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freedonian
Hi,

I've been reading the FAQs about the PACE statement and so far as I can tell it can only be used before the NIP has been completed and returned. I returned my NIP form identifying myself as the driver (more accurately rider, as the vehicle is a motorbike) back in October '05. Is there any way in which I can retroactively ask for my NIP statement to be considered 'not subject to proper caution' and hence not usable in evidence under the case law cited in the PACE statement?

It seems to me that if the case law applies at all, it should apply regardless of whether or not the NIP has been returned, but I'd be very grateful for any advice on this.
Hockeyump
QUOTE (freedonian @ Mon, 10 Apr 2006 - 15:41) *
Hi,

I've been reading the FAQs about the PACE statement and so far as I can tell it can only be used before the NIP has been completed and returned. I returned my NIP form identifying myself as the driver (more accurately rider, as the vehicle is a motorbike) back in October '05. Is there any way in which I can retroactively ask for my NIP statement to be considered 'not subject to proper caution' and hence not usable in evidence under the case law cited in the PACE statement?

It seems to me that if the case law applies at all, it should apply regardless of whether or not the NIP has been returned, but I'd be very grateful for any advice on this.


Do not worry at all. The Article in MCN mentions a case called FUNKE v. FRANCE - 10828/84 [1993] ECHR 7 (25 February 1993) to give it its full name. The big clue here is when it is someone v a country that it is a European Court of Human Rights decision that cannot be overturned by any Court in this country.

A copy of it can be found here http://www.worldlii.org/eu/cases/ECHR/1993/7.html but you may just lose the will to live reading through it all. The critical part is in paragraphs 44 and 45 of the judgement.

44. The Court notes that the customs secured Mr Funke's conviction in order to obtain certain documents which they believed must exist, although they were not certain of the fact. Being unable or unwilling to procure them by some other means, they attempted to compel the applicant himself to provide the evidence of offences he had allegedly committed. The special features of customs law (see paragraphs 30-31 above) cannot justify such an infringement of the right of anyone "charged with a criminal offence", within the autonomous meaning of this expression in Article 6 (art. 6), to remain silent and not to contribute to incriminating himself.

There has accordingly been a breach of Article 6 para. 1 (art. 6-1).

( B ) Article 6 para. 2 (art. 6-2)

45. The foregoing conclusion makes it unnecessary for the Court to ascertain whether Mr Funke's conviction also contravened the principle of presumption of innocence.


Basically French Customs used French Customs Law to compel Funke to supply evidence that incriminated him in Court. What this establishes beyond doubt is that his right to a fair trial was infringed because he was compelled by law to give evidence that incriminated him. That is exactly what the NIP does and therefore it cannot be used in any case and should not have been used in any case since the 25 February 1993. How lawyers have missed this for so long I don't know.

Freedonian, all the talk about PACE requirements is actually a diversion. Even if you have been convicted in Court you can lodge an Appeal on the grounds of Funke v France and the conviction must be thrown out because your Human Rights (the right to a fair trial and the presumption of innocence until proven guilty - Human Rights Act 1998 Schedule 1 Article 6.1 & 6.2) have been infringed . If you haven't got to Court yet, no problem, as in Court you challenge the NIP on the grounds of Funke v France and all you need to do is copy the full case name from above and the bit in italics out to hand in as evidence in the Court. If you have received the Summons but not sent it in, or are still waiting for the Summons, when you get it you plead Not Guilty and in the space provided for your defence Write "The Notice of Intention to Prosecute infringes my Human Rights Act 1998 Schedule 1 Article 6.1 & 6.2 rights. FUNKE v. FRANCE - 10828/84 [1993] ECHR 7 (25 February 1993) applies". My guess is the prosecutor will drop the case like a ton of hot cakes.

Remember without an NIP the Prosecutor has to prove you were in the area at the time the offence was committed and the the number plate on the car was entitled to be on the car and that you were not the victim of Vehicle Identity Theft. He may not ask you if you were in the area at the time of the offence or if you were driving the car or even if you agree that the speed limit in the area was the one that was breached in the offence.

By the way this defence applies right throughout the European Union so it works North of the Border too where PACE does not apply.

Disclaimer: I am not a lawyer. I am able to read the contents of a Court Judgement that says There has accordingly been a breach of Article 6 para. 1. Am able to work out that exactly the same priciple that French Customs tried to apply applies to the use of the NIP and s172 of the Road Traffic Act. I am also able to read The United Nations International Covenant on Civil and Political Rights Article 14.3. states: In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: 7.Not to be compelled to testify against himself or to confess guilt. which makes me wonder how on earth s172 of RTA ever got onto the Statute Books. That last UN bit can be found here http://www.hrweb.org/legal/cpr.html
Heyloft
Hockeyump,

so are you also saying that this is a defence of prosecution under 172.s2 ?
firefly
Hockeyump, I admire your tanacity - but the Funke argument is well known on these boards. After all, the MCN article is a direct lift from this site.

