CEDH · CASELAW;REPORTS;ENG — 16 octobre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 22613/93                             James Moody                               against                         the United Kingdom                      REPORT OF THE COMMISSION                    (adopted on 16 October 1996)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-24) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-18). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 19-24). . . . . . . . . . . . . . . . . . .5   III. OPINION OF THE COMMISSION      (paras. 25-48) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaints declared admissible           (para. 25). . . . . . . . . . . . . . . . . . . . .6        B.    Points at issue           (para. 26). . . . . . . . . . . . . . . . . . . . .6        C.    As regards Article 6 para. 2 of the Convention           (paras. 27-36). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 37). . . . . . . . . . . . . . . . . . . . .8        D.    As regards Article 6 para. 1 of the Convention           (paras. 38-40). . . . . . . . . . . . . . . . . . .8             CONCLUSION           (para. 41). . . . . . . . . . . . . . . . . . . . .8        E.    As regards Article 10 of the Convention           (paras. 42-44). . . . . . . . . . . . . . . . . . .9             CONCLUSION           (para. 45). . . . . . . . . . . . . . . . . . . . .9        F.    Recapitulation           (paras. 46-48). . . . . . . . . . . . . . . . . . .9   DISSENTING OPINION OF Mrs. J. LIDDY, JOINED BY Mr. I. BÉKÉS   . . . . . . . . . . . . . . . . . . . . . . . 10   APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 11   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a United Kingdom citizen, born in 1958 and resident in London.   He was represented before the Commission by Messrs. Wilson Barca, solicitors, of London.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by Mr. Martin Eaton, of the Foreign and Commonwealth Office, London.   4.    The case concerns a refusal by the judge at the applicant's trial to make an order for costs after the applicant had been acquitted.   The applicant invokes Articles 6 and 10 of the Convention.   B.    The proceedings   5.    The application was introduced on 12 July 1993 and registered on 13 September 1993.   6.    On 6 April 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 29 July 1994 after an extension of the time-limit fixed for this purpose.   The applicant replied on 7 October 1994 after an extension of the time- limit.   On 6 September 1994, the Commission granted the applicant legal aid for the representation of his case.   8.    On 11 January 1995 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 26 January 1995 and they were invited to submit such further information or observations on the merits as they wished.   No such observations were submitted.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                B. MARXER                G.B. REFFI                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ   12.   The text of this Report was adopted on 16 October 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   16.   On 7 May 1992 police officers seized a quantity of magazines and some videos from the bookshop where the applicant works.   He was subsequently charged with nine counts of having had an obscene article for publication for gain, contrary to Section 2(1) of the Obscene Publications Act 1959 (as amended).   17.   The applicant was tried on 29 and 30 June 1993 before a judge (Mr. Assistant Recorder Crowther, "the Recorder") and a jury.   The defence argued that the magazines and videos were not obscene, and that in any event the prosecution had not proved that the applicant was in control of the articles, as he was not in the shop at the time of his arrest.   The jury acquitted the applicant on each count.   18.   The applicant's counsel applied to the Recorder for a defendant's costs order pursuant to the Prosecution of Offenders Act 1985.   Aware that the same Recorder had previously refused such an application without giving reasons, counsel addressed the Recorder at some length on the domestic law.   The following exchange took place between Mr. Salter, the applicant's barrister, and the Recorder:        "The Recorder:   Of course, you and I have no means of knowing,      nor can we find out, whether the jury acquitted on the basis that      the police had not let him get into the shop to be in control or      whether they acquitted on the basis that these matters are not      obscene.   That is a matter we cannot go into.        Mr. Salter:   We cannot go into it and I am sure you will give the      defendant the benefit of the doubt.   The point is, how technical      does a technicality have to be before a defendant is disallowed      his costs?      ...        In this case the jury have made findings of fact favourable to      the defendant having heard the evidence of the prosecution.      Clearly, your Honour, it would be highly inappropriate if the      jury had decided that these articles were not obscene that there      would be no offence capable of being committed whether or not the      point on control is right or wrong.   That is clearly not a      technicality.        It is also not a technicality if the jury decided that he was not      in control of the articles because that is a decision on the      facts, because the other part of that limb is that there is ample      evidence to justify a conviction.   The evidence has been placed      before the jury and they have adjudicated in the way that they      have.   Your Honour, I would say that that limb cannot conceivably      apply and I have indicated what I understand to be the scope of      the expression technicality, and secondly the fact that this is      an acquittal on fact, whichever fact it is.        