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"It was me" Self-incrimination against Human Rights - Scottish Court


Brown v Procurator Fiscal, Dunfermline

(2000) The Times, February 14, HIGH COURT OF JUSTICIARY (Scotland)



The Statute and the Convention

Section 172 of the Road Traffic Act 1988 provides:

"(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...

"(3) ... a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.

" Article 6 of the European Convention on Human Rights (1953, Cmd 8969) provides: "1 In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing..."

The Facts

Brown's breath had smelt of alcohol when she had been charged with theft of a bottle of gin at a supermarket, to which she had said she had travelled by car. She had indicated to the constables that a parked car was hers, was found to have its keys and was suspected of driving while drunk. She had been required to say who had been driving it and had replied: "It was me".

It had long been understood that under section 172, no caution was necessary, and the keeper had no right to remain silent and his reply could be used in evidence against him if it turned out that he was the driver.

However, anyone charged with an offence had a right under article 6(1) of the Convention to remain silent and not to contribute to incriminating himself: Funke v France (Series A No 256-A (1993), paragraph 44); Murray v. United Kingdom (Reports of Judgments and Decisions 1996-I, p30, paragraphs 45-47); Saunders v United Kingdom (Reports of Judgments and Decisions 1996-VI p2044, paragraphs 68-9).

The right of silence and the right against self-incrimination were not lately minted: the latter had been recognised in "capitall crymes" in the Claim of Right 1689; see also Hume, Commentaries (volume II, pp336-7); Alison, Criminal Law (volume II, pp586-7); and compare R v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1, 30-32E); R v White [1999] 2 SCR 417, 438); Wigmore on Evidence (McNaughton, rev 1961) (volume 8, p318); Lamb v. Munster (1882) 10 QBD 110, 113.

The right not to incriminate oneself presupposed that the prosecution sought to prove their case without resort to evidence obtained through coercion in defiance of the accused's will: see Saunders (paragraph 68); R v Hebert [1990] 2 SCR 151, 164e-175g. The Crown accepted that a provision which required an accused to go into the witness box and admit that he had been driving a car would infringe article 6(1). That was so at trial, when the accused had full notice of the charge and the right to legal representation, was most striking.

The right played a central rôle in the procedures required for a fair trial. Without a right of silence during the investigation, the prosecution could conscript the accused to defeat himself, and circumvent his right not to incriminate himself at trial. The common law was guided by that very consideration.

According to recognised international standards the right of silence and not to incriminate oneself at trial implied the recognition of similar rights at the stage when one was a suspect being questioned in a criminal investigation.

When questioned, Brown had been a suspect and article 6.1 had applied: see Deweer v Belgium (Series A No 35 (1980) paragraph 46); Eckle v Germany (Series A No 51 (1982) paragraph 73. Even had it not, it would none the less apply to the use of her reply at trial: compare Saunders (paragraph 74); contrast the Commission decisions in Tora Tolmos v Spain (No 23816/94, May 17, 1995); D.N. v The Netherlands (No 6170/73, May 26, 1975) and J.P. v Austria (Nos 15135/89, 15136/89 and 15137/89, September 5, 1989; albeit not all of the reasoning in the Commission cases was easy to follow.

Saunders bore comparison with Thomson Newspapers Ltd v Canada [1990] 1 SCR 425, 540h-542. which distinguished an inquisitorial investigation, seeking to discover whether any offence had been committed and, if so, by whom, from an adversarial criminal investigation to discover whether a particular individual had committed a particular crime.

In the former, but not the latter, a right not to answer questions was unnecessary where the answers could not be used against the accused at a subsequent trial.

In the present case, where the accused was compelled to reply in an adversarial investigation, that strengthened the argument that rights of silence and against self-incrimination should prevent the use of her reply to incriminate her at trial.

The Crown argued that her reply was not a confession of an offence, merely a link in the chain of testimony: see California v Byers (1971) 402 US 424, 432); In re Willie (1807) CC Va 25 F 38, 40. But it would contribute to proof that she had driven her car, and even adopting the American test would be self-incriminating: see Hoffman v United States (1950) 341 US 479, 486. It was not illogical that the right did not extend to the use of documents and bodily samples which might be obtained from the accused by compulsory powers but which had an existence independent of his will (see Byers (at pp431-432); Thomson Newspapers Ltd (at pp548j-549c); Ferreira v Levin N.O. (at pp1050-2) unlike Brown's reply.

