The existence of courts of appeal is a testament to the obvious fact that courts sometimes get it wrong and need correcting. In the UK since 1964 even the House of Lords has acknowledged that it may sometimes have to correct its mistakes. The ECHR can hardly hope to be immune.
Its decision that speeding motorists are obliged to incriminate themselves can fairly be seen as an unhappy indication that protection against self-incrimination, once regarded as a rather basic rule of protection from oppression, will not apply where it would cause the state the minor inconvenience of installing cameras capable of collecting the relevant evidence by photographing cars from the front.
This is hardly an impressive advertisement for the court's dedication to principle.
Indeed, I rather preferred the logic behind the dissenting judgment of Judge Pavlovshci, which pointed out that :
'Furthermore, if we accept policy reasons as a valid ground for violation of the prohibition of compulsory self-incrimination or the presumption of innocence for offences which present a minor danger, why not accept the same approach to areas of legitimate public concern which might justify encroaching on the absolute nature of Article 6 rights: terrorism, banditry, murder, organised crime and other truly dangerous forms of criminal behaviour?
If the public interest in catching minor offenders (persons committing speeding or parking offences) is so great as to justify limitations on the privilege against self-incrimination, what would be the position when the issue concerned serious offences? Is the public interest in catching those who commit crimes which cost people's lives less great than in catching those who slightly exceed the speed limit?
In my view it is illogical for persons who have committed minor offences to find themselves in a less favourable situation than those who have committed acts which are truly dangerous to society.'
I fail to understand what the fuss is about.
You are only "forced to incriminate yourself" if you did it. If you didn't you are forced to incriminate somebody else.
Seems eminently fair and just to me.
However, a fine does sound rather money-grubbing. Hows about "failure to name" attracts the three-point penalty for ALL named drivers. Then the innocent ones will put pressure on the guilty to own up.
Now, will the boy who pinched my board-rubber bring it back, or shall I put you all in detention?
Now I have read the case, I rather like Judge Borrega Borrega's concurring judgement, where he draws a fairly clear line between the general right to silence and the reasonable enforement of motoring law, at the same time castigated the court for taking 12 pages to state the blindingly obvious.
Judge Pavlovschi's spirited "thin end of the wedge" dissent lets itself down on two grounds. First by his ending diatribe that if enough people break the law it can't be criminal - which is the thin end of an entirely different wedge. Second, by his indication that it would be perfectly acceptable for a court to draw inferences from silence. Given that this last would have almost exactly the same effect as the current law (i.e. the offender gets it) the distinction he draws is a narrow technical one, for all his speech about grand principles.
"However, a fine does sound rather money-grubbing. Hows about "failure to name" attracts the three-point penalty for ALL named drivers"
Except most comprehensive insurance policies allow 3rd parties to drive cars.
IE I can drive my partners car, and he mine without either of us being named drivers on the others policy.
Curses, chewy, you caught me out.
It was a nice idea while it lasted though.
Yes, Chewy, but that's onl;y basic third party. Since it costs nest to nothing to add a spouse or partner to a policy most people wouldn't take that risk.
Hmm, in your sarcastic angle on "the whole system is corrupt", I am reminded rather uncomfortably of Lord Denning on the Birmingham Six:
"If the six men win, it will mean that the police are guilty of perjury, that they are guilty of violence and threats, that the confessions were invented and improperly admitted in evidence and the convictions were erroneous... This is such an appalling vista that every sensible person in the land would say that it cannot be right that these actions should go any further"
And we all know how that went, didn't we?
Minor amendment - I wasn't sure when you quoted the "legal aphorism", whether this implied you fully believed in it or not. If you don't, then my apologies.
While Judge Pavlovschi may have made a flawed argument, I am begiining to feel that the Articles of the ECHR are a good thing, and it should require something much more significant than a speeding offence to remove someone's right to silence.
I'm generally in agreement with NickB at the start of the comments, except that there has to be a recognition that there has to be a final decision at some point, and the ECHR is it. However, with the ECHR representing the final decision, I feel that it should be a staunch defender of the rights defined in the Convention, and only permit their breach in dire need. The US Supreme Court has, generally, shown that it will not allow the Government to override the Constitution of the US, and whilst the ECHR has done the same, I do not feel that it guards the Convention with quite the same ferocity.
