Keeper of vehicle may be required to name driver to police: Strasbourg upholds road traffic legislation

The European Court of Human Rights’s ruling last Friday in the cases of O’Halloran and Francis means the police, when they http://www.gooakley.com/ suspect a driving offence has been committed, can continue to compel the registered keepers of vehicles to provide the name and address of the driver. They will also be able to continue using that information in evidence. In effect, the ECtHR has upheld the Privy Council’s ruling of 2000 in Brown v Stott.

O’Halloran had been sent by the police photographic evidence of a speeding offence, and a “notice of intention to prosecute”, which told him he must identify the driver, or else commit an offence under section 172 of the Road Traffic act 1988. He admitted he had been driving his car, and on the basis of that confession, which was admitted in evidence under section 12 of the Road Traffic Offenders Act 1988, he was convicted of speeding. Francis refused to identify the driver, and was convicted under section 172. Each man argued that the conviction breached his right to a fair hearing under article 6.1 generally, and specifically the presumption of innocence under article 6.2.

The court ruled against the claimants, upholding the UK’s legislation, and interestingly did so in effect by approving of Lord Bingham’s speech in Brown v Stott: it cites him at some length and specifically picks up on a number of points he made in his reasoning. First, that drivers voluntarily accept they are subject to a regulatory Ray Ban outlet regime when they opt to drive; second, that the legislation in question permits only a narrow inquiry into fact – it does not give a power to question the keeper of the vehicle generally; and thirdly, that the penalty for non-compliance is moderate and non-custodial. In a sense, therefore, this case vindicates what many people said about the Human Rights Act – that it would allow British judges’ rulings to influence those of the Strasbourg court, and lead to a better understanding at the European level of the British approach to protecting human rights.

The judgment wasn’t unanimous: two judges take a purist approach to self-incrimination and give a dissenting opinions in favour of the claimants.

Even more interesting however is the concurring opinion of Judge Borrego Borrego. In effect, he says the claims were a load of nonsense to start with, and that the court should have given them extremely short shrift. I’m not sure I agree with him in this particular case – but I do like his style.