In the majority had held that a statement made under a system of compulsion for a non-criminal purpose was different from one compelled for a criminal investigation.

Here the reply had not been obtained for "non-criminal governmental purposes". The precondition for a request under section 172 was the investigation of an offence by the driver.

Canadian case law was relevant. It distinguished road-traffic law from a man’s voluntary participation in a particular trade for which a licence was required and was granted on condition that, inter alia, he furnish certain reports about his activities from time to time; where, if he considered he was compelled against his will to produce them, lest they one day be used against him in a prosecution for breaching the terms of his licence, he was free to resign from that trade: R v Fitzpatrick [1995] 4 SCR 154, 172-8, paragraphs 33-42.

Driving, it had been said, was often a necessity of life. When a person needed to drive in order to function meaningfully in society, the choice of whether to do so was not truly as free as the choice of whether to enter into a given industry: see R v White (at pp438-50).

Section 172 could be given effect in a manner compatible with the applicant's Convention rights, if it was read as meaning that the Crown had no power to lead evidence of her reply at her trial. LORD MARNOCH, having read and re-read Saunders, confessed that he could find nothing in it which added significantly to what had long been the common law of Scotland.

Scots Law required that suspected persons should normally be cautioned that they were not obliged to say anything. Even with a caution, anything in the nature of cross-examination would render the answers inadmissible: Chalmers; HM Advocate v Friel (1978 SLT (Notes) 21).

But for the Companies Act, Scottish common law would have reached exactly the same result in relation to the Mr Saunders’ answers to the Department of Trade and Industry inspectors. Section 172 had now to be construed as not permitting the Crown to lead evidence of any reply given by a suspect. However, his Lordship was not persuaded that principle or precedent required any broader approach to be taken.

The mere fact of a person being the registered keeper of a vehicle was not, of itself, sufficient to make him a "suspect" in respect of an offence committed by a driver of that vehicle. Very often, vehicles were driven by persons other than their registered keepers.

Lord Allanbridge delivered a concurring opinion.

The Decision

If a constable suspected someone of driving while drunk, required him to say whether he had been driving his car, and was told "It was me", and evidence of that reply was given to the court by the prosecution on a charge of drink driving, the driver's human rights would be infringed.

The High Court of Justiciary, sitting as the Court of Criminal Appeal of Scotland, so held, allowing an appeal by Mrs Margaret Brown in a prosecution of her for driving while drunk, and declaring that the Crown could not lead evidence of an admission by her under section 172(2)(a) of the Road Traffic Act 1988, that she had been the driver of the motor vehicle in question.

Comment

Scottish Law

We should firstly remember this is a case from Scotland, the High Court of Judiciary. However in the eyes of some this may be a little complicated, this writer has already received a few E-mails from members of the public who, presumably think they have seen a way to avoid a prosecution.

The report does not give details of the actual charge under the RTA 1988, it is simply referred to as 'drink driving'. However. it is unimportant for the purposes of the appeal. Why did the police resort to section 172? Why did they not just arrest for unfit or over the prescribed limit, so far we have only the Times Report to go by.

The Court has considered, the old common law of Scotland The common law in Scotland, as in England and Wales, very much reflects society as it was found to be hundreds of years ago. A suspect did not enjoy the level of protection which exists today.

This issue is of extreme importance, as the Human Rights Act 1998 is now effective, throughout England and Wales.

Other Relevant Cases

In Funke v France, the court discussed the proposition that Art 6(1), entitlement to a fair trial is associated with the privilege against self-incrimination. The case was concerned with a failure to provide customs officers with documentary records so that this could uncover other documents relating to another offence. There were unusual circumstances in that these documents could have been obtained by other means but the customs authorities decided to use the offence to compel production. In finding that there had been a violation of Art 6(1) the court said:

'The special features of customs law cannot justify such an infringement of the right of anyone 'charged with a criminal offence', within the autonomous meaning of this expression in Article 6, to remain silent and not to contribute to incriminating himself.'