A stauch defender of fundamental rights,eh mouse?
But surely the right to silence is there to protect the innocent from oppression, not to permit the guilty to spend vast quantities of public money (yours and mine) to avoid small losses incurred by their own voluntary flouting of laws sensibly imposed to protect the safety of others?
I think that's put it it a nutshell. You might have to prod me a bit more to get the fully-reasoned version!
It is wholly unacceptable, as enshrined in the Constitution of that 3rd world state, the USA, for a person to be obliged to incriminate themselves so that the authorities can add to their obesity by sitting on their backsides while we do their work.
Here comes the anecdote:
Two weeks ago, a friend of my Mother (she is disabled with a valid disabled badge) received a parking ticket for parking lawfully in a place in London whilst displaying her badge on the dashboard of his car in full view whilst they ate lunch at a restaurant they have frequented for the past 3 years without problem.
The local authority have installed a 30ft high camera (can't hit it with a catapault) on the corner of the street to take the place of androids that cost them £25,000 pa plus bonuses.
Our friend is sent a £120 fine (reduced to £60 if paid within 14 days. On the letter are 4 printed photos of the car in situ. One is an enormous zoom of the number plate (you can read the motor traders name). On the others, a knowledgable observer can make out the disabled badges.
I phoned the authority and told them that the fine was completely inappropriate as there was a disabled badge displayed. "No problem, just photocopy it and send it to us".
GUILTY UNTIL YOU PROVE YOURSELF INNOCENT. This is the new Police State we live in.
I visited old friends in the Potobello road last week. The words 'Police State' came up several, unprompted, times. It's not just me.
Bystander - The sooner Courts stop processing and start looking at the erosion of our liberties, the better.
I'd say that you should be thoroughly disheartened by the ECHR's political decision.
Bystander, if I were in Rob's friend's position I would be very tempted to just ignore the authorities completely.
In which case I should quite possibly end up in court for non-payment of a wrongly imposed fine.
I would like to think the bench would roundly castigate the officials and let me off scot-free. But is that so?
Oh, by the way. There is a road near me that is 40mph in one direction and 30mph in the other. No signs. Frequent speed traps. Seaside resort - so it is literally a tourist trap. Much as I support the ECHRs judgment, this sort of behaviour is downright nasty. Who can I sue?
"forcing them to incriminate themselves if charged with exceeding a speed limit."
How is merely identifying yourself as the driver by post self-incrimination? Or different in principle from having to identify yourself if your car is stopped by the police?
Doing so doesn't stop you pleading not guilty.
Phisheep - Who can I charge?, was the question I asked, for the time taken to produce photocopies, lost income etc. Imagine you are a disabled, survived the Coventry blitz and had to put up with this crap.
This country is cow pooh.
J L Jones - The principle exists that you should be cautioned before making any statement that tends to incriminate you. This does not seem to apply to NIP's.
OK - where is all this taking us? The matter is now settled - s.172 is lawful - end of story.
The so-called "right to silence" has gone for all practical purposes and went with the Criminal Justice and Public Order Act 1994 which Michael ("Something of the Night") Howard pushed through. The change to the law was based on almost identically worded legislation which had existed for some time in Northern Ireland - which was then enduring terrorism on an extensive scale. The argument that terrorists were trained to resist interrogation was extended to everyone accused of any offence however minor. Michael Mansfield QC - (much maligned on a recent post) - tried to argue against this in the Court of Appeal but they would have none of it!
If you fail to mention something at the point of arrest which you later rely on in your defence you will, certainly as far as the avergae magistrates' court is concerned, be convicted.
Unless one is very lucky with the magistrates or the judge, there is no such thing as a fair trial in the English courts and more and more defendants have to cope without a lawyer though that is, for now, mainly in the magistrates' courts.
"Justice" in the English courts is, all too sadly, a thing of the past.
The chances of reversing this are about nil. No political party is seriously interested in true justice.
