Does section 172 of the Road Traffic Act 1988 violate the privilege against self-incrimination?

“No” was the answer given to this question by the Grand Chamber of the European Court of Human Rights in the recent case of O’Halloran and Francis v U.K. (CLW/07/26/2).

Section 172 of the 1988 Act provides that where it is alleged that a driver of a vehicle is guilty of a road traffic offence, the owner of the vehicle must identify who was driving it when the offence was committed. Failing to provide this information is a summary offence punishable by a maximum fine of £1,000 (see s172(3)).

The two applicants had been subjected to compulsion under section 172. The first applicant admitted that he was the driver of the vehicle concerned and he was convicted in due course of an offence of speeding, whereas the second applicant declined to identify the driver and was convicted of the offence under section 172(3).

Both applicants claimed that there had been a violation of their privilege against self-incrimination as guaranteed by Article 6 of the European Convention on Human Rights (as an aspect of the right to a fair trial).

Finding that there had been no violation, the European Court held that it did not follow that any direct compulsion would automatically result in a destruction of the privilege.

Whilst the right to a fair trial under Article 6 was an unqualified right, what constituted a fair trial could not be the subject of an unvarying rule and must depend on the circumstances of the particular case. In order to determine whether the right to remain silent and the privilege were destroyed, the focus should be on:

(a) the nature and degree of the compulsion used to obtain the evidence;
(b) the existence of any relevant safeguards in the procedure; and
(c) the use to which any information so obtained was put.

Applying this test, there was no destruction of the essence of the applicants’ right to remain silent and their privilege against self-incrimination by the operation of the duty imposed by section 172.

First, all who owned or drove a motor vehicle knew that by doing so they subjected themselves to a regulatory regime (and thereby accepted attendant rights and responsibilities), which applied because of the potential for grave injury posed by the possession and use of motor vehicles.

Secondly, as to the nature and degree of the compulsion, the inquiry to which the procedure under section 172 related was limited in nature, since it involved only a requirement to provide information as to the identity of the driver rather than prolonged questioning about facts alleged to give rise to criminal offences; and the penalty for declining to answer was moderate and non-custodial.

Thirdly, as to the existence of any relevant safeguards in the procedure, given the existence of the defence under section 172(4) applying where the keeper of the vehicle shows that he did not know, and could not with reasonable diligence have known, who the driver of the vehicle was, the offence was not one of strict liability, and the risk of unreliable admissions was negligible.

Fourthly, as to the use to which the information obtained was put, the identity of the driver was only one element of the offence to which the compulsion could give rise, and there was no question of a conviction arising in the underlying proceedings in respect solely of the information obtained.

CLW comment
The court’s decision essentially approves the well-known decision of Brown v. Stott (Procurator Fiscal, Dunfermline) and another [2003] 1 A.C. 681, P.C. (CLW/00/44/3), in which the same conclusion was reached in relation to the operation of section 172 in Scotland. That decision was applied in relation to England and Wales in D.P.P. v Wilson [2002] R.T.R. 37(6), D.C. (CLW/01/12/4).

It is submitted, however, that there ought to be an onus on the person making the requirement under section 172 to inform the owner of the vehicle of the nature of the offence or offences of which the driver of the vehicle is alleged to be guilty. Would it be fair to use