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Silence in Scotland
henrik777
post Wed, 13 Feb 2019 - 22:04
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QUOTE (notmeatloaf @ Tue, 12 Feb 2019 - 21:56) *
Scottish case law is not binding on English courts, but it may be persuasive.

I think in your case it seems they are repeating the initial request rather than making new requests. The biggest problem you may have is if the police follow the lead of their Scottish counterparts and decide to turn up and ask you in person.

In that case even in Scotland there is no consensus as whether you should or shouldn't answer, other than in general its better if you are "out" and don't need to choose.



What's the downside to keeping your gob shut in Scotland ?

http://www.legislation.gov.uk/asp/2016/1/section/34/enacted

(4)The person is under no obligation to answer any question, other than to give the following information—
(a) the person’s name,
(b)the person’s address,
©the person’s date of birth,
(d)the person’s place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person’s identity), and
(e)the person’s nationality.
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post Wed, 13 Feb 2019 - 22:04
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southpaw82
post Wed, 13 Feb 2019 - 22:24
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I don’t understand your question. What do you think the downside, if any, is?


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henrik777
post Wed, 13 Feb 2019 - 22:28
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QUOTE (southpaw82 @ Wed, 13 Feb 2019 - 22:24) *
I don’t understand your question. What do you think the downside, if any, is?



None.

However, apparently there is no consensus so i'm asking why ?
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southpaw82
post Wed, 13 Feb 2019 - 22:35
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QUOTE (henrik777 @ Wed, 13 Feb 2019 - 22:28) *
QUOTE (southpaw82 @ Wed, 13 Feb 2019 - 22:24) *
I don’t understand your question. What do you think the downside, if any, is?



None.

However, apparently there is no consensus so i'm asking why ?

No consensus on staying silent in general or in particular circumstances?


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henrik777
post Wed, 13 Feb 2019 - 22:53
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QUOTE (southpaw82 @ Wed, 13 Feb 2019 - 22:35) *
QUOTE (henrik777 @ Wed, 13 Feb 2019 - 22:28) *
QUOTE (southpaw82 @ Wed, 13 Feb 2019 - 22:24) *
I don’t understand your question. What do you think the downside, if any, is?



None.

However, apparently there is no consensus so i'm asking why ?

No consensus on staying silent in general or in particular circumstances?


Well the quoted post was in relation to a police visit to do with a s172 request. (i started a new thread as discussion within a a live topic is usually frowned upon)
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southpaw82
post Wed, 13 Feb 2019 - 23:39
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Well, silence in response to a s 172 requirement will see one convicted of the s 172 offence, won’t it?


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cp8759
post Wed, 13 Feb 2019 - 23:39
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QUOTE (southpaw82 @ Wed, 13 Feb 2019 - 22:24) *
I don’t understand your question. What do you think the downside, if any, is?

At a guess he might be asking about adverse inferences maybe?


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Glacier2
post Thu, 14 Feb 2019 - 00:10
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How effective are the adverse inferences in actual cases?

It is something I have always viewed as an empty threat that real criminals would simply ignore.
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southpaw82
post Thu, 14 Feb 2019 - 00:14
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QUOTE (Glacier2 @ Thu, 14 Feb 2019 - 00:10) *
How effective are the adverse inferences in actual cases?

Not particularly. If you’re smart or well advised you’ll deal with them by prepared statement.


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henrik777
post Thu, 14 Feb 2019 - 08:01
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QUOTE (southpaw82 @ Wed, 13 Feb 2019 - 23:39) *
Well, silence in response to a s 172 requirement will see one convicted of the s 172 offence, won’t it?


Not if you've already sent it back in paper form.

QUOTE (Glacier2 @ Thu, 14 Feb 2019 - 00:10) *
How effective are the adverse inferences in actual cases?



There are none to be drawn in Scotland.
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Redivi
post Thu, 14 Feb 2019 - 12:26
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The S172 request is specifically excluded from "right to remain silent"
Doesn't the Forum have an article somewhere explaining why this has been ruled not to be a breach of human rights ?

The only other exception I can recall was the Guinness share trading fraud investigation where the ECHR later ruled that this was a breach
The case was also notable as the only known example of a complete recovery from Alzheimers, that had cut short Ernest Saunders' five year sentence

I can imagine scenarios when somebody might reasonably want to consider his legal position before he discusses the subject with the police
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cp8759
post Thu, 14 Feb 2019 - 12:57
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QUOTE (southpaw82 @ Thu, 14 Feb 2019 - 00:14) *
QUOTE (Glacier2 @ Thu, 14 Feb 2019 - 00:10) *
How effective are the adverse inferences in actual cases?

Not particularly. If you’re smart or well advised you’ll deal with them by prepared statement.

You still need a prepared statement consistent with both the evidence disclosed by the police, and with innocence.