"s.172 is lawful - end of story"
Not at all. There have been bad laws before, still are some and there will doubtless be others. I just happen to think this isn't one of them.
Well, apart from one teensy thing. Even I find it unjust that you can end up being done for BOTH the s172 and the original offence.
@ Peter Hargreaves:
If you fail to mention something at the point of arrest which you later rely on in your defence you will, certainly as far as the avergae magistrates' court is concerned, be convicted.
Not so. As with any other evidence which is given by either side, it will be listened to and noted, as will the explanation you give (voluntarily or under cross-examination) for not mentioning it earlier. If the explanation is considered to be reasonable it will be accepted and the 'new evidence' given appropriate weight. If the explanation is not a reasonable one, we MAY (not 'certainly will') draw an adverse inference from failure to mention it at the first opportunity.
The provision is intended to discourage the so-called 'ambush defence', where something totally unforeseeable is sprung on the prosecution during the trial, which cannot be effectively challenged.
If the purpose of a trial is to convict the guilty, that seems fair to me. If, on the other hand, you see its purpose as to give the guilty every opportunity to escape conviction, then..........
@payusoru/phisheep: The purpose of a trial may be to convict the guilty, but I believe that the state should be made to prove that the person is guilty, and this proof should be an uphill task. It should not be the duty of the defendant in any way to prove his innocence until such point as a certain level of evidence is produced by the state. The defendant should not be required to self incriminate.
I increasingly believe that unfortunately the legal system needs its Michael Mansfields and Nick Freemans. I don't agree with all the cases they bring, but without them the state would have far to easy a ride.
Phisheep, you really don't get it do you ?
Your argument is the same as saying that ID cards are a good idea because "if you have nothing to hide..."
"You are only "forced to incriminate yourself" if you did it. If you didn't you are forced to incriminate somebody else.
Seems eminently fair and just to me."
I have read some ill informed and ignorant comments but this takes the biscuit.
@Rod: with respect to friend with disabled badges, send a bill back for (say)£30 x number of hours spent dealing with this matter. Plus any other costs you can think of.
"the right to silence is there to protect the innocent from oppression, not to permit the guilty to spend vast quantities of public money (yours and mine) to avoid small losses incurred by their own voluntary flouting of laws sensibly imposed to protect the safety of others?"
The /accused/ cannot be deemed guilty or not guilty until after the trial, non ? Until then they are a suspect.
A small but important point.
Paul,
From experience, once you are accused you are definitely treated as guilty, and punishment (potentially devastating bail conditions) is imposed.
nonimouse - Exactly what I told him to do (and I would certainly have done myself). However, most people just do not bother to see things through all the way to invoicing and issuing Small Claim when not paid, they've got a life to get on with.
This is what this, now totally corrupt, system of tax raising depends on. In a lot of ways it is akin to the 'send a small invoice to a company or person, it'll usually be paid' scam.
I cannot begin to tell you the effect such things have on someone like my Mother who is not at all physically well and also suffers from depression. She would have paid the ticket for him if there'd been no intervention.
Cameras everywhere, and do they do anything about someone like Ian Wright abetting an attack on a Parking Warden? Do they, hell! No money in it an' he's a footballer in it?
Bunch of mindless tossers who need challenging at every opportunity. That should bring them to a grinding halt.
Trouble is, the English love taking it up the backside and then just grumbling.
The good news:
My brother was telling his friend, a Crown Court Judge, that it was now impossible to navigate London without committing some violation unwittingly. His friend poo poo'd it and the next day the Judge's wife, a JP, was sent a still picture of her 'parking' on a yellow line. All she had done was drop her son off on the kerb for 15 seconds.
I guess the impersonal, indiscriminate, camera operators will get around to Bystander eventually. Bet he'll grumble, too.
Could someone point me to the "criticism" of Michael Mansfield. That guy can do no wrong by me.
Just like to put my slant on Bystander's original post:
The Magistrates were corrupt/freemasons/stupid = Some might be
The whole system is corrupt = Parts of it are
British Justice stinks = I can't afford to have legal representation so the Judge will despise me, I'll look like a twit and lose my case whatever its merit.
