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Cite as: [2002] ScotHC 125

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    Brown v. Procurator Fiscal [2002] ScotHC 125 (24 September 2002)


    Lord Justice Clerk

    Lord Cameron of Lochbroom

    Lord MacLean











    Appeal No: 1127/02














    Appellant: Shead; Wheatley & Co.

    Respondent: Di Rollo, Q.C., A.D.; Crown Agent

    24 September 2002

  1. The appellant has been charged on complaint with a contravention of section 5(1)(a) of the Road Traffic Act 1988 ("the 1988 Act") which alleges that on 13 April 2002 he drove on the M 80 Stirling/Glasgow motorway after consuming so much alcohol that the proportion of it in his breath was 92 microgrammes of alcohol in 100 millilitres of breath, exceeding the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath. On 29 April 2002 the appellant appeared in the sheriff court and at that diet a devolution minute was lodged on his behalf. On 31 May 2002 the sheriff having heard parties in respect of the minute, dismissed the minute and granted leave to appeal.
  2. As the sheriff records, the purpose of the minute is to seek to exclude the evidence of the printout from the Intoximeter device which was used to analyse breath samples provided by the appellant following upon his arrest. That is to say, it is directed at the evidence contained in printouts from the device upon which proof of the proportion of alcohol in the appellant's breath at the relevant time and hence establishment of the libel of the charge depends. For that reason, when opening his submissions for the appellant before us, Mr. Shead indicated that he was inviting the court to allow the appeal and to pronounce declarator that the procurator fiscal had no power to lead and rely upon evidence relating to the measured results produced by the Intoximeter device from samples of breath provided by the appellant. Such a declarator was consistent with the course adopted by this court in analogous circumstances in Brown v. Stott 2000 JC 328. The declarator is sought upon the basis that if such evidence were to be led at any subsequent trial of the appellant, the proceedings would not be fair and thus there would be a violation of the appellant's entitlement to a fair hearing under Article 6(1) of the European Human Rights Convention.
  3. In his report the sheriff refers to the statutory scheme set out in the 1988 Act. The procedures leading up to an analysis by an Intoximeter device of specimens of breath provided by a person such as the appellant, begin with a roadside breath test administered by a constable in uniform in terms of section 6 of the Act. Where that roadside test shows an indication of alcohol in the breath, section 6(5) empowers a constable to arrest that person without warrant. Consequent upon arrest and following conveyance of that person to a police station, section 7 empowers a constable to require him to provide two specimens of breath for analysis. For completeness, we set out the full terms of section 7(1) so far as relevant:
  4. "(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.

