Idris Francis ECHR decision
30 June 2007, 12:04 AM
#92
I read the judgements this morning (very interested as I've been sitting on a NIP for 35mph in a 30 limit for a few days!). The judgement seemed to be made on the rationale that
- while the right to a fair trial is absolute, the right to silence is not
- the public interest justified the violation of the right to silence in the case of traffic offences
- everyone who drives should understand that they are doing so within a regulatory regime and is therefore implicitly agreeing to abide by that regime.
There were a couple of interesting dissenting opinions that are worth a read - both judges felt very strongly that the right not to self-incriminate was paramount and there should be no justification for overriding it. One went so far as to say that the number of speeding offences is sufficiently high to show that society in general holds the law in contempt and government should therefore decriminalise the offence of speeding.
Where I scratch my head is on the public interest justification - why is it okay in prosecuting a minor traffic offence when there is no public interest justification to override the right to silence of serious offenders like murders, rapists and terrorists? Surely it should be the other way around! The judgement has some references to the duress (ie. the penalty for not self-incrimating) being commensurate and non-custodial, but for someone who drives for a living who could lose their job, it could be almost as bad.
- while the right to a fair trial is absolute, the right to silence is not
- the public interest justified the violation of the right to silence in the case of traffic offences
- everyone who drives should understand that they are doing so within a regulatory regime and is therefore implicitly agreeing to abide by that regime.
There were a couple of interesting dissenting opinions that are worth a read - both judges felt very strongly that the right not to self-incriminate was paramount and there should be no justification for overriding it. One went so far as to say that the number of speeding offences is sufficiently high to show that society in general holds the law in contempt and government should therefore decriminalise the offence of speeding.
Where I scratch my head is on the public interest justification - why is it okay in prosecuting a minor traffic offence when there is no public interest justification to override the right to silence of serious offenders like murders, rapists and terrorists? Surely it should be the other way around! The judgement has some references to the duress (ie. the penalty for not self-incrimating) being commensurate and non-custodial, but for someone who drives for a living who could lose their job, it could be almost as bad.
30 June 2007, 12:40 AM
#93
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Some interesting views in this thread but it is important that we all view this from the perspective of a much bigger picture. As others are pointing out this isn't just about speeding, in fact speeding is probably the least important factor in this.
The decision was a shock and remains beyond explaination and beyond the explaination of some of the best constitutional legal experts who were certain of success. Idris has described it as "perverse" and I think that just about sums it up. It will be interesting to see if further analysis of the full judgement provides us with any further information or inspiration. Let's hope this doesn't open the floodgates for legislation to increase police clear up rates on those tricky to solve crimes.
The decision was a shock and remains beyond explaination and beyond the explaination of some of the best constitutional legal experts who were certain of success. Idris has described it as "perverse" and I think that just about sums it up. It will be interesting to see if further analysis of the full judgement provides us with any further information or inspiration. Let's hope this doesn't open the floodgates for legislation to increase police clear up rates on those tricky to solve crimes.
30 June 2007, 05:49 AM
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scud8, as mentioned by others, the bigger picture of S172 is needed. It's this reason why it wasn't and couldn't have been voted against.
No one gave a **** about it until speeding came along. S172 or equivalent have been around for along time. It's an important tool to catch people who fail to stop at accidents, for example.
The French judge makes a sound point about the law being poor if so many people break it, but he is being short-sighted and only viewing it in the context it was taken before him in the Court.
I'd also suggest people think before posting unfounded cynicism along the lines of "THEY WERE PAID OFF LOL -IT'S A GOVERNMENT CONSPIRACY". It just comes of as "I lost and can't accept it".
No one gave a **** about it until speeding came along. S172 or equivalent have been around for along time. It's an important tool to catch people who fail to stop at accidents, for example.
The French judge makes a sound point about the law being poor if so many people break it, but he is being short-sighted and only viewing it in the context it was taken before him in the Court.
I'd also suggest people think before posting unfounded cynicism along the lines of "THEY WERE PAID OFF LOL -IT'S A GOVERNMENT CONSPIRACY". It just comes of as "I lost and can't accept it".
30 June 2007, 10:51 AM
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scud8, as mentioned by others, the bigger picture of S172 is needed. It's this reason why it wasn't and couldn't have been voted against.
No one gave a **** about it until speeding came along. S172 or equivalent have been around for along time. It's an important tool to catch people who fail to stop at accidents, for example.
