Stott v Brown

[Donald ramsbottom]

More 0n self Incrimination from the Privy Council. Report from today's
Times Law report:

http://www.thetimes.co.uk/article/0,,46613,00.html

As ever if not interested in cases do not read.






Stott (Procurator Fiscal, Dunfermline) and Another v Brown

Before Lord Bingham of Cornhill, Lord Steyn, Lord Hope of Craighead, Lord
Clyde and Lord Kirkwood
Judgment December 5, 2000=20
=20
It was not a breach of a defendant=92s right to a fair trial under article 6
of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (1953) on a charge of driving with excess alcohol in
her blood contrary to section 5 of the Road Traffic Act 1988 for a
prosecutor to rely at the trial on the defendant=92s admission, obtained
compulsorily under section 172(2)(a) of that Act, that she had been the
driver of the car.=20
The acts of the Lord Advocate acting in his capacity as prosecutor were
capable of giving rise to a devolution issue within the meaning of Schedule
6 to the Scotland Act 1998.=20

The Judicial Committee of the Privy Council so held in allowing an appeal
by Richard G. Stott, procurator fiscal, Dunfermline and Her Majesty=92s
Advocate-General for Scotland against a decision of the High Court of
Justiciary (the Lord Justice-General (Lord Rodger of Earlsferry), Lord
Marnoch and Lord Allanbridge), in granting a declarator that such admission
could not be led or relied upon at the trial of the defendant, Margaret
Anderson Brown, and in allowing an appeal from a decision of Sheriff Forbes
at Dunfermline Sheriff Court on a minute raising a devolution issue.=20

Section 172 provides: =93Where the driver of a vehicle is alleged to be
guilty of an offence to which this section applies - (a) the person keeping
the vehicle shall give such information as to the identity of the driver as
he may be required to give by or on behalf of a chief officer of police...=
=94=20

Mr Neil Davidson, QC, Solicitor-General for Scotland, and Mr Robert A.
McCreadie for Mr Stott; Ms M Lynda Clark, QC, HM Advocate-General for
Scotland, and Mr Philip Sales for the second appellant; Mr Ian Duguid, QC,
Mr Simon Di Rollo and Mr Lorenzo Alonzi for the defendant.=20

LORD BINGHAM said that the Convention contained no express guarantee of a
privilege against self-incrimination. While it could not be doubted that
such a right had to be implied, there was no treaty provision which
expressly governed the effect or extent of what was to be implied.=20

The jurisprudence of the European Court of Human Rights at Strasbourg very
clearly established that while the overall fairness of a criminal trial
could not be compromised, the constituent rights comprised, whether
expressly or implicitly, within article 6 were not themselves absolute.=20

Limited qualification of those rights was acceptable if reasonably directed
by national authorities towards a clear and proper public objective and if
representing no greater qualification than the situation called for.=20

The general language of the Convention could have led to the formulation of
hard-edged and inflexible statements of principle from which no departure
could be sanctioned whatever the background or the circumstances. But that
approach had been consistently eschewed by the Human Rights Court
throughout its history.=20

That court had also recognised the need for a fair balance between the
general interest of the community and the personal rights of the
individual, the search for which balance had been described as inherent in
the whole of the Convention: see for example, Sporrong and L=F6nnroth v
Sweden ((1982) 5 EHRR 35, paragraph 69).=20

The high incidence of death and injury on the roads caused by the misuse of
motor vehicles was a very serious problem common to almost all developed
societies. The need to address it in an effective way, for the benefit of
the public, could not be doubted.=20

Among other ways in which democratic governments had sought to address it
was by subjecting the use of motor vehicles to a regime of regulation and
making provision for enforcement by identifying, prosecuting and punishing
offending drivers.=20

There being a clear public interest in enforcement of road traffic
legislation the crucial question in the present case was whether section
172 represented a disproportionate response, or one that undermined a
defendant=92s right to a fair trial, if an admission of being the driver was
relied on at trial.=20

His Lordship did not consider that section 172, properly applied,
represented a disproportionate response to that serious social problem, nor
did he think that reliance on the defendant=92s admission, in the present
case, would undermine her right to a fair trial.=20

His Lordship reached that conclusion for a number of reasons: 1 Section 172
provided for the putting of a single, simple question. The answer could not
of itself incriminate the suspect, since it was not without more an offence
to drive a car.=20

An admission of driving might, of course, as here, provide proof of a fact
necessary to convict, but the section did not sanction prolonged
questioning about the facts alleged to give rise to criminal offences such
as was understandably held to be objectionable in Saunders v United Kingdom
((1996) 23 EHRR 313) and the penalty for declining to answer under the
section was moderate and non-custodial.=20

There was in the present case no suggestion of improper coercion or
oppression such as might give rise to unreliable admissions and so
contribute to a miscarriage of justice, and if there were evidence of such
conduct the trial judge would have ample power to exclude evidence of the
admission.=20

2 While the High Court had been entitled to distinguish between the giving
of an answer under section 172 and the provision of physical samples, and
had the authority of the European Court in Saunders for doing so, that
distinction should not be pushed too far.=20

It was true that the defendant=92s answer, whether given orally or in
writing, would create new evidence which did not exist until she spoke or
wrote. In contrast, it might be acknowledged, the percentage of alcohol in
her breath was a fact, existing before she blew into the breathalyser
machine.=20

