Snejana Botoucharova (Bulgarian),
Stanislav Pavlovschi (Moldovan),
Lech Garlicki (Polish),
Javier Borrego Borrego (Spanish),
Alvina Gyulumyan (Armenian),
Ljiljana Mijović (citizen of Bosnia and Herzegovina),
Egbert Myjer (Dutch),
Ján Šikuta (Slovak), judges,

and also Vincent Berger, Jurisconsult.

3.  Summary of the judgment²

Complaints

Mr O’Halloran complained that he was convicted solely or mainly on account of the statement he was compelled to provide under threat of a penalty similar to the offence itself. Mr Francis complained that being compelled to provide evidence of the offence he was suspected of committing infringed his right not to incriminate himself. Both applicants rely on Article 6 §§ 1 (right to a fair trial) and 2 (presumption of innocence) of the European Convention on Human Rights.

Decision of the Court

Article 6 § 1

The Court did not accept the applicants’ argument that the right to remain silent and the right not to incriminate oneself were absolute rights and that to apply any form of direct compulsion to require an accused person to make incriminatory statements against her or his will of itself destroyed the very essence of that right. It was not the case that any direct compulsion would automatically result in a violation of the Convention. Concerning Article 6 § 1, what constituted a fair trial could not be the subject of a single unvarying rule but had to depend on the circumstances of the particular case.

In order to determine whether the essence of the applicants’ right to remain silent and privilege against self-incrimination was infringed, the Court focused on the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put.

The nature and degree of the compulsion used to obtain the evidence in the case of Mr O’Halloran, or to attempt to obtain the evidence in the case of Mr Francis, were set out in the Notice of Intended Prosecution each applicant received. They were informed that, as registered keepers of their vehicles, they were required to provide the full name and address of the driver at the time and on the occasion specified. They were each informed that failure to provide the information was a criminal offence under section 172 of the Road Traffic Act 1988. The penalty for failure by the applicants to give information was a fine of up to GBP 1,000, and disqualification from driving or an endorsement of three penalty points on their driving licence.

The Court accepted that the compulsion was of a direct nature. It also noted that anyone who chose to own or drive a car knew that they subjected themselves to a regulatory regime, imposed because the possession and use of cars was recognised to have the potential to cause grave injury. Those who choose to keep and drive cars could be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles, and in the legal framework of the United Kingdom, those responsibilities included the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion.

A further aspect of the compulsion applied in the applicants’ cases was the limited nature of the inquiry which the police were authorised to undertake. Section 172 (2)(a) applied only where the driver of the vehicle was alleged to have committed a relevant offence, and authorised the police to require information only “as to the identity of the driver”.

In cases where the coercive measures of section 172 of the 1988 Act were applied, the Court noted that by section 172(4), no offence was committed under section 172(2)(a) if the keeper of the vehicle showed that he did not know and could not with reasonable diligence have known who the driver of the vehicle was. The offence was therefore not one of strict liability, and the risk of unreliable admissions was negligible.

As to the use to which the statements were put, Mr O’Halloran’s statement that he was the driver of his car was admissible as evidence of that fact by virtue of section 12(1) of the Road Traffic Offenders Act 1988, and he was duly convicted of speeding. At his trial, he attempted to challenge the admission of the statement under sections 76 and 78 of the Police and Criminal Evidence Act 1984, although the challenge was unsuccessful. It remained for the prosecution to prove the offence beyond reasonable doubt in ordinary proceedings, including protection against the use of unreliable evidence and evidence obtained by oppression or other improper means (but not including a challenge to the admissibility of the statement under section 172), and the defendant could give evidence and call witnesses if he wished. The identity of the driver was only one element in the offence of speeding, and there was no question of a conviction arising in the underlying proceedings in respect solely of the information obtained as a result of section 172(2)(a).

As Mr Francis refused to make a statement, it could not be used in the underlying proceedings, and indeed the underlying proceedings were never pursued. The question of the use of the statements in criminal proceedings did not arise, as his refusal to make a statement was not used as evidence: it constituted the offence itself.

Having regard to all the circumstances of the case, including the special nature of the regulatory regime at issue and the limited nature of the information sought by a notice under section 172 of the Road Traffic Act 1988, the Court considered that the essence of the applicants’ right to remain silent and their privilege against self-incrimination had not been destroyed. Accordingly, there had been no violation of Article 6 § 1.

Article 6 § 2

The Court held, unanimously, that no separate issue arose under Article 6 § 2.

Judge Borrego Borrego expressed a concurring opinion and Judges Pavlovschi and Myjer expressed dissenting opinions, which are annexed to the judgment.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.