The French judge makes a sound point about the law being poor if so many people break it, but he is being short-sighted and only viewing it in the context it was taken before him in the Court.
I'd also suggest people think before posting unfounded cynicism along the lines of "THEY WERE PAID OFF LOL -IT'S A GOVERNMENT CONSPIRACY". It just comes of as "I lost and can't accept it".
No one gave a **** about it until speeding came along. S172 or equivalent have been around for along time. It's an important tool to catch people who fail to stop at accidents, for example.
The French judge makes a sound point about the law being poor if so many people break it, but he is being short-sighted and only viewing it in the context it was taken before him in the Court.
I'd also suggest people think before posting unfounded cynicism along the lines of "THEY WERE PAID OFF LOL -IT'S A GOVERNMENT CONSPIRACY". It just comes of as "I lost and can't accept it".
What you can't seem to accept that most people's objections here have little to do with speeding.. it's the concept itself of being coerced into incriminating yourself.
If this is such a sound piece of legislation then why not use it for ALL crimes in the manner it is being used here? As in why let the fact that there is no evidence against the accused get in the way of a conviction when we can coerce them into a confession!!
I can see it now..
"we can't get any evidence to convict you for armed robbery of the bank, other than the CCTV footage that you were in the bank at the time.. so we would like you to prove that it WASN'T you who did it; or prove that you don't know who it was that carried out the robbery.. despite the fact they were all wearing balaclavas! If you can't or won't do that we aremgoing to fine you £10K or send you down for 2 years! unless of course you tell us you did do it an we might be a bit more lenient and you'll only get a £1K fine or possibly 12 months inside!"
30 June 2007, 11:49 AM
#97
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Some interesting views in this thread but it is important that we all view this from the perspective of a much bigger picture. As others are pointing out this isn't just about speeding, in fact speeding is probably the least important factor in this.
The decision was a shock and remains beyond explaination and beyond the explaination of some of the best constitutional legal experts who were certain of success. Idris has described it as "perverse" and I think that just about sums it up. It will be interesting to see if further analysis of the full judgement provides us with any further information or inspiration. Let's hope this doesn't open the floodgates for legislation to increase police clear up rates on those tricky to solve crimes.
The decision was a shock and remains beyond explaination and beyond the explaination of some of the best constitutional legal experts who were certain of success. Idris has described it as "perverse" and I think that just about sums it up. It will be interesting to see if further analysis of the full judgement provides us with any further information or inspiration. Let's hope this doesn't open the floodgates for legislation to increase police clear up rates on those tricky to solve crimes.
Les
30 June 2007, 06:57 PM
#98
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Even if it has been around for ages.. it's never been highlighted because it's never been used as it is now with regards speeding... i.e as the Primary means of procuring evidence against the person providing the information to achieve a conviction!
What you can't seem to accept that most people's objections here have little to do with speeding.. it's the concept itself of being coerced into incriminating yourself.
If this is such a sound piece of legislation then why not use it for ALL crimes in the manner it is being used here? As in why let the fact that there is no evidence against the accused get in the way of a conviction when we can coerce them into a confession!!
What you can't seem to accept that most people's objections here have little to do with speeding.. it's the concept itself of being coerced into incriminating yourself.
If this is such a sound piece of legislation then why not use it for ALL crimes in the manner it is being used here? As in why let the fact that there is no evidence against the accused get in the way of a conviction when we can coerce them into a confession!!
The comparison with crime (as oppose to traffic) is bollocks. The highly regulated registered keeper system and highly specific defences to S172 are unique and can't be compared on such a simplistic scale.
Incidentally, I assume people have such principled objections to "special warnings" in our criminal justice system. This flirts closely with the right to silence, but I doubt anyone would think twice about it.
30 June 2007, 06:58 PM
#99
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Don't get too carried away now.
01 July 2007, 08:51 AM
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Not like today....
If i was to walk up to a member of the public and threaten to get them if they didn't tell me something, would that be acceptable?.. if i said you,ll have to wait two weeks to see if i,m going to get you, watch your front door, would that be acceptable...? i,d be bloody worried.
so today we have a situation where you don't know if your committing a crime until you've suffered two weeks of worry, Then you may get a threatening letter asking for information you may not know!, if you respond so, theres no empathy, just a stone wall that thinks your trying to evade the issue, and if you cant prove otherwise you get a criminal record to boot.