The argument isn't as cut and dried as you may think. We are confident of getting a positive outcome, but stating as you do in such authorititave terms is a little premature.
Hockeyump
Thanks biggrin.gif but I will continue to be tenacious for a moment longer with an edit or two and bold the words I add to the F v F judgement

"Being unable or unwilling to procure them by some other means, they the Chief Constable attempted to compel the applicant himself to provide the evidence of offences he had allegedly committed. The special features of customs law s172 of the Road Traffic Act 1988 (see paragraphs 30-31 above) cannot justify such an infringement of the right of anyone "charged with a criminal offence", within the autonomous meaning of this expression in Article 6 (art. 6), to remain silent and not to contribute to incriminating himself.

There has accordingly been a breach of Article 6 para. 1 (art. 6-1).


As you can see it is definitely close enough to claim "cut and dried" given the leeway with which court precedence is interpreted. I would even be as bold to say this is far, far closer than the parameters within which Court precedence is usually determined and the decision in F v F is definite. smile.gif
Harris
I am researching like a mad man for my alleged offence as I don't have much money for a lawyer and have just looked at the self incrimination issue.

Was'nt it addressed in Brown v Scott (2001) by the house of lords where it was held that the European convention had to be read as balancing community rights with individual right. It was held it that it was'nt self incrimination since it is not a offence to drive a car and all those who own or drove car had subjected themselves to a regulatory regime of which s172 is part. Was a Scottish case however.

In DPP v Wilson (2002) it was confirmed that an admission to being the driver of a vehicle given in response to s172 does not breach the defendant's priviledge against self incrimination under article 6.
Hockeyump
Brown v Scott is one that prosecutors like to produce to say that it doesn't infringe your right to a fair trial when challenged. The reason they like this one is that it is a Privy Council decision which is the Scottish equivalent of the House of Lords and therefore just as binding in the UK. This is one case in particular where the leeway of precedence is way too broad in applying it to an NIP.

Brief facts: Brown robbed an off licence and was caught. The Police realising she was drunk and realising her car was in the parking lot asked her under s172 RTA if she had driven her car there (the simple question, the answer of which could not incriminate her). She replied yes, was breathalysed (the evidence required to incriminate her) and charged. Her lawyer tried to claim her Article 6 rights to a fair trial had been infringed and lost all the way to the Privy Council.

You can see why the bounds of precedence are stretched to breaking point. Firstly, the Police did not know an offence had been committed when they asked her the question, were you driving. The breathalyser was need to establish that. With an NIP you are told an offence has been committed and are then asked if you were the driver. Totally different set of circumstances and replying yes definitely incriminates you. Secondly, in BvS all the Law Lords say there must be no coersion, overbearing pressure or repeated asking of the question. Count how many times in all the documentation you got that you are told to sign the NIP and what threats of prosecution if you don't are made. The Magistrate is told to exclude the evidence if those methods are used. Thirdly, Lord Bingham notes that the consequences of not obeying a s172 request are insignificant. For a Lord on £100 000 with the ability to hire a chauffer I suppose 6 penalty points and £1000 is fairly insignificant. I know for me that £1000 is impossible. Even the £60 in the FPN would strain my budget and losing my licence would be a disaster.

For my money Funke v France is a lot closer to the circumstances involved than Brown v Scott and trumps Brown v Scott anyway. It also trumps DPP v Wilson.

I have sent you a personal message that you might find useful.
Aub
Getting back to basics, if your company fleet manager fills out the NIP, does this blow any PACE letter tactics out of the water ?

The prosecution have listed both the employer NIP AND my PACE statement as "evidence"
firefly
The judgment in Brown v Stott was a real "War & Peace" effort, no doubt additionally fudged to confuse all and sundry.

The consequences of any other decision for the crown were just too horrific to contemplate. The house of cards that is road safety would have come crashing down.
freedonian
Hi,

Thanks, Hockeypump, for your wonderfully detailed response, and to all of you for your comments and references to the other relevant cases. This is a great forum! smile.gif

I must say, on a reading of the relevant sections quoted by Hockeypump, I'd tend to agree that the Funke v France defence seems pretty strong. My thought is "What have I got to lose?". They can't penalise me for trying a defence which I believe is legitimate, and the worst that can happen is I get £60 and 3 points, which I'd get anyway doing nothing. So I'm inclined to follow Hockeypump's advice.

One other question arises in my mind: the summons form appears to have no space for stating one's defence, but only for a statement in mitigation of a guilty plea. I see the options as being either 1) to enclose a letter citing the case reference, the NIP details and the Funke v France defence or, 2) writing a separate letter to the CJ OCU referring to the case, the NIP etc. or 3) waiting until I get to court and stating my defence then. Personally, I want to avoid going to court altogether, so really only options 1) or 2) are viable. Also, to whom should the letter be addressed? The Chief Constable, the CPS, the Clerk of the Justices, the police officer in charge of the case originally...? Could someone please advise me on this?

Finally, and I apologise if this is a bit off the topic, but am I wrong in thinking that the effect of Funke v France goes much further than just s172: surely it calls into question the Courts' ability to infer anything negative at all from a defendant's silence under Section 34 of the Criminal Justice and Public Order Act 1994, and so calls into question the legality of the wording of the caution given to witnesses being interviewed by the police and others? Or is this a bridge too far?

Thanks in anticipation.

Hail Freedonia!
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