The case of Saunders v UK, was similarly concerned with unusual circumstances in that it was an investigation being conducted by the Serious Fraud Office, that office having been specially provided with additional powers to demand information and explanations from suspects. There has been a tendency to provide such additional powers where investigations are carried out by organisations other than the police service.

Scottish High Court decisions are not binding in English (and Welsh) Courts, but the House of Lords decision in Regina v Hertfordshire County Council, ex parte Green Environmental Industries and Another (2000) 1 ALL ER 773; (2000) The Times, February 22 is binding.

The case concerned section 71(2) of the 1990 Act.

Section 71 of the 1990 Act provides: "(2) For the purposes of the discharge of [its] ... functions ... a waste regulation authority may, by notice in writing served on him, require any person to furnish such information specified in the notice as the ... authority ... reasonably considers ... it needs..."

Subsection (3) provides that failure to comply with the requirements of a notice under section 71(2) was an offence punishable summarily by a fine or on indictment by imprisonment for up to two years.

The House held that a notice issued by a waste regulation authority pursuant to its powers under section 71(2) of the Environmental Protection Act 1990 did not offend the rule against self-incrimination in any subsequent criminal proceedings nor was it a contravention of European law and the right to a fair trial.

Whether potentially incriminating answers provided when complying with the notice should be excluded from the evidence in any subsequent criminal proceedings was to be left to the trial judge exercising his discretion under section 78 of the Police and Criminal Evidence Act 1984. Therefore a person on whom such a notice was served was obliged to comply with its requirements.

The House of Lords so held, dismissing an appeal by the applicants, Green Environmental Industries Ltd and its sole director and principal shareholder, John Michael Moynihan, from a decision of the Court of Appeal, The Times October 9, 1997; (1997) 96 LGR 417 upholding a dismissal by the Queen's Bench Divisional Court (1996) 95 LGR 424) of an application for judicial review of the waste regulation unit of Hertfordshire County Council to issue notice under section 71(2) of the 1990 Act.

In delivering the judgment of the House of Lords, Lord Hoffmann stated that the terms 'privilege against self-incrimination' and 'right to silence' related to loosely tied rules or principles of immunity. Of these rules, he said, the best known example was that a person on trial could not be forced to submit himself to examination by the prosecution such a procedure being inconsistent with a fair trial. He made reference to the associated principle that in pre-trial investigations a person had a right to silence or privilege against self-incrimination. But these general principles were subject to exceptions and the issue of whether powers provided by statute to obtain information excluded the privilege of self -incrimination was one of construction. Lord Hoffman stated that the power provided by section 71(2) had a dual purpose: firstly to obtain evidence against offenders and, secondly, for the broad public object of affording protection to public health and the environment. (This second consideration might ultimately be the factor distinguishing it from simple and straightforward statutory requirements under other enactment's, such as the Road Traffic Act and the Vehicle Excise and Registration Act). He stated that in the circumstances the information demanded was often required urgently.

Lord Hoffman concluded that Parliament was more likely to have intended that the question of whether the coercive power to provide information which was self-incriminating prejudiced a person's defence ~ right to a fair trial was a matter for the court to consider in the context of section 78 of the Police and Criminal, Evidence Act 1984 (evidence unfairly obtained).

Lord Hoffmann said that the requirement made under section 71(2) in itself did not even form a preliminary part of any criminal proceedings and because of this, the requirement did not impinge on the principles which prevented the questioning of a person charged or accused,

In English domestic law, His Lordship concluded, the applicants were not entitled to refuse to provide information on the grounds that it would incriminate them. He said the principal issue was whether this conclusion was affected by European Community Law, including its doctrines of fundamental human rights.

The House of Lord's decision in the Hertfordshire County Council case offers some slight comfort for the future in that courts have the discretion whether to admit or exclude the evidence provided in response to a statutory requirement. Sooner or later the Scottish decision which is of persuasive authority only may be put to the test in the English Courts.