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Comment by tehwalrus | Hacker News Reader

In the UK I believe the first letter goes to the "keeper" of the vehicle, called a NIP (notice of intended prosecution). The keeper of the vehicle is required by law to fill in the NIP (under pain of perjury) and return it telling the police who was driving. The police will then criminally prosecute the person on the form.

I never got a speeding ticket, but I looked this up here: http://www.nopenaltypoints.co.uk/dispute-speed-ticket-you-we...

It may well be wrong, but it sounds like what I'd expect in the UK.

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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.

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?

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.

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.

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_...

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.

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.

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.

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.

But the judge isn't free to make their own investigations, and the police are part of the prosecuting apparatus. So they evidence presented is biased, and the system is adversarial not inquisitorial.

Sneaky questions versus outright lying? From what I've read, that's common practice for US police officers in suspect interviews.

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?

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.

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...

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.

> Requiring people to answer questions truthfully is not unreasonable

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

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...

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.

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

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

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.

>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.

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

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).

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.

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.

...and people go to jail for lying about who was driving.

http://www.telegraph.co.uk/news/politics/liberaldemocrats/85...

I live in the UK, but never understood this. What if you really, genuinely don't know who was driving the car at the time? Can you give a list of people who could have been driving it, to the best of your knowledge? After all, it's the police's job to establish who committed the offence,not yours?

> After all, it's the police's job to establish who committed the offence,not yours?

The police's assumption is that as the car's owner you are responsible for its use, and have committed any offense involving it.

Well, then if you don't mind me saying so, it's a dumb assumption. If say....you have 4 children, all insured on your car, and all of them refuse using it at the time(or maybe they all say they have used it, and all have driven on the road in question, or maybe the case is now year old and no one remembers who was driving that day), then how could you possibly, in good faith, be hold liable for this?

The link upthread mentions this. You ask for the photo. If the photo doesn't answer the question you can say you don't know, and ask for further evidence.

> then how could you possibly, in good faith, be hold liable for this?

Because you're the person responsible for the vehicle. That's literally what "responsible" means. It's your job as a car owner to ensure situations like this, where you don't know who was driving, don't happen.

I think that's one thing that's different vs the US. It's not the car being charged but an individual. That's the article's point that in the US they can't arbitrarily decide that someone was responsible for a crime like that, it's a direct violation of our requirement of due process and other proceedings.

But I am not required by law to keep the record of every single person driving that car, am I? Like I said, I can, to my best effort, know that on the evening of day X, 3 people drove my car, because they were all running errands. I don't know the exact times when they were all using it, but I am happy to supply the list of names.

> But I am not required by law to keep the record of every single person driving that car, am I?

No, but if you do not it's on your head, you are personally responsible for the use of your motor vehicle.

it's reasonable to expect that a person know where their car is, but that does not amount to a legal requirement to do so, as you have admitted. In point of fact, you are not responsible for what other people do with your things. If you borrow a gun from me and shoot someone, I cannot be held liable for that shooting. Ownership may imply responsibility, but not liability.

If someone is killed by your gun and you don't tell who, you will be jailed at least.

This is not phrased such that it can be said to be true or false. Yes, accessory to murder is a felony itself. Accessory to speeding is not, and being ignorant of the crime is the opposite of accessory. Would you like to rephrase your objections?

Car is dangerous. It's easy to kill someone by accident using car, just by pressing accelerator pedal long enough. Just compare number of killed or injured by a car and by a weapon. Car is still the most dangerous thing we have: http://www.vpc.org/regulating-the-gun-industry/gun-deaths-co... .

Yeah, you left out a part of that.

"If you borrow a gun from me, and I don't know that you did, and you don't or won't tell me that you did... oh well. shrug" becomes your expectation of what should happen next.

"Oh sorry, you weren't driving your vehicle, and you have no idea who was, when it was involved in that accident. But you know it wasn't stolen. Guess there's nothing more we can do here, have a nice day."