So one comes to the second limb, which is that the defendant has      brought the prosecution on himself by allowing the prosecution      to believe that the case is in fact stronger than it in fact is.        ... in obscene publications cases, and this is no exception, the      proceedings are brought by summons.   The effect of that is that      all the evidence is presented to the Director of Public      Prosecutions - obviously not personally - including the witness      statements and the material, and a decision is made.   The fact      is that in this case the material before the Director was exactly      the same as the material before the jury;   nothing has changed.      In other words, it does not mean it was improper of the Director      to prosecute but the Director thought there was a reasonable      possibility of conviction on that material and the jury have      disagreed, so there is nothing in the defendant's conduct which      would have influenced the bringing of these proceedings.   It is      not analogous to where a defendant reserves his defence and      springs a surprise on the jury on the court and on the      prosecution late in the day.   Quite the reverse is the position.      As I say, the prosecution had exactly the same access to the      information as did the jury, and the jury have decided that      Mr. Moody was not guilty.        ... there is no jurisdiction over a trial judge on trial on      indictment.   This was actually confirmed in ex parte Ashton which      was decided in March this year in the House of Lords.   There is      no avenue available to a defendant who is refused costs in a      trial on indictment.   Your Honour, I say, and I am not asking to      rake over old ground because that is improper, but I would say      that in this case it is an unwarranted interference under      European law with freedom of expression to refuse somebody their      costs particularly in this sort of case.        The Recorder:   Why is the judge allowed a discretion then?        Mr. Salter:   The judge is allowed to exercise his discretion in      accordance with the practice direction.   As I say, I raise that      matter tentatively because I think I have brought my application      properly within the practice direction but what I am saying is      that where an application for costs is ex parte, where I have      demonstrated that of the two examples given by the Lord Chief      Justice in the practice direction, neither of those exceptions      apply so it would have to be a different exception, what I would      say is that if your Honour has a different exception in mind,      bearing in mind that of course none of these exceptions are being      advanced by the Crown in their duty to assist the Court, that I      would be grateful if your Honour would tell me whether there are      any exceptions that I have not dealt with.        The Recorder:   I do not think at this stage that I am prepared      to be cross-examined.        Mr. Salter:   Your Honour, I said at the very beginning that the      last think I wanted to do was to do anything to be personal or      offensive, and that is not the idea. ...        The Recorder:   I refuse the order ... The defendant has brought      this prosecution on himself by choosing to work among the      material that I hope will be shown to the European Court of      Justice if this second matter on one of my decisions goes there.      I refuse it."   B.    Relevant domestic law   19.   Section 16 of the Prosecution of Offences Act 1985 provides, so far as relevant, as follows:        "(2) Where -           (a) ...           (b) any person is tried on indictment and acquitted on any           count in the indictment;           the Crown Court may make a defendant's costs order in           favour of the accused."   20.   On 3 May 1991 Lord Lane gave a Practice Direction of the Court of Appeal (Criminal Division) which is binding on the Crown Court and which included the following:        "In the Crown Court.        2.2 Where a person ... has been acquitted on any count in the      indictment, the court may make a defendant's costs order in his      favour.   Such an order should usually be made ... unless there      are positive reasons for not doing so.   Examples of such reasons      are: (a) the defendant's own conduct has brought suspicion on      himself and has misled the prosecution into thinking that the      case is stronger than it is; (b) there is ample evidence to      support a conviction but the defendant is acquitted on a      technicality which has no merit."   (Practice Direction (Crime:      Costs) [1991] 1 WLR 498).   21.   Section 29(3) of the Supreme Court Act 1981 provides that the High Court has the same powers of judicial review over the Crown Court as over an inferior court save in respect of the Crown Court's "jurisdiction in matters relating to trial on indictment".   22.   In the case of In re Sampson [1987] 1 WLR 194, a case concerning a legal aid contribution order at the end of a trial on indictment, Lord Bridge of Harwich said:        "... certain orders made at the conclusion of a trial on      indictment are excluded from judicial review as 'relating to      trial on indictment' not because they affect the conduct of the      trial, but rather because they are themselves an integral part      of the trial process."   23.   In that case, the question of the judge's order could not, therefore, be judicially reviewed.   24.   In the case of Re Ashton and Others ([1993] 2 WLR 846) the House of Lords rejected a suggestion that the above proposition in Re Sampson was wrong.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   25.   The Commission has declared admissible the applicant's complaints under Articles 6 and 10 (Art. 6, 10) of the Convention concerning the refusal to make a defendant's costs order in his favour.   