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Cite as: [2003] AC 681, 2001 SC (PC) 43, [2001] UKHRR 333, (2001) 3 LGLR 24, 11 BHRC 179, [2000] UKPC D 3, [2001] RTR 121, [2001] 2 All ER 97, 2001 SLT 59, [2001] HRLR 9, 2000 GWD 40-151, [2001] RTR 11, [2000] UKPC D3, [2001] 2 WLR 817, [2003] 1 AC 681, 2001 SCCR 62

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JISCBAILII_CASE_NI LEGAL SYSTEM

JISCBAILII_CASE_IMMIGRATION

    Procurator Fiscal v Brown (Scotland) [2000] UKPC D3 (5 December, 2000)

    DRA No.3 of 2000
    (1) Procurator Fiscal, Dunfermline and
    (2) Her Majesty's Advocate General for Scotland Appellants

    v.

    Margaret Anderson Brown Respondent

    FROM

    THE HIGH COURT OF JUSTICIARY

    ---------------

    JUDGMENT OF THE LORDS OF THE JUDICIAL

    COMMITTEE OF THE PRIVY COUNCIL,
    Delivered the 5th December 2000

    ------------------

    Present at the hearing:-

    Lord Bingham of Cornhill

    Lord Steyn

    Lord Hope of Craighead

    Lord Clyde

    The Rt. Hon. Ian Kirkwood (Lord Kirkwood)

    ------------------

    Lord Bingham of Cornhill

    In the early hours of 3 June 1999 the police were called to a 24-hour superstore in Dunfermline where the respondent, Miss Brown, was suspected of having stolen a bottle of gin. The officers who attended judged her to be the worse for drink. Asked how she had come to the store, she said she had travelled by car. It seems that she made some reference to a kitten which was in the car. She was charged with theft and taken to the police station, but before leaving the store she pointed to a car in the store car park which she said was hers. At the police station the police found the keys of the car in her handbag. Exercising what they took to be their powers under section 172(2)(a) of the Road Traffic Act 1988, the police required her to say who had been driving her car at about 2.30 a.m. when she would have travelled in it to the store car park. She replied "It was me". A breath test was then administered to her, which proved positive.

    The respondent was prosecuted for two offences: theft; and driving a car after consuming excessive alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. She indicated her intention to plead not guilty to both charges.

    On 1 July 1999 the respondent gave written notice of her intention to raise a devolution issue under section 98 of and Schedule 6 to the Scotland Act 1998. The issue was whether, compatibly with the respondent's rights under article 6 of the European Convention on Human Rights, the Procurator Fiscal at Dunfermline, as prosecutor, could rely at trial on the respondent's admission compulsorily obtained under section 172(2)(a) of the 1988 Act.

    The Sheriff Court at Dunfermline heard argument whether a devolution issue had been raised. In the course of this argument it was accepted (as it still is) that the Procurator Fiscal acted on behalf of the Lord Advocate, a member of the Scottish Executive, and that the Procurator Fiscal intended at the forthcoming trial of the respondent to lead evidence of her admission made under section 172(2)(a). Evidence of this admission was treated as necessary to prove the identity of the driver. The sheriff ruled, in a reserved judgment, that no devolution issue had been raised, but he gave leave to appeal against his decision and the respondent appealed to the High Court of Justiciary. At that stage the Advocate General for Scotland exercised her right to intervene.

    The appeal was heard in the High Court of Justiciary on 5 November 1999 and 6 and 7 January 2000 before the Lord Justice General (Lord Rodger of Earlsferry), Lord Marnoch and Lord Allanbridge. For reasons given in a reserved judgment delivered on 4 February 2000 (2000 SLT 379), the respondent's appeal was allowed and it was declared that the Procurator Fiscal had no power to lead and rely on evidence of the admission which she had been compelled to make under section 172(2)(a) of the 1988 Act. Leave to appeal to the Judicial Committee of the Privy Council was given on 8 February 2000.

    On the facts summarised above (which the respondent reserves the right to challenge hereafter), three broad issues have been argued before the Board. The first is whether the respondent has in truth raised a devolution issue as defined by the Scotland Act 1998. This was not an issue argued before the High Court. It was raised before the Board by the Solicitor General for Scotland on behalf of the Procurator Fiscal, prompted by the decision of the Board in Montgomery v. Her Majesty's Advocate and the Advocate General for Scotland (unreported, 19 October 2000). Both the Advocate General and the respondent submitted to the Board that the respondent had raised a devolution issue. The second issue is whether, compatibly with the respondent's rights under article 6 of the European Convention, the Procurator Fiscal may lead evidence of the admission which she was compelled to make under section 172(2)(a) of the 1988 Act at her trial for the offence charged under section 5 of that Act. On this issue the Solicitor General and the Advocate General united to challenge the decision of the High Court. The third issue only arises for decision if the first issue is resolved in the respondent's favour, and it turns on the peculiar circumstance that, when these events occurred, the Human Rights Act 1998 had not been brought fully into force in Scotland. The issue is whether, even if the leading of such evidence would be incompatible with the respondent's rights under article 6, the Procurator Fiscal may nonetheless lawfully lead such evidence.

    On the first of these three issues I agree with the conclusion reached by my noble and learned friend Lord Hope of Craighead that a devolution issue has been raised. I also agree with his reasons for reaching that conclusion. There is nothing I can usefully add.

    For reasons given in the body of this opinion, I (in common with all of their Lordships) would resolve the second issue in favour of the Procurator Fiscal and the Advocate General and adversely to the respondent. This makes it unnecessary to resolve the third issue, and I think it undesirable to offer unauthorative observations on an issue which is by no means straightforward and which seems likely to call for decision before long.

    This opinion accordingly deals with only the second issue defined above. In addressing this issue, I would wish to acknowledge the help which the Board has received from a written submission made, by leave of the Board, by JUSTICE.

    The Judgment of the High Court of Justiciary

    The High Court concluded that the leading by the Procurator Fiscal of evidence of the respondent's admission made under section 172 of the 1988 Act, at her trial for an offence against section 5, would infringe her right to a fair trial guaranteed by article 6 of the Convention. Its reasons for that conclusion were given by the Lord Justice General, in a judgment with which Lord Marnoch and Lord Allanbridge concurred. The court reached its conclusion by the following important steps:

    1. The European Court of Human Rights has recognised a right to silence and a right against self-incrimination at trial, both derived from article 6(1) of the Convention. There is no difference in principle between a requirement to admit the driving of a car made out of court before trial and a similar requirement to testify at trial. To be effective, the right to silence and the right not to incriminate oneself at trial imply the recognition of similar rights at the stage when the potential accused is a suspect being questioned in the course of a criminal investigation (2000 SLT 379 at pp. 384-387).

    2. To assess whether a person has incriminated himself or herself, the essential consideration is the use to which evidence obtained under compulsion will be put. The concept is not confined to admissions of wrongdoing or to remarks which are directly incriminating. As the respondent's reply would contribute to the proof that she had driven her car on the occasion in question, and thus provide one of the essential links in the chain of testimony against her, it would be self-incriminating for the purposes of article 6(1) of the Convention (p. 390).

    3. The right not to incriminate oneself is a "testimonial immunity", protecting a person against being forced to speak. This distinguishes an obligation to answer a question from the taking of samples and the obtaining of documents, since neither of these require the person to speak and the evidence obtained is already in existence (pp. 390-391).

    4. There is nothing exceptional, either in the nature of the road traffic offence which the respondent had allegedly committed, or in the difficulty of proving the offence without obtaining her admission under section 172, which would justify any infringement of her right not to incriminate herself guaranteed by article 6 of the Convention (p. 391).

    5. Section 172 applies only where the driver of a vehicle is alleged to have committed a relevant offence. Unlike the provisions considered in other cases reviewed by the court, section 172 has no wider regulatory, non-criminal purpose but exists only to assist the police to identify the driver of a vehicle at the time of an alleged offence (p.393). Both the Lord Justice General and Lord Marnoch in his additional observations paid close attention to, and were strongly influenced by, the decision of the European Court in Saunders v. United Kingdom (1996) 23 EHRR 313.

    The decision of the High Court has been followed in England: in R. v. Chauhan and Hollingsworth (Birmingham Crown Court, unreported, 13 July 2000) admissions made under section 172 by two drivers on whom notice of intended prosecution had been served were excluded by the trial judge.

    Section 172 of the Road Traffic Act 1988

    So far as material, section 172 of the 1988 Act at the relevant time provided:

    "(1) This section applies –

    (a) to any offence under the preceding provisions of this Act except -

    (i) an offence under Part V, or

    (ii) an offence under section 13, 16, 51(2), 61(4), 67(9), 68(4), 96 or 120,

    and to an offence under section 178 of this Act,

    (b) to any offence under sections 25, 26 or 27 of the Road Traffic Offenders Act 1988,

    (c) to any offence against any other enactment relating to the use of vehicles on roads, except an offence under paragraph 8 of Schedule 1 to the Road Traffic (Driver Licensing and Information Systems) Act 1989, and

    (d) to manslaughter, or in Scotland culpable homicide, by the driver of a motor vehicle.

    (2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies -

    (a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and

    (b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.

    (3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.

    (4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.

    (7) A requirement under subsection (2) may be made by written notice served by post; and where it is so made -

    (a) it shall have effect as a requirement to give the information within the period of 28 days beginning with the day on which the notice is served, and

    (b) the person on whom the notice is served shall not be guilty of an offence under this section if he shows either that he gave the information as soon as reasonably practicable after the end of that period or that it has not been reasonably practicable for him to give it."

    It is evident that the power of the police to require information to be given as to the identity of the driver of a vehicle only arises where the driver is alleged to be guilty of an offence to which the section applies. Those offences include the most serious of driving offences, such as manslaughter or culpable homicide, causing death by dangerous driving, dangerous and careless driving, causing death by careless driving when under the influence of drugs or drink, and driving a vehicle after consuming alcohol above the prescribed limit. They also include the offence, in Scotland, of taking and driving away a vehicle without consent or lawful authority. The offences excluded are of a less serious and more regulatory nature. They include offences in relation to driving instruction, the holding of motoring events on public ways, the wearing of protective headgear, driving with uncorrected defective eyesight and offences pertaining to the testing, design, inspection and licensing of vehicles. The penalty for failing to comply with a requirement under subsection (2) is a fine of (currently) not more than £1,000: in the case of an individual, disqualification from driving is discretionary but endorsement of the licence is mandatory. The requirement to supply information under subsection (2) may be made of "the person keeping the vehicle" or "any other person," irrespective of whether either of them is suspected of being the driver alleged to have committed the relevant offence. In this case, it is clear that the respondent, when required to give information, was suspected of committing the offence for which she was later prosecuted.

    It has been held in Scotland that an oral admission made in response to a requirement under the section which preceded section 172 is admissible in evidence: Foster v. Farrell 1963 JC 46. This has never to my knowledge been doubted in England and Wales. Where notice of the requirement under section 172(2) is given by post and an admission of driving is made in writing, section 12 of the Road Traffic Offenders Act 1988 presumes the admission to be made by the person to whom the notice was sent both in England and Wales and (by amendment, although to a more limited extent: Road Traffic Act 1991, Schedule 4, paragraph 85) in Scotland.

    Section 172 is by no means the only provision in United Kingdom road traffic legislation which requires information to be given even though the giving of the information may contribute to proof of an offence against the giver. The duty to report an accident under section 170 of the Road Traffic Act 1988, the duty to give information concerning insurance cover under section 171 of that Act and the duties imposed by section 112 of the Road Traffic Regulation Act 1984 and section 46 of the Vehicle Excise and Registration Act 1994, if complied with, may all have the incidental effect of facilitating proof of a criminal offence committed by the giver of the information.

    Article 6

    Attention has often, and rightly, been drawn to contrasts between different articles of the Convention. Some (such as articles 3 and 4) permit no restriction by national authorities. Others (such as articles 8, 9, 10 and 11) permit a measure of restriction if certain stringent and closely prescribed conditions are satisfied. Article 6 is in these terms:

    "Right to a fair trial

    1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

    2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

    3. Everyone charged with a criminal offence has the following minimum rights:

    (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

    (b) to have adequate time and facilities for the preparation of his defence;

    (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

    (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

    This article has more in common with the first group of articles mentioned above than the second. The only express qualification relates to the requirement of a "public hearing". But there is nothing to suggest that the fairness of the trial itself may be qualified, compromised or restricted in any way, whatever the circumstances and whatever the public interest in convicting the offender. If the trial as a whole is judged to be unfair, a conviction cannot stand.

    What a fair trial requires cannot, however, be the subject of a single, unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done. Before considering the right not to incriminate oneself with which this appeal is specifically concerned, it is helpful to review the way in which the European Court has treated other rights held to be comprised within article 6.

    The presumption of innocence

    The right to be presumed innocent of a criminal offence until proved guilty according to law is expressed in article 6(2). This appears on its face to be an absolute requirement. But it has been held that it does not prohibit rules which transfer the burden to the accused to establish a defence, provided the overall burden of proof remains on the prosecution, nor does it necessarily prohibit presumptions of law or fact provided these are within reasonable limits. In Salabiaku v. France (1988) 13 EHRR 379 the Court held, in paragraph 28 of its judgment:

    "Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law ... Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. The Court proposes to consider whether such limits were exceeded to the detriment of Mr. Salabiaku."

