Brown v Stott (Procurator Fiscal, Dunfermline)

JurisdictionScotland
Judgment Date04 February 2000
Neutral Citation2000 SCCR 314
Date04 February 2000
Docket NumberNo 41
CourtHigh Court of Justiciary

JC

LJ-G Rodger, Lord Marnoch and Lord Allanbridge

No 41
BROWN
and
STOTT

Procedure—Summary procedure—Devolution issue—Privilege against self-incrimination—Pannel suspected of drink-driving offence required by police to state who was the driver—Failure to answer constituting criminal offence—Pannel admitting that she had been driver—Whether pannel's compelled reply violated her privilege against self-incrimination—Road Traffic Act 1988 (cap 52), sec 172(2)(a)1Human Rights Act 1998 (cap 42), secs 3, 4, 6 and 81Scotland Act 1998 (cap 46), sec 57(2) and (3)1—European Convention on Human Rights, art 6(1)1

Section 57(2) of the Scotland Act 1998 enacts, inter alia, that a member of the Scottish Executive (which includes the Lord Advocate: sec 44(1) has no power to do any act so far as that act is incompatible with certain rights set out in the European Convention on Human Rights. Subsection (3)(a) enacts that sub sec (2) does not apply to an act of the Lord Advocate in prosecuting any offence which, because of sec 6(2) of the Human Right Act 1998, is not unlawful under sec 6(1) of that Act. Section 6(1) of the Human Rights Act 1998 enacts that it is unlawful for a public authority to act in any way which is incompatible with a Convention right. Subsection (2) enacts, inter alia, that: “Subsection (1) does not apply to an act if—…(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions”. Section 8(1) enacts that in relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. Section 172(2) of the Road Traffic Act 1988 (as amended) enacts, inter alia, that: “Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police…”.

The pannel was charged on a summary complaint with theft and a contravention of sec 5(1)(a) of the Road Traffic Act 1988. She had been charged with theft by the police at a superstore and on being taken to the police vehicle, she stated that a motor car parked in the car park was hers. At the police station the pannel's handbag was searched and a set of keys was found. The pannel, whose breath and clothing had smelled of alcohol when she had been arrested, was required by a police officer in terms of sec 172(2)(a) of the Road Traffic Act 1988, to state who had been driving her car at a time when she would have travelled in it to the superstore. The pannel replied “It was me”. The pannel lodged a devolution notice to challenge the admissibility of the evidence of her reply but the sheriff held that it did not raise a devolution issue. The pannel thereafter appealed to the High Court of Justiciary before whom the Crown conceded that the sheriff had erred in that decision. The Advocate General, to whom leave to appear was given by the High Court, argued that the court did not require to determine whether a violation of art 6(1) would occur because even if the Crown's act in relying on the pannel's reply were to be incompatible with art 6(1) of the European Convention, sec 6(1) of the Human Rights Act 1998 would not apply by

reason of sec 6(2)(b) because the Crown would nonetheless be “acting so as to give effect to” sec 172.

Held (1) that sec 6(2)(b) disapplied sec 6(1) of the Human Rights Act 1998 only if the Lord Advocate's representative were acting so as to give effect to one or more provisions of primary legislation which could not be read or given effect in a way which was compatible with the Convention rights and, accordingly, before the court could be satisfied about that requirement, the court had to consider whether sec 172 was indeed a provision which could not be so read (pp 334D–F, 355H, 358A); (2) that it was apparent that according to recognised international standards, to be effective, the right to silence and the right not to incriminate oneself at trial really implied the recognition of similar rights at the stage when the potential pannel was a suspect being questioned in the course of a criminal investigation (pp 338H, 355H, 358A); (3) that while the European Court of Human Rights had not declared the right to silence to be absolute, there was nothing exceptional, either in the nature of the offence under sec 5(1)(a) or in the difficulties of proof, which could justify a restrictive interpretation or application of the right (pp 346D, G, 355H, 358A); (4) that the power in sec 172 was not regulatory: the only legitimate purpose of the request under sec 172 was to assist the police in identifying the person who committed the specific offence and hence in constructing a criminal case against that person (pp 349D, 353E, 355H, 358A); (5) that as the pannel had been subjected to compulsion to incriminate herself under threat of being found guilty of an offence and punished with a fine, the Crown's proposed use of her reply at her trial would offend her right not to incriminate herself contrary to art 6(1) (pp 354A–B, 355H, 358A); (6) that (the Crown conceding the point) in order to be compatible with art 6(1), sec 172 could be read as not permitting the Crown to lead and rely on evidence of the pannel's reply and, that being so, sec 6(1) of the Human Rights Act 1998 applied so that sec 57(2) applied to the Lord Advocate and the procurator fiscal as his representative, thereby disabling the procurator fiscal from leading evidence of the pannel's reply (pp 355B–C, 355H, 358A); and (7) that since it would be premature to make an order ruling on the admissibility of the evidence because the Crown had not yet sought to lead it, the most appropriate remedy in light of sec 8(1) of the Human Rights Act 1998 was a declarator that the procurator fiscal has no power to lead and rely on evidence of the pannel's admission which she was compelled to make under sec 172 (pp 355E–F, 355H, 358A); and appeal allowed.

