O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT 34 DISSENTING OPINION OF JUDGE MYJER 1. I disagree with the opinion of the majority that there has been no violation of Article 6 § 1 of the Convention. 2. The dissenting opinion of Judge Pavlovschi contains many elements to which I fully subscribe. Even so, I have chosen to write my own dissenting opinion. This enables me to elaborate on points which are not mentioned in the dissenting opinion of Judge Pavlovschi. Besides, it saves me from indicating where I dissent from his dissent. 3. I take the Government’s point that the definition in criminal law of driving offences is intended to deter dangerous conduct that may well cause serious harm and even injury to members of the public, that deterrence depends on effective enforcement, and that the authorities should have the power to investigate and prosecute traffic offences effectively. And it is clear that this is the case in all Contracting States. But I also agree with the applicants that the serious problem caused by the misuse of motor vehicles is not sufficient to justify a system of compulsion which extinguishes the essence of the rights under Article 6. 4. Practice shows that in order to be able to investigate and prosecute traffic offences effectively without unduly limiting the rights of the defence, a number of Contracting States have used various legislative techniques avoiding the pitfalls in issue in the present case. They have, for example, chosen to draw adverse inferences from a failure to answer questions, or established a statutory but rebuttable presumption of fact that the registered owner of the motor vehicle was the driver in question (see, for instance, Falk v. the Netherlands (dec.), no. 66273/01, ECHR 2004-XI). The Government’s argument that “the very fact that other legislative techniques could bring about substantially the same result indicated that questions of proportionality – rather than the absolute nature of the rights suggested by the applicants in cases of direct compulsion – were at issue” (paragraph 39) is unconvincing. To put it plainly, if the desired result can be achieved by proceeding in a way that is both effective and right, then one should not choose a wrong way, however effective it may be. In my opinion the applicants were right in submitting that the United Kingdom has just chosen the wrong legal solution to deal with the problems caused by the misuse of motor vehicles. 5. Although this has not been expressly mentioned in the judgment, the majority find no violation because this case is about “implied consent”. In paragraph 57 of the judgment the majority – having quoted and endorsed the views of Lord Bingham in the case of Brown v. Stott – accept that “[t]hose who choose to keep and drive motor cars can be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor violations, and in the legal framework of the United Kingdom these responsibilities include the obligation, in the event of