O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT – DISSENTING OPINION OF JUDGE PAVLOVSCHI 31 In Saunders, the Court ruled that it must be determined whether the applicant had been subjected to compulsion to give evidence and whether the use made of the resulting testimony at his trial offended the basic principles of a fair procedure inherent in Article 6 § 1, of which the right not to incriminate oneself is a constituent element. In the instant case, my answer to both these questions is in the affirmative. Yes, Mr O’Halloran was subjected to compulsion to give evidence and yes, the use made of this evidence did offend the principles of fundamental justice, including the basic principles of a fair trial. Where Mr Francis is concerned the situation is slightly different. Unlike the first applicant, he chose to make use of his right not to incriminate himself and refused to provide information. As a result, he was punished for his refusal to give self-incriminating evidence. Put more simply – he was punished for making use of his fundamental right not to incriminate himself. Despite this difference, I consider that the overall approach should be similar to that taken with regard to the first applicant. In seeking to explain the deviation from the general principles established by the Court in its previous case-law the Government argued, inter alia, that the power under section 172 to obtain an answer to the question who was driving a car when a suspected motoring offence was committed and to use that answer as evidence in a prosecution or, alternatively, to prosecute a person who failed to provide information, was compatible with Article 6. In their view, there were very good reasons why the owner should be required to identify the driver: the punishment of driving offences was intended to deter drivers from dangerous conduct which caused risk to the public; deterrence depended on effective enforcement; there was no obvious generally effective alternative to the power contained in section 172; and without such a power it would be impossible to investigate and prosecute traffic offences effectively (see paragraph 38 of the judgment). In my view, this argument is clearly based on policy considerations. This runs counter to the above-mentioned case-law, according to which “... the security and public-order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants’ rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention.” (see Heaney and McGuinness, cited above, § 58) Given that, in Jalloh, the Court expressly found that the requirements of fairness applied equally to all types of criminal proceedings, it is very difficult for me to accept that the United Kingdom legislation permits deviation from the basic principles of a fair trial for minor offences which do not present any particularly serious threat to society. Furthermore, if we accept policy reasons as a valid ground for violation of the prohibition of compulsory self-incrimination or the presumption of innocence for offences which present a minor danger, why not accept the same approach to areas of