CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1998

.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 }                          AS TO THE ADMISSIBILITY OF                           Application No. 36384/97                       by B.S., E. and N.P.A.                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 15 January 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 9 September 1996 by B.S., E. and N.P.A. against the United Kingdom and registered on 9 June 1997 under file No. 36384/97;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant is a British citizen born in 1953.   She is a pharmacist by profession and a director of the second applicant,   a limited company which owns a pharmacy.   The third applicant is an association whose object is to provide benefits for the pharmacy profession.   In particular the third applicant provides indemnity for the costs of the legal defence of the prosecution of any person (such as the first applicant) employed by one of its members (such as the second applicant).   The applicants are represented before the Commission by Charles Russell Solicitors, London.   The facts of the application, as submitted by the applicants' representative, may be summarised as follows.   A.    The particular circumstances of the case        The first applicant has worked since 1985 as a pharmacist in a pharmacy owned by the second applicant.   In 1993 she set in place, with the co-operation of a local doctor's surgery, a system of repeat prescriptions, which meant that patients were not obliged to visit their doctor in person to receive their repeat prescription. Under the new system, repeat prescriptions falling due were sent by the pharmacy to the local surgery.   The doctor would sign the prescription and return it to the pharmacy, who then prepared the drugs for collection by, or delivery to, the patients.        Under this scheme, it nevertheless remained necessary for the patient, or the patient's representative, to sign the prescription form to certify whether they were entitled to free medication.   This form was submitted by the pharmacy to the Health Authority who reimbursed the pharmacy for drugs that had been supplied free of charge.        From late 1993 until August 1994 the first applicant completed the prescription form in a number of cases where the patient had omitted to do so.   As the responsible pharmacist the applicant had authority to complete this form as the patient's representative.   In fact, she frequently completed prescription forms by writing or signing the patient's name, rather than signing herself as their representative.        The second applicant's records were examined and subsequently several patients were interviewed by the police.   It was suspected that the first applicant was signing prescription forms in patients' names and then receiving reimbursement for drugs that were never issued to patients.        On the evening of 26 October 1994, the first applicant was arrested and was taken to the police station where she was interviewed. The first applicant states that she was advised by a solicitor that if she admitted having signed the prescription forms she would be charged with a criminal offence forthwith.   The first applicant denied signing prescription forms in patients' names.   The first applicant supplied the police with samples of her handwriting and the police instructed a hand writing expert.        The first applicant sought legal advice and on 31 January 1995 she confessed to the police that she had signed the prescription forms in the names of patients. However, she maintained that the patients had always received the drugs in question and the signing of the forms had merely been a way of ensuring paperwork was completed each month.          Full committal proceedings were held from 27 to 29 September 1995, at which various patients were heard, some of whom asserted they had not received the medicines which appeared on the prescriptions. The first applicant, who was represented, did not make a submission of no case to answer and she was committed for trial at the Crown Court.        Prior to the trial, the first applicant served upon the prosecution considerable evidence.   This included witness statements of numerous patients who affirmed that they had received the drugs referred to on prescription forms signed by the first applicant and also statements from prescribing doctors emphasising the severe medical consequences that would have resulted had certain patients not received repeat prescriptions.        The trial of the first applicant commenced in the Crown Court before His Honour Judge Devaux on 18 March 1996.   The first applicant was represented by counsel throughout.   Before the close of the prosecution case, the prosecution chose to discontinue their case against the first applicant.   The judge directed the jury to enter verdicts of not guilty on each count, and this was accordingly done. The evidence of the defence was thus never put before the jury, as this stage of the trial was never reached.        The first applicant sought a defendant's costs order.   The judge refused the application stating as follows:        "The fact remains that the defendant, on a number of occasions,      wrote, on prescription forms, the names of the patients and      ticked those forms with the box indicating that they had been      signed by the patients. ... plainly, that would have brought      suspicion on herself and led the police to believe that they had      a stronger case than was, in fact, the case.              Then, for whatever reason, she lied in the interview.   That      meant that the police had to consult a handwriting expert.   The      handwriting expert indicated that it was likely that the      defendant had written the signatures, and at a later interview,      after new solicitors had been instructed and fresh advice had      been given, she started to tell the truth.   ... in two very      important respects this lady brought suspicion upon herself, led      the prosecution to believe the case against her was stronger than      it was, and this is one of those relatively rare cases where it      seems to me that the order for costs should not follow."        The first applicant had to bear the legal costs of conducting her defence which amounted to £93,204.95.   In the event the first applicant was aided in the payment of these costs by an indemnity provided by the third applicant to her, as an employee of the second applicant.        The first applicant sought to appeal this costs order. On 30 April 1996 the Registrar of Criminal Appeals informed her that there was no jurisdiction upon which such an appeal could be made.   B.    Relevant domestic law and practice        Section 16 (2) of the Prosecution of Offences Act 1985 gives the Crown Court the power to make a defendant's costs order in favour of a defendant who is acquitted on any count in the indictment.        In May 1993 Lord Lane gave a Practice Direction of the Court of Appeal (Criminal Division) concerning costs in criminal proceedings (1991 93 Cr. App. R. 89).   This Practice Direction is binding on the Crown Court.   At para. 2.2 the Practice Direction states:        "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 normally 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 upon      himself and has misled the prosecution into thinking that the      case against him 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."        