Ive no issues if i,m stopped for speeding by a plod and told there and then. i do take issue with arbitrary cams placed in areas where there sole purpose is not to reduce / prevent speeding/ accidents but purely to generate revenue..
I know of two in my area, where the criteria to install one was pushed to the limit. (how does road rage where two people had a punch up, count, considering the actual incident took place several miles away?)
Or a death that occurred on a road, and the scamera placed in a totally different location?
Mind you it,s reassuring to know that £60,000 can be found each time a scamera is needed, but extra coppers on the beat are an unafordable luxury.
It only takes one political party to use the "getting rid of cams" as a manifesto promise, and there wont be any shortage of takers...
and it wont be a mainstream party
Mart
01 July 2007, 09:29 AM
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Not like today....
If i was to walk up to a member of the public and threaten to get them if they didn't tell me something, would that be acceptable?.. if i said you,ll have to wait two weeks to see if i,m going to get you, watch your front door, would that be acceptable...? i,d be bloody worried.
If i was to walk up to a member of the public and threaten to get them if they didn't tell me something, would that be acceptable?.. if i said you,ll have to wait two weeks to see if i,m going to get you, watch your front door, would that be acceptable...? i,d be bloody worried.
And since S172 was involved in the test case and not speed cameras, it's illogical to go on about things being "the thin end of the wedge" or any other such nonsense.
01 July 2007, 10:04 AM
#102
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How many people get points that way compared to the number being ambushed by a "talivan" hidden in bushes / camera behing a tree?
All the people I know that have been done for speeding over the last few years were caught by cameras, not a police officer.
In the last twelve months (and it's probably way longer than that), I've seen police checking speed and pulling people once.
I saw one of the local talivans three times last week, and drove past cameras well over 100 times. But they aren't about generating revenue, are they?
John.
All the people I know that have been done for speeding over the last few years were caught by cameras, not a police officer.
In the last twelve months (and it's probably way longer than that), I've seen police checking speed and pulling people once.
I saw one of the local talivans three times last week, and drove past cameras well over 100 times. But they aren't about generating revenue, are they?
John.
01 July 2007, 05:15 PM
#103
I think that warrants getting carried away a little!
01 July 2007, 11:02 PM
#104
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What was originally said was:
This wasn't talking about the amount S172 is used, it was talking about loss of freedoms happening on a soon-to-be big scale. As I've posted above, this isn't the case.
The very point I was making before. Loss of our personal freedoms in what looks like a small area will soon expand exponentially!
02 July 2007, 11:41 AM
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Les
04 July 2007, 07:19 PM
#106
From PACE C.10.1:
“A person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is his answers to previous questions which provide the ground for suspicion) are put to him regarding his involvement or suspected involvement in that offence if his answers or his silence(i.e. failure or refusal to answer a question or answer satisfactorily) may be given in evidence to a court in a prosecution. He therefore need not be cautioned if questions are put for other purposes, for example, solely to establish his identity or his ownership of any vehicle or to obtain information in accordance with any relevant statutory requirements-Sec172 to provide information, not evidence (see paragraph 10.5C) or in furtherance of the proper and effective conduct of research, (for example to determine the need to search in the exercise of powers of stop and search or to seek co-operation when carrying out a search) or to seek verification of a written record in accordance with paragraph 11.13.”
“A person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is his answers to previous questions which provide the ground for suspicion) are put to him regarding his involvement or suspected involvement in that offence if his answers or his silence(i.e. failure or refusal to answer a question or answer satisfactorily) may be given in evidence to a court in a prosecution. He therefore need not be cautioned if questions are put for other purposes, for example, solely to establish his identity or his ownership of any vehicle or to obtain information in accordance with any relevant statutory requirements-Sec172 to provide information, not evidence (see paragraph 10.5C) or in furtherance of the proper and effective conduct of research, (for example to determine the need to search in the exercise of powers of stop and search or to seek co-operation when carrying out a search) or to seek verification of a written record in accordance with paragraph 11.13.”
04 July 2007, 07:53 PM
#108
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04 July 2007, 07:53 PM
#109
Regardless of the legal details, it is still perverse to remove the right to silence from a minor offence, yet a serious offence retains the right to silence.
It simply defies common sense. Your allowed to extract a confession from someone who speeds/drops litter/allows their dog to crap somewhere, yet your not allowed to extract a confession from a rapist/terrorist? What sort of utter idiot came up with that nonsense? Where they on drugs? - presumably you retain the right to silence if your a dealer as well....
