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I wonder how that works in the UK - the 5th amendment is just another version of the same law in England, triggered by the abuses at the same English court, Sta

I wonder how that works in the UK - the 5th amendment is just another version of the same law in England, triggered by the abuses at the same English court, Star Chamber. According to Lord Mustill: "A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies." Which seems eminently applicable. Has the camera law been challenged in this way in British courts? https://en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales https://en.wikipedia.org/wiki/Right_to_silence_in_England_an...

Lukasa 10y ago
That's not how the Westminster system works. Parliament has the right to legislate more or less as it pleases, and is not bound by any superior authority, including the courts. The courts in the U.K. cannot strike down Acts of Parliament. In this case, there is an Act of Parliament (Section 172 of the Road Traffic Act 1988, as amended by Section 21 of the Road Traffic Act 1991) that makes it an offence to withhold this information. That is the end of the story: Parliament has said it, therefore it is so. (Note that in the U.K. there is currently a way out: the ECHR. I don't think they cover the right to not self-incriminate, but if they do that would be a possible challenge.) Remember: in the U.K., Parliament governs by wielding the power of the monarch. That power is formally unbounded and absolute.
- Y_Y 10y ago
  This may not be quite the case, see https://en.m.wikipedia.org/wiki/Thoburn_v_Sunderland_City_Council https://en.m.wikipedia.org/wiki/Thoburn_v_Sunderland_City_Co... .
  - Lukasa 10y ago
    I Am Not A Legal Scholar, but: It is not clear to me that any of the constitutional documents in the UK enshrine a right to silence. The Right to Silence in the U.K. is generally built up on common law, not statue. Every essay I have ever found on this topic refers to the right to silence in the UK as predicated on common law, not on statute, let alone on a critical constitutional document that would require explicit repeal. So yes, Parliament cannot implicitly repeal some documents. But I don't think that the Right to Silence is in any of those. Of course, citations to the contrary would be welcome! EDIT: And in fact the law has been challenged, all the way to the ECHR. The challenge failed: https://www.theguardian.com/uk/2007/jun/29/transport.eu https://www.theguardian.com/uk/2007/jun/29/transport.eu
- d_theorist 10y ago
  While I think your general point is probably right, I don't agree with your last point that 'Parliament governs by wielding the power of the monarch". That - to my understanding - is backwards. The power of the monarch is subordinated under Parliament. Parliamentary sovereignty is inherent, not derived from the crown. HMG - not parliament - exercises the royal prerogative (those powers retained by the Crown) on behalf of the monarch.
  - unabridged 10y ago
    >The power of the monarch is subordinated under Parliament. In reality, yes. But technically the monarch can veto any Act of Parliament and appoint anyone as PM, though this would last about a day until there was a 'revolution' and the monarch was formally stripped of power.
- vilhelm_s 10y ago
  While the UK has parliamentary sovereignty, the UK is also party to the European Convention of Human Rights, which (via the Human Rights Act) takes precedence over any other law (unless a law is passed that explicitly repeals the Human Rights Act). And indeed, in 2007 someone appealed a camera speeding ticket all the way to the European Court of Human Rights, saying that this system violates the right to remain silent! Unfortunately, the court rejected the argument. "On the one hand, it was self-evident that it was incompatible with the immunities to base a conviction solely or mainly on the accused's silence or on a refusal to answer questions or to give evidence himself. On the other hand, the immunities could and should not prevent the accused's silence from being taken into account in situations which clearly called for an explanation. The conclusion was that the 'right to remain silent' was not absolute" http://thenewspaper.com/news/18/1832.asp http://thenewspaper.com/news/18/1832.asp
izacus 10y ago
I can't tell how that works in UK, but here (another EU country), such law is avoided by a different status of the traffic offenses. The full protections of the legal are awarded to the criminal punishments, but traffic/parking tickets aren't subject to some of the legal protections (like a trial, required witnesses). This allows them to have inverted burden of proof (we've seen your car do the traffic offence, so now you have to pay the fine or point at the actual driver at that time).
- TheGrumpyBrit 10y ago
  Indeed. There are actually two offences one could commit in such a case: The underlying offence (say, speeding) and failing to provide information requested under S.172 of the Road Traffic Act. The two offences are unrelated in law, being committed at entirely different times (the s.172 offence is committed 30 days after you receive the notice requesting the information) and possibly by different people. Failure to respond to the request will often lead to a summons to court for both offences, although a successful prosecution for the underlying offence is fairly unlikely as the prosecution will usually be unable to prove who was driving. Additionally, the penalty for failure to provide information is higher than most standard traffic offences, partly as a deterrent and partly to avoid refusing to identify the driver from being the "better" option in all but the worst of circumstances. There was a loophole for a while whereby you could return the form, correctly filled in but not signed, meaning that you have provided the information, but it is not admissible as evidence in court. This is currently still effective in Scotland. In England, case law has been established such that the form is not valid unless signed, and would usually result in the police placing the defendant firmly in the "smartass" pile and proceeding with a prosecution for failing to provide information. Just lately, police have been increasingly taking the more pragmatic approach of calling the motorists bluff in cases where he nominates himself and the case can be dealt with by way of a training course or a simple fixed penalty. They will often now offer the course or the penalty, and still charge for both offences if the driver elects for the case to progress to court.