  5. While the submissions for the appellant before the sheriff were in substantial part repeated before us, it is convenient to proceed by considering the submissions made before us since no direct criticism was made of the sheriff's reasoning for his decision to dismiss the minute as those are set out in his report. We should however record that, notwithstanding the terms of the note of appeal, no submissions were directed to a ground of appeal to the effect that the sheriff had erred "in holding that the sample of breath had not been obtained by inverting the onus of proof and the presumption of innocence".
  6. Mr. Shead began from the premise that the appellant was entitled to found upon the right not to incriminate himself (sometimes referred to as the privilege against self-incrimination), which together with the closely related right to silence was to be implied from the terms of Article 6 of the Convention. See Brown v. Stott 2001 PC 43. He accepted that these implied rights were not absolute but were subject to limitation. See Brown v. Stott 2001 PC, for instance per Lord Bingham of Cornhill at p. 60B: Heaney and McGuinness v. Ireland (2001) 33 EHRR 12 at para. 47. The right of an accused not to incriminate himself, as distinct from the right to silence, extended to cover evidence obtained under compulsion. There was no material distinction between what could be termed self-incriminating testimony, such as replies to questions given by an accused under compulsion, and the compulsory provision by an accused of samples of breath. In particular, the distinction between them maintained by reference to an existence independent of the will of the suspect, to which reference was made in Saunders v. United Kingdom (1996) 23 EHRR 313 and again referred to by Lord Justice General Rodger in Brown v. Stott 2000 JC at p. 344H-I, was inconsistent with what was said by Lord Bingham in Brown v. Stott 2001 PC at p. 61A-B. Reference was also made to a passage in the dissenting opinion of Judge Martens in Saunders at p. 355. There Judge Martens questioned whether the results of a breath test to which a person suspected of driving under the influence has been compelled to provide, could have an existence independent of the will of the suspect. Accordingly Mr. Shead maintained that the use at a subsequent trial of evidence arising from the requirement to provide specimens of breath, as was made in the present case in terms of the road traffic legislation referred to above, under notice that in the event of a failure to comply the appellant was liable to prosecution, was an infringement of his right not to incriminate himself, just as much as was the use made at his subsequent trial of incriminating statements obtained by the DTI inspectors from Mr. Saunders in exercise of their statutory powers of compulsion, was an infringement of Mr. Saunders' same right. Mr. Shead also made reference to JB v. Switzerland (EHRC 12 April 2001) and to the Commission decision in Cartledge v. United Kingdom (application no. 30551/96).
  7. In the alternative, Mr. Shead submitted that even if the right upon which the appellant founded could be limited by reason that the statutory regulatory scheme in the relevant sections of the Road Traffic Act 1988 sought to secure a legitimate aim, the sanction attached by way of penalty was excessive and disproportionate to the aim. The sanction imposed in the event of failure to comply with the requirement made in terms of section 7 of the 1988 Act extending to a penalty of imprisonment, constituted that degree of compulsion such as, in effect, destroyed the appellant's right not to incriminate himself. The European jurisprudence indicated that the Court took a robust attitude to whether the public interest could be invoked to justify what otherwise would be such interference. Reference was made to Heaney and McGuinness v. Ireland paras. 53 to 59. It was to be noted that in Brown v. Stott members of the Board had been influenced by particular factors, namely, that the answer to the single question to be put to the owner of a vehicle in terms of the relevant statutory provisions did not of itself incriminate the suspect and that the penalty for declining to answer was moderate and non-custodial.
  8. For the Crown it was accepted that what the advocate depute referred to as the privilege against self-incrimination was an important component of the guarantee of a fair trial. But that privilege was not absolute. It could be over-ridden, that is to say, made subject to limitation. There was nothing wrong in using compulsion to obtain specimens of blood, urine or breath for the purposes of a trial. European jurisprudence made a clear distinction between obtaining statements by compulsion and such samples, see Saunders and Cartledge. Where a sample has been obtained, it would always be known that it had been obtained by compulsion. When a statement is founded on, it cannot always be known whether it had been obtained by compulsion in the sense of being forced from the accused or not. Reference was made to the opinion of Lord Justice General Rodger in Brown v. Stott 2000 JC at p. 344-5. Breath was capable of being taken by way of a specimen and was in no different case from blood or urine. It required the co-operation of the individual and fell within the same kind of physical material of which samples could be taken in any criminal investigation. Reference was made to the terms of section 18 of the Criminal Procedure (Scotland) Act 1995. Furthermore the mere taking of the specimens of breath did not necessarily provide incriminating evidence since their measurement thereafter might demonstrate that no offence had been committed. Likewise, it was to be observed that the maximum penalty for failure to supply a specimen of breath when required in order to ascertain ability to drive or proportion of alcohol at the time the suspect was driving was exactly the same as that for an offence in terms of section 5(1)(a) of the 1988 Act. See Schedule 2 to the Road Traffic Offenders Act 1988. The consequence of the appellant's submissions, if they were well founded, would be to destroy the effectiveness of the statutory regulatory system.
  9. In our opinion, there is no support in either European jurisprudence or in domestic jurisprudence for the submissions for the appellant. We begin by bearing in mind that, as was said by Lord Hope of Craighead in Brown v. Stott 2001 PC at p. 75D-E, the right to silence and the right not to incriminate oneself have been recognised by the European Court as rights which, although not specifically mentioned in article 6 of the Convention, ought to be read in to that article to secure the right to a fair trial and that the fullest description of those rights is to be found in Saunders at paras 68-69.
  10. In Saunders at paras. 68 and 69 the Court said:.
  11. "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...."

  12. In Cartledge v. United Kingdom the Commission considered a complaint that the obtaining of a blood sample under compulsion involved a violation of the right of the suspect not to incriminate himself where the applicant was suspected of driving a motor vehicle with excess alcohol in his blood contrary to the Road Traffic Act 1972. The applicant had been stopped by the police and arrested for drinking and driving. At the police station, under alleged threat of prosecution for failure to provide a specimen, he allowed a police doctor to take a blood sample. The applicant had subsequently pleaded guilty but that gave rise to a separate issue before the Commission as to effective remedy if there had been a breach of Article 6. The Commission noted that in appeal proceedings in England there was no suggestion that the crucial evidence of the analysis of the blood sample on which guilt or innocence depended was in any way open to doubt. Nor had there been any objection before the original court that the specimen of blood had been obtained contrary to the correct procedure. After recapitulating the terms of paras. 68 and 69 in Saunders, the Commission said:
  13. "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."

  14. In Heaney and McGuinness the case concerned applicants who having been arrested in connection with an explosion at a checkpoint in Co. Derry, had been asked to account for their movements during a certain period pursuant to section 52 of the Offences against the State Act 1939, but had refused to do so and were convicted of failing to comply with the section 52 requests. But at para. 40 the Court said:
  15. "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."

  16. In the case of JB v. Switzerland the Court was concerned to examine whether or not the imposition of a fine on the applicant for having failed to provide certain information complied with the requirements under the Convention and was not concerned to decide the issue whether a State can oblige a taxpayer to give information for the sole purpose of securing a correct tax assessment - see para 63. But at para. 68 the Court said:
  17. "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."

  18. In Brown v. Stott 2000 JC at pp. 344H-345A Lord Justice General Rodger said:
  19. "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."

  20. In Brown v. Stott 2001 PC at p.61 A-D Lord Bingham said:
  21. "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.

