O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT – DISSENTING OPINION OF JUDGE MYJER 35 suspected commission of road-traffic offences, to inform the authorities of the identity of the driver on that occasion.” I do not agree with that view. Our own case-law makes it very clear that some rights under Article 6 can indeed be waived, provided that this is done unambiguously and in an unequivocal manner. But I sincerely doubt whether the majority accept the corollary which is unavoidable if the judgment in the present case is to be consistent with that case-law: under the British system, when it comes to the identity of the driver of a car, all those who own or drive cars are automatically presumed to have given up unambiguously and unequivocally the right to remain silent. Just to make this point clear: I accept that the driver of a car may be obliged to carry his driving licence with him and to surrender it to a police officer immediately when so requested, and also that the failure to do so may in itself be an offence. But, to use another phrase from the Court’s case-law (see Saunders v. the United Kingdom, 17 December 1996, Reports of Judgments and Decisions 1996-VI), a driving licence has “an existence independent of the will” of the driver concerned. The licence may be read but the lips of the owner may remain sealed. In the criminal context the use of the right to remain silent should not be an offence in itself. 6. In quoting and endorsing the views of Lord Bingham, the majority in fact also seem to play the “public interest” card in the form of a rather tricky new criterion which was first stated in § 117 (but not in § 101) of Jalloh v. Germany (no. 54810/00, ECHR 2006-IX) in order to determine whether the right not to incriminate oneself has been violated: “the weight of the public interest in the investigation and punishment of the offence in issue.” This is, moreover, a new criterion which is incompatible with the established caselaw that the use of incriminating statements obtained from the accused under compulsion in such a way as to extinguish the very essence of the right to remain silent cannot in principle be justified by reference to the public interest served. Surprisingly, however, paragraph 55, which sets out the criteria on which the Court bases its examination “[i]n the light of the principles contained in its Jalloh judgment, and in order to determine whether the essence of the applicant’s right to remain silent and privilege against self-incrimination was infringed”, makes no mention of the public interest criterion: it only mentions the other Jalloh criteria (the nature and degree of compulsion used to obtain the evidence; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained was put). 7. I accept that, having regard especially to this new Jalloh criterion, the present judgment might be considered as a legal continuum to that judgment. However, in my opinion, today’s judgment also shows what may happen if “the weight of the public interest” is allowed to play a role in deciding whether or not the right to remain silent should be upheld.