You're arguing that because a gun or car is dangerous, ownership implies liability. There are few things which can be possessed which cannot be dangerous in the wrong hands, and a car is not actually intended for the purpose of murder, so one should probably not judge it by that standard. However, I did explicitly consider the case of an inherently dangerous object, so I cannot have left out that part as you suggest. I am really not sure what part of this concept you could possibly have an objection to. You know we're talking about a car, right, not a hydrogen bomb? Surely you can do better than that?

Your scenario seems a bit off. I imagine that if your kids did something stupid they should admit it - or they lose access to the car, period.

'A year old' case seems unlikely as well. I don't know about the UK laws, but over here most (all?) traffic violations expire after 3 month. There's no way to receive questions about a speeding ticket in the distant past..

Ok, if the "year ago" scenario is far fetched, then I'm not even going to pretend I can remember when I was on this day a month ago,much less where my car was and who was driving it. Like I said, I am not required by law to keep a record of every single person using my car with the times they used it, so how can the law require me to produce said information? If me + 4 other people are insured on a vehicle, that means that possibly, it could be one out of 5 people driving it on a given day. I have no idea which one it was. What then?

I can only state what the law requires here, in DE. It requires you to know that (but admittedly you're usually going to get a picture with the first request for information, so it's mostly a matter of "Hey Joe, you've got a new mugshot!" and passing it to the right one of five) and has ways to "motivate" you if you fail this in a harsh case or repeatedly.

Which is fair in my book: You own the car, you are responsible for it. You're not on the hook for offenses that you didn't cause. But you were careless with your car if nobody steps forward after an incident.

Are you suggesting collective punishment? How do you know who to revoke access to the car if they don't admit it?

Also how do they if they actually were the one that was speeding if more than one used the car on the same road.

Uhm. Yes. If I give access to 2.x tons of steel and someone abuses that, I'll revoke those privileges.

Collective punishment? You make it sound like Full Metal Jacket. I'd call it responsible behavior, protecting the person involved (unfit for driving if unable to admit errors) and myself (responsible for that heavy machine and the one whose trust was abused).

Obviously that doesn't apply to a random parking ticket or even a minor (slap on the wrist) speeding ticket. But accidents, running red lights, sever speeding? See above. Admit it or gtfo.

I really, really fail to see the reason for artificial "4 kids have access, they took turn driving and it was a year ago. What can these poor souls do?" arguments.

What is so hard about getting this, I really don't understand??

Wife takes car in the evening to do some shopping. She comes back, daughter takes the car to see some friends. They both drove on the same road. Month later, you get a letter saying that your car has been photographed doing 5mph over the limit on that day. The photo has a time stamp, but there's really no way to tell who was driving at that time, it could have been either your daughter or your wife.

What do you do? Do you pay the fine, knowing fully well that it wasn't you driving? Or do you tell your wife or daughter to take the points? At the same time, you are aware that naming the wrong person is actually a criminal offence, and since you are not 100% certain who was driving, how can you name anyone??

Why shouldn't you demand more evidence from the police? Why shouldn't you tell the police that you simply don't know and have no way of knowing who was using the car at the time? How can the police ticket anybody in this case, since they don't know who was driving?

I really, really fail to see why is it so hard to understand this. Actually, I bet this happens all the time, but people prefer to just pay the fine and be done with it, instead of fighting for their rights.

The red light cameras here now started adding a photo of the driver side window to clarify this concern.

Well, all over this subthread I'm comparing it to my local laws and procedures. My answers are to be read in that context.

Over here you get a picture showing license plate and driver for most offenses (obviously not for parking tickets etc). Pointing out that the picture shows your wife or your daughter should be a trivial exercise.

But I understand that this might not be the case in your jurisdiction. Now, I hope you do get some evidence. The license plate at least?

If the car you own, that you are responsible for, is caught speeding, then there's no way in hell that you can shrug and say "Well.. Could've been anyone, really. The keys usually are in the lock, anyone could be the driver". That excuse seems mind-blowingly easy to exploit. Sure - you might not know who drove the car. In my world, that should have consequences for you, the owner (over here it's on a case by case basis, not a strict consequence).

