Report and Recommendations - Scottish Government

at the whole circumstances of the case. As recently as 2007, a decision of thePrivy Council to this effect had been endorsed by the European Court in acase 42 involving the requirement upon a registered keeper in England todisclose the name of the driver of his car under the Road Traffic legislation.This had followed an identical Privy Council decision on the samerequirement in Scotland 43 . The European Court rejected the submission thatthe right to remain silent and the privilege not to incriminate oneself wereabsolute rights. It said 44 :“... While the right to a fair trial under Article 6 is an unqualified right,what constitutes a fair trial cannot be the subject of a single unvaryingrule but must depend on the circumstances of the particular case. Thiswas confirmed in the specific context of the right to remain silent inthe case of Heaney and McGuinness 45 and, more recently, in theCourt's Jalloh judgment 46 , in which the Court identified the factors towhich it would have regard in determining whether the applicant'sprivilege against self-incrimination had been violated.In the light of the principles contained in its Jalloh judgment, and inorder to determine whether the essence of the applicants' right toremain silent and privilege against self-incrimination was infringed,the Court will focus on the nature and degree of compulsion used toobtain the evidence, the existence of any relevant safeguards in theprocedure, and the use to which any material so obtained was put”.2.0.33 The Lord Justice General (Hamilton) relied upon this dicta in his opinion inMcLean and went on to say 47 :42 O’Halloran and Francis v United Kingdom (2008) 46 EHRR 2143 i.e. in Brown v Stott 2001 SC (PC) 43, on which Lord Hope sat, reversing the High Court chaired bythe LJG (Rodger) 2000 JC 32844 see O’Halloran (supra) at paras 53 and 5545 Heaney and McGuiness v Ireland (2001) 33 EHRR 1246 Jalloh v Germany (2007) 44 EHRR 3247 para 2640