    As Clayton and Tomlinson point out in The Law of Human Rights, (2000 Volume 1, at paragraph 11.238), the following have been held not to violate article 6(2) of the Convention: the requirement that a person charged with criminal libel prove the truth of the statement (Lingens and Leitgens v. Austria (1981) 4 EHRR 373); the presumption that a person, having come through customs in possession of prohibited goods, had smuggled them (Salabiaku v. France, above); the presumption that a man living with a prostitute was knowingly living off immoral earnings (X v. United Kingdom (1972) 42 CD 135); a presumption that a dog was a member of a specified breed (Bates v. United Kingdom [1996] EHRLR 312; the burden on the accused to establish the defence of insanity (H. v. United Kingdom, Application 15023/89 4 April 1990). In R. v. Director of Public Prosecutions Ex parte Kebilene [1999] 3 WLR 972 at 997 my noble and learned friend Lord Hope of Craighead said:

    "The cases show that, although article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses, whether they be evidential (presumptions of fact) or persuasive (presumptions of law). In each case the question will be whether the presumption is within reasonable limits."

    The right of access to a court

    Article 6 contains no express right of access to a court, but in Golder v. United Kingdom (1975) 1 EHRR 524 the European Court held (in paragraph 35 of its judgment) that it would be "inconceivable" that article 6 should describe in detail the procedural guarantees afforded to parties in a pending law suit and should not first protect that which alone makes it possible to benefit from such guarantees, namely access to a court. In paragraph 38 of its judgment the Court added:

    "The Court considers, accepting the views of the Commission and the alternative submission of the Government, that the right of access to the courts is not absolute. As this is a right which the Convention sets forth without, in the narrower sense of the term, defining, there is room, apart from the bounds delimiting the very content of any right, for limitations permitted by implication".

    This expression of view was repeated in Ashingdane v. United Kingdom (1985) 7 EHRR 528, where the Court ruled (in paragraph 57 of its judgment):

    "Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access, 'by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals'. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention's requirements rests with the Court, it is no part of the Court's function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field."

    These principles were repeated in Fayed v. United Kingdom (1994) 18 EHRR 393 at paragraph 65 of the judgment; and in Tinnelly & Sons Limited & Others and McElduff & Others v. United Kingdom (1998) 27 EHRR 249 at paragraph 72 of its judgment the Court said that while the right of access to a court might be subject to limitations

    "... the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."

    The Court's judgment in The National & Provincial Building Society, The Leeds Permanent Building Society and The Yorkshire Building Society v. United Kingdom (1997) 25 EHRR 127, at paragraph 105, was to the same effect. Restrictions on the access to court of other potential litigants have also been recognised in the cases of minors (Golder, at paragraph 39) vexatious litigants (H. v. United Kingdom (1985) 45 DR 281), prisoners (Campbell and Fell v. United Kingdom (1984) 7 EHRR 165) and bankrupts (M. v. United Kingdom (1987) 52 DR 269): see Clayton and Tomlinson, op. cit., at paragraph 11.191.

    Equality of arms

    Equality of arms between the prosecutor and defendant has been recognised by the Court as lying at the heart of the right to a fair trial. The scope and implications of this principle have been considered in many cases, and recently in Fitt v. United Kingdom (Application No. 29777/96, 16 February 2000) where the Court said at paragraphs 44-45 of its judgment:

    "44. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see the Brandstetter v. Austria judgment of 28 August 1991, Series A no. 211, paragraphs 66, 67). In addition Article 6 paragraph 1 requires, as indeed does English law (see paragraph 18 above), that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused (see [Edwards v. United Kingdom judgment of 16 December 1992, series A no. 247-B,] paragraph 36.)

    45. However, as the applicant recognised (see paragraph 38 above), the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused (see, for example, the Doorson v. The Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996 – II, paragraph 70). In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 paragraph 1 (see the Van Mechelen and Others v. The Netherlands judgment of 23 April 1997, Reports 1997-III, paragraph 58). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see the above-mentioned Doorson judgment, paragraph 72 and the above-mentioned Van Mechelen and Others judgment, paragraph 54)."

    Article 6(3)(d)

    A similar approach has been taken to the application of article 6(3)(d): measures to withhold the identity of witnesses may be justified if subject to appropriate judicial safeguards (X v. United Kingdom (1993) 15 EHRR CD 113), but not where the procedure adopted is such as to deny the defendant his basic right to a fair trial. Such was held to be the case in Kostovski v. Netherlands (1989) 12 EHRR 434, where the Court said in paragraph 44 of its judgment:

    "As on previous occasions the Court does not underestimate the importance of the struggle against organised crime. Yet the Government's line of argument, whilst not without force, is not decisive.

    Although the growth in organised crime doubtless demands the introduction of appropriate measures, the Government's submissions appear to the Court to lay insufficient weight on what the applicant's counsel described as 'the interest of everybody in a civilised society in a controllable and fair judicial procedure'. The right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency ..."

    The admission of unlawfully obtained evidence

    The admissibility of evidence has been recognised as, generally speaking, a matter for national legal systems to regulate. Schenk v. Switzerland (1988) 13 EHRR 242 concerned the admissibility of evidence obtained unlawfully and in breach of the defendant's rights under article 8 of the Convention. In paragraph 46 of its judgment the Court said:

    "While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law.

    The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr. Schenk's trial as a whole was fair."

    In that case the Court attached weight to the fact that the case against the defendant did not rest solely on the recording of the telephone conversation which had been unlawfully made and which the defendant sought to exclude. Less weight was attached to this last feature in Khan v. United Kingdom (Application No. 35394/97, 12 May 2000), which closely resembled the case of Schenk on its facts. Here the Court said, in paragraphs 37-39 of its judgment:

    "37. The Court next notes that the contested material in the present case was in effect the only evidence against the applicant and that the applicant's plea of guilty was tendered only on the basis of the judge's ruling that the evidence should be admitted. However, the relevance of the existence of evidence other than the contested matter depends on the circumstances of the case. In the present circumstances, where the tape recording was acknowledged to be very strong evidence, and where there was no risk of it being unreliable, the need for supporting evidence is correspondingly weaker. It is true that, in the case of Schenkere

    , weight was attached by the Court to the fact that the tape recording at issue in that case was not the only evidence against the applicant. However, the Court notes in this regard that the recording in the Schenk case, although not the only evidence, was described by the Criminal Cassation Division of the Vaud Cantonal Court as having 'a perhaps decisive influence, or at the least a not inconsiderable one, on the outcome of the criminal proceedings'(paragraph 28). Moreover, this element was not the determinative factor in the Court's conclusion.

    38. The central question in the present case is whether the proceedings as a whole were fair. With specific reference to the admission of the contested tape recording, the Court notes that, as in the Schenk case ,the applicant had ample opportunity to challenge both the authenticity and the use of the recording. He did not challenge its authenticity, but challenged its use at the 'voire dire' and again before the Court of Appeal and the House of Lords. The Court notes that at each level of jurisdiction the domestic courts assessed the effect of admission of the evidence on the fairness of the trial by reference to section 78 of PACE, and the courts discussed, amongst other matters, the non-statutory basis for the surveillance. The fact that the applicant was at each step unsuccessful makes no difference (see the above-mentioned Schenk judgment, paragraph 47).

    39. The Court would add that it is clear that, had the domestic courts been of the view that the admission of the evidence would have given rise to substantive unfairness, they would have had a discretion to exclude it under section 78 of PACE."

    The right not to incriminate oneself

    The right not to incriminate oneself and the right to silence, although distinct rights, are closely related, as acknowledged by the House of Lords in R. v. Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at p. 40 where Lord Mustill said:

    "That there is strong presumption against interpreting a statute as taking away the right of silence, at least in some of its forms, cannot in my view be doubted. Recently, Lord Griffiths (delivering the opinion in the Privy Council in Lam Chi-ming v. The Queen [1991] 2 AC 212, 222) described the privilege against self incrimination as 'deep rooted in English law', and I would not wish to minimise its importance in any way . ..."

    It is convenient for present purposes to consider these two rights together.

    Murray v. United Kingdom (1996) 22 EHRR 29 concerned the compatibility with article 6 of the Convention of a rule permitting a trial court to draw adverse inferences from a failure of a defendant to answer police questions before the trial and give evidence at the trial. In paragraphs 45 – 47 of its judgment the Court held:

    "45. Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aim of Article 6.

    46. The Court does not consider that it is called upon to give an abstract analysis of the scope of these immunities and, in particular, of what constitutes in this context 'improper compulsion'. What is at stake in the present case is whether these immunities are absolute in the sense that the exercise by an accused of the right to silence cannot under any circumstances be used against him at trial or, alternatively, whether informing him in advance that, under certain conditions, his silence may be used, is always to be regarded as 'improper compulsion'.

    47. On the one hand, it is self-evident that [it] is incompatible with the immunities under consideration 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 Court deems it equally obvious that these immunities cannot and should not prevent that the accused's silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.

    Wherever the line between these two extremes is to be drawn, it follows from this understanding of 'the right to silence' that the question whether the right is absolute must be answered in the negative.

    It cannot be said therefore that an accused's decision to remain silent throughout criminal proceedings should necessarily have no implications when the trial court seeks to evaluate the evidence against him. In particular, as the Government has pointed out, established international standards in this area, while providing for the right to silence and the privilege against self-incrimination, are silent on this point.

    Whether the drawing of adverse inferences from an accused's silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation."

    This decision was shortly followed by that in Saunders v. United Kingdom (1996) 23 EHRR 313, an authority on which the respondent particularly relied before the High Court and the Board. Suspicion of an unlawful share support operation in the shares of Guinness plc had led to the appointment of inspectors, who had found evidence of criminal conduct and had thereafter interviewed Mr. Saunders, formerly a director and the chief executive of Guinness, on nine occasions. He was charged with numerous offences, and the prosecution sought to rely on the transcript of his interviews by the inspectors. The admissibility of such transcripts was challenged, but the judge ruled that under the relevant statute the inspectors were entitled to ask witnesses questions that tended to incriminate them, that the witnesses were under a duty to answer such questions and that the answers were admissible in criminal proceedings. The judge did however exclude the transcripts of the last two interviews, conducted after Mr. Saunders had been charged, applying section 78 of the Police and Criminal Evidence Act 1984. The issue before the European Court did not concern the propriety of compelling answers to the inspectors' questions at the investigatory stage but the propriety of admitting the evidence of those answers, compulsorily obtained, in the criminal proceedings. The Court ruled in Mr. Saunders' favour:

    "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.

    In the present case the Court is only called upon to decide whether the use made by the prosecution of the statements obtained from the applicant by the Inspectors amounted to an unjustifiable infringement of the right. This question must be examined by the Court in the light of all the circumstances of the case. In particular, it must be determined whether the applicant has been subject to compulsion to give evidence and whether the use made of the resulting testimony at his trial offended the basic principles of a fair procedure inherent in Article 6(1) of which the right not to incriminate oneself is a constituent element.

    70. It has not been disputed by the Government that the applicant was subject to legal compulsion to give evidence to the Inspectors. He was obliged under sections 434 and 436 of the Companies Act 1985 to answer the questions put to him by the Inspectors in the course of nine lengthy interviews of which seven were admissible as evidence at his trial. A refusal by the applicant to answer the questions put to him could have led to a finding of contempt of court and the imposition of a fine or committal to prison for up to two years and it was no defence to such refusal that the questions were of an incriminating nature.

    However, the Government have emphasised, before the Court, that nothing said by the applicant in the course of the interviews was self-incriminating and that he had merely given exculpatory answers or answers which, if true, would serve to confirm his defence. In their submission only statements which are self-incriminating could fall within the privilege against self-incrimination.

    71. The Court does not accept the Government's premise on this point since some of the applicant's answers were in fact of an incriminating nature in the sense that they contained admissions to knowledge of information which tended to incriminate him. In any event, bearing in mind the concept of fairness in Article 6, the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature – such as exculpatory remarks or mere information on questions of fact – may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful. It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is made in the course of the criminal trial.

    ...

    74. Nor does the Court find it necessary, having regard to the above assessment as to the use of the interviews during the trial, to decide whether the right not to incriminate oneself is absolute or whether infringements of it may be justified in particular circumstances.

    It does not accept the Government's argument that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could justify such a marked departure as that which occurred in the present case from one of the basic principles of a fair procedure. Like the Commission, it considers that the general requirements of fairness contained in Article 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction, from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings. It is noteworthy in this respect that under the relevant legislation statements obtained under compulsory powers by the Serious Fraud Office cannot, as a general rule, be adduced in evidence at the subsequent trial of the person concerned. Moreover the fact that statements were made by the applicant prior to his being charged does not prevent their later use in criminal proceedings from constituting an infringement of the right."

    Condron v. United Kingdom (Application No. 35718/97, 2 May 2000) again concerned the drawing of inferences adverse to a defendant from his failure to mention matters on which he relied at trial to the police when questioned before the trial. The applicants in this case did not seek to argue that the right to silence was absolute in the context of a jury trial, accepting the decision in Murray as the appropriate starting point for examining the issue. In this case, however, unlike Murray, the applicants' complaint was upheld, on the ground that the trial judge had not in the Court's opinion given the jury a sufficiently restrictive direction.

