ECHR - Post Brexit, repeal of section 172, repeal of section 172, is it possible? Options

[Judds]

Hey everyone.

I hope you are having a happy lockdown as possible! Do we the members think that now we are in the transition of Brexit, and post Brexit, is there any chance we can support a movement to repeal s172?

Like many others, I feel this is wrong to have to incriminate someone, most likely yourself over motoring matters, when for almost any other criminal charge you have a right to silence.

Does anyone have any experience in how these matters are raised to parliament? The last I saw it was mainly via petition for issues to be raised there.

There are too many way's (we even hear of the odd case of mistaken identity and cloned plates etc) and you have to jump through quite a few holes to prove your innocence. A repeal of s.172 could potentially move to more modern or more effective ways to enforce speed limits without the threat of self-incrimination that currently exists.

I know this could be a heated topic and there are people far more experienced than myself who can word things more eloquently, and I always welcome calm sensible robust debate, along with expert opinion on whether or not this is achieveable.

Have a great day!

Judds.

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[typefish]

Well, given how the only dissenting voice came from the ECHR, I doubt it very much.

[Fredd]

There was nothing to stop the government scrapping s172 before, and there's nothing to stop it doing so now or in the future if they wanted to - the ECtHR just ruled that s172 was OK. In short, no chance.

[TryOut]

Why would the UK government want to repeal their own legislation after expending much effort to justify it to the European court?

Now the UK is out of the European jurisdiction there is even less reason to repeal it. I can't see how your logic is working to develop your proposal. It makes no sense.

An S172 request and admission does not mean the driver has admitted an offence. The admission simply means that the police and CPS have been informed about who the driver was and they will then direct any charges for an offence to that driver. The driver admits no guilt or otherwise until charged and given the chance to either admit the offence and accept a penalty outside of court, or to go to court and have the prosecution prove the offence.

You do not have to prove your innocence, the prosecution need to prove your guilt. They do not use S172 to prove your guilt.

The problem with your proposition is that no law-maker or court or indeed most people share your opinion.

[666]

Brexit means we're leaving the EU, not the EHCR, which is an entirely different thing.

[Judds]

Thanks for all the comments thus far, and I agree, while the Government might feel no need to repeal s172, with me not being an expert in how these sorts of legal avenues work I was curious.

From my perspective, s172 was written at a time that predates modern technologies like the internet - 1988 I think? (you can order "show plates" online with any reg mark you want) and I certainly recall reading on these forums that clone plates are becoming more common, and that is just the one example that springs to mind.

I'd certainly be for an update to s172 if the experts were able to thrash out a way that doesn't possibly infringe on a person's rights, and that doesn't make it difficult to fight when a genuine error is made. If there's an opportunity to improve things for everyone, shouldn't we at least consider what that might be?

[The Rookie]

The wording of S172 goes back many years, before that I think it was S153 of the relevant legislation, it goes back to pre WW2 as I understand it. After all if I crash into your parked car and drive off, wouldn’t you want to know who you could make a claim against?

[Judds]

The wording of S172 goes back many years, before that I think it was S153 of the relevant legislation, it goes back to pre WW2 as I understand it. After all if I crash into your parked car and drive off, wouldn’t you want to know who you could make a claim against?

Yes absolutely, I apologise if I have been a little vague - I'm more referring to speed camera's/vans and I didn't make that clear.

[Jlc]

The wording of S172 goes back many years, before that I think it was S153 of the relevant legislation, it goes back to pre WW2 as I understand it. After all if I crash into your parked car and drive off, wouldn’t you want to know who you could make a claim against?

Yes absolutely, I apologise if I have been a little vague - I'm more referring to speed camera's/vans and I didn't make that clear.

So you'd want to resolve someone damaging your property but with the same legislation speed with impunity?

[Judds]

The wording of S172 goes back many years, before that I think it was S153 of the relevant legislation, it goes back to pre WW2 as I understand it. After all if I crash into your parked car and drive off, wouldn’t you want to know who you could make a claim against?

Yes absolutely, I apologise if I have been a little vague - I'm more referring to speed camera's/vans and I didn't make that clear.

So you'd want to resolve someone damaging your property but with the same legislation speed with impunity?

No not at all, you'll have to forgive me, I don't word these sorts of things very well until much later in the day. (Nocturnal)

I was merely wondering if the use of the s172 and the following judicial process is fair on those who are a victim of genuine mistakes, and/or feel that a mistake is just too costly to fight no matter how in the right they are because of the things that go with it. I myself have known a couple of people who have taken the fine rather than challenge just because it was too costly. We've seen cases on here where people have taken the lesser penalty when it might have been wrong.

I hope that's a little clearer.

[Spandex]

I was merely wondering if the use of the s172 and the following judicial process is fair on those who are a victim of genuine mistakes, and/or feel that a mistake is just too costly to fight no matter how in the right they are because of the things that go with it. I myself have known a couple of people who have taken the fine rather than challenge just because it was too costly. We've seen cases on here where people have taken the lesser penalty when it might have been wrong.

I hope that's a little clearer.

I would have thought that it is not s172 which makes it difficult to fight mistakes. Going from threads on this site, it seems that mistaken identity is generally cleared up relatively simply and in the few cases it is not, the requirements of s172 haven’t been the cause of the problem that the registered keepers have struggled to overcome.

