RIGHT TO SILENCE 020105.rtf
FROM: www.SilentMajority.co.UK

[This item is also available from the Association of British Drivers but is included on SilentMajority because it is such a pivotal point of British Justice as opposed to EU Law. Also because it’s main protagonists, at this stage, are well known EuroRealists: namely Michael Shrimpton [barrister] who is defending the case of Idris Francis Esq.

Although the case is pivotal on ‘The Right To Silence’ in a speeding case it is important to realise the reality of the fact that this is merely the ground chosen by those wishing to betray British Justice and the case is about JUSTICE and the right to silence as a main plank of JUSTICE – We all owe a great debt to Idris Francis for having the courage to take on the issue which is very much driven by the control freakery of the big brother attitude of the new super state of EUrope.
Greg
For SilentMajority]

Our thanks to:
The Association of British Drivers
for the following piece:

DISCLAIMER

The factual information and informed opinion shown on these pages are provided to help the reader better to understand their right to silence in relation to speed cameras and similar devices.

Nothing on or related to this website should be read or taken as being legal advice. Neither the Association of British Drivers nor any other person or organisation accepts any responsibility for actions taken or decisions made on the basis of this information. As the law stands at present, refusing to identify a driver when required to do so is a criminal offence, though we believe that this is bad law, and must be challenged.

INTRODUCTION

Support Our Defence of Our Right to Silence

We seek your support in protecting our centuries-old right to silence, whether or not you are, have been, or fear that you might be, involved in speed camera cases, and believe as we do that our fundamental rights, now under ever increasing threat, must be preserved.

If you are already involved in such a case, take legal advice on whether to defend or incriminate yourself. Even if you decide against defending your own case, consider offering moral support or a financial contribution to our fighting fund (LINK) towards the legal costs being incurred. In deciding, remember that many other fundamental rights from habeas corpus to free speech, from jury trial to extradition, are now under imminent threat. We are now only at the start of this process, and much worse will follow if we do not stand up for our rights at every opportunity. 

If you have incurred within the last 6 months penalties under S172 of the 1988 Road Traffic Act, through being compelled to incriminate yourself, whether for speed camera or other offences, you may be eligible as a ‘victim’ of this unfair law, to join our application to the ECHR, for removal of the penalties and/or compensation. The more applicants involved in this application the better our chances of success. Subject to a number or factors it may be the case that additional applicants will incur little or nothing by way of legal costs. Please contact Idris Francis or ABD urgently if you are in this position.

Objectives

There will of course be complaints that if our challenge to speed camera law (and by implication all other devices which rely on self-incrimination) is successful, accident rates will rise. There is, however, no clear evidence to support that view, or that cameras have brought about a reduction in the overall accident rate. Indeed, there appears to be some evidence (LINK to ABD info) that the reverse may be true. In Essex in 2001, fatalities rose by 30% despite ( or arguably because of) speed cameras.
 
Our objectives are twofold - to defend the right of silence against this and future attacks by the State, and, by eliminating speed cameras, ensure that the authorities pay attention to the real causes of accidents - inadequate training, bad and dangerous driving, inadequate policing, bad road layout and maintenance and all the other factors which are being largely ignored in the current simplistic and counter-productive campaign against speed per se.

Below we set out our case. Please read it with an open mind. If you disagree, tell us why. If you wish to help you will find below all the information you need.

Timetable

Our application must be lodged with the ECHR by February 8th to meet the Guildford court deadline. That having been achieved no further action will be taken on the Francis case until the ECHR decision is known.

The first stage is that one ECHR judge will decide whether or not this is an issue that the court should decide. We are confident that the decision will be positive, but it is likely to be made in about one year.

The final decision will take up to two further years. During the whole of this period it should be possible to add to the application, and to the list of applicants. Nevertheless we need to submit as thorough and detailed and application as possible by February 8th.

The Right to Silence

Some believe that constitutions exist to protect the State against the people but their proper purpose is to protect the people from the potential tyranny of the State. It was for this reason that Magna Carta was signed by King John in 1215, not to give us rights, but to recognise that they are inherent and may not be removed.

