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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Brown v. Procurator Fiscal  ScotHC 125 (24 September 2002)
Cite as:  ScotHC 125
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Cameron of Lochbroom
Appeal No: 1127/02
OPINION OF THE COURT
delivered by LORD CAMERON OF LOCHBROOM
NOTE OF APPEAL
PROCURATOR FISCAL, Falkirk
Appellant: Shead; Wheatley & Co.
Respondent: Di Rollo, Q.C., A.D.; Crown Agent
24 September 2002
"(1) In the course of an investigation into whether a person has committed an offence under section...5 of this Act, a constable may, subject to the following provisions of this section and section 9 of this Act, require him-
(a) to provide two specimens of breath for analysis by means of a device
of a type approved by the Secretary of State, or
(b) to provide a specimen of blood or urine for a laboratory test."
These specimens are not offered voluntarily. Section 7(6) provides that it is an offence to refuse, without reasonable cause, to provide these specimens and imposes punishment upon conviction, the penalties extending to 6 months' imprisonment or a fine or both. Section 7(7) requires that a constable must warn the suspect that failure to provide the samples may render him liable to prosecution. It is to be noted that the penalties for a contravention of section 7(6) are the same as for a contravention of section 5(1)(a) of the 1988 Act.
"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...."
"As a result, in the light of the above considerations" (i.e. those set out in para. 69 in Saunders) "the Commission does not find that the fact that the sample of blood was compulsorily obtained and admitted as evidence against the applicant could lead to the conclusion that the applicant was deprived of a fair trial within the meaning of Article 6 of the Convention."
"The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. The Court would note, in this context, that the present case does not concern a request, through the use of compulsory powers, of material which had an existence independent of the will of the applicants, such as documents or blood samples."
"The Court notes that in its judgment of 7 July 1995 the Federal Court referred to various obligations in criminal law obliging a person to act in a particular way in order to be able to obtain his conviction, for instance by means of a tachograph installed in lorries, or by being obliged to submit to a blood or urine test. In the Court's opinion, however, the present case differs from such material which, as the Court found in the Saunders case, had an existence independent of the person concerned, and was not, therefore, obtained by means of coercion and in defiance of the will of that person."
"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 those rights of an accused."
"While the High Court was entitled to distinguish (as it did at pp. 344-5) between the giving of an answer under sec. 172 and the provision of physical samples, and had the authority of the European Court in Saunders (at para. 69 for doing so), this distinction should not in my opinion be pushed too far. It is true that the respondent's answer, whether given orally or in writing, would create new evidence which did not exist until she spoke or wrote. In contrast, it may be acknowledged, the percentage of alcohol in her breath was a fact, existing before she blew into the breathalyser machine. But the whole purpose of requiring her to blow into the machine (on pain of a criminal penalty if she refused) was to obtain evidence not available until she did so and the reading so obtained could, in all save exceptional circumstances, be enough to convict a driver of an offence. If one applies the language of Wigmore on Evidence, vol 8, p. 318, quoted by the High Court that an individual should 'not be conscripted by his opponent to defeat himself' it is not easy to see why a requirement to answer is objectionable and a requirement to undergo a breath test is not. Yet no criticism is made of the requirement that the respondent undergo a breath test."
In this passage Lord Bingham was countering the conclusion of the High Court, arising from the distinction referred to in Saunders, that since the appellant was subject to compulsion to make an incriminating reply under threat of being found guilty of an offence and punished with a fine and since the Crown proposed to make use of that reply as a significant part of the prosecution case, that use 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) of the Convention. See also Lord Hope at p. 76C-D. But the passage quoted provides no foundation for the submission that a requirement to take a breath test under compulsion is an interference with the implied right on which the appellant relies in this appeal. Indeed in Brown v. Stott it appears that following upon the answer given by Miss Brown, the police then required her to give a specimen of breath. This she did. The breath test was positive. Thereafter she was charged inter alia with driving her car after consuming an excess of alcohol in contravention of section 5(1)(a) of the 1988 Act. Thus the decision cannot support the submission that the Board in Brown v. Stott were critical of the distinction made in Saunders between self-incriminating statements and the provision of breath samples obtained under compulsion and thus that there was no real distinction between the two for the purpose of determining whether an individual's right not to incriminate himself had been interfered with. Rather, the issue to which the Board addressed itself was whether evidence of an admission which Miss Brown was compelled to make under section 172(2)(a) could be led at her trial for the offence charged under section 3, compatibly with her rights under article 6 of the Convention, against the background that the implied rights were not absolute. The Board held that the rights not being absolute rights, were open to modification or restriction, that the statutory provisions for the detection and prosecution of road traffic offences serve a legitimate aim which would be at risk of being defeated if no means were available to enable the police to trace the driver of a vehicle after he had departed from the place of the offence before he could be identified and that the means employed were proportionate to that aim and were compatible with the right of the accused to a fair trial. The Board reviewed the decision of this court because, as Lord Bingham said at p. 61H-I, the High Court interpreted the decision in Saunders as laying down more absolute a standard than the European Court intended, and that nowhere in the High Court judgments was there to be found any recognition of the need to balance the general interests of the community against the interests of the individual or to ask whether section 172 represented a proportionate response to what is undoubtedly a serious social problem.