30 O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT – DISSENTING OPINION OF JUDGE PAVLOVSCHI In sum, the evidence available to the Court supports the claim that the transcripts of the applicant’s answers, whether directly self-incriminating or not, were used in the course of the proceedings in a manner which sought to incriminate the applicant.” (emphasis added) (§ 72) So, from this authority we are entitled to draw the conclusion that evidence supplied by a defendant and used or intended to be used in order to establish his or her guilt in committing a criminal act can be considered as “self-incriminating”. I agree with the applicants’ argument that they were required to submit crucial information which would result in their conviction of the charges laid against them. It is perfectly obvious that for an individual to state that he was the driver of a car which was speeding illegally is tantamount to a confession that he was in breach of the speed regulations. Accordingly, the applicants were compelled by the authorities of the respondent State to commit an act of “self-incrimination”. With reference to the “degree of compulsion”, I would like to draw readers’ attention to the fact that the punishment laid down by the United Kingdom legislation for failure to disclose information about a person alleged to have committed a criminal offence is equal to the punishment laid down for the criminal offence itself. I find this “degree of compulsion” disproportionately high. In my view, in the particular circumstances of this case, compelling an accused to provide self-incriminating evidence contrary to his will under the threat of criminal prosecution amounts to a kind of compulsion which runs counter to the notion of a fair trial and, accordingly, is incompatible with the Convention standards. Coming back to the applicants, I feel it necessary to mention the following considerations. As far as Mr O’Halloran is concerned, I would ask two questions: firstly, was a traffic offence committed and secondly, was that offence committed by Mr O’Halloran? While the prosecuting authorities did have evidence concerning his speeding car and – accordingly – concerning an offence that had been committed, the issue of Mr O’Halloran’s role as defendant is not that simple. The Government failed to submit any other proof relating to the defendant apart from Mr O’Halloran’s own statements. It is clear from the judgment (see paragraph 57) that these statements were obtained by the prosecuting authority under compulsion of “a direct nature” – the threat of criminal punishment – and that it intended to and indeed did use them in order to prove the applicant’s guilt. It is also obvious that the prosecution did not have any other evidence against the applicant as a defendant and that without his confession there would have been no conviction.