"Yes, Chewy, but that's onl;y basic third party. Since it costs nest to nothing to add a spouse or partner to a policy most people wouldn't take that risk."
I couldn't agree with you LESS.
I am not on my fathers, or my partners insurance, but I do drive their cars when needed.
I fully accept the rebuke from Paul, though "ill-informed and ignorant" from Pascal was a bit beyond the pale.
Oh, the power of rhetoric. This one passed me by the first and second and third times I read it... we are back to judge Judge Pavlovschi, as quoted by JamesF above.
"In my view it is illogical for persons who have committed minor offences to find themselves in a less favourable situation than those who have committed acts which are truly dangerous to society."
Trips off the tongue doesn't it - good point well made and all that.
Except that the Judge made the same error as I did. It is not about persons who "have committed" it is about persons who are accused. And as the right to silence is there to protect the accused, the appropriate measure is not the seriousness of the offence (which he might not have committed) but the seriousness of the penalty (to which he may be liable).
So, rephrasing and paraphrasing the good Judge:
"In my view it is illogical for persons accused of serious offences to be offered more protection than persons accused of minor offences"
Which, frankly, is rubbish. Of course it is logical. It is what the protection is there for.
Timothy Evans.
I rest my case.
Why was it beyond the pale ?
Read yourself again. Your comment was ignorant and ill informed.
To be forced to incriminate oneself or be incriminated because one does not want to accuse someone else is the basis of all dictatorships and police states.
Guilty until proven innocent. Reminds you of something ?
(I did not intend to suggest that you were wrong Pascal, merely that you were impolite.)
I think Pascal makes a good point.
It seems that the Law is now there to replace proper investigation and burden of proof on the State.
I can't remember the name of the film but we are not far off reporting to a kiosk daily to be told that we didn't finish our State dictated quantity of Cornflakes and have our gold stars taken away from us.
You may laugh.....but just wait and see.
I thought it quite poignant that the CITIZENS (we are, of course Subjects) of the Ukraine were just a little bit unsettled with 'Democracy' (Western style) on the Michael Palin jaunt.
Rod,
I see Minister Dawn Primarolo is to tell us what we should all be eating and how much we should be exercising.
Not sure we will be reporting to kiosks, but there have already been rumblings about restricting NHS treatment if the state decides you are just too fat for its liking. Doubtless it will be up to us to prove we had been eating "5 vegetables a Day", like the state told us to, in order to get a required operation.
Incidentally I'm not fat and try not to speed, but don't like the way this Government is behaving. It's like with car tax discs - if your car is off the road at renewal time you are presumed guilty of non-payment of car tax and fined, unless you have made an official declaration of innocence in advance.
@Phisheep: I'm not sure where Timothy Evans comes into this. I know he was accused and executed over a murder which seems to have been committed by Christie, but there still seems some doubt over whether he was involved or not.
@nonimouse, the point I was trying to make with Evans was this:
Judge Pavlovschi seemed to think it illogical that an accused in Evans' position (liable to death, or life, if found guilty) should be offered greater protection than an errant motorist.
Put this extremely, it seems to me entirely logical or (at the very least and giving some ground to Pascal) not obviously illogical.
Judge Pavlovschi would have had no issue. Death Penalties are banned by the convention in any event (Article 2 plus protocols 6 and 13), so he would've overturned the sentence.
Myself, I feel the state should have to prove all criminal charges to the same high standard - it keeps them (more or less) honest.
Astro - "eating "5 vegetables a Day"
I draw the line at having to ingest 5 Policemen every 24 hrs.
Seriously, though, Bystander has been a little disingenuous in using the term "pro speeding sites".
I am not pro speeding (even if I do it myself. Show your botty if you haven't). I am pro good, considerate, defensive driving but I am certainly anti the Laws created to make up for the lack of staff and discretionary enforcement leading to the erosion of a person's right to be proven guilty without assisting the authorities in their quest for revenue.
