CHILDREN AND SECURE ACCOMMODATION ORDERQ: A local authority is applying for a secure accommodation order under s.25 of the Children Act.

It maintains the child has had a history of experimenting with drugs, has attempted suicide in the past, and has also begun absconding from school.

At the hearing the local authority argue that the magistrates must make the order, as otherwise he is likely to abscond and suffer significant harm.

How can the Human Rights Act 1998 assist in resisting these arguments?A: Art.5 of the European Convention on Human Rights states that no one should be deprived of their liberty except in specified circumstances which are listed in art.5.

These circumstances relate mainly to criminal proceedings and health matters.

Art.5(1)(d) allows for the detention of children for the purposes of education supervision or bringing before a lawful authority.

The local authority may try and argue that detention is justified under s.5(d), relating to his failure to attend school.

However, unless the local authority can show detailed proposals to deal with the client's problems with attending school, detention will not be authorised (Bouaman v Belgium 1987).

There are real issues as to whether our law is precise enough in this context.Furthermore, issues arise under art.2, the right to life.

This article places on the state a positive duty to safeguard the lives of those within the jurisdiction.

The question is whether the court as public authority is obliged to make a secure accommodation order to protect the life of the child under art.2.The local authority might also try to claim that it is exercising art.8 rights, the right to family and private life, over the child in place of its parents.

There are complex arguments around this issue (see Nielson v Denmark 1998).ROAD TRAFFIC ACT 1988Q: S.172 of the Road Traffic Act 1988 requires the keeper of a vehicle to answer questions to identify the driver of the vehicle where the driver is suspected of being involved in a motoring offence.

Does this infringe art.6 of the European Convention on Human Rights, the right to a fair trial and the right to silence?A: The European Commission of Human Rights considered whether it was a breach of art.6 to require, with a penalty for failing to comply, an owner to name the driver in the case of Tora Tolmos v Spain (1995) - and said no.

The applicant, who had been fined for his refusal to identify the driver of his vehicle, argued a violation of art.6 on the basis that his right not to incriminate himself had been infringed.

The commission found there had been no violation of art.6.

See also the case of JP, KR, GH v Austria (app.

no 15135/89, 5 September 1989); see also the House of Lords decision in R v Hertfordshire County Council ex parte Green Environmental Industries (The Times, 22 February 2000) that considered the compulsory questioning powers granted by environmental protection legislation.However, the subsequent use by the prosecution of a compulsorily acquired answer, in a trial for an offence to which the answer incriminates the keeper, will breach the right to a fair trial.

The leading Strasbourg decision is Saunders v UK (1996, app.

no.

19187/91), which was followed recently in ILJ, GMR and AKP v UK (2000).This issue has recently been considered in Scotland by the Scottish High Court of Judiciary in Brown v PF Dunfermline which said both art.6 of the convention and the common law of Scotland and England establish the right to silence and the right not to incriminate oneself.

The use at trial of a self-incriminating answer to a compulsory question, given during the investigation stage, would have the effect of rendering useless the accused's right to remain silent.

Therefore, the verbal admission made in response to a s.172 request was held to be inadmissible in a trial on a charge of drink-driving.

The Privy Council heard a prosecution appea l against this decision on 6 November 2000, the outcome of which is awaited.In England the question was considered in the Birmingham Crown Court in July 2000, in the course of a ruling in a trial on a charge of dangerous driving.

It was held that answers given in response to s.172 notices, as to the identity of the drivers of cars that had been videotaped by the police, could not be admitted in the trial.

It is understood that the Crown Prosecution Service has not appealed against this ruling.Therefore as matters currently stand use of s.172 infringes admissions in subsequent proceedings and breaches art.6.

However, pending the outcome of the Brown case this position may change.DRIVING AND ASYLUMQ: I am a solicitor specialising in asylum work.

One of my clients recently passed his driving test and applied to the DVLA for a licence in order that he could take up work as a delivery driver.

The DVLA refused the application with a standard letter which says that his identity must be verified with a current passport, birth certificate, naturalisation papers or a Home Office travel document.

My client fled here without a passport and has no birth certificate.

The other documents will not be available until some time after his asylum application has been determined.A: Approximately a year ago the DVLA adopted a practice concerning the documents it would accept as evidence of identity for the purpose of processing photocard licence applications.

The most significant change was that standard acknowledgement letters issued to asylum seekers as evidence of identity would no longer be accepted.

This has had the obvious result that many asylum seekers, along with some recognised refugees and persons with exceptional leave to remain, have been prevented from driving.However, the decision to request documentation in order to verify an applicant's identity is a discretionary one under s.97 of the Road Traffic Act 1988.

It is unlawful to fetter such a discretion by adopting a rigid policy and refusing to consider exceptions.

Representations should be made to the DVLA enclosing as much documentation as possible confirming your client's identity.

You point out that the DVLA presumably satisfied itself of your client's identity when issuing a provisional licence.

Invite it to exercise its discretion and request reasons for any adverse decision.

If the DVLA again refuses a licence, its decision may well be open to challenge using judicial review proceedings, particularly as permission has recently been granted in a similar case.