Lukasa 10y ago

That's not how the Westminster system works. Parliament has the right to legislate more or less as it pleases, and is not bound by any superior authority, including the courts. The courts in the U.K. cannot strike down Acts of Parliament. In this case, there is an Act of Parliament (Section 172 of the Road Traffic Act 1988, as amended by Section 21 of the Road Traffic Act 1991) that makes it an offence to withhold this information. That is the end of the story: Parliament has said it, therefore it is so. (Note that in the U.K. there is currently a way out: the ECHR. I don't think they cover the right to not self-incriminate, but if they do that would be a possible challenge.) Remember: in the U.K., Parliament governs by wielding the power of the monarch. That power is formally unbounded and absolute.

Y_Y 10y ago
This may not be quite the case, see https://en.m.wikipedia.org/wiki/Thoburn_v_Sunderland_City_Council https://en.m.wikipedia.org/wiki/Thoburn_v_Sunderland_City_Co... .
- Lukasa 10y ago
  I Am Not A Legal Scholar, but: It is not clear to me that any of the constitutional documents in the UK enshrine a right to silence. The Right to Silence in the U.K. is generally built up on common law, not statue. Every essay I have ever found on this topic refers to the right to silence in the UK as predicated on common law, not on statute, let alone on a critical constitutional document that would require explicit repeal. So yes, Parliament cannot implicitly repeal some documents. But I don't think that the Right to Silence is in any of those. Of course, citations to the contrary would be welcome! EDIT: And in fact the law has been challenged, all the way to the ECHR. The challenge failed: https://www.theguardian.com/uk/2007/jun/29/transport.eu https://www.theguardian.com/uk/2007/jun/29/transport.eu
d_theorist 10y ago
While I think your general point is probably right, I don't agree with your last point that 'Parliament governs by wielding the power of the monarch". That - to my understanding - is backwards. The power of the monarch is subordinated under Parliament. Parliamentary sovereignty is inherent, not derived from the crown. HMG - not parliament - exercises the royal prerogative (those powers retained by the Crown) on behalf of the monarch.
- unabridged 10y ago
  >The power of the monarch is subordinated under Parliament. In reality, yes. But technically the monarch can veto any Act of Parliament and appoint anyone as PM, though this would last about a day until there was a 'revolution' and the monarch was formally stripped of power.
vilhelm_s 10y ago
While the UK has parliamentary sovereignty, the UK is also party to the European Convention of Human Rights, which (via the Human Rights Act) takes precedence over any other law (unless a law is passed that explicitly repeals the Human Rights Act). And indeed, in 2007 someone appealed a camera speeding ticket all the way to the European Court of Human Rights, saying that this system violates the right to remain silent! Unfortunately, the court rejected the argument. "On the one hand, it was self-evident that it was incompatible with the immunities to base a conviction solely or mainly on the accused's silence or on a refusal to answer questions or to give evidence himself. On the other hand, the immunities could and should not prevent the accused's silence from being taken into account in situations which clearly called for an explanation. The conclusion was that the 'right to remain silent' was not absolute" http://thenewspaper.com/news/18/1832.asp http://thenewspaper.com/news/18/1832.asp

izacus 10y ago

I can't tell how that works in UK, but here (another EU country), such law is avoided by a different status of the traffic offenses. The full protections of the legal are awarded to the criminal punishments, but traffic/parking tickets aren't subject to some of the legal protections (like a trial, required witnesses). This allows them to have inverted burden of proof (we've seen your car do the traffic offence, so now you have to pay the fine or point at the actual driver at that time).

TheGrumpyBrit 10y ago
Indeed. There are actually two offences one could commit in such a case: The underlying offence (say, speeding) and failing to provide information requested under S.172 of the Road Traffic Act. The two offences are unrelated in law, being committed at entirely different times (the s.172 offence is committed 30 days after you receive the notice requesting the information) and possibly by different people. Failure to respond to the request will often lead to a summons to court for both offences, although a successful prosecution for the underlying offence is fairly unlikely as the prosecution will usually be unable to prove who was driving. Additionally, the penalty for failure to provide information is higher than most standard traffic offences, partly as a deterrent and partly to avoid refusing to identify the driver from being the "better" option in all but the worst of circumstances. There was a loophole for a while whereby you could return the form, correctly filled in but not signed, meaning that you have provided the information, but it is not admissible as evidence in court. This is currently still effective in Scotland. In England, case law has been established such that the form is not valid unless signed, and would usually result in the police placing the defendant firmly in the "smartass" pile and proceeding with a prosecution for failing to provide information. Just lately, police have been increasingly taking the more pragmatic approach of calling the motorists bluff in cases where he nominates himself and the case can be dealt with by way of a training course or a simple fixed penalty. They will often now offer the course or the penalty, and still charge for both offences if the driver elects for the case to progress to court.