My understanding so far is that someone wants to weasel out of that responsibility by paying a lawyer.. or teaching law. "If you cannot tell who drove it's your problem" is a crappy answer imo, because that can only lead to more surveillance. And there lies my problem, my issue.

The only weaseling here is by the entity that would levy a fine/penalty without presenting sufficient evidence. Moreover, it is or should be a natural right for the accused to confront their accusers. Both of these important ideas are trampled if you accept violations issued by a machine.

Old, old news, but still funny IMHO:

http://arbroath.blogspot.it/2008/10/german-police-seek-speed...

Shouldn't they need something more solid than an assumption to hit you with legal penalties?

> A person shall not be guilty of an offence ... if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.

So yes, if you only had a list of names and couldn't do anything else, you could hand that over. The police could then require information from each of those people in the same way.

Germany handles this somewhat similar (the owner is supposed to know who's driving). It is possible to claim 'I have no idea', but the court is able to respond with 'Well, from now on you're documenting every single ride with your car for quite a while'. That means that every driver of this car now is required to document

- the current date

- the time you start the ride

- the license plate number

- the name of the driver

and immediately after finishing the ride

- the end of the ride

- the driver's signature

I personally would like to avoid that..

I think this is quite a good example of why protections like the 5th amendment are important.

A person might be tempted - in such a case - to confess to the crime and take the fine simply in order to avoid getting entangled in a bureaucratic nightmare. And because of that the state is encouraged to threaten bureaucratic nightmare in order to elicit a confession.

Isn't this exactly the situation that protections against self-incrimination are designed to avoid?

I'm confused. But then again, I know little/none about US laws. My naive understanding of the 5th is that you can remain quiet if you'd otherwise have to point at yourself (or your family?). If your coworker is the offender, can you plead the 5th?

If that's close enough: How is that a problem? Yes, people over here might just pay the fine (which is completely legal for a lot of cases: In all cases where the state doesn't care about the offender's identity).

But if the 5th only means that you're allowed to protect yourself (and yours), isn't it correct to pay? I currently parse your comment as "Wouldn't the people pay up if they are guilty in the first place?".

Not my native language.

If you are suspected of doing something illegal (speeding) because your car was photographed using photo radar, I'm reasonably sure the 5th amendment applies to the police or prosecutor asking you to answer any questions about that accusation.

The answer could be "X person borrowed my car", which isn't, itself necessarily covered, however the answer could be "I was driving my car at that time", which is definitely covered by the 5th amendment. Since one of the possible truthful responses counts as testimony against yourself, you don't have to answer the question at all, otherwise non-answers could be seen as implicit confessions.

There is a statutory defence if you can't identify the driver "using reasonable diligence", but it's a very tough sell. It's certainly not as simple as "Well it could have been me or my wife, but neither of us can remember which." - you'd have to be able to demonstrate what attempts you had made to identify the driver and why these had all been unsuccessful. You are expected to know who is driving your car at a given time.

There was a case which was successfully defended, where the defendant asserted that the "reasonable diligence" requirement only applied after the request was received, and that there was no such requirement for you to retrospectively exercise such diligence. In other words, you must do everything you can to find out who was driving when you receive the notice, but that doesn't mean you have an obligation to keep records of who was driving in anticipation of such a request.

Interestingly that can also be used the other way in places with "point system" licenses (assuming the driver's face is not visible or it was a backside camera), some people will pay their ticket but (after having arranged it) "rat on" someone else who'll get their points docked.

The photographs literally don't matter. As long as the form has a name on it, and the fine is paid, it's not like they're going to look at the photo and do a match against the identified driver.

That's not the case in the UK where taking someone else's points is perjury and results in fines or jail time.

And the purpose of points systems is to cap out the number of infractions[0] a driver can perform regardless of their wealth. If you can shift the points loss, they can not fulfil their purpose.

[0] for infractions which are all short of an immediate license loss

But do they verify photos against claims? I'm certain they don't here in Australia (at least not 100%), because .. others .. have done this very thing when they were younger.

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