Criminal evidence

The rights to remain silent and not to incriminate oneself are not absolute rights. The right to require an actual or potential suspect to provide information which contributes, or might contribute, to his conviction does not automatically result in a violation of Art 6 of the European Convention on Human Rights—the right to a fair trial. While Art 6 is an unqualified right, what constitutes a fair trial depends on the circumstances of the particular case.

To determine whether or not the essence of the accused’s right to remain silent and privilege against self-incrimination has been infringed, it is necessary to focus on the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained is put.

The compulsion under s 172 of the Road Traffic Act 1988—the duty on the registered keeper of a vehicle to give information about the driver of the vehicle—flows from the fact that all who own or drive motor cars know that by doing so they subject themselves to a regulatory regime; the section does not sanction prolonged questioning about facts alleged to give rise to criminal offences.

The penalty for declining to answer is non-custodial;  no offence is committed if the keeper of the vehicle shows that he did not know and could not with reasonable diligence have known who the driver of the vehicle was. Accordingly, s 172 does not violate Art 6.