    The High Court in the present case (see p. 388) derived no assistance from three decisions of the Commission to which the attention of the Board has also been drawn. In DN v. Netherlands (Application No. 6170/73, 26 May 1975) the applicant complained that he had been fined for two parking offences which he had not himself committed. He had refused to identify the offender to the authorities, and under the relevant legislation he, as the owner of the vehicle, was responsible for the unlawful parking of the car unless he proved that it had been used against his will and that he could not reasonably have prevented such use. The suggestion that it was a breach of article 6(1) of the Convention to punish a person who had not directly committed the punishable act was described as "misconceived". The presumption of innocence, it was held, was not engaged since under Netherlands law the applicant was guilty if the car was wrongly parked without his being able or willing either to name the driver or to establish that the car had been used against his will.

    Under an Austrian law, considered in JP, KR and GH v. Austria (Applications No. 15135/89, 15136/89 and 15137/89, 5 September 1989), the registered owner of a car was obliged to inform the authorities at their request who had last driven or parked the car. The applicants were penalised for not doing so and complained that the proceedings infringed their rights under article 6. The Commission, although prepared to assume that article 6 applied to the proceedings, were not persuaded. Referring to their earlier decision in DN v. Netherlands the Commission ruled:

    "The regulation here in question is based on a similar principle, in that it obliges a car owner, or other person named by the owner as the driver of the car, to assume the responsibility for the use or to name the actual driver.

    Thereby the person concerned is not under all circumstances obliged to incriminate himself/herself or a close relative, but may, according to the circumstances, also show that he/she is not connected with the offence committed by the driver. For example, a car may have been used by other known or unknown persons with or without the consent of the owner of the car."

    The applicant in Tora Tolmos v. Spain (Application No. 23816/94, 17 May 1995) was driving his car when a police radar detected that it was breaking the speed limit. A prosecution was begun against the driver, and the applicant was served with a notice requiring him to disclose the name and address of the driver on the occasion in question on penalty of committing a serious summary offence if he failed to answer. He answered, falsely, that he could not identify the driver, and was fined for refusing to do so. He unsuccessfully challenged the constitutionality of the relevant provision, and complained to the Commission under article 6 of the Convention that the imposition of the fine breached his right not to be obliged to confess. The Commission considered that the Spanish provision in question did not disclose any appearance of violating article 6.

    It is certainly clear, as the High Court of Judiciary pointed out, that none of these three applications concerned the reliance at trial on incriminating answers compulsorily obtained at an earlier stage; but the decisions are not in my view irrelevant, since it is also clear that had the applicants identified themselves as the persons responsible for committing the road traffic offence in question in each case, they would have been prosecuted for those offences. Thus, like the respondent in this case, the choice that effectively faced them was to answer the question and be prosecuted for the substantive offence, or refuse to answer it and be penalised for that refusal.

    The parties' submissions

    In challenging the decision of the High Court the Solicitor General for Scotland (representing the Procurator Fiscal) and the Advocate General for Scotland made common cause. While accepting that the right of an accused person to a fair trial was absolute and could not be qualified, they relied on the case law of the European Court as showing that the constituent rights comprised within article 6 were not themselves absolute. Provided the overall fairness of the trial was not compromised, some deference should be shown towards the administrative judgment of member states on the social problems which they sought to address. Different member states had responded to road traffic problems in different ways, but the need to minimise the incidence of death and injury on the roads, and to identify and penalise drivers who offended against laws enacted to protect the public, was obvious and the United Kingdom's response, embodied in section 172, was proportionate and not such as to compromise a fair trial. The right not to incriminate oneself is an important right, but not an absolute right, and it is directed (as suggested by the Court in Saunders) to improper compulsion, coercion and oppression likely to result in forced confessions and miscarriages of justice. In the absence of any evidence of compulsion, coercion or oppression, mere invocation of section 172 does not infringe a suspect's right to a fair trial even where it leads to an admission relied on at a later trial: the admission here was made in response to a single unthreatening question, and although providing the prosecutor with proof of a fact necessary to convict did not of itself involve any admission of criminal conduct.

    The written submission of JUSTICE was broadly to the same effect. It was submitted that the public interest could justify a more restrictive interpretation of the right against self-incrimination in the context of road traffic prosecutions than would be permitted in relation to other offences, so long as there was no erosion of a suspect's protection against improper compulsion and unfair use of compulsorily obtained evidence.

    In a cogently argued submission on behalf of the respondent counsel supported the decision of the High Court and the reasoning on which it was based. It was unnecessary to contend that the right not to incriminate oneself was absolute. The European Court's reasoning in Saunders prohibited reliance on an answer compulsorily obtained before a trial to convict a defendant at trial. In the present case, the respondent had been compulsorily required to admit to her driving of the car. The Procurator Fiscal was now seeking to rely on that admission to convict her of a criminal offence. Without proof of her identity as the driver she could not be convicted. There was thus a clear infringement of the respondent's right not to incriminate herself, a right recognised by the common law of Scotland well before incorporation of the Convention into the law of the United Kingdom. Considerations of expediency could not be relied on to justify that infringement.

    Conclusions

    The European Convention is an international treaty by which the contracting states mutually undertake to secure to all within their respective jurisdictions certain rights and freedoms. The fundamental nature of these rights and freedoms is clear, not only from the full title and the content of the Convention but from its preamble in which the signatory governments declared

    "their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend."

    Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies: see Lester and Pannick, Human Rights Law and Practice, (1999) at pp. 73-6. The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from "The heart-ache and the thousand natural shocks That flesh is heir to".

    In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the Court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a "living tree capable of growth and expansion within its natural limits" (Edwards v. Attorney-General for Canada [1930] AC 124 at 136 per Lord Sankey LC), but those limits will often call for very careful consideration.

    Effect has been given to the right not to incriminate oneself in a variety of different ways. The fifth amendment to the Constitution of the United States provides that no person shall be compelled in any criminal case to be a witness against himself. The Indian Constitution (article 20(3)) provides that no person accused of any offence shall be compelled to be a witness against himself. The International Covenant on Civil and Political Rights 1966 provides in article 14(3)(g) that in determination of any criminal charge everyone shall be entitled to certain minimum guarantees, including a right not to be compelled to testify against himself or to confess guilt. The Canadian Charter of Rights and Freedoms confers on a person charged with an offence the right not to be compelled to be a witness in proceedings against himself in respect of that offence (section 11(c)). The New Zealand Bill of Rights Act 1990, in section 25(d), grants to everyone who is charged with an offence, in relation to the determination of the charge, certain minimum rights which include the right not to be compelled to be a witness or to confess guilt. The recently adopted constitution of South Africa grants rights to a suspect on arrest to remain silent and not to be compelled to make any confession or admission that could be used in evidence against him (section 35(1)(a) and (c)) and also a right to a fair trial, which includes rights to remain silent and not to testify during the proceedings and not to be compelled to give self-incriminating evidence (section 35(3)(h) and (j)). In contrast, the Universal Declaration of Human Rights 1948, in articles 10 and 11(1), grants a right to a fair trial in terms similar to the European Convention, but, like the Convention, contains no express guarantee of a privilege against self incrimination. Thus the right we have to consider in this case is an implied right. While it cannot be doubted that such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what is to be implied.

    The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the Court throughout its history. The case law shows that the Court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v. Sweden (1982) 5 EHRR 35, at paragraph 69 of the judgment; Sheffield and Horsham v. United Kingdom (1998) 27 EHRR, 163, at paragraph 52 of the judgment.

    The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies. The need to address it in an effective way, for the benefit of the public, cannot be doubted. Among other ways in which democratic governments have sought to address it is by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying, prosecuting and punishing offending drivers. Materials laid before the Board, incomplete though they are, reveal different responses to the problem of enforcement. Under some legal systems (Spain, Belgium and France are examples) the registered owner of a vehicle is assumed to be the driver guilty of minor traffic infractions unless he shows that some other person was driving at the relevant time or establishes some other ground of exoneration. There being a clear public interest in enforcement of road traffic legislation the crucial question in the present case is whether section 172 represents a disproportionate response, or one that undermines a defendant's right to a fair trial, if an admission of being the driver is relied on at trial.

    I do not for my part consider that section 172, properly applied, does represent a disproportionate response to this serious social problem, nor do I think that reliance on the respondent's admission, in the present case, would undermine her right to a fair trial. I reach that conclusion for a number of reasons.

    (1) Section 172 provides for the putting of a single, simple question. The answer cannot of itself incriminate the suspect, since it is not without more an offence to drive a car. An admission of driving may, of course, as here, provide proof of a fact necessary to convict, but the section does not sanction prolonged questioning about the facts alleged to give rise to criminal offences such as was understandably held to be objectionable in Saunders, and the penalty for declining to answer under the section is moderate and non-custodial. There is in the present case no suggestion of improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice, and if there were evidence of such conduct the trial judge would have ample power to exclude evidence of the admission.

    (2) While the High Court was entitled to distinguish (as it did at pp. 390-391) between the giving of an answer under section 172 and the provision of physical samples, and had the authority of the European Court in Saunders (at paragraph 69 of the judgment) 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 (McNaughton rev. 1961), Volume 8, page 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 a question 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.

    (3) All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime which does not apply to members of the public who do neither. Section 172 forms part of that regulatory regime. This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the state but because the possession and use of cars (like, for example, shotguns, the possession of which is very closely regulated) are recognised to have the potential to cause grave injury. It is true that section 172(2)(b) permits a question to be asked of "any other person" who, if not the owner or driver, might not be said to have impliedly accepted the regulatory regime, but someone who was not the owner or the driver would not incriminate himself whatever answer he gave. If, viewing this situation in the round, one asks whether section 172 represents 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 this evidence would infringe a basic human right of the respondent, I would feel bound to give negative answers. If the present argument is a good one it has been available to British citizens since 1966, but no one in this country has to my knowledge, criticised the legislation as unfair at any time up to now.

    With much of the High Court judgment I am in respectful agreement. The United States Supreme Court decisions in Hoffman v. United States (1951) 341 US 479 and California v. Byers (1971) 402 US 424 and the decisions of the Supreme Court of Canada in R. v. Jones [1994] 2 SCR 229 and R. v. White [1999] 2 SCR 417 undoubtedly support the conclusion reached. Those courts were, however, considering different constitutional provisions. In the present case the High Court came very close to treating the right not to incriminate oneself as absolute, describing it as a "central right" (at p. 391L) which permitted no gradations of fairness depending on the seriousness of the charge or the circumstances of the case. The High Court interpreted the decision in Saunders as laying down more absolute a standard than I think the European Court intended, and nowhere in the High Court judgments does one find 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 represents a proportionate response to what is undoubtedly a serious social problem.

    In my opinion the Procurator Fiscal is entitled at the respondent's forthcoming trial to lead evidence of her answer given under section 172. I would allow the appeal and quash the declaration made by the High Court.

    _________________________

    Lord Steyn

    I. The Central Question

    On 3 June 1999 a vehicle belonging to Miss Brown was parked in a car park of a supermarket in Dunfermline. In reliance on section 172(2) of the Road Traffic Act 1988 a police officer asked Miss Brown who had been the driver of her vehicle when it entered the car park. She answered: "It was me". The police asked her for a specimen of breath. She gave a specimen. The breath test was positive. A prosecution ensued. The issue arose whether the Procurator Fiscal could lead evidence of the admission which Miss Brown had been compelled by law to make under section 172(2). The High Court of Justiciary held that section 172(2) is incompatible with the implied right against self incrimination under article 6 of the European Convention on Human Rights and Freedoms and is therefore unlawful: Brown v. Stott 2000 SLT 379. In coming to this conclusion the High Court of Justiciary relied strongly on observations by the European Court of Human Rights in Saunders v. United Kingdom (1996) 23 E.H.R.R. 313, paras. 68-69. In the leading judgment of the Lord Justice General, given with the approval of Lord Marnoch and Lord Allanbridge, the essential reasoning was as follows, at p. 391K:

    "In fact the Solicitor General's argument is incompatible with the actual approach of the court in Saunders. The court held that the general requirements of fairness contained in art 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction, from the most simple to the most complex. The court's conclusion on this point can be derived simply from the generality of the wording of art 6 which applies to the determination of "any criminal charge." If the right not to incriminate oneself is inherent in the right to a fair hearing under art 6, then it must apply to all criminal trials covered by the article. More importantly, however, the court's conclusion is justified by the very nature of the right. If, as the court held, it lies at the heart of the notion of a fair procedure, then it must be a central right which applies to any criminal trial. Moreover, it is hard to see how there could be gradations of fairness depending on the seriousness of the charges in any given case. In any event, any central right would necessarily apply to the trial of an offence, such as a contravention of s 5(1) of the 1988 Act, which carries a possible penalty of imprisonment. In my view therefore there is nothing in the circumstances of the present case which would justify a restrictive interpretation or application of the right conferred by art 6(1)."

    This comes very close to saying that the privilege against self incrimination is an absolute Convention right and that no interference with it could ever be justified. Indeed it is far from clear what space, if any, is left for treating the privilege against self incrimination as not absolute.