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southpaw82
post Thu, 14 Feb 2019 - 13:59
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QUOTE (Redivi @ Thu, 14 Feb 2019 - 12:26) *
The only other exception I can recall was the Guinness share trading fraud investigation where the ECHR later ruled that this was a breach


Saunders v UK - basic rule is a compelled statement is inadmissible but compelled documentary evidence isn’t.

QUOTE (cp8759 @ Thu, 14 Feb 2019 - 12:57) *
You still need a prepared statement consistent with both the evidence disclosed by the police, and with innocence.

Well, yes, I have done one or two.


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andy_foster
post Thu, 14 Feb 2019 - 19:38
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QUOTE (Redivi @ Thu, 14 Feb 2019 - 12:26) *
The S172 request is specifically excluded from "right to remain silent"
Doesn't the Forum have an article somewhere explaining why this has been ruled not to be a breach of human rights ?


Would that be the judgment of the Grand Chamber of the European Court of Human Right in the case of O'Halloran and Francis v the UK - the majority verdict of which said "Lord Bingham's judgment in Brown v Stott - what he said" as opposed to the 2 dissenting judgments which were very well set out, and the almost dissenting but not quite judgment which said that it would be a breach of the motorist's human rights, but motorists don't have human rights?


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cp8759
post Fri, 15 Feb 2019 - 17:54
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QUOTE (andy_foster @ Thu, 14 Feb 2019 - 19:38) *
QUOTE (Redivi @ Thu, 14 Feb 2019 - 12:26) *
The S172 request is specifically excluded from "right to remain silent"
Doesn't the Forum have an article somewhere explaining why this has been ruled not to be a breach of human rights ?


Would that be the judgment of the Grand Chamber of the European Court of Human Right in the case of O'Halloran and Francis v the UK - the majority verdict of which said "Lord Bingham's judgment in Brown v Stott - what he said" as opposed to the 2 dissenting judgments which were very well set out, and the almost dissenting but not quite judgment which said that it would be a breach of the motorist's human rights, but motorists don't have human rights?

I think there's a more fundamental problem with that judgment: even if it had gone the other way, it would make no difference. If it had gone the other way and Parliament had replaced s172 with a statutory presumption that the RK is the driver, the substantive outcome would be pretty much the same. The NIP/s172 notices would just be reworded to say something like this:

You are presumed to be the driver, please submit your licence for endorsement and pay £100.
If you were not the driver, please provide the name and address of the driver at the time of the offence.
If you do neither, you will be prosecuted for the underlying offence as we have evidence the driver committed such and such an offence, and you're presumed to be the driver.


For that reason, I see the entire issue as academic: sure, if it had gone the other way a few individuals might have got away with some offences while Parliament got round to amending the law, but in the long run, to use a phrase popular nowadays, nothing would change.


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The Rookie
post Sat, 16 Feb 2019 - 06:00
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If the RK is a company that approach would clearly not work......and we’d soon have a few companies popping up offering an RK service.


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emanresu
post Sat, 16 Feb 2019 - 08:03
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QUOTE
...and we’d soon have a few companies popping up offering an RK service.


Didn't that happen in the early days of PPC's. All these companies appear to have gone. Wonder why. PCOJ perhaps?
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cp8759
post Sat, 16 Feb 2019 - 13:37
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QUOTE (The Rookie @ Sat, 16 Feb 2019 - 06:00) *
If the RK is a company that approach would clearly not work......and we’d soon have a few companies popping up offering an RK service.

Clearly it could still work, you just change the registration scheme slightly so that if the RK is a company, there must be a named individual (could be company secretary, fleet manager...), then when a NIP arrives, either they name the driver or they themselves are presumed in law to be the driver.

The end result would be exactly the same as it is now, either the recipient of the NIP accepts they were driving, or they name another person as the driver, or they end up with a conviction anyway. The only difference would be that the conviction for a "no response" scenario would be for the underlying offence rather than for failing to furnish, and with the best will in the world, I don't see that as a huge advancement of human rights.


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andy_foster
post Sat, 16 Feb 2019 - 21:35
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The privilege against self-incrimination is generally held to be implicit in the right to a fair trial. Presumption of innocence is an explicit right in the erm, right to be presumed innocent until proven guilty. So, obviously if the ECtHR had upheld an implicit right they would be perfectly happy for an explicit right to be breached.


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cp8759
post Sat, 16 Feb 2019 - 22:55
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QUOTE (andy_foster @ Sat, 16 Feb 2019 - 21:35) *
The privilege against self-incrimination is generally held to be implicit in the right to a fair trial. Presumption of innocence is an explicit right in the erm, right to be presumed innocent until proven guilty. So, obviously if the ECtHR had upheld an implicit right they would be perfectly happy for an explicit right to be breached.

Several members of the Council of Europe have laws that say the RK is presumed to be the driver, I'm not aware of that ever being successfully challenged.


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