  22. The averments made in the minute do not raise any questions as to the propriety of the procedure which was followed by the police officers who made the requirement of the appellant. The procedure followed is not said to have been otherwise than in accordance with the relevant statutory provisions. Nor is there any suggestion that the evidence of measurement is tainted. That is to say, the evidence to which the minute is directed is not said to be otherwise objectionable than on the basis of an assertion that it was obtained in contravention of the implied right against self-incrimination. If there was no contravention of that right, it is not suggested that the admission of such evidence would prejudice a fair trial. We have emphasised this aspect of the averments, because when consideration is given to what is said by the Court in Saunders, the assumption underlying the distinction made relative to material in the form of breath, blood or urine samples to be used in criminal proceedings, must have been that such material had been obtained lawfully and in accordance with the prescribed procedures laid down for a requirement to provide such material and could not be challenged on such grounds. Thus, for example, the Court makes specific reference to documents "acquired pursuant to a warrant". Of course if such material was not obtained in accordance with the prescribed procedures, that is to say, according to law, then evidence relating to that material could be challenged at any subsequent trial as inadmissible. Furthermore, unlike the position in Saunders where the evidence used at his trial was derived from answers compulsorily obtained in a non-judicial investigation, the evidence in the present case was obtained in the course of a criminal investigation, as section 7(1) of the 1988 Act makes clear.
  23. The position in the present case is an exact parallel to the position in Cartledge. The obligation to provide the blood sample in that case can be equiparated in terms of the relevant road traffic legislation to the obligation to provide a breath sample in the present case. Each proceeded upon a requirement to be made with notice that if the suspect failed to provide the sample, he might be prosecuted for that failure. Indeed as appears from the provisions of section 7(3) of the 1988 Act, so far as it is concerned with investigation of an offence under section 5 of the Act, the requirement for a specimen of blood or urine is only to made where the constable has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required or where either no or no reliable device is available or the device used has not produced a reliable indication of the proportion of alcohol in the breath. The decision of the Commission in Cartledge was determined by reference to what was said by the Court in Saunders at paras 68 and 69. In later decisions the Court has consistently referred to and supported the statements made there. In particular, in JB v. Switzerland the Court clearly recognised that an obligation in criminal law to provide material by way of a breath sample fell into the same category as an obligation to provide a sample of blood or urine, namely, as material which 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. As the sheriff noted in his report, the provision of a sample of breath is to be regarded as no different in principle from other samples such as blood, urine or DNA, and its provision as much as the provision of blood, urine or DNA is of the kind of physical sample to which Lord Bingham referred in Brown v. Stott 2001 PC at p. 61A. Indeed, it is because of its physical nature that a specimen of breath is capable of being measured for the proportion of alcohol in it by means of the approved device, just as a specimen of blood or urine can be measured through a laboratory test. In our opinion, the requirement made of the appellant in this case to provide breath specimens, being made of him in accordance with the prescribed statutory procedures, was not an interference with the appellant's implied right not to incriminate himself, even though it was accompanied by notice that failure to provide it might make the suspect liable to prosecution. Accordingly the making of such a requirement does not prejudice his right to a fair trial.
  24. We would add that even if we had accepted the submission that the provision of a breath sample in a criminal investigation under a requirement made in accordance with the provisions of the road traffic legislation involved the implied right of a suspect not to incriminate himself, we would have rejected the submission that the degree of compulsion implied by notice that if the suspect failed to comply with the requirement he might be liable to prosecution, was disproportionate to the aim of the legislation and destroyed the very essence of the privilege against self-incrimination. The aim of the relevant road traffic legislation can be shortly put as one to address the high incidence of death and injury on the roads caused by the misuse of motor vehicles, and not least by those who drive under the influence of alcohol or drugs, in an effective way for the benefit of the public. The requirement in terms of section 7(1) is made after the person has been identified as a person suspected of driving or attempting to drive a motor car and one who has already have undergone a section 6 breath test which has indicated the presence of alcohol in his breath and has thereafter been arrested. Therefore, unlike section 172, it is not concerned with an individual who may be no more than the owner of the motor vehicle in question and in no way likely to be suspected of having committed an offence under section 5 of the 1988 Act. On the other hand, by providing specimens as required following upon notice in terms of section 7(7), the subsequent measurements may demonstrate that no such offence has been committed. Furthermore, the maximum penalties for the offence of failing to comply with the requirement to provide two specimens of breath or a specimen of blood or urine are no greater than would be the case where the person was convicted of an offence under section 5 of the 1988 Act. In these circumstances, if the question is asked, adapting the language of Lord Bingham in Brown v. Stott 2001 PC at p. 61F and viewing the matter in the round, whether section 7, and in particular sub-section(1) together with sub-sections (6) and (7) represent a disproportionate legislative response to the problem of maintaining road safety, whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual, whether (in short) the leading of evidence of the measurements derived from the Intoximeter device at any trial of the appellant would infringe a basic human right of his, we would have felt bound to give negative answers. We find ourselves in full agreement with the way in which the sheriff has approached this matter and in which he has expressed himself in addressing this matter in the course of his report.
  25. For these reasons, we will refuse the appeal and remit to the sheriff to proceed as accords.

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