    II. The Objectives of the Convention

    In the first real test of the Human Rights Act 1998 it is opportune to stand back and consider what the basic aims of the Convention are. One finds the explanation in the very words of the preambles of the Convention. There were two principal objectives. The first was to maintain and further realise human rights and fundamental freedoms. The framers of the Convention recognised that it was not only morally right to promote the observance of human rights but that it was also the best way of achieving pluralistic and just societies in which all can peaceably go about their lives. The second aim was to foster effective political democracy. This aim necessarily involves the creation of conditions of stability and order under the rule of law, not for its own sake, but as the best way to ensuring the well being of the inhabitants of the European countries. After all, democratic government has only one raison d'être, namely to serve the interests of all the people. The inspirers of the European Convention, among whom Winston Churchill played an important role, and the framers of the European Convention, ably assisted by English draftsmen, realised that from time to time the fundamental right of one individual may conflict with the human right of another. Thus the principles of free speech and privacy may collide. They also realised only too well that a single-minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European liberal democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we live in communities of individuals who also have rights. The direct lineage of this ancient idea is clear: the European Convention (1950) is the descendant of the Universal Declaration of Human Rights (1948) which in article 29 expressly recognised the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others. It is also noteworthy that article 17 of the European Convention prohibits, among others, individuals from abusing their rights to the detriment of others. Thus, notwithstanding the danger of intolerance towards ideas, the Convention system draws a line which does not accord the protection of free speech to those who propagate racial hatred against minorities: article 10; Jersild v. Denmark (1994) 19 E.H.R.R. 1, para. 31. This is to be contrasted with the categorical language of the First Amendment to the United States Constitution which provides that "Congress shall make no law ... abridging the freedom of speech." The European Convention requires that where difficult questions arise a balance must be struck. Subject to a limited number of absolute guarantees, the scheme and structure of the Convention reflects this balanced approach. It differs in material respects from other constitutional systems but as a European nation it represents our Bill of Rights. We must be guided by it. And it is a basic premise of the Convention system that only an entirely neutral, impartial, and independent judiciary can carry out the primary task of securing and enforcing Convention rights. This contextual scene is not only directly relevant to the issues arising on the present appeal but may be a matrix in which many challenges under the Human Rights Act 1998 should be considered.

    III Article 6

    The present case is concerned with article 6 of the Convention which guarantees to every individual a fair trial in civil and criminal cases. The centrality of this principle in the Convention system has repeatedly been emphasised by the European Court. But even in respect of this basic guarantee, there is a balance to be observed. First, it is well settled that the public interest may be taken into account in deciding what the right to a fair trial requires in a particular context. Thus in Doorson v. Netherlands it was held that "principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify": (1996) 22 EHRR 330, para. 70, at p. 358. Only one specific illustration of this balanced approach is necessary. Provided they are kept "within reasonable limits" rebuttable presumptions of fact are permitted in criminal legislation: Salabiaku v. France (1988) 13 E.H.R.R. 379. Secondly, once it has been determined that the guarantee of a fair trial has been breached, it is never possible to justify such breach by reference to the public interest or on any other ground. This is to be contrasted with cases where a trial has been affected by irregularities not amounting to denial of a fair trial. In such cases it is fair that a court of appeal should have the power, even when faced by the fact of irregularities in the trial procedure, to dismiss the appeal if in the view of the court of appeal the defendant's guilt is plain and beyond any doubt. However, it is a grave conclusion that a defendant has not had the substance of a fair trial. It means that the administration of justice has entirely failed. Subject to the possible exercise of a power to order a retrial where appropriate such a conviction can never be allowed to stand.

    IV. The Privilege Against Self Incrimination

    It is well settled, although not expressed in the Convention, that there is an implied privilege against self incrimination under article 6. Moreover, section 172(2) undoubtedly makes an inroad on this privilege. On the other hand, it is also clear that the privilege against self incrimination is not an absolute right. While there is no decision of the European Court of Human Rights directly in point, it is noteworthy that closely related rights have been held not to be absolute. It is significant that the basic right of access to the courts has been held to be not absolute: Golder v. United Kingdom (1975) 1 EHRR 524. The principle that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law is connected with the privilege against self incrimination. Yet the former has been held not to be absolute: Salabiaku v. France (1988) 13 E.H.R.R. 379. The European Court has also had occasion to emphasise the close link between the right of silence and the privilege against self incrimination: Murray v. United Kingdom (1996) 22 EHRR 29. In Murray the European Court held that the right of silence is not absolute.

    In these circumstances it would be strange if a right not expressed in the Convention or any of its Protocols, but implied into article 6 of the Convention, had an absolute character. In my view the right in question is plainly not absolute. From this premise it follows that an interference with the right may be justified if the particular legislative provision was enacted in pursuance of a legitimate aim and if the scope of the legislative provision is necessary and proportionate to the achievement of the aim.

    V. Section 172(2)

    In considering whether an inroad on the privilege against self incrimination can be justified, it is necessary to concentrate on the particular context. An intense focus on section 172(2) is required. It reads as follows:-

    "(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies –

    (a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and

    (b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver."

    The penalty for failing to comply with section 172(2) is a fine of not more than £1,000. In addition an individual may be disqualified from driving and endorsement of the driver's licence is mandatory. It is well established that an oral admission made by a driver under section 172(2) is admissible in evidence: Foster v. Farrell 1963 J.C. 46.

    The subject of section 172(2) is the driving of vehicles. It is a notorious fact that vehicles are potentially instruments of death and injury. The statistics placed before the Board show a high rate of fatal and other serious accidents involving vehicles in Great Britain. The relevant statistics are as follows:

    1996 1997 1998

    Fatal and serious accidents 40,601 39,628 37,770

    The effective prosecution of drivers causing serious offences is a matter of public interest. But such prosecutions are often hampered by the difficulty of identifying the drivers of the vehicles at the time of, say, an accident causing loss of life or serious injury or potential danger to others. The tackling of this social problem seems in principle a legitimate aim for a legislature to pursue.

    The real question is whether the legislative remedy in fact adopted is necessary and proportionate to the aim sought to be achieved. There were legislative choices to be made. The legislature could have decided to do no more than to exhort the police and prosecuting authorities to redouble their efforts. It may, however, be that such a policy would have been regarded as inadequate. Secondly, the legislature could have introduced a reverse burden of proof clause which placed the burden on the registered owner to prove that he was not the driver of the vehicle at a given time when it is alleged that an offence was committed. Thirdly, and this was the course actually adopted, there was the possibility of requiring information about the identity of the driver to be revealed by the registered owner and others. As between the second and third techniques it may be said that the latter involves the securing of an admission of a constituent element of the offence. On the other hand, such an admission, if wrongly made, is not conclusive. And it must be measured against the alternative of a reverse burden clause which could without further investigation of the identity of the driver lead to a prosecution. In their impact on the citizen the two techniques are not widely different. And it is rightly conceded that a properly drafted reverse burden of proof provision would have been lawful.

    It is also important to keep in mind the narrowness of the interference. Section 172(2) is directed at obtaining information in one category, namely the identity of the driver at the time when an offence was allegedly committed. The most important part of section 172(2) is paragraph (a) since the relevant information is usually peculiarly within the knowledge of the owner. But there may be scope for using (b) in a limited category of cases, e.g. when only the identity of a passenger in the car is known. Section 172(2) does not authorise general questioning by the police to secure a confession of an offence. On the other hand, section 172(2) does, depending on the circumstances, in effect authorise the police officer to invite the owner to make an admission of one element in a driving offence. It would, however, be an abuse of the power under section 172(2) for the police officer to employ improper or overbearing methods of obtaining the information. He may go no further than to ask who the driver was at the given time. If the police officer strays beyond his power under section 172(2) a judge will have ample power at trial to exclude the evidence. It is therefore a relatively narrow interference with the privilege in one area which poses widespread and serious law enforcement problems.

    VI. What deference may be accorded to the legislature?

    Under the Convention system the primary duty is placed on domestic courts to secure and protect Convention rights. The function of the ECHR is essential but supervisory. In that capacity it accords to domestic courts a margin of appreciation, which recognises that national institutions are in principle better placed than an international court to evaluate local needs and conditions. That principle is logically not applicable to domestic courts. On the other hand, national courts may accord to the decisions of national legislatures some deference where the context justifies it: see Reg. v. Director of Public Prosecutions, Ex parte Kebilene [1999] 3 WLR 972 per Lord Hope of Craighead, at 993-994; see also: Singh, Hunt and Demetriou, Is there a role for the "Margin of Appreciation" in National Law after the Human Rights Act?, 1999 European H.R.L.R. 15-22. This point is well explained in Lester and Pannick (Human Rights Law and Practice, 1999, 74):-

    "Just as there are circumstances in which an international court will recognise that national institutions are better placed to assess the needs of society, and to make difficult choices between competing considerations, so national courts will accept that there are some circumstances in which the legislature and the executive are better placed to perform those functions"

    In my view this factor is of some relevance in the present case. Here section 172(2) addresses a pressing social problem, namely the difficulty of law enforcement in the face of statistics revealing a high accident rate resulting in death and serious injuries. The legislature was entitled to regard the figures of serious accidents as unacceptably high. It would also have been entitled to take into account that it was necessary to protect other Convention rights, viz the right to life of members of the public exposed to the danger of accidents: see article 2.1. On this aspect the legislature was in as good a position as a court to assess the gravity of the problem and the public interest in addressing it. It really then boils down to the question whether in adopting the procedure enshrined in section 172(2), rather than a reverse burden technique, it took more drastic action than was justified. While this is ultimately a question for the court, it is not unreasonable to regard both techniques as permissible in the field of the driving of vehicles. After all, the subject invites special regulation; objectively the interference is narrowly circumscribed; and it is qualitatively not very different from requiring, for example, a breath specimen from a driver. Moreover, it is less invasive than an essential modern tool of crime detection such as the taking of samples from a suspect for DNA profiling. If the matter was not covered by authority, I would have concluded that section 172(2) is compatible with article 6.

    VII. Saunders

    The decision of the European Court in Saunders gave some support to the view of the High Court of Justiciary. With due respect I have to say that the reasoning in Saunders is unsatisfactory and less than clear: see the critique in Andrews, Hiding Behind the Veil; Financial Delinquency and the Law, (1997) 22 E.L.Rev. 369; Eriksen and Thorkildsen, Self Incrimination, The Ban on Self Incrimination after the Saunders Judgment, (1997) 5(2) Journal of Financial Crime, 182; Davies, Do Polluters have the right not to incriminate themselves, 8 October 1999, Solicitors Journal, 924. The European Court did not rule that the privilege against self incrimination is absolute. Surprisingly in view of its decision in Murray that the linked right of silence is not absolute it left the point open in respect of the privilege against self incrimination: para. 74. On the other hand, the substance of its reasoning treats both privileges as not absolute. The court observed (para. 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 from 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 court emphasised the rationale of improper compulsion. It does not hold that anything said under compulsion of law is inadmissible. Admittedly, the court also observed (para. 68):-

    "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."

    Again one finds the link with the non-absolute right of silence. In any event "methods of coercion or oppression in defiance of the will of the accused" is probably another way of referring to improper compulsion. This is consistent with the following passage (para. 69):-

    "In the present case the Court is only called upon to decide whether the use made by the prosecution of the statements obtained from the applicant by the Inspectors amounted to an unjustifiable infringement of the right. This question must be examined by the Court in the light of all the circumstances of the case. In particular, it must be determined whether the applicant has been subject to compulsion to give evidence and whether the use made of the resulting testimony at his trial offended the basic principles of a fair procedure inherent in Article 6(1) of which the right not to incriminate oneself is a constituent element."

    The expression "unjustifiable infringement of the right" implies that some infringements may be justified. In my view the observations in Saunders do not support an absolutist view of the privilege against self incrimination. It may be that the observations in Saunders will have to be clarified in a further case by the European Court. As things stand, however, I consider that the High Court of Justiciary put too great weight on these observations. In my view they were never intended to apply to a case such as the present.

    VIII. Conclusion on Article 6.

    That brings me back to the decision of the High Court of Justiciary. It treated the privilege against self incrimination as virtually absolute. That conclusion fits uneasily into the balanced Convention system, and cannot be reconciled with article 6 in all its constituent parts and the spectrum of jurisprudence of the European Court on the various facets of article 6.

    I would hold that the decision of the High Court of Justiciary on the merits was wrong. The Procurator Fiscal is entitled to lead the evidence of Miss Brown's admission under section 172(2).

    IX. The remaining issues

    I am in complete agreement with Lord Hope of Craighead that a devolution issue has been raised and I would respectfully endorse his reasons. I too would prefer not to express a view on the third issue.

    X. Disposal

    For these reasons, as well as the reasons given by Lord Bingham of Cornhill, I would allow the appeal and quash the declaration made by the High Court.

    ____________________

    Lord Hope of Craighead

    This is an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998, with leave of the High Court of Justiciary, against a determination of a devolution issue by that Court. Its determination took the form of a declarator that, in the circumstances of this case, the procurator fiscal had no power when he was prosecuting the respondent on a charge of driving after consuming an excess of alcohol under section 5(1) of the Road Traffic Act 1988 to lead and rely on evidence of an admission which the respondent was compelled to make under section 172(2)(a) of that Act that she had been the driver of a motor vehicle at or about 2.30 am on 3 June 1999 which was parked in the car park of the Asda Superstore at the Halbeath Retail Park in Dunfermline.