I cannot abide double standards. If we all think that speed kills then restrict manufacturers to producing cars that cannot overtake the limit in force. I'm surprised that a lawsuit hasn't been brought against Porsche by that looney who copped it at 172mph for producing a car begging to speed in.
Kind of like fags. They won't ban them as long as they bring in revenue.
The biggest killer in this country is not the motor car, it is stress. Something that this country's governments, of whatever shade, have added to in spades.
What are these "pro-speeding" sites which Bystander talks of?
Do they actively promote speeding? Do they aid abet counsel or procure speeding?
I think we should be told whether Bystander is indeed being wittily ironic when he hints that:-
"pro-speeding" = Those helping the defendant
Nice one, B.
nonimouse - Fancy starting a non-political party?
7db - I believe these sites are there to help you make the Law make its case before you lose money and gain points.
@Rods vegetables: When they say have 5 a day, you're meant to have 5 different vegetables. How about a policeman, a magistrate, a law lord, a pope and a retired general?
Don't be silly, anonimouse - there aren't enough popes to go round. Cardinals will have to do.
Would two bishops count?
Rod - I'm aware of the sites. 5ive-o sprung up so that people could get advice from serving officers et al., rather than crusaders for "justice". That said, I'm not sure they are pro-speeding...
I would really like to interview you as part of some ongoing research on why people blog about their work.
I have done some preliminary research on work blogging and it can be viewed from my own blog
Work-related blogs and news or http://workblogging.blogspot.com
A paper I wrote on work blogs can be found here - http://www.esnips.com/doc/
efbc63...hards_paper_112 (this paper is being reviewed for an academic journal).
The interview time will vary, but I would expect it to run from 30 to 60 minutes.
They would be conducted by telephone at my expense and at a time that would suit you.
The interview will be more like structured discussion and I can let you know in advance what the questions will involve - please let me know and I can email them to you.
Information from the interview will not be passed on to any third party and information used in a research paper will be anonymised and subject to your approval if the matter is open to interpretation or could identify you in some way.
Please let me know if you would help me out.
You can either email me back or ring me at work on 0131 451 3043.
Thanks.
James
Work profile: http://www.sml.hw.ac.uk/
Staff_Pr...esRichards.html
Its so obvious, why do these 'bad losers' just read s.172 in full. There is a defence, s.172(4). This is Mr Loophole's (Nick Freemans) bread and butter.
Its frustrating when people just fail to just read the law in full. This would save so much time.
You would think that someone doing research into blogs would learn the difference between a public comment and a private request by email.
Perhaps IF the cameras were honest, and they are clearly not, and IF the magistrates court did not take anything the persicuiting office says as gospel, then there is a point, as it is the police side can lie with impunity, the non officers working in the camera units can use a pen the width of the gap in the road markings to feign guilt, and it cost me a months wages to prove my innicence, no you should not be blackmailed into incriminating yourself, that is what we pay vast sums for our police for. (Actually it would be nice if, as unlikely as is seems , they chased criminals instead of revenue.
Phisheep, I am sorry you find me impolite, but I find these principles to be too important and if we find ourselves in this situation now, it is because people will just follow blindly, and not think.
The problem with your point is where you draw the line. Where do you say, this is important enough that you should be protected ?
I put it to you, that once you start in this vein, there is no stopping it.
No wonder that in Germany something like s172 is not possible. They have some background in that area.
Further, in my own experience, I can tell you that cameras do lie, as does the police. Only if you stand your ground will you see justice.
But the majority of people will just pay up. They deserve what they get for being supine, but they help prolong the system.
Bystander is smugness personified with this subject, but unsurprisingly, it seems only 1 magistrate resigned on a question of principle with the victim's surcharge.
Jo - S172(4) is the definition of offence for persons other than the RK failing to provide evidence. What are you talking about?
I must admit I am a little concerned that Bystander is expressing such blatant bias in referring to "pro-speeding sites". As I recall competency 1.2(d) requires impartial judgement and competency 2.1(d) requires appropriate non-discriminatory language.
Are you due an appraisal soon and can we come and watch?
Pascal - "Only if you stand your ground will you see justice."