Winston Churchill wrote in 1956 in “A History of the English Speaking Peoples” 

"The facts embodied in Magna Carta and the circumstances giving rise to them were buried or misunderstood. The underlying idea of the sovereignty of the law, long existent in feudal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject it is to this doctrine that appeal has again and again been made, and never as yet, without success."

We are appealing in the same way to retain our right to silence. 

Imagine a State that tells suspects, “Because we do not have evidence to convict you beyond reasonable doubt, we insist that you confess. If you refuse we will impose penalties similar to those applicable to the original offence”. 

Is that not intolerable in a supposedly free country? Has that not been considered intolerable for centuries, not just here (where the police caution starts, “You do not have to say anything…”) but in many other countries including America, where such duress is explicitly prohibited by the Fifth Amendment of their constitution? 

Yet Section 172 of the 1988 Road Traffic Act exerts precisely that duress. Any State which claims these draconian powers is already part way towards the tyranny that Churchill described, and if unchecked is likely - indeed certain - to apply the same to other issues. Why, after all, should motorists be denied their rights (in defiance not just of Magna Carta, but also of our 1688 Declaration and 1689 Bill of Rights, the 1951 European Convention of Human Rights, the 1998 Human Rights Act and 800 years of common law) but not murderers, rapists or arsonists? There is no logical reason, other than that motorists form a large, lucrative and easy target - but no one else is safe if this breach of our rights goes unchallenged.

It should be noted too that this system is open to abuse, as has been reported in the national press. It is all too easy for those who were driving to avoid penalty points by getting others whether family, friends or acquaintances to take the blame and the penalty points, in exchange for cash or other compensation. Only recently we heard of one driver who uses his wife’s name to avoid penalty points.

An old legal maxim says, “hard cases make bad law”- that general law based on specific problems is usually counterproductive. There will always be superficially plausible reason for removing fundamental rights from football fans, drug dealers, terrorists or motorists, but the consequences will prove to be adverse for our freedom and democracy. 

Although we do not know where this progressive denial of our rights might end, we certainly know where it is heading. The draconian anti-terrorism Bill currently before Parliament will lead to arrest and removal to other countries without habeas corpus or intervention by British courts (without prima facie evidence and even for offences which are not offences in Britain) to face indefinite detention perhaps without trial. But what has this to do with you, you wonder? Being unlikely to become a drug dealer of football hooligan, why should you worry about our rights being removed? This is why:

“...Then they came for the Jews and I didn’t speak up because I wasn't a Jew. Then they came for the trade unionists but I didn’t speak up because I was not a trade unionist. Then they came for the Catholics and I didn’t speak up because I am a Protestant. Then they came for me but by that time no one was left to speak up.”
Rev. M Niemoller (1892-1984) Dachau 1945

Today the motorist is the easy target. Tomorrow - who knows?

How the Speed Camera System Works

Because few, if any, speed camera photographs identify drivers the authorities have to rely on Section 172 of the 1988 Road Traffic Act, and require registered keepers of the vehicles identified by their number plate to identify divulge the driver when the photographs were taken. To ensure compliance the Notice of Intended Prosecution (NIP) states that “failure to provide the information may render you liable to prosecution”, the penalty being “similar to that for the offence itself i.e. a fine and penalty points.”

Thus the system relies on threats to obtain what (in the great majority of cases) is self-incrimination, and on compliant motorists, who naturally prefer the privacy of the fixed penalty system to the costs and inconvenience of a hearing in open court. Without such pressure to confess, even a small proportion of the 3,000 cases per day going to court would jam up the entire court system.

Summary of the Legal Position to Date

(a) Legal principles, evidence and onus of proof

No lawyer or court could sensibly argue that the right to silence does not exist, that the NIP procedure is anything but duress to secure self-incrimination, or that this is not a breach of the fundamental right to silence.

The only argument available to the prosecution to justify S172 is therefore that of a public interest that overwhelms the right to silence. Given that breaking (often arbitrary and often inappropriate) speed limits is not of itself harmful, the only possible ‘overwhelming public interest’ argument must be that the use of speed cameras achieves a clear and unequivocal reduction in accidents, injuries and deaths. In any such argument the onus of proof would surely rest on the authorities.