But the whole purpose of requiring her to blow into the machine, on pain of
a criminal penalty if she refused, was to obtain evidence not available
until she did so and the reading so obtained could, in all save exceptional
circumstances, be enough to convict a driver of an offence.=20

It was not easy to see why a requirement to answer a question was
objectionable and a requirement to undergo a breath test was not. Yet no
criticism was made of the requirement that the defendant undergo a breath
test.=20

3 All who owned or drove motor cars knew that by doing so they subjected
themselves to a regulatory regime which did not apply to members of the
public who did neither.=20

Section 172 formed part of that regulatory regime.=20

That regime was imposed not because owning or driving cars was a privilege
or indulgence granted by the state but because the possession and use of
cars, like, for example, shotguns, the possession of which was very closely
regulated, were recognised to have the potential to cause grave injury.=20

It was true that section 172(2)(b) permitted a question to be asked of =93an=
y
other person=94 who, if not the owner or driver, might not be said to have
impliedly accepted the regulatory regime, but someone who was not the owner
or the driver would not incriminate himself whatever answer he gave.=20

If, viewing that situation in the round, one asked whether section 172
represented a disproportionate legislative response to the problem of
maintaining road safety, whether the balance between the interests of the
community at large and the interests of the individual was struck in a
manner unduly prejudicial to the individual, whether, in short, the leading
of that evidence would infringe a basic human right of the defendant, his
Lordship would feel bound to give negative answers.=20

His Lordship agreed with Lord Hope on the question of whether a devolution
issue had been raised.=20

LORD HOPE, delivering a concurring judgment, said that it had been argued,
with reference to the wording of article 6 of the Convention, that no
devolution issue arose in the circumstances of the instant case and to the
contrary, with reference to the wording of the Scotland Act 1998, that a
devolution issue had indeed arisen.=20

Having heard detailed submissions from both positions it was now possible
for the Board to reach a decision on the matter.=20

His Lordship considered that the solution to the problem was to be found in
the provisions of the Scotland Act 1998. The approach which that Act had
taken to the question as to how best to ensure that effect was given under
the devolved system to the Convention rights was that the right of the
accused to receive a fair trial was a responsibility of the Lord Advocate
in the prosecution of offences as well as of the court.=20

It was of cardinal importance to a proper understanding of the point to
appreciate the overall context in which the relevant provisions were=
 enacted.=20

At the heart of the whole question lay the scheme which Parliament had
constructed for the devolution of legislative and executive competence to
Scotland from Westminster.=20

It had also chosen to ensure that questions which arose as to whether the
Scottish Parliament or the Scottish Executive had acted or were proposing
to act in a way that was incompatible with any of the Convention rights or
with Community law might be resolved, as devolution issues, under the
system laid down in Schedule 6 to the Scotland Act.=20

The system sought to achieve uniformity in the determination of such issues
throughout all parts of the United Kingdom by reserving to the Judicial
Committee of the Privy Council the ower of final decision in all those
matters.=20

It seemed clear from those provisions that it was the intention of
Parliament that acts of the Lord Advocate in prosecuting offences should be
subject to judicial control under the devolved system.=20

In his case, as in the case of any other member of the Scottish Executive,
the question whether or not an act or proposed act of his or of any
prosecutor for whose acts he was responsible was within his competence
depended upon the application to that act of the concept of compatibility.=
=20

If the act or proposed act was incompatible with any of the Convention
rights it was outside his competence.=20

The opening words of article 6.1 provided: =93In the determination ... of an=
y
criminal charge against him, everyone is entitled to a fair and public
hearing=94.=20

If that were the sole question, there would be much force in the argument
that, as the determination during a criminal trial of the criminal charge
in all its aspects was a matter for the court and not the prosecutor, the
acts of the Lord Advocate in that capacity lay outside the scope of the
article.=20

But the test which section 57(2) of the 1998 Act applied to his acts was
not expressed in the language of obligation. It took a broader and more
inclusive form, as it required that his acts had to be compatible with any
of the Convention rights. It was sufficient for that restraint on his
powers to operate that his purported or proposed act was inconsistent with
the obligations which the State had assumed under the Convention. The acts
which he performed in the course of the trial when he was leading and
founding upon evidence were brought by those means within the scope of the
article. It was sufficient to satisfy the test laid down in Schedule 6 of
the 1998 Act that a devolution issue had arisen for there to be a question
as to whether or not a purported or proposed exercise of a function by a
member of the Scottish Executive was incompatible with a Convention right.
There was no need at that stage to inquire as to whether some other person
or some other public authority, such as the court, also had responsibility
for giving effect to the same Convention right. The fact that that other
person or other public authority had the last word or had the power to
intervene in such a way as to preserve or give effect to the Convention
rights might enable the question as to incompatibility to be answered in
the negative. It might be possible to reach that answer as a matter of
relevancy or, without further inquiry, on agreed facts. But that was not to
say that a devolution issue had not arisen. On the contrary, it was to
answer the question that had been raised. A devolution issue had indeed
been raised which the Judicial Committee had power to determine. Lord
Steyn, Lord Clyde and Lord Kirkwood delivered concurring judgments and
agreed with Lord Hope on the question of whether a devolution issue arose.
Solicitors: Crown Office, Edinburgh; Office of the Solicitor to the
Advocate-General for Scotland, Edinburgh; Balfour & Manson, Edinburgh.
=20

Donald Ramsbottom BA LLb (Hons) PGdip
Ramsbottom & Co Solicitors
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