God, I hope so. I'm doing it at the moment and it is very uncomfortable.
Mr D - I have to agree that, in this case, Bystander seems to be have left the rails.
7db - My understanding is that you need not supply your details on the form but that you may attach a letter to it, giving all the details requested and saying that as you have not been cautioned it may not be admitted in Court.
If a Police officer should turn up to caution you within the requisite time (ha, ha), then you simply say nothing.
I suppose that when you turn up at Court you make no admissions and put the burden of proof on the Prosecution.
Bystanders will probably fine you, anyway, even though they will know that your right to be cautioned has been ignored.
They need the money.
----Have a care Rod. I have put up with a lot of silly gibes on here because that's the Internet and I am big enough and ugly enough to handle it. But any more suggestions that I make decisions on a financial basis and you are out of here for keeps.---ed
.
Edited By Siteowner
James - I would really like to interview you as I am interested in why anyone should bother researching the why's and wherefore's of a blogger who remains anonymous and bleats, every now and then, about his moral and intellectual stance regarding the Law but nevertheless upholds it even if he disagrees with it (for he has sworn to do so).
Actually, in truth, I would rather have a cuppa with Rogerborg.
Bystander - In my defence, I used the term 'Bystanders' for Magistrates in general. My reference to money was to Government coffers and was not directed at you (I know that you make no gain from your work). If it seemed otherwise, I apologise.
@Rod - that is what the law was before this case - indeed it is what the case was about. After the case you are no longer allowed to use that method - you may still be prosecuted for breach of s172.
An interesting potential loophole would be to take your form into a police station and ask them if you are a suspect. As soon as they reply yes they must then caution you - and as soon as you're cautioned you suddenly regain your right to silence. I'm thinking that the police would start to become slightly less than pleased if everyone filled police stations doing this though.
JamesF - Thanks for that. I hadn't realised that the Case was fought over the attached letter issue.
Seems to me that the Police could say 'you're not a suspect - go home and fill in your form or you'll be done for not doing so'.
Rod -
I can't see that defence having much mileage. I know that at least one magistrate loves to see PACE letters as they know then who they are trying.
"..Seriously, though, Bystander has been a little disingenuous in using the term "pro speeding sites"...."
That's all right. I can now refer to this blog as a "pro-oppression site", and quote WMP as representing its views....
Oh, and some light bed-time reading for our esteemed editor - I guess that this is what you would call a pro-speeding site...?
http://www.wired.com/cars/
coolwh...f_cannonballrun
Pisheep - in response to this:
'So, rephrasing and paraphrasing the good Judge:
"In my view it is illogical for persons accused of serious offences to be offered more protection than persons accused of minor offences"
Which, frankly, is rubbish. Of course it is logical. It is what the protection is there for.'
I have to say that what you posted is quite a compelling argument in your favour, but there was something about it that seemed wrong that I couldn't quite put my finger on. Having read through it again I've realised what it is; when flipping offenders with accused you've also added in the word 'protection'. At first glance this seems correct - the right to silence 'protects' you from self-incrimination, however, it sets in motion a series of thought processes that leads the reader to think of the right to silence as a shield that is added to ones arsenal of protection. The reality, rather, is that the right to silence is a fundamental human right. It is not so much, if you would forgive the metaphor, that we are only granting a shield to those in the hardest of fights, but chopping off an arm of those engaged in the most minor fights. If something of one's person is to be removed, as human rights are, there best be a very good reason to do so. The argument is thus - the possibility that the accused may have travelled 1mph faster than an arbitrary limit, set many years ago as a 'best guess' upper speed boundary, should not be a situation so severe as to warrant stripping the accused of rights created to protect human dignity, justice and liberty. Minor infractions may, in specific circumstances, justify minor incursions into our fundamental rights, but major incursions, logically, should be limited for the most major of offences.
But it's nonsense to use "cutting your arm off" as an example, because that's a severe and permanent disability.
If you're wrongly accused of terrorism, that can permanently blight your life. If you're wrongly accused of speeding, you're a couple of hundred quid down and need to be more careful in future to avoid getting the other 9 points.