    Is the issue raised a "Devolution Issue"?

    It is necessary to consider first whether the issue in this case raises a devolution issue within the meaning of paragraph 1 of Schedule 6 to the 1998 Act. This is because the jurisdiction which has been conferred upon the Judicial Committee under Schedule 6 of the Act is limited to the determination of devolution issues as defined in that paragraph: see paragraphs 10, 11, 12 and 13 of the Schedule. There was a difference of view in the courts below on this point. The sheriff refused to hold that the minute lodged by the respondent's agent had raised a devolution issue. But in the High Court the Solicitor General did not seek to support the sheriff's reasoning. The Lord Justice General (Rodger) described that reasoning as manifestly untenable. He expressed his own conclusion on the point in these words (2000 S.L.T. 379, 382K): "I need therefore say no more about it except to confirm that the minute discloses a sharp devolution issue in terms of para. 1(d) of Schedule 6 to the Scotland Act 1998".

    Doubts as to the soundness of that view and of observations to the like effect in other cases in the High Court of Justiciary were raised by their Lordships in the course of the hearing by the Judicial Committee of the appeals in Montgomery and Coulter v. Her Majesty's Advocate (DRA Nos. 1 and 2 of 2000), the reasons for decision in which were delivered on 19 October 2000. In the event, the Board were able to dispose of those appeals without coming to a concluded view on the point. As Lord Slynn of Hadley observed at p. 2, all parties were prepared to argue the case on the assumption that it was a devolution issue and, indeed, all parties argued that it was. But it is unsatisfactory that this important issue should be left unresolved. In the present case their Lordships have had the advantage of detailed submissions from, on the one hand, the Solicitor General who has contended that no devolution issue has been raised and, on the other, the Advocate General who has contended the contrary. Mr. Duguid Q.C. for the respondent adopted the submissions that were advanced by the Advocate General. So I believe that it is now possible for the Board, having heard argument on both sides, to reach a decision on the matter. It is important, in the interests of certainty, that it should now do so.

    The two competing arguments may be summarised as follows. On the one hand there is the argument which the Solicitor General advanced with reference to the wording of Article 6(1) of the Convention and the observations in Montgomery and Coulter of Lord Hoffmann. On the other there is the argument advanced by the Advocate General with reference to the wording of the Scotland Act 1998 and my own observations in that case. The essential point of difference between these two arguments is whether the solution to the problem lies simply in the opening words of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") which describe the Convention right to a fair trial, or whether it lies in the provisions of the Scotland Act 1998 which describe the functions of the Lord Advocate as a member of the Scottish Executive and provide a system for the determination of questions which arise in proceedings before a court or tribunal whether he has purported to act or proposes to act outside his powers under that Act.

    The position which was contended for by the Solicitor General was that the act of leading and relying upon the evidence of the admission could not of itself cause any unfair determination of the charge within the meaning of Article 6(1). The prosecutor's act was not incompatible with the respondent's right to a fair hearing. It was for the court to determine whether or not the evidence should be admitted, so it was only at the stage of the determination of the matter by the court that the question of fairness would arise. If the evidence was admitted the respondent would be entitled then to argue that the court, as a public authority within the meaning of section 6(1) of the Human Rights Act 1998, had acted in a way that was incompatible with her Convention right. She would be entitled to seek a remedy under that Act by appealing against her conviction on the basis of that evidence. But that would not raise a devolution issue within the meaning of paragraph 1(d) of Schedule 6, for the obvious reason that the court is not a member of the Scottish Executive.

    The position which was contended for by the Advocate General was that the act of the prosecutor in maintaining the prosecution and inviting the court to rely upon the evidence was outwith the powers of the Lord Advocate as a member of the Scottish Executive because it was incompatible, within the meaning of section 57(2) of the Scotland Act 1998, with the respondent's Convention rights. While the court had the primary responsibility to ensure that the respondent had a fair trial, the effect of the Scotland Act 1998 was that this was also a responsibility of the prosecutor. The importance of this division of responsibility was underlined by the fact that, prior to the coming into force of the Human Rights Act 1998 on 2 October 2000 [S.I. 2000 No. 1851(C.47)], the only way of safeguarding a person's Convention right to a fair trial under the devolution settlement was by challenging the acts of the prosecutor. Parliament had chosen to give effect to the international obligations of the State under the Convention when it enacted the Scotland Act 1998 by imposing corresponding limits on the competence of the Scottish Parliament and the powers of the Scottish Executive. The system for the determination of devolution issues which was laid down in that Act was designed to ensure that a remedy was available in domestic law for any infringement of a person's Convention rights as soon as the relevant provisions of the Scotland Act 1998 were brought into force on 6 May 1999 (S.I. 1998 No. 3178 (S. 193)).

    For the reasons which I expressed more fully in my judgment in Montgomery and Coulter v. H.M. Advocate I consider that the solution to the problem is to be found in the provisions of the Scotland Act 1998. The approach which that Act has taken to the question as to how best to ensure that effect is given under the devolved system to the Convention rights is that the right of the accused to receive a fair trial is a responsibility of the Lord Advocate in the prosecution of offences as well as of the court. I base this view on an analysis of the provisions of that Act. It is of cardinal importance to a proper understanding of the point to appreciate the overall context in which the relevant provisions were enacted. At the heart of the whole question lies the scheme which Parliament has constructed for the devolution of legislative and executive competence to Scotland from Westminster.

    Article 13 of the Convention provides that everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority. This Article is not one of the Convention rights to which effect is given by the Human Rights Act 1998, but it has not been overlooked. The reason which was given for its omission from the Articles set out in Schedule 1 to that Act was that sections 7 to 9 of the Act were intended to lay down an appropriate remedial structure for giving effect to the Convention rights as defined by section 1(1) of the Act. The State's obligation to provide an effective remedy before a national tribunal in the event of a violation of the Convention rights also forms an important part of the background to the devolution legislation. The structure of the devolved system of government which is set out in the Scotland Act 1998 takes account of the State's obligations under the Convention in the same way as it takes account of its obligations in Community law. In both respects Parliament has chosen to legislate in a way which ensures that those obligations are respected both by the Scottish Parliament and the Scottish Executive by limiting their competence. It has also chosen to ensure that questions which arise as to whether the Parliament or the Executive have acted or are proposing to act in a way that is incompatible with any of the Convention rights or with Community law may be resolved, as devolution issues, under the system laid down in Schedule 6. The same system has been adopted for the determination of devolution issues under the Government of Wales Act 1998 and the Northern Ireland Act 1998. These systems seek to achieve uniformity in the determination of these issues throughout all parts of the United Kingdom by reserving to the Judicial Committee of the Privy Council the power of final decision in all these matters.

    One of the matters which was devolved to the Scottish Parliament and to the Scottish Executive was the system of criminal prosecution for which the Lord Advocate is responsible. The Scotland Act 1998 provides that the Lord Advocate is a member of the Scottish Executive: section 44(1)(c). It contains provisions which are designed to ensure his independence as public prosecutor. Section 29(2)(e) restricts the legislative competence of the Parliament in regard to any provision in any Act which would remove him from his position as head of that system. Section 48(5) provides that any decision by him in that capacity is to be taken by him independently of any other person. Section 52(6) ensures that the functions which were exercised by him immediately before he ceased to be a Minister of the Crown on the coming into force of the Scotland Act 1998 are exercisable only by the Lord Advocate. It is in the light of these provisions that section 57(3) falls to be read. It qualifies the position of the Lord Advocate in regard to the general restraint on his competence in section 57(2), which provides that a member of the Scottish Executive has no power to do any act which is incompatible with any of the Convention rights or with Community law. Section 57(3)(a) provides that that subsection does not apply to an act of the Lord Advocate "in prosecuting any offence" which, because of section 6(2) of the Human Rights Act 1998, is not unlawful under subsection (1) of that section.

    Alongside these provisions are the powers which are given to the Advocate General for Scotland, for whose appointment provision was made by section 87 of the Scotland Act 1998. The Advocate General for Scotland is a Minister of the Crown. As such she is a member of the United Kingdom government. Her functions include that of safeguarding the interests of the United Kingdom in the operation of the devolution settlement. Those interests include that of seeing to the fulfilment of the State's international obligations, in particular those which it owes as a Contracting State under Article 13 of the Convention. That is the purpose of the powers that she has been given by paragraphs 4 and 33 of Schedule 6 to institute proceedings for the determination of a devolution issue and to require a court or tribunal to refer a devolution issue to the Judicial Committee. In the exercise of these powers she is entitled to exercise her own judgment independently of, and even contrary to, the views of the Lord Advocate.

    It seems to me to be clear from these provisions that it was the intention of Parliament that acts of the Lord Advocate in prosecuting offences should be subject to judicial control under the devolved system. In his case, as in the case of any other member of the Scottish Executive, the question whether or not an act or proposed act of his or of any prosecutor for whose acts he is responsible is within his competence depends upon the application to that act of the concept of compatibility. If the act or proposed act is "incompatible" with any of the Convention rights it is outside his competence.

    The opening words of Article 6(1) provide: "In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing". But the relevant question, for the purposes of the system of devolution which has been constructed under United Kingdom domestic law, is not whether these words impose a correlative obligation on the Lord Advocate in his capacity as public prosecutor. If that were the sole question, there would be much force in the argument advanced by the Solicitor General that, as the determination during a criminal trial of the criminal charge in all its aspects is a matter for the court and not the prosecutor, the acts of the Lord Advocate in that capacity lie outside the scope of the Article. But the test which section 57(2) applies to his acts is not expressed in the language of obligation. It takes a broader and more inclusive form, as it requires that his acts must be compatible with any of the Convention rights. It is sufficient for this restraint on his powers to operate that his purported or proposed act is inconsistent with the obligations which the State has assumed under the Convention. The acts which he performs in the course of the trial when he is leading and founding upon evidence are brought by this means within the scope of the Article.

    It is sufficient to satisfy the test laid down in Schedule 6 that a devolution issue has "arisen" for there to be a question as to whether or not a purported or proposed exercise of a function by a member of the Scottish Executive is incompatible with a Convention right. There is no need at this stage to inquire as to whether some other person or some other public authority, such as the court, also has responsibility for giving effect to the same Convention right. The fact that that other person or other public authority has the last word or has the power to intervene in such a way as to preserve or give effect to the Convention rights may enable the question as to incompatibility to be answered in the negative. It may be possible to reach that answer as a matter of relevancy or, without further inquiry, on agreed facts. But that is not to say that a devolution issue has not arisen. On the contrary, it is to answer the question that has been raised.

    It is, of course, important to appreciate that the mere raising of a question will not be enough to satisfy the definition in paragraph 1 of Schedule 6. Paragraph 2 of the Schedule provides that a devolution issue shall not be taken to have arisen merely because of any contention of a party that appears to the court or tribunal to be frivolous or vexatious. Moreover, as the High Court of Justiciary has already held, it is not enough merely to assert that a devolution issue has arisen: British Broadcasting Corporation, Petitioners (No. 2) 2000 S.L.T. 860, 866L per Lord Kirkwood. Sufficient detail must be given in support of that proposition to show that there is a point of substance that needs to be addressed. It may be clear from the detail that has been provided that the raising of the issue is premature, or it may be clear that the question which has been raised is not a devolution issue at all within the meaning of the paragraph. In the latter case it will be proper for the court or tribunal to say that, in the circumstances described, a devolution issue has not arisen without having to go so far as to describe the contention as frivolous or vexatious in terms of paragraph 2 of the Schedule. That was what the Board did in Hoekstra and Others v. H.M. Advocate (DP Nos. 2, 3, 4, 5, 8 and 9 of 2000) when it refused the petitioners' application for special leave to appeal.

    But that is not the situation in this case. The Lord Justice General dealt with this point when he said (2000 S.L.T. 379, 383F-I) that, as the Solicitor General had indicated in deliberately unequivocal terms that it was the procurator fiscal's intention to lead the evidence of the respondent's reply under section 172 and to rely on it in seeking a conviction, the evidence of her admission would constitute a significant element of the evidence showing that she had driven the car on the occasion in question. He said that for this reason it was convenient, in this particular case, to decide the devolution issue relating to this evidence before the trial. In my opinion this approach, with which I agree, serves to reinforce the point that a devolution issue has indeed been raised in this case which the Judicial Committee has power to determine under the jurisdiction that has been given to it by paragraph 13(a) of the Schedule.

    I would hold therefore that the respondent's minute discloses a devolution issue which the Judicial Committee has power to determine, as it raises a question in terms of paragraph 1(d) of Schedule 6 to the Scotland Act 1998 which it was proper for the court to determine as a preliminary issue in these proceedings under Chapter 40 of the Act of Adjournal (Criminal Procedure Rules) 1996 [S.I. 1996 No. 513 (S. 47)].

    The Scheme of Article 6(1).

    As the Lord Justice General (Rodger) observed (2000 S.L.T. 379, 385J), the right of silence and the right against self incrimination are not lately minted. They have been recognised as general principles of the law of Scotland at least since the beginning of the 19th Century. In neither case was the right regarded as absolute, but the judges saw it as their function to see that they were jealously safeguarded. It was appreciated from an early stage that the accused's right to silence at trial would be worthless if his right of silence and his right against self incrimination were not available to him from the outset of the criminal investigation. So rules were developed by the judges to ensure that these rights were respected by the court and the police.