Unfortunately for them, the authorities have singularly failed to produce any such statistical evidence, and it is our belief that they do not exist. Indeed, Gwyneth Horner, a statistics lecturer at Cardiff University, recently described the authorities’ manipulation of accident statistics in this way:

"This is how to lie with statistics. It is very naughty to claim this is making a big reduction when there's a blip in the figures. To attribute the reduction to speed cameras is not justifiable. Statisticians would not approve of using figures in this way". [Quoted in Motorcycle News, 24/08/2001].

ABD on the other hand publish on this site (LINK) detailed analysis of those figures that are available and demonstrate beyond reasonable doubt that there is no evidence of any such ‘overwhelming public interest’ justification - or for the planned proliferation of cameras. Other ABD analysis (LINK?) shows that taxpayer and motorist funded expenditure on (ineffective) speed cameras would be 1000 (CHECK) times more cost-effective if spent on the NHS. ABD’s figures and analysis will form part of the written submission to the EHCR, and will confirm that the authorities’ claim of public interest cannot meet the burden of proof, which necessarily rests on the authorities.

(b) Case Law.

We are not aware of any relevant cases regarding the right of silence in relation to motoring until the 1999 case Stott v Brown in Scotland. Mrs. Brown’s right of silence defence succeeded in having her self-incrimination in a drink-driving (not speed camera) case declared inadmissible as evidence, in the Scottish High Court (5th November 1999 and 6th/7th January 2000).  Note however that the police did not in this case use threats to secure self-incrimination, and that the strength of the ‘public interest’ arguments may well be different for drink driving than for speeding. In effect this decision was that the right to silence was absolute.

Birmingham Magistrates delivered the same verdict (13 July 2000, LTL 28/7/2000) in two related cases, R v Chauhan and R v Hollingsworth. They held that 

(1) The right to a fair hearing, enshrined in both domestic law and Article 6 European Convention on Human Rights, included the privilege against self-incrimination. That right was primarily concerned with respect for the will of an accused person to remain silent. Ernest Saunders v United Kingdom (1996, ECHR 26 December 1996 (was) considered.

 (2) The court was bound by Brown v Procurator Fiscal because …….the addressee of the S172 enquiry was entitled to the immunity of an accused person. The Crown’s position on the present case was weaker because there was ….a notice of intended prosecution which clearly defined the recipient as a suspect.”

Note that this year, 2001, the ECHR declared the trial of Saunders and other Guinness affair defendants to have been unfair because their right of silence had been refused and as a consequence the relevant parts of the Serious Fraud Act have had to be amended to allow the right to silence.

It should be also be noted that the Privy Council decision was explicitly based on the 1998 Human Rights Act not having come fully into being in Scotland at the relevant time. It is clearly arguable that now these provisions are fully in place they overturn conflicting sections of the 1988 Road Traffic Act by the principle of implied repeal.

It is surely significant, and in our view unacceptable, that from January 2000 (and in particular from July 2000) until the Privy Council decision on 5th December (below), the authorities continued to use the NIP threats to secure self-incrimination when they knew, or should have known, that the law as it stood made it improper to do so. Anyone who incriminated himself under duress during that period may be eligible for compensation even if we lose, as indeed may everyone penalised to date if we win.

On December 5th 2000 the Privy Council (the appeal court for Scottish law) reversed the Scottish High Court decision and allowed Mrs. Brown’s self-incrimination to be used to convict her. We understand that Mrs. Brown decided not to apply to the ECHR although advised by her lawyers that she could win there.

Despite the significant differences between Mrs. Brown’s drink-driving case and speed camera law, the authorities have ever since quoted the Privy Council decision to argue that there is no right to silence defence in speed camera issues.  However at least two subsequent cases in Europe and other legal opinions have cast considerable doubt on the Privy Council decision and our lawyers are confident of our case.

Idris Francis’ Application to the ECHR

One of our members, Idris Francis, on legal advice, decided to challenge the Privy Council’s decision by refusing to identify the driver, and on 9th November at SW Surrey Magistrates’ Court, Guildford (case 4163930) the Clerk of the Court adjourned the prosecution case against Mr. Francis, pending an application to the ECHR. This application is now in hand and will be copied to the Guildford Court by their deadline of 8th February.