The former is serious; the latter is frankly immaterial.
@JamesF: Whilst I agreed with most of your argument, I left at the last sentence. The should be no incursions, major or minor, unless it can be shown that the rights of some other person have been infringed in a greater way. Rights should specifically protect the individual from harm by the state and shgould be almost sacrosanct.
In reality, I accept there has (occasionally) to be some room for give and take, but speeding offences are not that category.
"If you're wrongly accused of speeding, you're a couple of hundred quid down and need to be more careful in future to avoid getting the other 9 points."
You seem to suggest that only drivers with a clean license can be wrongly accused of speeding? If you've already got nine points, for whatever reason and no matter how deservedly, being wrongly accused of speeding can loose you your job. Not quite immaterial perhaps?
Actually in the case of terrorism then the human rights of the innocent overwhelm the rights of the terrorist trying to extinguish the lifes of many, why accord rights to someone who refuses to register yours? the revenue gathering using the excuse of a possable motoring offence is imorral and the slippery slope to a police state. The entire legal system should be cringing with shame that this whole so called afety camera scam is tollerated in court, the prosecution is supposed to offer proof beyond reasonable doubt, of that there is too much for many cases to be considered. This is plain corruption and the courts are party to it, money you see (from reading this excellent blog bystander seems to be above money grabbing in principle , as I suspect are most of his contemporaries BUT have thay stepped back from the government line and really considered this?)
"Actually in the case of terrorism then the human rights of the innocent overwhelm the rights of the terrorist trying to extinguish the lifes of many, why accord rights to someone who refuses to register yours?"
Yes, but we're talking about people ACCUSED OF TERRORISM, not people WHO ARE TERRORISTS. Obviously many of the people who are accused of terrorism are actually terrorists; equally obviously, many of them aren't (read anything in the news about a Brazilian electrician recently?)
If you want to hang, draw and quarter *convicted* terrorists, rather than merely send them to jail forever (in the absence of any Good Friday Agreements with Al Qaeda...), then by all means lobby your MP for it. But we've got to make sure they're ACTUALLY GUILTY first, or we're not taking away the rights of terrorists, but of innocent people.
"If you've already got nine points, for whatever reason and no matter how deservedly, being wrongly accused of speeding can loose you your job. Not quite immaterial perhaps?"
Fair-ish point, although arguably you shouldn't have sped the first three times. But even if you have to move from (e.g.) travelling sales to telesales, that's not as disastrous an imposition as going to jail and losing your family after being falsely accused of something serious.
@ Homepage, not sure about your acronym (RK?)
Please see the defence to s.172 Road Traffic Act 1988 which is a statutory defence for all s.172 offences, it is enshrined in the following subsection:
s.172(4) Road Traffic Act 1988
i.e. Section 172(4) provides that a keeper shall not be guilty of an offence under the section if the keeper shows that he or she did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. This could occur where the keeper of a vehicle is away from home at the time of the alleged incident, having left his or her car at home. If various members of his or her family or friends could gain access to the vehicle, in the absence of an admission by any person that he or she was the driver at the relevant time, there would be no way in which the keeper could obtain the information that it was his or her duty to disclose.
Homepage, can you check this out. It is a defence that is being exploited by the intelligent, that said, it is settled law.
In most speeding offences (caught by camera) it is open for the keeper to use s.172(4). Having read the ECHR judgment sometime ago, I do recall one of the judges making reference to the availability of the statutory defence when arguing substantively that s.172 did not affect the right to silence/not to incriminate themselves.
Homepage, reply if you would like a further explanation.
"If you're wrongly accused of terrorism, that can permanently blight your life. If you're wrongly accused of speeding, you're a couple of hundred quid down and need to be more careful in future to avoid getting the other 9 points."
The number of people accused of terrorism is vastly greater than the number of people found guilty. IIRC, something like 6 in a 1000.
So when it comes to wrongly accusing people, the powers that be are way ahead of the curve.
So wrongly accusing people of speeding is obviously not a big deal, especially when you have people coming up with that sort of comment.
I think the important word here is "WRONGLY", especially when it is done by people who do not suffer ANY consequences for doing so.