    In Chalmers v. H.M. Advocate 1954 J.C. 66, 79 Lord Justice General Cooper said that the principles which regulate the duties of the police when questioning suspects had been stated and restated in over a score of decisions in the past eighty or ninety years. As the jurisprudence on this subject developed the ultimate test was said to have been founded upon the principle of fairness. In Brown v. H.M. Advocate 1966 S.L.T. 105, 107 Lord Justice General Clyde observed that the test applied in all such cases was a simple and intelligible test which had worked well in practice – has what has taken place been fair or not? Other dicta to the same effect were referred to in Codona v. H.M. Advocate 1996 S.L.T. 1100, 1105A-E, where it was emphasised that that simple test must never be permitted to become a formality. The statutory rules relating to the questioning of persons detained at a police station and to judicial examination as a part of petition procedure, which are now to be found in sections 13-15 and 35-38 of the Criminal Procedure (Scotland) Act 1995, have been framed in such a way as to provide appropriate checks and balances in the interests of fairness to the accused.

    As these provisions show, and as the judges have repeatedly emphasised in the common law context, the common law principle of fairness has always to be reconciled with the interests of society in the detection and punishment of crime: Lawrie v. Muir 1950 JC 19, 26 per Lord Justice General Cooper; H. M. Advocate v. Hepper 1958 J.C. 39, 40 per Lord Guthrie. The rule of law requires that every person be protected from invasion by the authorities of his rights and liberties. But the preservation of law and order, on which the rule of law also depends, requires that those protections should not be framed in such a way as to make it impractical to bring those who are accused of crime to justice. The benefits of the rule of law must be extended to the public at large and to victims of crime also.

    Now that the common law rights of the accused have been reinforced by the right under Article 6(1) of the Convention to a fair trial it is necessary to re-examine and revise these principles. The scheme of the Article involves the application of different tests at each stage of the inquiry from those applied by the common law. It requires that a more structured approach be taken when the overriding test of fairness is applied to the facts. But it is important to recognise nevertheless that the rule of law lies at the heart of the Convention.

    The final indent of the preamble to the Convention refers to the common heritage of the European countries whose governments were signatory thereto of "political traditions, ideals, freedom and the rule of law". In Salabiaku v. France (1988) 13 E.H.R.R. 379, para. 28 the European Court of Human Rights said that Article 6, by protecting the right to a fair trial, was intended to enshrine "the fundamental principle of the rule of law". In Golder v. United Kingdom (1975) 1 EHRR 524, para. 35 the Court said that in civil matters one could scarcely conceive of the rule of law without there being a possibility of access to the courts. These statements assert the right of the individual to the protection of the rule of law against the State. But the other side of the balance, which respects the public interest in the rule of law and the general interest of the community, was also recognised by the Court in Salabiaku. It said in para. 28 of its judgment in that case that the Convention did not prohibit presumptions of fact or of law in principle, and that they were not incompatible with Article 6(2) so long as they were confined within reasonable limits which take account of what is at stake and maintain the rights of the defence. In Pullar v. United Kingdom (1996) 22 EHRR 391, para. 32, the Court said that the principle that a tribunal is to be presumed to be free of personal prejudice or partiality unless there is evidence to the contrary reflects "an important element of the rule of law", which is that verdicts of a tribunal should be final and binding unless set aside by a superior court on the basis of irregularity or unfairness. A similar approach to the function of the rule of law can be seen in the fact that the Court has consistently recognised that, while the right to a fair trial is absolute in its terms and the public interest can never be invoked to deny that right to anybody under any circumstances, the rights which it has read into Article 6 are neither absolute nor inflexible.

    It is important therefore to distinguish between those Convention rights which are to be regarded as absolute and those which are not. The scheme of Article 6, as Keir Starmer in European Human Rights Law (Legal Action Group 1999), pp. 118-119, para. 3.88, has explained, is that the rights listed in Articles 6(2) and 6(3) which are supplementary to Article 6(1) are not intended to be an exhaustive list of the requirements of fairness in criminal proceedings. Those which are listed in Article 6(3) are described as minimum rights. Once the meaning of those rights has been determined, there is no room in their case for any implied modifications or restrictions. But the European Court and the European Commission have interpreted the Article broadly by reading into it a variety of other rights to which the accused person is entitled in the criminal context. Their purpose is to give effect, in a practical way, to the fundamental and absolute right to a fair trial. They include the right to silence and the right against self incrimination with which this case is concerned. As these other rights are not set out in absolute terms in the Article they are open, in principle, to modification or restriction so long as this is not incompatible with the absolute right to a fair trial. As Keir Starmer, p. 182, para. 4.75 has observed, where express restrictions are provided for by the Convention there is no room for implied restrictions. But where the European Court has read implied rights into the Convention, it has also read in implied restrictions on those rights.

    The test of compatibility with Article 6(1) which is to be applied where it is contended that those rights which are not absolute should be restricted or modified will not be satisfied if the modification or limitation "does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved": Ashingdane v. United Kingdom (1985) 7 EHRR 528, para. 57. In Sporrong and Lönnroth v. Sweden (1982) 5 E.H.R.R. 35, para. 69 the Court referred to the striking of a fair balance "between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights". As that case and Salabiaku v. France (1988) 13 E.H.R.R. 379 both demonstrate, that approach has been used to support the view that, although the presumption of innocence in Article 6(2) is stated in absolute terms, it is not to be regarded as prohibiting the use of reverse onus clauses so long as they are confined within reasonable limits which strike a fair balance between these competing demands and requirements. The relevant principles described in Ashingdane were restated by the Court in Lithgow and Others v. United Kingdom (1986) 8 EHRR 329, para. 194 and again in Fayed v. United Kingdom (1994) 18 EHRR 393, para. 65.

    I would hold therefore that the jurisprudence of the European Court tells us that the questions that should be addressed when issues are raised about an alleged incompatibility with a right under Article 6 of the Convention are the following: (1) is the right which is in question an absolute right, or is it a right which is open to modification or restriction because it is not absolute? (2) if it is not absolute, does the modification or restriction which is contended for have a legitimate aim in the public interest? (3) if so, is there a reasonable relationship of proportionality between the means employed and the aim sought to be realised? The answer to the question whether the right is or is not absolute is to be found by examining the terms of the Article in the light of the judgments of the Court. The question whether a legitimate aim is being pursued enables account to be taken of the public interest in the rule of law. The principle of proportionality directs attention to the question whether a fair balance has been struck between the general interest of the community in the realisation of that aim and the protection of the fundamental rights of the individual.

    Saunders v. United Kingdom

    It is plain from the opinion of the Lord Justice General, for reasons which I can well understand in view of the novelty of the question with which it was presented in this case, that the High Court found itself in some difficulty in obtaining clear guidance from the judgments of the European Court as to the scope of the right to silence and the right not to incriminate oneself: 2000 S.L.T. 379, 385C. They had been recognised by the European Court as rights which, although not specifically mentioned in Article 6, ought to be read in to that Article to secure the right to a fair trial: Funke v. France (1993) 16 EHRR 297, para. 44; see also Murray v. United Kingdom (1996) 22 EHRR 29, para. 45. But the fullest description of those rights is to be found in Saunders v. United Kingdom (1996) 23 E.H.R.R. 313, paras. 68-69. So it was to be expected that the High Court would rely primarily on what was said in that case for guidance. Although this guidance was supplemented by the Lord Justice General, in his carefully researched opinion, by reference to generally recognised international standards such as those expressed in judgments of the Supreme Court of Canada and the Constitutional Court of South Africa, it was the approach of the European Court in Saunders which was his principal source. In the result it is not surprising that defects in the reasoning which are apparent on a close reading of Saunders are to be found in the judgment of the High Court also.

    The main weakness in the reasoning of the Court in Saunders lies in its failure to examine the issue, which is highlighted in the dissenting opinions of Judge Valticos and Judge Gölcüklü, as to whether the right to silence and the right not to incriminate oneself are or are not absolute rights the modification or restriction of which could in no circumstances ever be justified. The basis upon which the Court proceeded, as it explained in the opening sentence of para. 68, was that these rights "lie at the heart of the notion of a fair procedure under Article 6". In the discussion which follows the rights are treated as if they were rights conferred by Article 6 which were not open to modification or restriction. The essence of the argument which the Court accepted related to the use which was made of the evidence obtained under compulsion in the course of the criminal trial: para. 71. That was enough to persuade the Court that the rights had been breached. It is true that in para. 74 of its judgment the Court said that it did not find it necessary to examine the issue as to whether or not the rights were absolute in the light of its assessment of the use which was made at the trial of the interviews. But the reasoning upon which this observation seems to have been based appears to me, with respect, to be unconvincing. It was simply that the answers to questions put in the course of those interviews, whether directly self-incriminating or not, were used in the course of the proceedings in a manner which sought to incriminate the applicant: para. 72. Questions as to whether the procedure which was followed was designed to pursue a legitimate aim and as to whether the means employed were proportionate were not addressed.

    Although the European Court was careful to confine its observations in Saunders to the facts of that case only, the general approach which is revealed by the judgment appears to be out of keeping with the mainstream of the jurisprudence which the Court itself has developed as to the nature and application of the rights which it has read into Article 6(1). Although it is possible as Lord Steyn has demonstrated to find indications in the judgment that the Court did not regard the right of silence and the right against self incrimination as absolute, it is not easy to find any clear guidance to that effect. So when the Lord Justice General came, towards the end of his judgment at 2000 S.L.T. 379, 396G, to consider the circumstances of this case in accordance with the approach which in his view had been laid down by the Court in Saunders, he appears to have regarded the right to silence and the right not to incriminate oneself as rights of a fundamental character which fell to be treated as if they were absolute rights. At p. 396H he said that the respondent's right not to incriminate herself was a constituent element of the basic principles of fair procedure inherent in Article 6(1). He had already rejected arguments based on the recognition by the Court in Murray v. United Kingdom (1996) 22 EHRR 29, para. 47 that the right to silence was not absolute: see also Condron v. United Kingdom (Application No. 35718/97, 2 May 2000), para. 56. He said that he could find nothing in the circumstances of this case which would justify a restrictive interpretation or application of "the right conferred by Article 6(1)". Consequently he did not address the question as to the legitimacy of the aim pursued by the regulatory scheme of which section 172 of the Road Traffic Act 1988 forms part. Nor did he examine the question of proportionality. Lord Marnoch's opinion is open to the same criticism.

    As the rights which are in question in this case are rights which are not specifically mentioned in Article 6 but are rights which have been read into that Article by the Court, they plainly do not have the status of rights which are expressed in the Convention as absolute rights. They are therefore open to modification or restriction so long as the relevant principles which apply to that exercise are satisfied. The crucial questions are the two questions which the decision of the High Court has left unanswered. It is to these two questions that I now turn.

    Legitimate Aim and Proportionality

    On the one hand there is the nature of the Road Traffic legislation of which section 172 of the Road Traffic Act 1988 forms part and the aims which it is designed to satisfy. Public safety is at the heart of the matter. Ever since use began to be made on our roads of fast-moving motor vehicles it has been appreciated that the use of this means of transport has to be regulated. The risk of injury to the drivers of these vehicles, to passengers, to people in other vehicles on the same road and to members of the public generally led to the introduction of legislation to control the construction and use of motor vehicles and the manner in which they could be driven when they were on the highway and other places to which the public has access. This was combined with a system of registration which served a fiscal purpose but had the added benefit that it enabled both the vehicles and their keepers to be identified. Although there are differences in detail, all countries which are members of the Council of Europe employ similar systems to regulate the construction and use of motor vehicles in the interests of public safety.

    I do not think that it can be doubted, against this background, that the system of regulation and the provisions which the legislation contains for the detection and prosecution of road traffic offences serve a legitimate aim. As for section 172 of the 1988 Act in particular, its purpose is to enable the driver of a vehicle alleged to be guilty of an offence to which that section applies to be identified. The offences to which the section applies are the result of a process of selection which has eliminated various minor offences and reserved its application to offences which can properly be regarded as serious. The system which the legislation has laid down for the prosecution of these offences requires the prosecution to prove that the accused was driving the vehicle at the time when the offence was committed. The purpose which these offences are designed to serve would be at risk of being defeated if no means were available to enable the police to trace the driver of a vehicle who, as so often happens, had departed from the place where the offence was committed before he or she could be identified. Here too, it seems to me that a legitimate aim is being pursued.

    On the other hand there is the question whether the means which it employs are proportionate to that aim and are compatible with the right of the accused to a fair trial. Has a fair balance been achieved? In order to answer this question it is necessary to examine the provision in question more closely. It has several very important characteristics.

