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...
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.
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
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.
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.
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"
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.
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?
It is only one short clause amongst several others in the 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.
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.
Sneaky questions versus outright lying? From what I've read, that's common practice for US police officers in suspect interviews.
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.
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...
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.
How do you determine whether they're answering questions truthfully or not?