It simply defies common sense. Your allowed to extract a confession from someone who speeds/drops litter/allows their dog to crap somewhere, yet your not allowed to extract a confession from a rapist/terrorist? What sort of utter idiot came up with that nonsense? Where they on drugs? - presumably you retain the right to silence if your a dealer as well....
04 July 2007, 08:20 PM
#112
Do you mean should someone who hits my car be made to admit who was driving it?
Theres a Right to Silence in this country.. so no, they shouldn't be made to admit it was them. If they want to remove the right to silence for ALL offences then crack on.. but to selectively fail to apply it to "minor" offences for whatever reason is so utterly stupid I can't find the words to explain it.
05 July 2007, 08:13 AM
#113
Either decriminalise speeding or the government apply our rights evenly across the criminal system.
Please dont quote proportionality as a reason, this has been shown to be a complete spin on the use of KSI in attempt to promote speeding is the cause of some 30% of accidents, when the figures show that less than 7% are attributable to speed alone. The road death count has levelled off in recent years, despite a huge jump in the issue of speeding tickets.
05 July 2007, 08:29 AM
#115
It came about to allow information to perform a magic trick of turning into evidence for the prosecution to complete its case.
Dont forget the offence of speeding is a criminal one and the prosection need to prove beyond reasonble doubt that you were the driver, whats better than a confession from the driver !
Without this the prosecution would not be able to prove who was driving, so no evidence and the trial collapses.
Then some governemt bod thought, I know lets get the driver to confess without him knowing he's confessing EG S172 RTA1988 and its earlier versions.
Dont forget the offence of speeding is a criminal one and the prosection need to prove beyond reasonble doubt that you were the driver, whats better than a confession from the driver !
Without this the prosecution would not be able to prove who was driving, so no evidence and the trial collapses.
Then some governemt bod thought, I know lets get the driver to confess without him knowing he's confessing EG S172 RTA1988 and its earlier versions.
05 July 2007, 08:41 AM
#116
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05 July 2007, 01:31 PM
#117
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Basically, without being too boring, PACE dictates when the caution must be given. I am not sure why the poster above added a few lines to the part I quoted from PACE. This fact was confirmed in the case R v Yorke 2003 - that S172 did not require a caution.
Section 12 RTOA allows a section 172 to be used in a Magistrates' Court.
The matter of a hit and run? I think you'll find they do. What is fundamental to this is S172. Without it it'd be extremely hard to prove any cases.
For a further extension of this there'd serious problems with people not stopping at accidents as that chance of come back would in a lot of circumstances be nil.
Andy, you're assuming the crux of my justification for S172 is for speeding. It's not at all. I see the bigger picture with it, which makes it proportional. No one cared about S172 until cameras came about, which tells you cameras are the problem, not S172. I'm well aware of the statistic manipulation for KSI etc.
The law isn't simple. It has to reflect a dynamic society with many different regulated things. Driving being one. A carte blanch objection under "right to silence" grounds isn't taking into consideration of the above. Whilst I share the frustrations of a speed cameras, I am more than happy for the Police to have power than gives them the best change of solving Road Traffic matters.
Section 12 RTOA allows a section 172 to be used in a Magistrates' Court.
The police need to get off their ars**, come out of their offices and investigate the matter. Better still put back the police patrols and even increase them to take care of these offences
For a further extension of this there'd serious problems with people not stopping at accidents as that chance of come back would in a lot of circumstances be nil.
Andy, you're assuming the crux of my justification for S172 is for speeding. It's not at all. I see the bigger picture with it, which makes it proportional. No one cared about S172 until cameras came about, which tells you cameras are the problem, not S172. I'm well aware of the statistic manipulation for KSI etc.
The law isn't simple. It has to reflect a dynamic society with many different regulated things. Driving being one. A carte blanch objection under "right to silence" grounds isn't taking into consideration of the above. Whilst I share the frustrations of a speed cameras, I am more than happy for the Police to have power than gives them the best change of solving Road Traffic matters.
05 July 2007, 01:40 PM
#118
The matter of a hit and run? I think you'll find they do. What is fundamental to this is S172. Without it it'd be extremely hard to prove any cases.
Whilst I share the frustrations of a speed cameras, I am more than happy for the Police to have power than gives them the best change of solving Road Traffic matters.