Legal and other costs are of course substantial and for that reason the ABD are setting up an Article 6 Appeal Fighting Fund (LINK) to help cover the costs of Mr. Francis and others who join their cases to his. Support would be welcomed from others who choose to plead the same defence, with a view to joining their cases to that of Mr. Francis, and from those not (yet) in a position to do so, but who support this challenge. The defence team would be pleased to hear of any other relevant cases, including in particular any in which the right of silence plea has been considered in British, European or other courts, and to hear from anyone who has been penalised within the last 6 months to join this application..

Mr. Francis’ solicitors have advised the Association of Chief Police Officers of this application and have suggested that they consider again the text of their NIPs, and that they ensure that their prosecutors and the courts are made aware of this challenge. A similar letter has been sent to the newsletter ‘The Magistrate’

How to Fight Your Own Case, After Taking Independent Legal Advice.

If and when you receive a speed camera NIP you have to choose whether to identify the driver as the NIP demands, or refuse to do so on the basis of your right to silence under common law, the 1998 Human Rights Act and Article (6) of the European Convention on Human Rights. You must understand that as the law stands you would be committing a criminal offence, though we believe that the be bad law that should be challenged.

Given the Francis application to the ECHR, it is unlikely that the authorities would fail to prosecute such a refusal. It should be understood from the outset that even pleading guilty to failing to identify the driver might well incur higher costs than pleading guilty to the speeding charge, while pleading not guilty to the refusal and fighting the case would cost considerably more. If we are successful at the ECHR we would expect to recover costs, but such recovery usually falls short of actual expense. Anyone potentially eligible for legal aid should seek advice.
 
The reasons for refusing, and fighting this issue are:

1/ on principle, in defence of this and other rights.
2/ to make the authorities to tackle the real road safety issues.
3/ to lend weight to the Francis application to the ECHR (the more the better the chance of success)
4/ to avoid penalty points and possible disqualification if we win.
5/ to delay penalty points or possible disqualification if we lose. (The delay could be a few months to a few years)
6/ to help contribute to the costs of the Francis appeal.
7/ to replace a ‘moving motoring offence’ with a procedural offence (making refusal of car hire here or overseas less likely.) Note however that in other circumstances (or more draconian regimes, naming no names) to be seen to be fighting the authorities can be more of an issue than speeding)

It should be noted however that large numbers of refusals could paralyse the court system and potentially force the authorities to stay or not even start prosecutions pending the result of the application to the ECHR 

Those with few or no points on their licenses or to whom driving is not essential, would be unlikely to be able to justify refusing to identify the driver in the case of relatively minor offences, and might instead feel that a donation to the Fund would be appropriate. Those facing substantial fines and penalty points, including disqualification, could however more readily justify that refusal. In deciding how best to proceed, note that it is arguably better to refuse now, and plead not guilty, than to confess and hope to have the penalties quashed in months or years to come. Because a simple plea of guilty could be a bar to subsequent quashing of convictions or recovery of penalties, if you do plead guilty, state clearly that you are doing so under duress, in breach of your right to silence under British law and Article 6 of the European Convention on Human Rights. But as in most aspects of life it is easier not to give way in the first place than to secure compensation afterwards.

To those who might say that refusal to obey the law as it is believed to be is foolish or improper, we can only say that it is, under Magna Carta, not only the right but the duty of the people of this country to challenge through the courts laws which they believe to be wrong, and not just the right but the duty of juries to acquit in defiance of the evidence and the law if they believe the law to be unjust, under the well-established legal principle of jury nullification. In this case we believe not only that the law is unjust, but that it is counterproductive and, for some, lethal, in that it allows the authorities to ignore the real road safety issues.

If You Are Prosecuted for Refusal

If you decide to plead guilty (albeit under protest as above) you may be able to do so by post. Otherwise, or in any case if you plead not guilty, you will be summoned to attend a court hearing. You may choose to defend yourself, appoint in advance a lawyer to speak for you, or be allocated one by the court on the day. It may be however that you would not have to attend court if your legal representatives do so on your behalf. 

If you intend to plead not guilty you should make it clear at the earliest possible stage that you intend to do so, and refer the prosecution to the Francis application to the ECHR. In all probability there will then be a pre-trial review at which your you or your lawyer should ask that your case be suspended pending the result of the ECHR application, and perhaps that your case be joined with the Francis case.