If you cannot see how wrong this is, then God help us.
Joe - assume you're talking to me. I'm 7db, not Homepage (although if you click that you'll get to the forum).
S172(4) says:-
(4) A person who fails to comply with the requirement of subsection (2)(b) above is guilty of an offence.
There's no statutory defence in there. There is one in S172(3) for the RK (registered keeper) to show an attempt at reasonable diligence to ascertain the requested information.
Sorry 7db (Homepage, what was I thinking!)
The excerpt I gave was from my Road Traffic practitioners text (used when practising in the Mags.).
Please check the following link for the avoidance of doubt. It is the official statute law database.
http://www.statutelaw.gov.uk/con...&
filesize=12137
You are referring to s.172(3), I am referring to s.172(4) which is the actual subsection which contains the defence.
My original point was that the keeper can easily use the defence in s.172(4) which provides an avenue for them not to give information as long as they have made all reasonable enquiries. We all know that drivers over 25 have the all embracing insurance enabling them to drive other cars. It is therefore 'plausible' that someone else may have had access to the keeper's car during the time of an offence, subject to an elaborate but equally reasonable story.
Most defence lawyers advise clients where speed camera pictures are blurred to exploit s.172(4) where they have made reasonable enquiries. CPS cannot prove id on a blurred picture so Police send the s.172 notice. Some people blindly state that they were driving in absence of understanding the id proof. Others will not complete which means they commit an offence under s.172.
A 'friend' once advised a client (as keeper) who received a s.172 notice to ask the Police to provide evidence. They provided a blurred camera photo which failed to distinguish who the driver was. He then explained the statutory defence whereupon the client gave him a story which was more or less an explanation of how he made all reasonable enquiries but failed to establish who the driver was at the time of the alleged offence. Of course he also maintained that he was not driving as he was on 'business'.
The above example is a way in which a person can quite easily exploit settled law. Recently, s.172(4) was mentioned by Nick Freeman to get Jeremy Clarkson off a recent speeding charge.
You will of course note that in a previous blog Bystander mentioned that he was due to sit in a s.172 trial but it never materialised. Why? Probably because CPS could not prove id - this does happen! CPS can be ignorant of the law aswell.
(no. It was a simple CPS cock-up of losing a paper file - ed)
Hope this settles everything 7db. Not wanting to show any animosity but I'd like to think I know this law.
Edited By Siteowner
Joe - surely you aren't suggesting that someone would lie to avoid prosecution, or not be diligent in finding out who was driving (I know always who is driving my car).
Rightly, the Police are following up with PCJ investigations, where possible if that is evidenced.
(Incidentally I understand the numbering confusion - I was referring to the 1988 Act - your numbering is that of the amendments from S21 of the 1991 Act, is more recent and is indeed the correct numbering to be using, my apologies)
7db - sometimes the law can be an ass! As I value professional ethics, I would never consider for a moment to compromise them when advising a client. It is however conceivable that other advocates would compromise this.
You will of course accept that there are miscreants who will concoct a story and will require an advocate to robustly make representations on their behalf. If there is no cause for doubt and at most a story is elaborate, this will not necessarily prevent the use of the story in court or elsewhere.
It is possible for someone to insist upon the statutory defence in the absence of evidence (investigated or not).
Presently, I am not aware of thorough investigations by the Police Ticketing office. Can you tell me where, if at all, you have evidence that they are now doing this as a response to the s.172(4) defence?
Bystander, thanks for your edit of my previous comment. CPS, debatable whether they are always competent.
Also, I will almost certainly never encounter a terrorist - neither will you.
However, I know for a fact that my life has been endangered every bloody day for years by people who think owning a car makes them libertarian, Heinleinian heroes.
Fuck you all. Here's some advice; you can avoid the entire issue by not driving so fast and not parking on double yellow lines. You'll find it's not actually painful.
It's been a longtime since I last read a ECJ case, but the thing that always astounded me about them was that the single judge would give his opinion and the full panel would ALWAYS decide the exact opposite!!!
Commenting by HaloScan