However, in the REAL world, there are examples posted on here of the police REFUSING to follow up on a vehicular hit and run because, "no-one would admit to having been driving", and then, to REALLY rub salt in the wound, S172 was used to the full extent of the law three weeks later against the driver whose car had been hit, when he was caught on camera speeding.
Surely, even you can see that it's this apparent double standard that is getting everyone's back up?
Why else are "jokes" bandied around over drinks, along the line of, "What? this or that accused not prosecuted? Or police diddn't even turn out? Or turned out late? They should have been told that the miscreant was speeding...........then they'd have turned out, and pursued him to the ends of the earth".
If ONLY the police/cps were half as good at following up and prosecuting other non-speeding crimes.
Alcazar
05 July 2007, 03:28 PM
#119
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Even I can see the apparent double standard? What are you inferring 
I can't comment on someone making a forum topic. They often don't portray both sides of the story or a critical part of information that justifies the reasons behind a decision. On the other hand there may be a lazy Police officer (however next two lines down).
A Police officer will have very little to do with Gatso / camera cases.
I can tell you for a fact that a traffic file would not get filed without basic enquires being done. If there is a VRM for a vehicle that has driven off from an accident then enquires will be made with the registered keeper.
The jokes you refer to are just bollocks from the chattering classes, or being more generous, born from frustration and lack of understanding of Policing and the Law.
The Police and the CPS don't go to the ends of the earth to pursue speeding. Gatso trigger = automated NIP and S172 to registered keeper. The majority of the time the keeper pays up as he was caught speeding. Simple. If the S172 isn't completed then a summons file is created. If the defendant wants to go to Court then a file needs creating, the same as any other offence. If the defendant wants to play games and not sign the NIP and try technicalities in law etc then the CPS will stipulate further enquires if there are any.
The cases that hit the press is when a clever solicitor (rightly) tests the prosecutions in certain cases and bits of law that may conflict and have 'loop holes' in it. The CPS is bound legally and morally to put the best prosecution forward, and is indeed in the best interests of British law. These are the rare cases when they go "to the ends of the earth" you read about.
In perspective they make up an absolute minority.
I can't comment on someone making a forum topic. They often don't portray both sides of the story or a critical part of information that justifies the reasons behind a decision. On the other hand there may be a lazy Police officer (however next two lines down).
A Police officer will have very little to do with Gatso / camera cases.
I can tell you for a fact that a traffic file would not get filed without basic enquires being done. If there is a VRM for a vehicle that has driven off from an accident then enquires will be made with the registered keeper.
The jokes you refer to are just bollocks from the chattering classes, or being more generous, born from frustration and lack of understanding of Policing and the Law.
The Police and the CPS don't go to the ends of the earth to pursue speeding. Gatso trigger = automated NIP and S172 to registered keeper. The majority of the time the keeper pays up as he was caught speeding. Simple. If the S172 isn't completed then a summons file is created. If the defendant wants to go to Court then a file needs creating, the same as any other offence. If the defendant wants to play games and not sign the NIP and try technicalities in law etc then the CPS will stipulate further enquires if there are any.
The cases that hit the press is when a clever solicitor (rightly) tests the prosecutions in certain cases and bits of law that may conflict and have 'loop holes' in it. The CPS is bound legally and morally to put the best prosecution forward, and is indeed in the best interests of British law. These are the rare cases when they go "to the ends of the earth" you read about.
In perspective they make up an absolute minority.
05 July 2007, 07:04 PM
#120
Your allowed to extract a confession from someone who speeds/drops litter/allows their dog to crap somewhere, yet your not allowed to extract a confession from a rapist/terrorist? What sort of utter idiot came up with that nonsense? Where they on drugs? - presumably you retain the right to silence if your a dealer as well....
One is innocent until proven guilty (well... so far in Britain at least
)If charges are brought against you (guilty or innocent) claiming that you speed/drop litter/allow your dog to crap somewhere... and your right to silence is trampled over and you get convicted because of it... Really annoying...
If charges of being a rapist/terrorist are brought against you (guilty or innocent)... and the right to silence is trampled over and you get convicted because of it... Really annoying???? or perhaps a 'little' bit worse?
What I find irritating is that former offences cannot be brought into the evidence... eg 16 previous convictions for drug dealing & the guys lawyer is trying to make out he wouldn't steal candy from a baby...
(but then again perhaps he wouldn't 
)Mick