CONSEIL COUNCIL DE L’EUROPE OF EUROPE COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS GRAND CHAMBER CASE OF O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM (Applications nos. 15809/02 and 25624/02) JUDGMENT STRASBOURG 29 June 2007 2 O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT In the case of O’Halloran and Francis v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President, Luzius Wildhaber, Christos Rozakis, Nicolas Bratza, Boštjan M. Zupančič, Rıza Türmen, Volodymyr Butkevych, Josep Casadevall, Matti Pellonpää, Snejana Botoucharova, Stanislav Pavlovschi, Lech Garlicki, Javier Borrego Borrego, Alvina Gyulumyan, Ljiljana Mijović, Egbert Myjer, Ján Šikuta, judges, and Vincent Berger, Jurisconsult, Having deliberated in private on 27 September 2006 and on 23 May 2007, Delivers the following judgment, which was adopted on the last- mentioned date: PROCEDURE 1. The case originated in two applications (nos. 15809/02 and 25624/02) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr Gerard O’Halloran and Mr Idris Richard Francis (“the applicants”), on 3 April 2002 and 15 November 2001 respectively. 2. The applicants, one of whom had been granted legal aid, were represented by Mr J. Welch of Liberty, London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 3. Mr O’Halloran alleged that he had been convicted solely or mainly on account of the statement he had been compelled to provide under threat of a penalty similar to the offence itself. Mr Francis complained that having been compelled to provide evidence of the offence he was suspected of O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT 3 committing had infringed his right not to incriminate himself. Both applicants relied on Article 6 §§ 1 and 2 of the Convention. 4. The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 26 October 2004 the applications were joined and on 25 October 2005 they were declared admissible by a Chamber of that Section composed of Josep Casadevall, Nicolas Bratza, Matti Pellonpää, Stanislav Pavlovschi, Lech Garlicki, Ljiljana Mijovič, Ján Šikuta, judges, and Michael O’Boyle, Section Registrar. On 11 April 2006 the Chamber relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 5. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. On 19 January 2007 Luzius Wildhaber’s term as President of the Court came to an end. Jean-Paul Costa succeeded him in that capacity and took over the presidency of the Grand Chamber in the present case (Rule 9 § 2). Luzius Wildhaber and Matti Pellonpää continued to sit following the expiry of their terms of office, in accordance with Article 23 § 7 of the Convention and Rule 24 § 4. 6. The applicants and the Government each filed observations on the merits. 7. A hearing took place in public in the Human Rights Building, Strasbourg, on 27 September 2006 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr D.WALTON, Agent, Mr D. PERRY, Counsel, Ms L. CLARKE, Mr M. MAGEE, Mr J. MOORE, Advisers; (b) for the applicants Mr B. EMMERSON QC, Counsel, Mr J. WELCH, Solicitor, Mr D. FRIEDMAN, Adviser, Mr G. O’HALLORAN, Mr I. FRANCIS, Applicants. The Court heard addresses by Mr Emmerson and Mr Perry and their answers to questions put by judges. 4 O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicants were born in 1933 and 1939 and live in London and Petersfield respectively. A. Mr O’Halloran (application no. 15809/02) 9. On 7 April 2000, at 4.55 a.m., a vehicle of which the applicant was the registered keeper, registration number T61 TBX, was caught on a speed camera driving at 69 miles per hour (mph) on the M11 motorway where the temporary speed limit was 40 mph. 10. On 17 April 2000, the police camera enforcement unit of the Essex Constabulary wrote to the applicant: “I have photographic evidence that the driver of T61 TBX failed to comply with the speed limit ... It is intended to institute proceedings against the driver for the offence of failing to comply with the speed limit ... You have been named as the driver of the vehicle at the time of the alleged offence and have a legal obligation to comply with the provisions of the notice contained on page 2. I must warn you that if you fail to comply with this demand within 28 days you will commit an offence and be liable on conviction to a maximum penalty similar to that of the alleged offence itself – a fine of £1,000 and 3-6 penalty points.” 11. The attached Notice of Intended Prosecution informed the applicant that it was intended to institute proceedings against the driver of the vehicle. He was asked to furnish the full name and address of the driver of the vehicle on the relevant occasion or to supply other information that was in his power to give and which would lead to the driver’s identification. He was again informed that a failure to provide information was a criminal offence under section 172 of the Road Traffic Act 1988. 12. The applicant answered the letter confirming that he was the driver at the relevant time. 13. On 27 March 2001 the applicant was summoned to attend North Essex Magistrates’ Court where he was tried for driving in excess of the speed limit. Prior to the trial, the applicant sought to exclude the confession made in response to the Notice of Intended Prosecution, relying on sections 76 and 78 of the Police and Criminal Evidence Act 1984 read in conjunction with Article 6 of the Convention. His application was refused in the light of the decision of the Privy Council in Brown v. Stott [2001] 2 WLR 817. Thereafter the prosecution relied upon the photograph of the speeding vehicle and the admission obtained as a result of the section 172 demand. The applicant was convicted and fined 100 pounds O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT 5 sterling (GBP), ordered to pay GBP 150 costs and his licence was endorsed with six penalty points. 14. On 11 April 2001 the applicant asked the magistrates to state a case for the opinion of the High Court: “Whether in the circumstances of this case, the admission that the defendant was indeed the driver should have been excluded under sections 76 and 78 of the Police and Criminal Evidence Act 1984 having regard to the Human Rights Act and the recent cases decided by the European Court as he had been obliged to incriminate himself?” 15. On 23 April 2001 the magistrates’ clerk informed the applicant that the magistrates refused to state a case as the issue had already been decided definitively by the Privy Council in Brown v. Stott (cited above) and by the High Court in Director of Public Prosecutions v. Wilson ([2001] EWHC Admin 198). 16. On 19 October 2001 the applicant’s application for judicial review of the magistrates’ decision was refused. B. Mr Francis (application no. 25624/02) 17. A car of which the applicant was the registered keeper was caught on speed camera on 12 June 2001 driving at 47 mph where the speed limit was 30 mph. 18. On 19 June 2001 the Surrey Police sent the applicant a Notice of Intended Prosecution in the following terms: “In accordance with section 1, Road Traffic Offenders Act 1988, I hereby give you notice that proceedings are being considered against the driver of Alvis motor vehicle registration mark EYX 622 ... This allegation is supported by means of photographic/recorded video evidence. You are recorded as the owner/keeper/driver or user for the above vehicle at the time of the alleged offence, and you are required to provide the full name and address of the driver at the time and location specified. Under section 172 of the Road Traffic Act you are required to provide the information specified within 28 days of receipt of this notice. Failure to supply this information may render you liable to prosecution. The penalty on conviction for failure to supply the information is similar to that for the offence itself, i.e. a fine and penalty points.” 19. On 17 July 2001 the applicant wrote to the Surrey Police invoking his right to remain silent and privilege against self-incrimination. 20. On 18 July 2001 the Surrey Police informed the applicant that the appeal in Brown v. Stott, cited above, held that section 172 did not infringe the said rights. 21. The applicant refused to supply the information. 22. On 28 August 2001 the applicant was summoned to the Magistrates’ Court for failing to comply with section 172(3) of the Road Traffic Act 1988. He obtained an adjournment. 6 O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT 23. On 9 November 2001 the Magistrates’ Court agreed to a further postponement, apparently with reference to the applicant’s proceeding with an application in Strasbourg. The applicant wrote to the Court on 15 November 2001, relying on Article 6 §§ 1 and 2 of the Convention.