    First there are the qualifications which are written into section 172(2)(a) itself. The provision may be operated only when it is alleged that an offence has been committed of the kind to which the section applies: section 172(1). Then there is the fact that the requirement in section 172(2)(a) to give information as to the identity of the driver may be addressed only to the person keeping the vehicle. The expression "keeping the vehicle" is not defined, but I take this to be a reference to the person in whose name the vehicle is registered under the Vehicle Excise and Registration Act 1994: see section 172(7) and (9) and the definition of the expression "registered keeper" in section 172(10). A person who submits to registration as the keeper of a motor vehicle must be taken to have accepted responsibility for its use and the corresponding obligation to provide the information when required to do so. Furthermore the requirement for which provision is made is directed to one issue only, the identity of the driver of the vehicle. It is proper to recognise that the identity of the driver is likely to be an important and indeed crucial issue at any trial. But the provision does not permit open-ended questioning of the person keeping the vehicle in order to secure an admission of guilt as to the offence. It seems to me that, bearing in mind the difficulties that may arise in tracing the driver of a vehicle after the event, this limited incursion into the right of silence and the right of the driver who is alleged to have committed an offence not to incriminate himself is proportionate.

    Then there is the use which may be made of the response to the requirement in the event that the person keeping the vehicle admits that he or she was the driver of it. This is not the subject of any express provision in section 172 or of any other provision in the 1988 Act. But the approach which has been taken to provisions of this kind is that, unless the legislation provides otherwise, answers which a person is compelled to give in response to a statutory requirement can be used against that person in criminal proceedings. It was on that basis that Lord Justice-Clerk Grant proceeded when he said in Foster v. Farrell 1963 J.C. 46, 53-54 that a statement obtained from the keeper as to the identity of the driver was admissible in evidence against him. The answer to the question whether the use of the driver's self-incriminating statement at a trial for the offence with regard to which the requirement was made is proportionate to the legitimate aim is to be found partly in the characteristics of section 172(2)(a) which I have already identified and partly in the other respects in which the legislation preserves the accused's right to a fair trial. Under Scots law the driver's admission must be corroborated, and there must be other evidence to show beyond reasonable doubt that the driver committed the offence with which he is charged. All the usual protections against unreliable evidence and evidence obtained by oppression or other improper means remain in place.

    I think therefore that it is reasonable to conclude that the limited modification which section 172(2)(a) makes, in pursuance of a legitimate aim in the public interest, to the right to silence and the right not to incriminate oneself is compatible with the right of the accused to a fair trial. I would hold that a fair balance has been achieved between these competing interests.

    Comparative Material

    I would add only two further points by way of a footnote. First, the Lord Justice General derived support (at 2000 S.L.T. 379, 396F) for the view that he formed that the limited terms of the reply required by section 172(2)(a) did not enable it to be characterised as part of a system of traffic regulation, and was therefore in conflict with the right against self incrimination, from the Canadian case of Reg. v. White [1999] 2 S.C.R. 417. Reference to Canadian cases was understandable in view of the reference in Saunders v. United Kingdom (1996) 23 E.H.R.R. 313, para. 68 to generally recognised international standards. As Lord Woolf said in the context of the Hong Kong Bill of Rights in Attorney-General of Hong Kong v. Lee Kwong-kut [1993] A.C. 951, 972-973, in cases which are close to the borderline regard can be had to the approach developed by the Canadian courts.

    But care needs to be taken in the context of the European Convention to ensure that the analysis by the Canadian courts proceeds upon the same principles as those which have been developed by the European Commission and the European Court. It is clear from the observations by Iacobucci J. in para. 70 of the judgment in Reg. v. White [1999] 2 S.C.R. 417 that, even if the Crown had confined itself to the leading of the driver's admission that she was the driver at the relevant place and time, the Supreme Court of Canada would have held that her right against self-incrimination had been violated. The principle against self-incrimination is held in Canadian law, by implication, to be a principle of fundamental justice under section 7 of the Charter. In para. 45 of the judgment Iacobucci J. said that the fact that it had the status of an overarching principle did not imply that it provided an absolute protection and that it was contextually sensitive. There are signs here of an approach which is not dissimilar to that which the European Court takes when it is examining issues as to legitimate aim and proportionality. But the questions which the Supreme Court of Canada was asking itself were not the same and there are some important differences of detail. So I do not think that the balancing of the relevant principles which was undertaken in that case can be regarded as a reliable guide as to how the balance ought to be struck in the European context.

    The second point relates to the use of materials from other signatory countries to the Convention. References in the preamble to the Convention to these countries' common heritage of political traditions, ideals, freedom and the rule of law and by the European Court to the fact that generally recognised international standards lie at the heart of the notion of a fair procedure under Article 6 (e.g. Saunders v. United Kingdom (1996) 23 E.H.R.R. 313, para. 68) encourage resort, as a check, to a comparative exercise based on the use of such materials.

    The Lord Justice General pointed out (2000 S.L.T. 379, 388I) that none of the Commission cases to which the High Court was referred (Tora Tolmos v. Spain, Application No. 23816/94, 17 May 1995, DN v. Netherlands, Application No. 6170/73, 26 May 1975 and JP, KR and GH v. Austria, Applications No. 15135/89, 15136/89 and 15137/89, 5 September 1989) concerned the use of any reply as evidence in a trial. But I agree with Lord Bingham of Cornhill for the reasons he has given that these cases, in which it was held that the requirement to name the driver did not violate the presumption of innocence, are not irrelevant. Reference was also made in the course of the hearing before the Board to other comparative material. There was no consistent pattern, as in some countries such as Ireland a statement by the owner of a vehicle when asked to say who was driving it cannot be used against him in evidence: The People (Attorney General) v. Gilbert [1973] I.R. 383. But some of this material was to the same effect as that in the three Commission cases. For example, in Belgium section 67bis of an Act of 4 August 1996 which forms part of a chapter entitled "identification of the offender" contains a presumption that the owner of the vehicle has committed the offence unless he proves the contrary. In France Articles L21-1 and L21-2 of the Code de la route contain a similar presumption, as they require the owner of the vehicle to pay the fine incurred for offences relating to parking, speed limits and traffic lights unless he can prove all the elements required in law to establish that he is not the offender.

    These examples show that the social problems associated with the use on public roads of motor vehicles have been addressed by these countries in a manner which restricts to some extent the presumption of innocence. But the restriction is regarded as having a legitimate aim and as striking the right balance between the general interest of the community and the fundamental rights of the individual. The solution which section 172 has adopted is not the same, but it stands up to comparison with that which has been adopted in other countries.

    Conclusion

    For these reasons I too would allow the appeal and quash the declaration which was made by the High Court.

    _____________________

    Lord Clyde

    I am in entire agreement with my noble and learned friend Lord Hope of Craighead that in this case a devolution issue has arisen and accordingly that the Board has the jurisdiction to hear the appeal. Having also made some observations on this point in the case of Montgomery and Coulter v. Her Majesty's Advocate I shall briefly set out my own reasoning, but I believe that this in no way differs from the reasons given by Lord Hope of Craighead.

    Whether there is or is not a devolution issue is a matter to be determined solely by reference to Part I of Schedule 6 of the Scotland Act 1998. The definition in paragraph 1 of that Schedule includes, in sub-paragraph (d):-

    "a question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights …"

    In the present case the Lord Advocate through a procurator fiscal is proposing to lead and found upon the evidence of the answer given by the respondent in reply to a question by a police officer asked under section 172 of the Road Traffic Act 1988 regarding the identity of the driver of a car. The Lord Advocate is a member of the Scottish Executive. In leading the evidence he is proposing to exercise one of his functions. The word "functions" includes powers and duties (section 126(1)). The challenge has been made that the exercise of that function by him would be incompatible with the respondent's right to a fair trial under Article 6(1) of the Convention. The question does not seem to me to be frivolous or vexatious so as to be excluded under paragraph 2 of the Schedule. For the purposes of the Scotland Act and more particularly for the purposes of the jurisdiction of the Privy Council it seems to me that a "devolution issue", whether meritorious or not, has arisen.

    It is important to note that each of the categories of devolution issue which are set out in paragraph 1 of the Sixth Schedule describes and identifies a "question". Apart from the extreme case for which provision is made in paragraph 2 the merits of the question in fact or in law do not disqualify the question from being a devolution issue. The question must of course satisfy one or other of the descriptions set out in paragraph 1. The person seeking to raise a devolution issue must plead himself into one or other of the paragraphs. As Lord Kirkwood has pointed out (British Broadcasting Corporation, Petitioners (No. 2) 2000 S.L.T. 860, 866) it is not enough simply to assert that a devolution issue has arisen. If the person fails to plead himself into any of the paragraphs then it will be evident that there is no devolution issue at stake. But provided that the question can be seen to fall within one of the paragraphs it will not be disentitled from qualifying as a devolution issue simply because the contentions which are advanced are found to be defective in point of law. Only if the defect is of such an extreme kind as to make the contention frivolous or vexatious will the matter fail to be a devolution issue.

    That a question is raised prematurely should not prevent it qualifying as a devolution issue. How the court may deal with the question is a distinct matter from the identification of the question as a devolution issue. There may well be cases where the court may consider that the issue has been raised prematurely and may refuse to deal with the merits at least at that stage. In the context of the admissibility of evidence in a criminal trial it may often be the case that an issue of fairness should be left to be determined in the first instance by the trial judge. H.M. Advocate v. Robb 2000 J.C. 127 may serve as an example. Conversely there may be cases where it is practical and useful to determine such a matter in advance of trial. Such a case might be where some piece of evidence was critical for the prosecution and it could be determined in advance of the trial that its admission would be necessarily unfair.

    As I understood the argument presented by the Solicitor General, he was not contending that there was no devolution issue in the sense which I have described. The question which he argued was that the leading of this evidence was not something which fell within the scope of Article 6(1) of the Convention, for the reason that the fairness of the trial was matter for the Court to resolve and not matter for the prosecution. He based his argument essentially upon the opening words of the Article, "In the determination of … any criminal charge against him ...". He argued that the actings of the Lord Advocate in leading and founding upon the evidence did not fall within the determination of the trial. This is a question of the interpretation of Article 6.

    In my view the argument involves too narrow and exact a construction of the Article. I do not consider that the scope of the Article is limited to the decision-making process or to the obligations of those vested with the task of making the determination of the issues in the case. It is concerned with proceedings which are determinative of civil rights or obligations or of criminal charges, but it does not seem to me that it excludes activities occurring during the criminal trial which bear upon the fairness of the proceedings. The fairness of the leading of particular evidence by the prosecution seems to me to be something which can fall within the scope of Article 6 and the present is a case where it can usefully be determined whether the leading of the particular admission by the respondent would or would not be compatible with the obligation imposed on the Lord Advocate under that Article.

    The principal issue in the appeal is whether the response to the question put by the police officer to the respondent under section 172 of the Road Traffic Act 1988 may properly be led as evidence against her at her trial when she has been charged with a contravention of section 5(1)(a) of the Act. The view taken by the High Court of Justiciary is that the leading of such evidence would be contrary to her right to a fair trial under Article 6.

    The right not to incriminate oneself has for a long time been recognised as a basic ingredient in the concept of a fair trial in Scotland. There is no difficulty in holding it to be implied in Article 6 and no difficulty in recognising that right as wholly consonant with the tradition of Scottish criminal law and practice. In England it has been described as one of the basic freedoms secured by English law (In Re Arrows Ltd (No. 4) (1995) 2 A.C. 75, per Lord Browne-Wilkinson, at p. 95D). At common law it may well be that the admission by the respondent would be held inadmissible. The respondent was at the particular stage when the question was asked of her a suspect. Indeed from the facts which the police already knew it may have been fairly obvious that she was almost certainly the driver. In general, statements by a suspect to the police will be inadmissible unless they have been fairly obtained (Renton & Brown's Criminal Procedure, 6th ed. (looseleaf), para. 24-39). Without any caution being given it can be strongly argued that the statement would be excluded as unfair. But Parliament has provided in section 172 for an obligation to answer a question on the identity of the driver. The question then is whether that provision, at least in the context of the question being asked of the driver, is compatible with Article 6(1).

    The Convention for the Protection of Human Rights and Fundamental Freedoms is plainly a living instrument. The Convention rights may be open to new applications as society develops and changes and the applications may differ between different member states of the Convention. But it is also to be remembered that it is dealing with the realities of life and it is not to be applied in ways which run counter to reason and common sense. The Convention is intended to guarantee "not rights that are theoretical or illusory but rights that are practical and effective" (Airey v. Ireland (1979) 2 E.H.R.R 305, para 24). If the Convention was to be applied by the courts in ways which would seem absurd to ordinary people then the courts would be doing dis-service to the aims and purposes of the Convention and the result would simply be to prejudice public respect for an international treaty which seeks to express the basic rights and freedoms of a democratic society.

    The single theme which runs through the whole of Article 6 is the right of a litigant or an accused to have a fair trial. That theme is of course nothing new in the history of civil or criminal proceedings in the United Kingdom. But while there can be no doubt that the right to a fair trial is an absolute right, precisely what is comprised in the concept of fairness may be open to a varied analysis. It is not to be supposed that the content of the right is necessarily composed of rigid rules which provide an absolute protection for an accused person under every circumstance. The right presently under discussion is not expressly set out in Article 6 but is to be implied as an element in a fair trial. The jurisprudence of the European Court of Human Rights demonstrates that several of the particular rights which similarly by implication fall within the scope of Article 6 are not absolute rights. For example it was held in Murray v. United Kingdom ((1996) 22 EHRR 29, 60, para. 47) that even the right to silence may be qualified where the silence may call for an explanation. Other examples can be found in the obligation to disclose evidence (Fitt v. United Kingdom App. No. 29777/96, 16 February 2000, para.45), and the right of access to a court (Tinnelly & Sons Ltd. v. United Kingdom (1998) 27 E.H.R.R. 249, 288, para. 72). It seems to me that the right in issue in the present case, the right not to incriminate oneself, which is a right implied but not expressed in the Article, and is a right not far removed from the right to silence, is also not absolute but may be open to exception. It would have been helpful if the judgment in Saunders v. United Kingdom ((1996) 23 E.H.R.R. 313) had provided clearer guidance on this point and the absence of that guidance may have helped to distract the judges of the High Court from a more detailed exploration of the point.

