High Court confirms the right to remain silent

NEWS

Covid regulations accused had right of silence

On 23rd of April 2020, Keith Neale was arrested for refusing to give his name and address to the police so that they could issue a Fixed Penalty Notice (FNP). He was sitting on a bench waiting for the car to have an MOT test. He was later on prosecuted under the Health Protection (Coronavirus Restrictions) Wales Regulations 2020 for leaving home without a reasonable excuse and obstructing the police by refusing to give his name and address.

On the 25th of August, Newport Magistrates' Court convicted him of obstructing a police constable as they considered that otherwise "the regulations would be rendered inoperable."

First of all, this cannot be the way in which "justice" is carried out. If the regulations are nonsensical and therefore "inoperable", perhaps they should be re-thought, but convicting a man so that the regulations make sense, it's completely outrageous.

Secondly, and this will be argued by the High Court in the appeal, where there is no express obligation to do something, one cannot be charged for willfuly refusing to do so. Therefore, where there is no obligation neither in the regulations nor in common law to provide personal information, there can be no crime nor offence in not doing so.

Judges at Cardiff Crown Court held on the 21st of February 2021 that justices at Newport Magistrates' Court wrongly distinguished Neale's case from Rice v Connolly as there was no legal duty to answer questions.  

"There is no general common law duty to assist the police by answering questions and a person cannot be guilty of wilfully obstructing a police officer by declining to do so where there is no specific legal duty. The absence of an express obligation to give a name and address in the Coronavirus Regulations powerfully demonstrates that it does not exist."

The High Court also stated that "the right to remain silent is a particularly important part of our law. In addition, an obligation to give a name and address to the police would engage Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights."

What this case tells us is (1) that common law is in full force in High Court; (2) that regulations do not surpass the law of the land but the opposite, they are subject to the law; (3) if the regulations are unenforeable and trump the law, do they hold any validity? But more importantly, what else is unenforceable?

People may be arrested by chosing to excercise their right to remain silent when a police officer wants to issue a FPN, but seeing as these rules and regulations are every time more orwellian, perhaps it is starting to be a duty to hold one's position in resisting tyranny and stop looking the other way. We already saw in this case of a man arrested for not wearing a mask the prevalence of the common law right to remain silent, and now this High Court decision has just confirmed it.