Saunders v United Kingdom Reports of Judgements and Decisions 1996–VI, p 2044; (1996) 23 EHRR 313 applied.

Observed (per Lord Marnoch) that while sec 172 of the 1988 Act, in order to be compatible with the pannel's Convention rights, required now to be “read down” as no longer permitting the Crown to lead evidence of any reply given by a person who at the time was a suspect, neither principle nor precedent compelled any broader approach to be taken (p 357G).

Margaret Anderson Brown was charged in the sheriff dom of Tayside, Central and Fife at Dunfermline on a summary complaint at the instance of Richard G Stott, procurator fiscal there, the libel of which is adequately described in the opinion of the Lord Justice-General (Rodger).

The pannel was granted leave to lodge late a minute raising a devolution issue but after debate the sheriff held that the minute did not raise a devolution issue in terms of para 1 of sched 6 to the Scotland Act 1998.

The pannel thereafter appealed to the High Court of Justiciary.

Cases referred to:

Abas v Netherlands Application No 27943/95 (26 February 1997)

Advocate (HM) v Friel 1978 SLT (Notes) 21

California v Byers 402 US 424 (1971)

Chalmers v HM AdvocateSC 1954 JC 66

DN v Netherlands Application No 6170/73 (26 May 1975)

Deweer v BelgiumHRC Series A No 35; (1980) 2 EHRR 439

Eckle v GermanyHRC Series A No 51; (1982) 5 EHRR 1

Ferreira v Levin NO 1996 (1) SA 984

Foster v FarrellSC 1963 JC 46

Funke v France Series A No 256–A; (1993) 16 EHRR 297

Hoffman v United States 341 US 479 (1950)

JP, KR and GH v AustriaENR Application Nos 15135/89, 15136/89 and 15137/89 (5 September 1989)

Lamb v MunsterELR (1882) 10 QBD 110

McDonald v Smith (1978) SCCR Supp 219

Murray v United Kingdom Reports of Judgements and Decisions 1996–1, p 30; (1996) 26 EHRR 29

Osman v United Kingdom Reports of Judgements and Decisions 1998–VIII, p 3124

R v DPP, ex parte Kebilene [1999] 3 WLR 972

R v Director of Serious Fraud Office, ex parteSmithELR [1993] AC 1

R v FitzpatrickUNK [1995] 4 SCR 154

R v HebertUNK [1990] 2 SCR 151

R v JonesUNK [1994] 2 SCR 229

R v WhiteUNK [1999] 2 SCR 417

Saunders v United Kingdom Reports of Judgements and Decisions 1996–VI, p 2044; (1996) 23 EHRR 313

Thomson Newspapers Ltd v CanadaUNK [1990] 1 SCR 425

Tora Tolmos v Spain Application No 23816/94 (17 May 1995)

Willie (In re) 25 F 38 (CC Va 1807)

Textbooks, etc referred to:

Alison, Criminal Law, vol ii, pp 586–587

Hume, Crimes (3rd ed), vol ii, pp 336–337

Report of the Road Traffic Law Review (Chairman, Sir Peter North, 1988), paras 3.17–3.24

Wigmore, Evidence (McNaughton rev, 1961), vol 8, p 318

The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Marnoch and Lord Allanbridge, for a hearing on 5 November 1999 and 6 and 7 January 2000. Eo die the court made avizandum.

At advising, on 4 February 2000—

LORD JUSTICE GENERAL (Rodger)—

The Facts

On 3 June 1999 the Asda superstore at the Halbeath Retail Park in Dunfermline was open all night. At about 3 am the store called the police because, they alleged, the appellant, Margaret Anderson Brown, had stolen a bottle of gin. When the police officers arrived, the appellant was still in the store and they spoke to her there. They noticed that both her breath and her clothing smelled of alcohol. When they asked her how she had come to the shop, she said that she had travelled by car. At some point, according to a security officer, the appellant expressed anxiety about the welfare of a kitten which was in the car. At about 3.40 am the appellant was charged with theft and taken to the police station. As she was leaving...

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2 books & journal articles
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