The Clerk of the Court would, as we understand it, have the option of suspending the case or not, as indeed would the Magistrates if the case reaches them.

If, having decided to fight, you wish to liase either directly or through your lawyer with Mr, Francis’ defence team or ABD’s solicitors, please contact (LINK) Mr. Francis or (LINK) ABD in the first instance.

Please understand that nothing written here is advice to you to break the law. This is intended to clarify the legal options, including how you may properly challenge a law that you believe to be in breach of your constitutional rights.

We cannot at this stage advise precisely how different cases can be joined together, but there can be no doubt that a large number of similar cases would be more likely to succeed, and less costly for the individual.

If and When We Win

It is possible (and surely desirable) that the existence of the Francis application to the ECHR causes the authorities to put on hold immediately their plans for a massive expansion of the present system. 

If the ECHR confirms our view and our right of silence in speed camera (and implicitly or explicitly in other motoring cases) the authorities will be forced to recognise that the present system is unworkable. The expense involved could not remotely be justified by those few cases where the photographs identify the driver or the registered keeper chooses to confess in the absence of penalties for refusal.

We have been told in recent months that a new generation of speed cameras taking photographs from the front, and so identifying the drivers is under development. Quite apart from the fact that motorcyclists, wearing opaque visors and showing no front number plates, would be immune, the reality is that the combination of steeply tilted windscreens, glare, reflections, tinted screens (and perhaps a proliferation of Jack Straw face masks) would make any such system unworkable. Nor for that matter does it seem to be a that good an idea to fire bright lights into the eyes of drivers.

That is not to say of course that other systems, not depending on self-incrimination, would not be viable but in most cases they would require vehicles to be stopped by policemen for identification, imposing a practical limit on the number of devices and cases, and removing recent increasingly bizarre and venomous threats of a massive increase in penalties, points and disqualifications for what in the vast majority of cases is neither dangerous nor careless driving.

Again, we must stress that you should not decide to commit a criminal offence without taking legal advice. But then again, the police should not have sent out a million Notices of Intended Prosecution in 2000 when they knew or should have known that the law at that time not allow them to use such threats.

The Article 6 Right to Silence Fighting Fund

The Trust Fund Deeds are now being put in place. Pending completion of that work, donations may be sent to ABD, marked  ‘The Fighting Fund’ either as cheques or credit card details. No such donations will be cashed until the terms, conditions and trustees have been confirmed in writing to donors so that they have the opportunity to cancel if they wish. Full details will be posted here as soon as they are available.

New Supporters and Publicity

From January 3rd considerable publicity has been achieved in The Times, The Daily Express, The Guardian. Radio 5 Live, Meridian TV, BBC News from 7.40 am until 10.30 pm. This has led to many messages of support and offers of help.

In particular a major Human Rights campaigning organisation has offered support, as will be confirmed once details are agreed.

We are increasingly confident that this case can and will be won.

end

There is NO CopyRight on this document, which is one of many 1,000s of items freely available on http://www.SilentMajority.co.UK [some 20Mbs.] & 10s of 1,000s of items on The SilentMajority CD [with over 80Mbs.] which contains the entire web site & hosts other web sites also, 1,000s of apposite quotations, Articles, Speeches, Commentaries, ArtWork, & The FULL text of The EU Treaties, Several Related Books, The British Constitution, The American Constitution & Numerous related Items.
SilentMajority nor any associate thereof does NOT vouch for the veracity of the documents hosted on its site or CD nor any foreign language documents thereon & advises you consult your own solicitor on legal details as we do not accept liability for, nor presume to give legal advice ourselves.
For a copy of the CD please mail payment of £20.00 for UK deliver or £25.00 for ALL other Countries payable to:
Greg Lance – Watkins,
Glance Back Books,
17 Upper Church Street,
CHEPSTOW,
NP16 5EX
Monmouthshire,
GREAT BRITAIN
For delivery of 2 x CDs
one for your own use
+ one for on selling or donation to an individual of influence (media, politician, activist etc.)

IF YOU wish to use the Material Above, which is freely provided
Please have the Courtesy to Print It out in its entirety from start to finish with NO alterations, as displayed.
To This Point
.