B.    Points at issue   26.   The points at issue in the present case are:   -     whether there has been a violation of Article 6 para. 2      (Art. 6-2) of the Convention;   -     whether there has been a violation of Article 6 para. 1      (Art. 6-1) of the Convention, and   -     whether there has been a violation of Article 10 (Art. 10) of the      Convention.   C.    As regards Article 6 para. 2 (Art. 6-2) of the Convention   27.   Article 6 para. 2 (Art. 6-2) of the Convention provides as follows:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."   28.   The applicant considers that in refusing him a defendant's costs order, the judge expressed his own view of the applicant's guilt or innocence, and in so doing, violated the applicant's presumption of innocence.   He relies on the case of Sekanina (Eur. Court HR, Sekanina v. Austria judgment of 25 August 1993, Series A no. 266) and points out that in previous cases before the Convention organs, there was no final finding on the merits that the applicant was not guilty, whereas in both Sekanina and his case, there was a formal acquittal.   29.   The Government submit that the principles of English law and practice in this area are in accordance with the presumption of innocence in Article 6 para. 2 (Art. 6-2), and that the presumption of innocence is relevant to related matters, such as costs, only to the extent that such a decision may reflect an opinion that the defendant is guilty.   They submit that this does not mean that an acquitted person must be put in the same position as someone who was never proceeded against.   The Government consider that in this case the Recorder did not question the verdict of the jury or the presumption of the defendant's innocence in relation to the charges on the indictment, but rather found, as he was entitled to do, that the prosecution had properly brought the matter before the court and that by choosing to work among pornographic material, the defendant had brought the prosecution upon himself.   30.   The Commission recalls that in the case of Sekanina, the European Court of Human Rights found that Article 6 para. 2 (Art. 6-2) of the Convention could apply even where the substantive criminal proceedings have ended, provided that there is a sufficient nexus between the criminal proceedings and the events at issue (Eur. Court HR, Sekanina v. Austria judgment of 25 August 1993, Series A no. 266, p. 13, para. 22).   The Court, after having confirmed that Article 6 para. 2 (Art. 6-2) does not guarantee a right to compensation for detention on remand imposed in conformity with the requirements of Article 5 (Art. 5), continued, at page 15:        "29.   Notwithstanding this decision [to acquit Mr. Sekanina], the      Linz Regional court rejected the applicant's claim for      compensation ... In its view, there remained strong indications      of Mr. Sekanina's guilt capable of substantiating the suspicions      against him ... The court inferred from the record of the jury's      deliberations that in acquitting the applicant they had given him      the benefit of the doubt ...        The Linz Court of Appeal ... concluded: 'The jury took the view      that the suspicion was not sufficient to reach a guilty verdict;      there was, however, no question of that suspicion's being      dispelled' ...        Such affirmations - not corroborated by the judgment acquitting      the applicant or by the record of the jury's deliberations - left      open a doubt both as to the applicant's innocence and as to the      correctness of the Assize Court's verdict.   Despite the fact that      there had been a final decision acquitting Mr. Sekanina, the      courts which had to rule on the claim for compensation undertook      an assessment of the applicant's guilt on the basis of the      contents of the Assize Court's file.   The voicing of suspicions      regarding an accused's innocence is conceivable as long as the      conclusion of criminal proceedings has not resulted in a decision      on the merits of the accusation.   However, it is no longer      admissible to rely on such suspicions once an acquittal has      become final.   Consequently, the reasoning of the Linz Regional      Court and the Linz Court of Appeal is incompatible with the      presumption of innocence."   31.   The Convention does not guarantee a defendant who has been acquitted the right to re-imbursement of his costs (cf. Eur. Court HR, Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327, p. 19, para. 49; see also No. 22401/93, Dec. 24.10.95).   32.   The Commission first notes that the domestic law in the United Kingdom does not require a judge to continue to harbour suspicion against an acquitted defendant if he is to refuse a defendant's costs order.   Whilst Section 16 (2) (b) of the Prosecution of Offences Act 1985 provides for a simple discretion for the Crown Court to make a defendant's costs order, the statutory framework has been supplemented by a Practice Direction which provides that an order should normally be made unless there are positive reasons for not doing so.   33.   The Practice Direction does not as such call for any assessment of continuing suspicion before a defendant's costs order can be refused: the first example of a "positive reason" in Paragraph 2.2.(a) of the Practice Direction relates purely to questions of the defendant's conduct in relation to the prosecution (see, for example, the above-mentioned decision in Application No. 22401/93), and the second example, in Paragraph 2.2.(b) states that a judge is not required to make a costs order where the defendant is acquitted on a "technicality which has no merit".   The mere application of the Practice Direction cannot therefore give rise to issues under Article 6 para. 2 (Art. 6-2) of the Convention.   34.   