    The only question then is whether the statutory exception here in issue can be justified and I have little difficulty in giving an affirmative answer to that question. Section 172 provides a means for the police to ascertain the identity of a driver where the driver is alleged to be guilty of an offence to which the section relates. The purpose of the provision is plainly a legitimate one in the context of the importance in the public interest in securing the prosecution of offenders such as drunk drivers and enabling the identification of drivers to be discovered where it can be often difficult to do so. The importance of securing safety on the roads and of minimising the risks of accidents and injuries caused by motor vehicles is too obvious to require elaboration. While the statutory power to require an answer is fortified by a criminal sanction, the penalty is relatively light, not involving imprisonment except in the failure to pay the fine which may be imposed. I consider that the Solicitor-General was correct in submitting that compulsion by itself is not necessarily fatal to the admission of a self-incriminatory admission, but that improper compulsion would be. There is no suggestion in the present case of any improper compulsion. Indeed in the present case it does not appear that any mention was made of the sanction which could be invoked on a failure to provide the information. Furthermore, the power can only be exercised by or on behalf of a chief officer of police. Moreover the power is limited to the single point of the identity of the driver. That is of course a critical and essential ingredient of the offence but it is not the whole of it. Nor is the admission necessarily final and conclusive. The case is distinct from that of Saunders v. United Kingdom (1996) 23 E.H.R.R. 313 where use was made of various answers made in the course of an inquiry by the Department of Trade and Industry and from that of Reg. v. White [1999] 2 S.C.R. 417 where use was sought to be made of three conversations with the police following a road accident. It seems to me that the power to obtain and use the single admission of the identity of the driver is a proportionate measure which sufficiently balances the interests of an accused person and the interests of the public in the particular context of particular offences under the Road Traffic Act.

    On the whole matter I agree that the appeal should be allowed. It cannot be affirmed that the leading of the admission would necessarily breach the respondent's right to a fair trial.

    _________________

    The Rt. Hon. Ian Kirkwood (Lord Kirkwood)

    On the preliminary issue I agree with Lord Hope of Craighead, for the reasons given by him, that the respondent's minute discloses a devolution issue which the Judicial Committee has power to determine. I also agree with your Lordships that it is not necessary in the present proceedings for us to resolve the third issue.

    The principal matter argued before us was whether, compatibly with the respondent's rights under Article 6 of the Convention, the procurator fiscal would be entitled at the respondent's trial to lead and seek to rely on the admission which was competently obtained from her under section 172(2)(a) of the Road Traffic Act 1988.

    Counsel for the respondent made it clear that no objection was being taken to the fact that the respondent, who was the registered keeper of the vehicle, had been required in terms of section 172(2)(a) to give information as to the identity of the driver at the time the alleged offence was committed. Counsel's submission was that the procurator fiscal's proposal to lead evidence at her forthcoming trial of her admission that she had been the driver contravened her implied right under Article 6 of the Convention not to incriminate herself.

    The right to silence and the right not to incriminate oneself, which are separate but related rights, have been part of Scots common law for at least 200 years (Hume, Commentaries on the Law of Scotland, (1844) ii,336-7; and Alison, Practice of the Criminal Law of Scotland, (1833) 586-7). In the present case it is common ground that the respondent was a suspect when she was required to provide information as to the identity of the driver under section 172 and there is no doubt that at common law she could not have been compelled to admit to a police officer that she had been the driver of the car at the time the alleged offence was committed. However, in Foster v. Farrell 1963 J.C. 46 an accused person had been required by a police officer acting in pursuance of section 232(2) of the Road Traffic Act 1960 (which was in similar terms to section 172(2) of the 1988 Act) to say who was the driver of a motor car at the time an alleged offence had been committed by the driver of the car. The accused was not the owner of the car, which was registered in the name of a company of which he was the managing director, but he admitted that he had been driving the car at the material time. In the particular circumstances of that case it was held that the accused's statement was inadmissible at his trial because it had not been proved that the statement had been elicited by a police officer who had been authorised, either generally or specially, by a chief officer of police to require the giving of such information. However, the court went on to consider whether an admission which had lawfully been obtained under section 232 was not only available to the police for the purpose of assisting in their investigations but was also available in evidence at the trial of the individual who had made the admission. The Crown conceded that the statement would not have been admissible at common law but contended that the statement was admissible by reason of the provisions of section 232. The Lord Justice-Clerk (Grant) referred , at p. 52, to "the general common law principle that a man cannot be compelled to give information which may incriminate him" but held that the common law had no relevance in relation to a statement lawfully and properly obtained under express statutory authority. He stated, at p. 53, that there was no limitation set by section 232, either expressly or impliedly, to the use which could be made of such a statement. In particular, there was no provision to the effect that a statement made in answer to a request under section 232 should not be admissible in evidence against the maker of the statement. It was also observed by the Lord Justice-Clerk, at p. 54, that in England and Wales a statement made under section 232 was admissible in evidence. It was held by the court that a statement made by a person under section 232 was "clearly admissible in evidence against him in Scotland as in England". So far as I am aware, the authority of the decision in Foster v. Farrell has not hitherto been called into question.

    In the present case it was submitted by counsel for the respondent (1) that the right to a fair trial is an absolute right; (2) that the right to silence and the right not to incriminate oneself are rights implied in Article 6 of the Convention; and (3) that the procurator fiscal's proposal to lead evidence of the respondent's admission under section 172 that she was the driver of the car at the time the alleged offence was committed would contravene her Convention right not to incriminate herself and she would not be able to receive a fair trial. I agree that the right to a fair trial is an absolute right, although what is a fair trial must depend on the circumstances of each individual case, and it was common ground that the right to silence and the right not to incriminate oneself are implied in Article 6. However, I agree with your Lordships that the implied right not to incriminate oneself cannot properly be regarded as an absolute right. In my opinion it is not a right of such a special character as to lead to the conclusion that, in the interests of justice, it is not capable of limitation to any extent in any circumstances. It is a right which is capable of being limited by law to some extent, always provided that the limitation is shown to be necessary to protect the legitimate interests of the community, and it is significant that a number of other rights implied in Article 6 have been held not to be absolute rights.

    In Soering v. United Kingdom (1989) 11 EHRR 439 the European Court observed as follows at p. 468. Para.89:-

    "Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights".

    In Reg. v. Director of Public Prosecutions, Ex parte Kebilene [1999] 3 WLR 972, 996-997 Lord Hope of Craighead stated:-

    "There is also the question of balance, as to the interests of the individual as against those of society. The Convention jurisprudence and that which is to be found from cases decided in other jurisdictions suggests that account may legitimately be taken, in striking the right balance, of the problems which the legislation was designed to address …

    As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual: see also Sporrong and Lönnroth v. Sweden (1982) 5 E.H.R.R. 35, 52, para. 69."

    So, in order to justify a limitation of an implied Convention right there must be pursuance of a legitimate aim and the proposed limitation must be proportionate to the aim which is sought to be achieved (Osman v. United Kingdom (1998) 29 EHRR 245 and Waite and Kennedy v. Germany (1999) 30 E.H.R.R. 261).

    Counsel for the respondent conceded that the proposed limitation of the right not to incriminate oneself, by permitting evidence to be led at the trial of an accused of an admission made under section 172, did have a legitimate aim and, indeed, it is difficult to see how that concession could have been withheld. The driving of a motor vehicle is a lawful activity which is engaged in by a large proportion of the adult population, but at the same time it is a potentially dangerous activity. That this is so is illustrated by the recent road accident death and injury statistics applicable to the United Kingdom which were laid before us. Accordingly, it is natural for the State to seek to regulate that activity and it is inevitable that that regulation will result in limitations being imposed on the rights of individuals. Regulation is required in the interests of the safety of the population in general and owners and drivers of motor vehicles accept that there are rules which have to be observed. In that connection one consideration is that it is in the public interest that those who commit motoring offences are detected and brought to justice. And it must be recognised that it can be difficult for the police to identify drivers of vehicles alleged to have committed moving traffic offences.

    The contention advanced by counsel for the respondent was that, while a legitimate aim was sought to be achieved, permitting the procurator fiscal to lead evidence of her admission at her trial was not proportionate. So far as the issue of proportionality is concerned, it is, in my opinion, important to recognise the very limited scope of the information which the respondent was required to provide in terms of section 172. What she was required to do was to give such information as she had as to the identity of the driver at the time the alleged offence was committed, and the keeper of a motor vehicle may be expected to be in the best position to know who was driving the vehicle at any particular time. The reply given by the registered keeper of a vehicle, or "any other person" who may be required to provide the necessary information, will not necessarily be self-incriminating as the person to whom the question is addressed may be able to state that some other person was the driver or may genuinely not be in a position to say who was driving. However, even if the person to whom the question was addressed was the driver at the material time, and was under a legal obligation to admit that fact, no questions can be asked about the speed at which, or the manner in which, the car was being driven or any other circumstances relating to the alleged offence. While it must be recognised that the respondent's admission that she was the driver will be an important adminicle of evidence in the Crown case at the trial, the Crown will still require to satisfy the court that the admission was reliable, provide corroboration of the admission and prove beyond reasonable doubt that the driver of the vehicle was guilty of committing an offence to which section 172 applied. The respondent was not, and could not be, asked to admit her guilt of the alleged offence nor was there any question of her being required to go into the witness box and be subjected to cross-examination. Further, while she was compelled to provide the information required of her under section 172(2)(a), and her failure to comply with that requirement would have meant that she would be guilty of an offence under section 172(3), it has to be borne in mind that the offence is a summary one and that the maximum sentence is a level three fine (at present £1,000), disqualification being discretionary and endorsement obligatory. A custodial sentence cannot be imposed.

    It was submitted by counsel for the respondent at one stage that a more proportionate measure would have been to create a statutory presumption that the registered keeper had been driving the vehicle at the time of the alleged offence. But it does not seem to me that that could be regarded as a more proportionate measure as, if the keeper wished to challenge the presumption, he or she would require to go into the witness box and would be open to cross examination not only as to whether he or she was the driver but also in relation to the circumstances in which the offence was committed. In a case where a person admits under section 172 to having been the driver of the car at the material time, and evidence of that admission is led at the trial, it will still be for the court to decide (except in a case where section 12(4) of the Road Traffic Offenders Act 1988 applies) whether or not to accept that evidence and what weight should be placed on it. It would, for example, be open to an accused person to give evidence that the alleged admission was never made or that, while an admission of being the driver had been made, the admission had been made in error. If there was evidence of coercion, oppression, unfair inducement or other improper compulsion having been used, the evidence of the admission would be rejected. In my opinion the provisions of section 172, taken along with the right of the prosecutor to seek to rely on an admission made by an accused under that section, is a proportionate response when balanced against considerations of public safety and the interests of the community. Further, the limitation on the respondent's right not to incriminate herself will not, in my view, be incompatible with her right to a fair trial.

    In reaching their decision the High Court relied heavily on observations made by the European Court in Saunders v. United Kingdom (1996) 23 E.H.R.R. 313, a case in which the facts were very different from the facts in the present case. In paragraph 68 the court made the following observations, at p. 337:-

    "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."

    The court went on to state, in paragraph 74, at p. 340:-

    "The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings."

    However, in spite of those observations, the court (in paragraph 74) did not find it necessary to decide whether the right not to incriminate oneself is absolute or whether infringements of it may be justified in particular circumstances, so that that issue has been left open. In Murray v. United Kingdom (1996) 22 EHRR 29 (at p. 60, para. 45) and in Saunders (at paragraph 68) the court stated that an accused had to be protected against "improper compulsion" by the authorities, examples of improper compulsion being coercion and oppression, in order to contribute to avoiding miscarriages of justice and to securing the aims of Article 6. In the present case there was no suggestion of coercion or oppression and I do not consider that, in the context of the regulatory system which has been brought into operation in the United Kingdom in relation to road traffic and the public interest involved, the use in evidence of a very limited admission lawfully obtained under statutory authority can be regarded as improper compulsion. In the circumstances I consider that the High Court, which did not have the benefit of submissions on the issues of balance and proportionality, placed too much weight on the observations in Saunders, a case in which the European Court appears to have laid down a more absolute standard than the other jurisprudence of the court indicates.

    On the whole matter I have reached the conclusion, having regard to the very limited nature of the information which the respondent was required to provide under section 172(2)(a), balanced against the legitimate aim sought to be achieved in the general interests of the community, that the test of proportionality has been passed and that evidence of the respondent's admission can be led in evidence at her forthcoming trial without infringing any of her Convention rights under Article 6. For the reasons which I have endeavoured to give, and the reasons more fully set out by your Lordships, with which I respectfully agree, I too would allow the appeal and quash the declaration made by the High Court.


     

    [D3]


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