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Some have been saying that the Human Rights Act will have a major impact on UK law. If there are any left who doubt this, I can only suggest that they look hard at the case of Brown v Procurator Fiscal, Dunfermline (HCJ Times 14-Feb-2000) The High Court of Justiciary, the highest Court of Criminal Appeal in Scotland, held that the power in the Road Traffic Act 1998 to force a registered keeper to say who was driving a car denies the driver a right to a fair trial by compelling a driver to give evidence against himself. A refusal to answer is itself a crime. The restriction on such powers must apply at the stage of evidence gathering as much as at trial. It does not apply at the stage where an officer is investigating whether a crime has been committed, but does when he moves on to ask who committed the offence.
This section which has long been part of UK Road Traffic law, has been a major plank, for example, in catching drivers who have been speeding on motorways by the use of cameras. The car rushes past, the camera flashes, and the registered keeper is sent a letter requiring him, on pain of committing a criminal offence, to say who the driver was. If the registered keeper was the driver, he has been compelled to provide evidence which will lead to his conviction. One can imagine that the consequences for Road Traffic law will be substantial.
I freely admit that it all appears rather more clear when a judge explains it, than it did beforehand. Hats off to the lawyer who pushed the case.
The case has now been mirrored (though in a lower court) in England. Clients are already asking how to respond to notices requiring the name of a driver. Our answer is, for the moment, that drivers should respond, making their own choice about whether actually to answer the question (and the consequences!) In any event the driver should state that any answer is given under protests that the request clearly creates a potential situation where the registered keeper may be obliged to provide evidence which might be used against himself .
How things pan out remains to be seen.
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