Brown v Stott (Procurator Fiscal, Dunfermline)

JurisdictionUK Non-devolved
JudgeLord Bingham of Cornhill,Lord Steyn,Lord Hope of Craighead,Lord Clyde,The Rt. Hon. Ian Kirkwood (Lord Kirkwood)
Judgment Date05 December 2000
Judgment citation (vLex)[2000] UKPC J1205-1
CourtPrivy Council
Docket NumberDRA No. 3 of 2000,No 3
Date05 December 2000
(1) Procurator Fiscal, Dunfermline
(2) Her Majesty's Advocate General for Scotland
Margaret Anderson Brown

[2000] UKPC J1205-1

Present at the hearing:-

Lord Bingham of Cornhill

Lord Steyn

Lord Hope of Craighead

Lord Clyde

The Rt. Hon. Ian Kirkwood (Lord Kirkwood)

DRA No. 3 of 2000

Privy Council

Lord Bingham of Cornhill

In the early hours of 3 June 1999 the police were called to a 24-hour superstore in Dunfermline where the respondent, Miss Brown, was suspected of having stolen a bottle of gin. The officers who attended judged her to be the worse for drink. Asked how she had come to the store, she said she had travelled by car. It seems that she made some reference to a kitten which was in the car. She was charged with theft and taken to the police station, but before leaving the store she pointed to a car in the store car park which she said was hers. At the police station the police found the keys of the car in her handbag. Exercising what they took to be their powers under section 172(2)(a) of the Road Traffic Act 1988, the police required her to say who had been driving her car at about 2.30 a.m. when she would have travelled in it to the store car park. She replied "It was me". A breath test was then administered to her, which proved positive.


The respondent was prosecuted for two offences: theft; and driving a car after consuming excessive alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. She indicated her intention to plead not guilty to both charges.


On 1 July 1999 the respondent gave written notice of her intention to raise a devolution issue under section 98 of and Schedule 6 to the Scotland Act 1998. The issue was whether, compatibly with the respondent's rights under article 6 of the European Convention on Human Rights, the Procurator Fiscal at Dunfermline, as prosecutor, could rely at trial on the respondent's admission compulsorily obtained under section 172(2)(a) of the 1988 Act.


The Sheriff Court at Dunfermline heard argument whether a devolution issue had been raised. In the course of this argument it was accepted (as it still is) that the Procurator Fiscal acted on behalf of the Lord Advocate, a member of the Scottish Executive, and that the Procurator Fiscal intended at the forthcoming trial of the respondent to lead evidence of her admission made under section 172(2)(a). Evidence of this admission was treated as necessary to prove the identity of the driver. The sheriff ruled, in a reserved judgment, that no devolution issue had been raised, but he gave leave to appeal against his decision and the respondent appealed to the High Court of Justiciary. At that stage the Advocate General for Scotland exercised her right to intervene.


The appeal was heard in the High Court of Justiciary on 5 November 1999 and 6 and 7 January 2000 before the Lord Justice General (Lord Rodger of Earlsferry), Lord Marnoch and Lord Allanbridge. For reasons given in a reserved judgment delivered on 4 February 2000 ( 2000 SLT 379), the respondent's appeal was allowed and it was declared that the Procurator Fiscal had no power to lead and rely on evidence of the admission which she had been compelled to make under section 172(2)(a) of the 1988 Act. Leave to appeal to the Judicial Committee of the Privy Council was given on 8 February 2000.


On the facts summarised above (which the respondent reserves the right to challenge hereafter), three broad issues have been argued before the Board. The first is whether the respondent has in truth raised a devolution issue as defined by the Scotland Act 1998. This was not an issue argued before the High Court. It was raised before the Board by the Solicitor General for Scotland on behalf of the Procurator Fiscal, prompted by the decision of the Board in Montgomery v. Her Majesty's Advocate and the Advocate General for Scotland ( unreported, 19 October 2000). Both the Advocate General and the respondent submitted to the Board that the respondent had raised a devolution issue. The second issue is whether, compatibly with the respondent's rights under article 6 of the European Convention, the Procurator Fiscal may lead evidence of the admission which she was compelled to make under section 172(2)(a) of the 1988 Act at her trial for the offence charged under section 5 of that Act. On this issue the Solicitor General and the Advocate General united to challenge the decision of the High Court. The third issue only arises for decision if the first issue is resolved in the respondent's favour, and it turns on the peculiar circumstance that, when these events occurred, the Human Rights Act 1998 had not been brought fully into force in Scotland. The issue is whether, even if the leading of such evidence would be incompatible with the respondent's rights under article 6, the Procurator Fiscal may nonetheless lawfully lead such evidence.


