O'Halloran & Francis v. UK
European Court of Human Rights
Judgment of 29 June 2007

Does the the compulsion to provide details of the driver under s.172 Road Traffic Act 1988 infringe your Human Rights?

Can those driver details be used as evidence against you in Court?

When challenging their speeding matters, O'Halloran and Francis both relied on Article 6 of the European Convention on Human Rights (ECHR), specifically:

1. the right to a fair trial; and
2. the right not to incriminate yourself. 

They both argued that those rights were absolute and cannot be subject to a form of punishment should you chose to invoke your right to remain silent or not to incriminate yourself.  In other words Francis argued that he should not be punished for not providing the driver information as he had the right to remain silent and not incriminate himself.

O'Halloran also argued that any information he supplied as to the identity of the driver should not be relied on as evidence against him in Court as to do so would contravene his Convention rights.

The Court effectively took a balancing approach as to whether a compulsion to supply information (name of the driver here) infringed any ECHR rights.  The ECtHR looked at the nature and degree of the compulsion used to obtain the evidence, any safeguards in place and the use to which the material would be put. 

It appears that the Court took, perhaps unsurprisingly, a policy based approach when looking at this matter.  They decided that even though the compulsion to provide the information requested was a direct one, it is something that vehicle owners were aware of when they bought vehicles.  The reasoning for this is that when purchasing a vehicle you are aware that you will be subject to certain rules and regulations governing the driving and ownership of that vehicle.  The Court said that regulatory schemes such as this are in place as it is realised that the possession and use of vehicles is recognised to give rise to the potential for injury and damage.

In short, the ECtHR has said that if you own a car, you realise that there are rules and laws which govern the driving and ownership of that car and that, in the UK, the obligations you have include naming a driver in the event of an alleged road traffic offence.

The ECtHR also viewed the fact that there is a defence to the failure to provide the driver information as a 'safety net', therefore not making it a strict liability offence if you do not provide the driver information.  Their reasoning being that you are not automatically convicted of failing to give information as there is a potential defence that can be put to the Court.  The Court went further stating that a prosecution could not proceed on the basis of the admission that a person was a driver alone and that there are many elements of the case that the Prosecution must prove beyond all reasonable doubt.  It seems they thought that this acted as another 'safety net' in the proceedings. 

The Court seems to have singularly failed to take note that the identity of the driver is often the only piece missing from the Prosecution's case.  Therefore, once the identity of the driver is resolved, the offence is made out.  In spite of this, the ECtHR decided that any information you give on the Notice of Intended Prosecution (NIP) or Driver Identification Questionnaire (DIQ) can be used as evidence in Court against you.

In effect the ECtHR has said that the way the Police and Camera Authorities obtain the driver information by using a NIP and DIQ is a proportionate way of dealing with road traffic police enforcement and does not contravene a person's right to a fair trial or right not to self-incriminate.

This approach is probably best summed up by the dissenting judgment of Judge Myjer who observed that the majority judgment shows 'what may happen if "the weight of public interest" is allowed to play a role in deciding whether or not the right to remain silent should be upheld'.

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