Self-Incrimination Goes to Strasbourg: O'Halloran and Francis v United Kingdom
| DOI | 10.1350/ijep.2008.12.1.287 |
| Date | 01 January 2008 |
| Author | Malcolm Birdling |
| Published date | 01 January 2008 |
| Subject Matter | Article |
CASE NOTE
SELF-INCRIMINATION GOES TO STRASBOURG
Self-incrimination goes to Strasbourg:
O’Halloran and Francis vUnited
Kingdom
By Malcolm Birdling*
Barrister and Solicitor of the High Court of New Zealand;
St Catherine’s College, Oxford
he Grand Chamber of the European Court of Human Rights (ECtHR)
recently, in the case of O’Halloran and Francis vUnited Kingdom,1recon-
sidered its position on the scope of the privilege against self-incrimi-
nation, an implied right under Article 6 of the European Convention on Human
Rights (ECHR). Its decision is notable in that it resolves an apparent discrepancy
between the ECtHR and the UK courts on the matter and, in so doing, signals some
significant changes in the ECtHR’s approach to Article 6 generally.
The UK courts had previously considered the consistency of the statute in
question, the Road Traffic Act 1988, with the ECHR in Brown vStott,2with the Privy
Council concluding that ‘the high incidence of death and injury on the roads
caused by the misuse of motor vehicles’ was a sufficiently serious problem to
justify some incursion on Article 6 rights. The Privy Council’s decision essentially
endorsed a ‘balancing’ approach, with the key question being whether any
incursion on Convention rights resulted in a ‘disproportionate response’ to the
social problem of dangerous driving. This test, which resulted in the impugned
statute being held to be Convention-consistent, appeared to be inconsistent with
prior Strasbourg jurisprudence, which had taken a more absolutist stance towards
the privilege against self-incrimination, holding that neither the difficulties posed
by terrorism (Heaney and McGuinness vIreland3) or in investigating complex fraud
(Saunders vUnited Kingdom4) could justify incursions on the ‘very essence’ of the
right. As such, the decision of the ECtHR in the instant case to reject, by a majority
of 15:2, an almost identical challenge to the same statute is of considerable
DOI:1350/ijep.2008.12.1.287
58 (2008) 12 E&P 58–63 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
1Application Nos 15809/02 and 25624/02, 29 June 2007.
2[2003] 1 AC 681.
3(2001) 33 EHRR 264.
4(1996) 23 EHRR 31.
T
*Email: malcolm.birdling@law.ox.ac.uk.
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