The question for the Commission under Article 6 para. 2 (Art. 6-2) is whether the trial judge in the applicant's case relied on suspicions against the applicant after the applicant had been acquitted.   35.   The Recorder refused the application for a defendant's costs order on the ground that the applicant had "brought this prosecution upon himself by choosing to work among the material ...".   In so doing, he was expressing an opinion that a person who works in a bookshop where magazines and videos of a sexually explicit nature are sold must accept that he may be prosecuted under the Obscene Publications Act 1959, and that if he is prosecuted and acquitted, he should not be entitled to benefit from the general rule that a defendant's costs order should usually be made.   36.   However, the only material before the Recorder was the material on the basis of which the applicant had just been acquitted.   The Commission considers that the applicant cannot be said to have brought suspicion on himself by working in a shop which sold such material, and he cannot be said to have misled anyone as to the strength of the prosecution case when his defence was clear from the outset. Accordingly, the obvious construction to be given to the Recorder's refusal to make a defendant's costs order is that he was of the opinion that the material was obscene, and that in the absence of a conviction, the applicant should nevertheless be penalised in costs for dealing with such material.   This amounts, in the Commission's opinion, to the "voicing of suspicions as to an accused's innocence" after he has been acquitted, which was proscribed by the Court in the Sekanina case.   CONCLUSION   37.   The Commission concludes, by 12 votes to 2, that there has been a violation of Article 6 para. 2 (Art. 6-2) of the Convention.   D.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   38.   Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows:        "1.   In the determination of his civil rights and obligations or      of any criminal charge against him, everyone is entitled to a      fair and public hearing ..."   39.   The applicant complains that the judge's refusal to make a costs order violated Article 6 para. 1 (Art. 6-1) of the Convention as it was manifestly unfair, and because no appeal lay against it.   40.   The Commission has above examined the applicant's complaints concerning the refusal to make a defendant's costs order under Article 6 para. 2 (Art. 6-2) of the Convention.   It finds it unnecessary also to examine the complaints under Article 6 para. 1 (Art. 6-1) of the Convention.   CONCLUSION   41.   The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   E.    As regards Article 10 (Art. 10) of the Convention   42.   Article 10 (Art. 10) of the Convention provides, so far as relevant, as follows:        "1.   Everyone has the right to freedom of expression.   This      right shall include freedom to hold opinions and to receive and      impart information and ideas without interference by public      authority and regardless of frontiers. ...        2.    The exercise of these freedoms, since it carries with it      duties and responsibilities, may be subject to such formalities,      conditions, restrictions or penalties as are prescribed by law      and are necessary in a democratic society ... for the prevention      of disorder or crime, for the protection of health or morals ..."   43.   The applicant alleges a violation of Article 10 (Art. 10) of the Convention by virtue of the refusal of a defendant's costs order.   44.   The Commission has above examined the applicant's complaints concerning the refusal to make a defendant's costs order under Article 6 para. 2 (Art. 6-2) of the Convention.   It finds it unnecessary also to examine the complaints under Article 10 (Art. 10) of the Convention.   CONCLUSION   45.   The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 10 (Art. 10) of the Convention.   F.    Recapitulation   46.   The Commission concludes, by 12 votes to 2, that there has been a violation of Article 6 para. 2 (Art. 6-2) of the Convention (para. 37).   47.   The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 41).   48.   The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 10 (Art. 10) of the Convention (para. 45).     M.F. BUQUICCHIO                             J. LIDDY      Secretary                                President to the First Chamber                     of the First Chamber 49.                                                  (Or. English)                 DISSENTING OPINION OF Mrs. J. LIDDY                     JOINED BY Mr. I. BÉKÉS        On balance, it appears to me that the applicant has not shown that the words of the Recorder could only be interpreted as meaning that the applicant was still suspected or was guilty of the offence of which he had been acquitted.   I note that while the majority of the Commission consider that the obvious construction of the Recorder's words is to the effect that he believed the material to be obscene, they do not fully take account of the fact that the Recorder had discretion in domestic law as to whether to make a defendant's costs order or not.   A non-exhaustive list of examples of reasons for exceptionally refusing to make such an order after acquittal is contained in the Practice Direction of 3 May 1991.   It seems to me that the Recorder's words can equally be construed as meaning that in addition to examples (a) and (b) set out in that Practice Direction, he was entitled to use his discretion to refuse a costs order where the nature of the defendant's occupation involved testing the extent to which the law permitted the sale of salacious material and testing the borderline beyond which such material would be regarded as obscene within the meaning of the Obscene Publications Act 1959 (as amended).        Accordingly I have voted against a finding of violation.