EU Convention on Human Rights - Ruling
06 December 2000, 08:29 AM
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WARNING - LONG POST, but it's important:
From today's edition of The Herald (Glasgow) newspaper:
Thousands of drivers lose legal loophole
VALERIE HANNAH
THOUSANDS of drivers yesterday lost a possible legal escape route from convictions for speeding and drink-driving.
Five law lords endorsed a cornerstone of Scottish motoring legislation and overruled the European Convention on Human Rights.
The law lords' verdict means that, for the immediate future, police officers and procurators-fiscal will be entitled to use roadside cameras and ask drivers to incriminate themselves if they are behind the wheel at the time of an alleged speeding or drink-driving offence.
Hundreds of existing convictions will be upheld, including that of Margaret Brown, of Glen Nevis Drive, Dunfermline, whose trial brought the matter to a head.
The ruling also ends the legal limbo which has seen cases abandoned or adjourned in recent months.
The case was being seen last night as another landmark victory for domestic law over the human rights legislation, with, in certain cases, public safety being given precedence over individual rights.
Speed camera cases rely on police officers invoking Section 172 of the Road Traffic Act to compel a suspect to state who was driving the vehicle at the time of the offence. The act is also used in some hit-and-run and drink-driving prosecutions where admission is crucial to the case.
The move is likely to restore faith in the traffic act, described as "fundamental" to road safety policy, and provides a rare setback to the convention, which has already outlawed the use of temporary sheriffs since it was introduced to Scots law.
Yesterday's ruling was the second major upset for supporters of the convention: in June, Scottish appeal judges declared that three convicted killers should be kept in the State Hospital at Carstairs, saying that their right to liberty had to be balanced against the public's right to health and life, as outlined in Article 2 of the convention.
Scotland's senior judge had ruled that it was incompatible with the convention for motorists to incriminate themselves. However, the ruling, by Lord Rodger, the Lord Justice-General, was overturned by the Judicial Committee of the Privy Council yesterday after an appeal by the Crown.
Commenting on the decision, Robert Black, professor of Scots law at Edinburgh University, said: "It shows that the rights which are protected by the European Convention aren't absolute rights. They have to be fitted in with other concepts, like the safety of society and the need to protect people from speeding and drunk drivers."
Clare Connelly, a legal expert at Glasgow University, said: "This is a significant decision because it underlines that the Privy Council believes that the rational approach of some of our laws will not, and does not, need to be compromised for the European convention to be complied with."
Sue Nicholson, of the RAC Foundation, described the ruling as "a victory for common sense", because it meant public safety was being put first. "What we are talking about here is public safety and people's lives," she said.
The decision was also welcomed by Miss Fiona Murray, director of the Scottish Road Safety Campaign, who said: "This is the common-sense outcome. If somebody has been drink-driving or speeding they should face the consequences."
John Scott, chair of the Scottish Human Rights Centre, warned that the judgment might not spell the end of the case: "It may well be that the decision is taken to the European courts and sorted out there."
In their 72-page judgment published yesterday, Lords Bingham, Steyn, Hope, Clyde, and Kirkwood unanimously agreed that an admission by Miss Brown could be heard that she drove to a local supermarket with the smell of alcohol on her breath.
Miss Brown, who was unavailable for comment yesterday, was stopped by police at a 24-hour Asda supermarket in Halbeath Road, Dunfermline, on July 3 last year when they noticed the
smell of alcohol on her breath.
When asked how she got to the shop, she pointed to a Ford Fiesta in the car park, and when asked who had been driving the car she said: "It was me." Her lawyers claimed the answer
infringed her right to a fair trial.
But Lord Bingham said it could be allowed, because it had not been obtained through "improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice".
He added that Miss Brown's right to a fair trial had to be balanced with the wider community's right to safety.
The judgment was welcomed by the Crown Office, which said it was especially timely in the run-up to Christmas.
and ....
Scots law and human rights
Judges strike a necessary blow for the greater good
Not for the first time, common sense has prevailed in matters relating to Scots law and the European Convention on Human Rights. The two frequently have been at loggerheads, causing chaos in the judicial system (if the headlines are to be believed) when the latter has been used to challenge the former. But the prosaic reality is that the Scottish judicial system has got on with the job of administering justice while appeals prompted by the convention have run their course. Barring a few exceptions (most notably the appointment of temporary sheriffs that was ripe for reform anyway), the great majority of challenges have failed and even when the Scottish Executive (which is responsible for the legal system) has lost it has mainly been on the grounds of failing to bring a case to court with sufficient speed.
The appeal lodged by Margaret Brown, who had been prosecuted for drink driving, would have caused upheaval if it had succeeded. She claimed that her rights to a fair trial and privacy under the terms of the convention had been breached when she was put in the position of having to tell the police who was driving her car. Another driver used the convention to appeal on the same grounds of self-incrimination after he was asked by police to say who was driving his car when it was photographed speeding. That case also had potentially major implications for road safety. Fortunately, the law lords on the judicial committee of the Privy Council rejected Miss Brown's case, concluding that her rights to privacy and a fair trial had to be balanced against the right to safety of the wider community.
They more than tilted in the right direction, as had the appeal judges who reached a similar conclusion in the case of the convicted killers who argued that their continued incarceration without medical treatment breached their right to liberty under the convention. In both cases, the decision was reached that the public's right to protection and safety was paramount. No reasonable person could demur. The legal challenges over temporary sheriffs, speeding, children's panels, and the incarceration of "untreatable" dangerous prisoners highlighted the fact that the executive had been slow to react to the implications of the convention. But the convention's rights are expressed in general terms and, slowly but surely, Scots law has, in the great majority of cases, struck a necessary balance for the greater good.