On the first of these three issues I agree with the conclusion reached by my noble and learned friend Lord Hope of Craighead that a devolution issue has been raised. I also agree with his reasons for reaching that conclusion. There is nothing I can usefully add.


For reasons given in the body of this opinion, I (in common with all of their Lordships) would resolve the second issue in favour of the Procurator Fiscal and the Advocate General and adversely to the respondent. This makes it unnecessary to resolve the third issue, and I think it undesirable to offer unauthorative observations on an issue which is by no means straightforward and which seems likely to call for decision before long.


This opinion accordingly deals with only the second issue defined above. In addressing this issue, I would wish to acknowledge the help which the Board has received from a written submission made, by leave of the Board, by JUSTICE.


The Judgment of the High Court of Justiciary


The High Court concluded that the leading by the Procurator Fiscal of evidence of the respondent's admission made under section 172 of the 1988 Act, at her trial for an offence against section 5, would infringe her right to a fair trial guaranteed by article 6 of the Convention. Its reasons for that conclusion were given by the Lord Justice General, in a judgment with which Lord Marnoch and Lord Allanbridge concurred. The court reached its conclusion by the following important steps:


1. The European Court of Human Rights has recognised a right to silence and a right against self-incrimination at trial, both derived from article 6(1) of the Convention. There is no difference in principle between a requirement to admit the driving of a car made out of court before trial and a similar requirement to testify at trial. To be effective, the right to silence and the right not to incriminate oneself at trial imply the recognition of similar rights at the stage when the potential accused is a suspect being questioned in the course of a criminal investigation ( 2000 SLT 379 at pp. 384-387).


2. To assess whether a person has incriminated himself or herself, the essential consideration is the use to which evidence obtained under compulsion will be put. The concept is not confined to admissions of wrongdoing or to remarks which are directly incriminating. As the respondent's reply would contribute to the proof that she had driven her car on the occasion in question, and thus provide one of the essential links in the chain of testimony against her, it would be self-incriminating for the purposes of article 6(1) of the Convention (p. 390).


3. The right not to incriminate oneself is a "testimonial immunity", protecting a person against being forced to speak. This distinguishes an obligation to answer a question from the taking of samples and the obtaining of documents, since neither of these require the person to speak and the evidence obtained is already in existence (pp. 390-391).


4. There is nothing exceptional, either in the nature of the road traffic offence which the respondent had allegedly committed, or in the difficulty of proving the offence without obtaining her admission under section 172, which would justify any infringement of her right not to incriminate herself guaranteed by article 6 of the Convention (p. 391).


5. Section 172 applies only where the driver of a vehicle is alleged to have committed a relevant offence. Unlike the provisions considered in other cases reviewed by the court, section 172 has no wider regulatory, non-criminal purpose but exists only to assist the police to identify the driver of a vehicle at the time of an alleged offence (p.393). Both the Lord Justice General and Lord Marnoch in his additional observations paid close attention to, and were strongly influenced by, the decision of the European Court in Saunders v. United Kingdom (1996) 23 EHRR 313.


The decision of the High Court has been followed in England: in R. v. Chauhan and Hollingsworth (Birmingham Crown Court, unreported, 13 July 2000) admissions made under section 172 by two drivers on whom notice of intended prosecution had been served were excluded by the trial judge.


Section 172 of the Road Traffic Act 1988


So far as material, section 172 of the 1988 Act at the relevant time provided:


"(1) This section applies –

  • (a)to any offence under the preceding provisions of this Act except -

    • (i)an offence under Part V, or

    • (ii)an offence under section 13, 16, 51(2), 61(4), 67(9), 68(4), 96 or 120,

    and to an offence under section 178 of this Act,

  • (b)to any offence under sections 25, 26 or 27 of the Road Traffic Offenders Act 1988,

  • (c)to any offence against any other enactment relating to the use of vehicles on roads, except an offence under paragraph 8 of Schedule 1 to the Road Traffic (Driver Licensing and Information Systems) Act 1989, and

  • (d)to manslaughter, or in Scotland culpable homicide,...

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