[rachbowyer]

Yes, this is how it works in the UK. Basically you have to shop yourself, or if you were not the driver then the person who was driving, to the authorities. If you don't, then you have committed an offence. Presumably this approach does not work in the US due to the 5th amendment. And from the article it looks like other approaches that are being tried in the US are also unconstitutional.

[jakewins]

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_an...

[Lukasa]

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.

[vilhelm_s]

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

[d_theorist]

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]

>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.

[Y_Y]

This may not be quite the case, see https://en.m.wikipedia.org/wiki/Thoburn_v_Sunderland_City_Co... .

[Lukasa]

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

[izacus]

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]

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.

[tehwalrus]

TBH, I prefer not to give them an incentive to the photos of people's faces at the same time as the license plates.

Requiring people to answer questions truthfully is not unreasonable, I never quite understood the basis for the 5th amendment. Was it because of some British colonial atrocity?

[jakewins]

It was indeed because of the British - the fifth amendment was meant to keep US courts from using the inquisitorial method, rather than the prosecutorial, triggered by the abuses at https://en.wikipedia.org/wiki/Star_Chamber#Influence_on_the_...

[tehwalrus]

Does the USA justice system use inquisitorial prosecution? From what I've heard about that kind of court in Germany, the USA is very far from that kind of non-adversarial proceeding.

[jakewins]

The 5th amendment specifically allows it for military trials, but for civilian trials, no, it's made impossible outside of cases where the defendant agrees to it by the 5th amendment.

Presumably, this is a big part of why Bush was so keen to relabel what had previously been considered civilian terrorists as military combatants, since the fifth amendment then apparently stops applying.

[jessriedel]

I don't understand the connection you're drawing between the 5th amendment and inquisitorial systems (which I understand to be jusics systems which do not separate the judgers of law (neutral) from fact gatherers (prosecutor)). The original comment above was about the no-self-incrination clause, and now you seem to say there's a tension with the grand juries clause. But I can't see how either conflicts with an iquisiorial system in principle (even if inquisitorial systems generally don't have grand juries in practice). Could you explain?

[jakewins]

I'm getting way out of my depth here. My understanding has been, and seems to be corroborated by the Wikipedia article above, that the fifth amendments no-self-incrimination clause is usually interpreted in the context of an inquisitorial system - specifically the way the inquisitorial method was applied at Star Chamber.

IANAL, but the way I understand it is something like: You are a court, and you're trying to determine how the 5th amendment applies in some tricky case. The text itself might be ambiguous or unspecific in your case.

One way to approach that ambiguity is to look at the history of the amendment - why was it written, and given that, what is the most likely intended way to read it?

For the 5th amendment, the context is that the Court of Star Chamber used the inquisitive method, combining the search for truth with the force a court is able to apply to a defendant. In doing so, the Court of Star Chamber highlighted a flaw in the inquisitive method: Combining the right to apply force to its subjects with the job of determining truth created incentive for extensive abuse, as the court forced false testimonies out of its subjects.

Hence, the 5th amendments no-self-incrimination clause can be interpreted to exist to weaken the inquisitorial method in US courts, reinforcing the US commitment to an adversarial system instead.

[tehwalrus]

But the police practice of collecting evidence (e.g. tricking people into giving confessions) seems completely at odds with their neutral investigator role inquisitorial justice.

[jakewins]

The judicial branch is meant to be neutral judges - but police and prosecutors are not part of the judicial branch. In the case of prosecutors, their job is explicitly to not be neutral.

However, the 5th amendment applies there as well - they can't force you to self-incriminate, you are free to remain silent in police interrogation. However, there's nothing in the 5th amendment saying the police or courts can't ask clever questions - if you incriminate yourself because a police asked a sneaky question in interrogation, that's on you.

[jaggederest]

Well, the fifth element as a whole has a number of provisions. The popular clause against self-incrimination is but one of them.

It's mostly to prevent the incentive to apply pressure to the citizenry via torture or harassment. (Parenthetically, we just harass witnesses instead now)

"The history of this clause is interesting. In England, it was permissible at one point to force a confession, and this at times included torture. Our founders realized this was wrong, and so they added this clause." http://libertyfirstfl.org/2013/06/why-do-we-have-the-fifth-a...

[ckinnan]

The government, in bringing a charge, has the duty to make the case....the right to not self-incriminate flows from the presumption of innocence and protection against being coerced into a false confession or into perjury.

[davidwihl]

Precisely. The key short phrase is "nor shall be compelled in any criminal case to be a witness against himself"

It is only one short clause amongst several others in the amendment.

[int_19h]

> Requiring people to answer questions truthfully is not unreasonable

How do you determine whether they're answering questions truthfully or not?

[cobbzilla]

here is great video explaining the importance of 5th amendment rights: https://youtu.be/L-WlZ7Sa0SQ

there's also a longer 2-part video of the entire talk including a complementary perspective from the police POV. look in the related videos/sidebar.

[revelation]

This is not a 5th amendment issue as much as not submitting your taxes is. You can do that and not be prosecuted under the original traffic offence but failing to keep track of who's driving is simply another offence.