Instead, The presumed accuracy of the speed measurement and the expense involved in disproving it to a court would seem to be the main area where drivers claim mistakes have been made but struggle to prove it.

Do you believe there are a significant number of cases where people have been forced to accept punishments where they were not driving? (‘Forced to’ being important, as I’m not talking about people who elect to take the points to protect the actual driver for whatever reason).

[andy_foster]

The problems with s. 172 are essentially two-fold -

(1) it violates the fundamental right not to self-incriminate (which the majority of the Grand Chamber decided wasn't quite so important after all), and
(2) subsequent to the ECtHR case, the penalty for failing to name the driver has increased to a mandatory endorsement of 6 points - resulting in most regulars on this very site advising posters who don't know who was driving to make a best guess to avoid being bent over for not knowing. People are being advised to both self-incriminate and take the punishment for an offence they might not have committed simply because the alternative is likely to be far worse - for those that don't understand the importance of the privilege against self-incrimination, this is a clear example of why it ought to be important (and still exist).

[Judds]

The problems with s. 172 are essentially two-fold -

(1) it violates the fundamental right not to self-incriminate (which the majority of the Grand Chamber decided wasn't quite so important after all), and
(2) subsequent to the ECtHR case, the penalty for failing to name the driver has increased to a mandatory endorsement of 6 points - resulting in most regulars on this very site advising posters who don't know who was driving to make a best guess to avoid being bent over for not knowing. People are being advised to both self-incriminate and take the punishment for an offence they might not have committed simply because the alternative is likely to be far worse - for those that don't understand the importance of the privilege against self-incrimination, this is a clear example of why it ought to be important (and still exist).

Exactly this, and thank you.

Having said that, I can appreciate that I don't know what to offer up as a replacement.

[cp8759]

For all the advocates of s172 reform, the entire concept is entirely pointless. If we didn't have s172, we would end up having a statutory presumption that the RK is the driver unless they name someone else, as many other countries do. The net result is that the person who ignores all the letters from the police gets (rightly or wrongly) convicted of the underlying offence rather than the s172 offence. Aside from the penalty being lower for certain offences, I don't see how this would make one iota of difference to anyone's substantive rights.

[andy_foster]

Having said that, I can appreciate that I don't know what to offer up as a replacement.

The starting point might perhaps be to read the Grand Chamber's judgment in the case of O'Halloran and Francis v the UK (google is your friend). You might find 2 of the 3 dissenting judgments to be progressively more eloquent and compelling than my thoughts (the author the of other dissenting judgment who basically said that it would be a violation but it's not because motorists aren't entitled to Human Rights can go do one IMHO).

Other countries have different systems, often with the keeper being liable by default, but generally without endorsing their licences. IMHO the 'necessity' of forcing self-incrimination of massive numbers of motorists, in a quasi-automated style in order to fund* the 'safety' camera departments and provide retirement jobs for ex-coppers, appears to lack obvious justification.

* It is a matter of public record that the SCPs get a ~£35 'kick-back' for every 'customer' they 'refer' for an SAC.

[TryOut]

Having said that, I can appreciate that I don't know what to offer up as a replacement.

The starting point might perhaps be to read the Grand Chamber's judgment in the case of O'Halloran and Francis v the UK (google is your friend). You might find 2 of the 3 dissenting judgments to be progressively more eloquent and compelling than my thoughts (the author the of other dissenting judgment who basically said that it would be a violation but it's not because motorists aren't entitled to Human Rights can go do one IMHO).

Other countries have different systems, often with the keeper being liable by default, but generally without endorsing their licences. IMHO the 'necessity' of forcing self-incrimination of massive numbers of motorists, in a quasi-automated style in order to fund* the 'safety' camera departments and provide retirement jobs for ex-coppers, appears to lack obvious justification.

* It is a matter of public record that the SCPs get a ~£35 'kick-back' for every 'customer' they 'refer' for an SAC.

Your vitriol seems to have affected your reason.

It is also a matter of Public record that it costs the police a lot more than £35 to send someone on a SAC. That record is of course not convenient for you to mention.

[andy_foster]

It is also a matter of Public record that it costs the police a lot more than £35 to send someone on a SAC. That record is of course not convenient for you to mention.

Presumably Diane Abbott has been moonlighting as their accountant then?

[cp8759]

Other countries have different systems, often with the keeper being liable by default, but generally without endorsing their licences.

Well whether points are applied or not is besides the point, that's a sentencing issue and each country will have its own rules. The point however is that if the RK is convicted and sentenced, then whether it's for speeding or failing to reply to the s172 or whatever is somewhat academic, at the end of the day filing the letters in the bin is not a way of avoiding a conviction.

So in all honesty, would there be any substantive benefit if motorist were convicted of the underlying offence based on a statutory presumption that they were driving? I think not. So the whole debate is academic.

[trubster]

It is also a matter of Public record that it costs the police a lot more than £35 to send someone on a SAC. That record is of course not convenient for you to mention.

Presumably Diane Abbott has been moonlighting as their accountant then?

You sir owe me a new keyboard!

[speedfighter23]

Fully agree, the S172 is a joke. The main issue here is the abuse of speed cameras in the UK, of which there are so many. In the US, most tickets are dealt with by hand!