From today's edition of The Herald (Glasgow) newspaper:
Thousands of drivers lose legal loophole
VALERIE HANNAH
THOUSANDS of drivers yesterday lost a possible legal escape route from convictions for speeding and drink-driving.
Five law lords endorsed a cornerstone of Scottish motoring legislation and overruled the European Convention on Human Rights.
The law lords' verdict means that, for the immediate future, police officers and procurators-fiscal will be entitled to use roadside cameras and ask drivers to incriminate themselves if they are behind the wheel at the time of an alleged speeding or drink-driving offence.
Hundreds of existing convictions will be upheld, including that of Margaret Brown, of Glen Nevis Drive, Dunfermline, whose trial brought the matter to a head.
The ruling also ends the legal limbo which has seen cases abandoned or adjourned in recent months.
The case was being seen last night as another landmark victory for domestic law over the human rights legislation, with, in certain cases, public safety being given precedence over individual rights.
Speed camera cases rely on police officers invoking Section 172 of the Road Traffic Act to compel a suspect to state who was driving the vehicle at the time of the offence. The act is also used in some hit-and-run and drink-driving prosecutions where admission is crucial to the case.
The move is likely to restore faith in the traffic act, described as "fundamental" to road safety policy, and provides a rare setback to the convention, which has already outlawed the use of temporary sheriffs since it was introduced to Scots law.
Yesterday's ruling was the second major upset for supporters of the convention: in June, Scottish appeal judges declared that three convicted killers should be kept in the State Hospital at Carstairs, saying that their right to liberty had to be balanced against the public's right to health and life, as outlined in Article 2 of the convention.
Scotland's senior judge had ruled that it was incompatible with the convention for motorists to incriminate themselves. However, the ruling, by Lord Rodger, the Lord Justice-General, was overturned by the Judicial Committee of the Privy Council yesterday after an appeal by the Crown.
Commenting on the decision, Robert Black, professor of Scots law at Edinburgh University, said: "It shows that the rights which are protected by the European Convention aren't absolute rights. They have to be fitted in with other concepts, like the safety of society and the need to protect people from speeding and drunk drivers."
Clare Connelly, a legal expert at Glasgow University, said: "This is a significant decision because it underlines that the Privy Council believes that the rational approach of some of our laws will not, and does not, need to be compromised for the European convention to be complied with."
Sue Nicholson, of the RAC Foundation, described the ruling as "a victory for common sense", because it meant public safety was being put first. "What we are talking about here is public safety and people's lives," she said.
The decision was also welcomed by Miss Fiona Murray, director of the Scottish Road Safety Campaign, who said: "This is the common-sense outcome. If somebody has been drink-driving or speeding they should face the consequences."
John Scott, chair of the Scottish Human Rights Centre, warned that the judgment might not spell the end of the case: "It may well be that the decision is taken to the European courts and sorted out there."
In their 72-page judgment published yesterday, Lords Bingham, Steyn, Hope, Clyde, and Kirkwood unanimously agreed that an admission by Miss Brown could be heard that she drove to a local supermarket with the smell of alcohol on her breath.
Miss Brown, who was unavailable for comment yesterday, was stopped by police at a 24-hour Asda supermarket in Halbeath Road, Dunfermline, on July 3 last year when they noticed the
smell of alcohol on her breath.
When asked how she got to the shop, she pointed to a Ford Fiesta in the car park, and when asked who had been driving the car she said: "It was me." Her lawyers claimed the answer
infringed her right to a fair trial.
But Lord Bingham said it could be allowed, because it had not been obtained through "improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice".
He added that Miss Brown's right to a fair trial had to be balanced with the wider community's right to safety.
The judgment was welcomed by the Crown Office, which said it was especially timely in the run-up to Christmas.
and ....
Scots law and human rights
Judges strike a necessary blow for the greater good
Not for the first time, common sense has prevailed in matters relating to Scots law and the European Convention on Human Rights. The two frequently have been at loggerheads, causing chaos in the judicial system (if the headlines are to be believed) when the latter has been used to challenge the former. But the prosaic reality is that the Scottish judicial system has got on with the job of administering justice while appeals prompted by the convention have run their course. Barring a few exceptions (most notably the appointment of temporary sheriffs that was ripe for reform anyway), the great majority of challenges have failed and even when the Scottish Executive (which is responsible for the legal system) has lost it has mainly been on the grounds of failing to bring a case to court with sufficient speed.
The appeal lodged by Margaret Brown, who had been prosecuted for drink driving, would have caused upheaval if it had succeeded. She claimed that her rights to a fair trial and privacy under the terms of the convention had been breached when she was put in the position of having to tell the police who was driving her car. Another driver used the convention to appeal on the same grounds of self-incrimination after he was asked by police to say who was driving his car when it was photographed speeding. That case also had potentially major implications for road safety. Fortunately, the law lords on the judicial committee of the Privy Council rejected Miss Brown's case, concluding that her rights to privacy and a fair trial had to be balanced against the right to safety of the wider community.
They more than tilted in the right direction, as had the appeal judges who reached a similar conclusion in the case of the convicted killers who argued that their continued incarceration without medical treatment breached their right to liberty under the convention. In both cases, the decision was reached that the public's right to protection and safety was paramount. No reasonable person could demur. The legal challenges over temporary sheriffs, speeding, children's panels, and the incarceration of "untreatable" dangerous prisoners highlighted the fact that the executive had been slow to react to the implications of the convention. But the convention's rights are expressed in general terms and, slowly but surely, Scots law has, in the great majority of cases, struck a necessary balance for the greater good.
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