Speeder’s right to silence not infringed
I blogged about the case of O’Halloran and Francis v United Kingdom just over a week ago. As you will no doubt recall, faithful reader, the Michael opined that their arguments would be given fairly short shrift. And so it was. The ECHR judges upheld the convictions for speeding offences with a 17-2 majority. You might have thought the judges, impressed with the creativity of the applicant’s arguments, would have let them down gently. Oh no. The mincing of words and the softening of blows were not on the cards. Cases cited in favour of the applicant’s were distinguished from the instant case in almost rapid-fire succession.
The one concession to the appellants’ case, however, was a loose acknowledgement that the laws of member states should indeed operate without being self-incriminatory, nor should they infringe the basic right to silence. Err, yeah, thanks for that.
With that out of the way, the judges, moved in for the kill. They categorically stated that Articles 2 and 6 of the European Convention on Human Rights had NOT been infringed by s172 Road Traffic Act 1988.
"On the one hand, it was self-evident that it was incompatible with the immunities to base a conviction solely or mainly on the accused's silence or on a refusal to answer questions or to give evidence himself. "On the other hand, the immunities could and should not prevent the accused's silence from being taken into account in situations which clearly called for an explanation."
The applicant’s case was destined to fail from the beginning. This was always going to come down to a policy decision by the ECHR and the appeal would have to have been dismissed. To have allowed it would have brought the entire system of policing speeding motorists in the UK crashing down. Further, while you may have a hard time persuading a convicted speeder that the system is reasonable and fit-for-purpose, try asking them to suggest an alternative means of policing the UK’s excessive speeders. And wait for the silence. They have got a right to it, after all.
"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 considers that the essence of the applicants' right to remain silent and their privilege against self-incrimination has not been destroyed.”