Costs decisions made by the Crown Court are deemed to be an integral part of the trial process made in the exercise of the Crown Court's jurisdiction relating to trial on indictment. Accordingly under domestic law costs decisions by the Crown Court are not subject to judicial review (see Re Sampson [1987] 1 WLR 195).   COMPLAINTS        The applicants invoke Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.   They complain that they had to bear the burden of the costs incurred in defending a prosecution which was abandoned by the prosecution part way through the trial.   They complain that the imposition of a costs burden was incompatible with the presumption of innocence and further complain that there was no means by which to appeal against the costs decision of the Crown Court.   THE LAW   1.    In so far as the second and third applicants complain under Article 6 (Art. 6) of the Convention, the Commission notes that neither of these applicants was party to the criminal proceedings.        It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The first applicant complains under Article 6 para. 2 (Art. 6-2) that the refusal of a costs order in her favour, despite her acquittal, constituted a violation of the presumption of innocence.        Article 6 para. 2 (Art. 6-2) of the Convention provides as follows:        "2.    Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."        The Commission recalls that the Convention does not guarantee, to a defendant who has been acquitted, the right to reimbursement of his costs (see Eur. Court HR, Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327, p. 19, para. 49). Notwithstanding the absence of a right to reimbursement of costs, it is incompatible with Article 6 para. 2 (Art. 6-2) of the Convention for a court to rely on suspicions as to the applicant's guilt in, for example, determining an application for costs, if the applicant has been finally acquitted (see Eur. Court HR, Sekanina v. Austria judgment of 25 August 1993, Series A no. 266, p. 13, para. 22 and No. 22613/93, Moody v. United Kingdom, Comm. Report 16.10.96).        The question for the Commission under Article 6 para. 2 (Art. 6-2) is whether the trial judge relied, when making his ruling on the application for costs, on suspicions against the first applicant, despite the fact that she had been acquitted.        The Commission notes that under domestic law in the United Kingdom, an acquitted defendant will only be refused his costs if there are positive reasons for doing so. The practice direction on costs in criminal proceedings gives the following example of such a positive reason which would justify refusing to award costs to an acquitted defendant:        "Where ... the defendant's own conduct has brought suspicion upon      himself and has misled the prosecution into thinking that the      case against him is stronger than it is".        The Commission notes that the part of the practice direction referred to above, and relied upon by the judge in the present case, relates purely to questions of the defendant's conduct prior to and during the prosecution and does not involve any assessment of whether, despite acquittal, there is continuing suspicion against the defendant. The mere application of this provision under domestic law cannot therefore give rise to issues under Article 6 para. 2 (Art. 6-2) of the Convention (see also No. 22401/93, Dec. 24.10.95).        As to the judge's reasoning in the present case, the Commission notes that the judge made clear in his summing up that he refused to award the first applicant her defence costs as she had brought suspicion upon herself and misled the prosecution into thinking that the case against her was stronger than it actually was.   He based this finding on the fact that she had signed prescription forms in the names of her patients, and further that, for the first three months of the investigation, she had maintained to the police that she had not done so.   There is no suggestion in the transcript of the costs application that the judge harboured or voiced to the jury any suspicion that the first applicant was guilty of the offences charged.   On the contrary, he stated plainly to the jury that the charges on the indictment could not be sustained, that the prosecution would be stopped and that the jury should return verdicts of not guilty to all the charges.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The first applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention. She complains that the procedure, which resulted in her having to bear the defence costs, was unfair.        Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows:        "1.    In the determination ... of any criminal charge against      him, everyone is entitled to a fair and public hearing ..."          The Commission recalls that it may only received petitions from a person claiming to be a victim of an alleged violation of the Convention.   In the present case, the applicant was acquitted of the charges brought against her, and she may not therefore claim to be a victim of unfairness in respect of the substantive proceedings.        Even if it were open to the applicant to claim to be a victim of a violation of Article 6 (Art. 6) of the Convention in connection with the fairness of the proceedings in which the costs order was refused, the Commission is unable to discern any lack of fairness.   In particular, the applicant had the opportunity to make any submission she wished as to the costs order and the Practice Direction, and the prosecution made very few comments on the costs order.   In the absence of a right to reimbursement of costs, the mere fact that the costs order was not made cannot, of itself, amount to unfairness within the meaning of Article 6 (Art. 6) of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicants allege that the refusal to award the first applicant her costs amounted to violations of Articles 8, 14 and Article 1 of Protocol No. 1 (Art. 8, 14, P1-1).   The Commission has commented on the complaints concerning the costs order above.   The Commission has considered the remainder of the applicants' complaints and finds that, even assuming that all applicants may claim to be "victims" of alleged violations of the Convention within the meaning of its Article 25 (Art. 25), the complaints do not disclose any appearance of violation of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.    Finally, the applicants complain under Article 13 (Art. 13) of the Convention that there was no appeal against the judge's costs order and that there was no effective remedy in respect of the alleged Convention breaches.        Article 13 (Art. 13) of the Convention provides as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls that the guarantees of Article 13 (Art. 13) apply only to a grievance which can be regarded as "arguable" (cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).   In the present case, the Commission has rejected the substantive claims as disclosing no appearance of a violation of the Convention.   For similar reasons, they cannot be regarded as "arguable".        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber