CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 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. 37107/97                       by Rosemary BYRNE                       against the United Kingdom            The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            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 21 July 1997 by Rosemary BYRNE against the United Kingdom and registered on 30 July 1997 under file No. 37107/97;        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 applicant is an Irish citizen born in 1971 and resident in London.   She is represented before the Commission by Michael Yule of Powell Spencer & Partners, solicitors, London.   The facts of the application, as submitted by the applicant's representative, may be summarised as follows.   A.    The particular circumstances of the case        The applicant was charged, (together with her husband and two others), with conspiracy to defraud the Secretary of State for Social Security by making false claims for Income Support and Housing Benefit between 1 April 1991 and 29 July 1996.   The total ascertainable claims paid out amounted to £186,000.   The applicant's husband was accused of being the principal party in the conspiracy.        On 31 July 1996, the applicant and her husband were arrested at 51 Geary Road, a house purchased by the applicant in April 1994. Following her arrest, the applicant was taken to the police station and advised by a duty solicitor, who also acted for her husband, to remain silent during the police interview.   She followed this advice and did not state her case until she came to trial.        The DSS claimed that £26,350.50 had been paid out on an Income Support claim to a "Mr John Young" whose address was given as 51A Geary Road (a non-existent address).   "Mr John Young" had also made a claim for Housing Benefit and 56 payments amounting to a total sum of £13,530 were paid into the applicant's bank account from April 1994 to July 1996.   When the applicant purchased 51 Geary Road, her husband had agreed to arrange for a tenant to move in and for the rental payments to be made to her bank account.   The applicant later denied that the money was fraudulently claimed.   She asserted that she had not been living at 51 Geary Road during the period of the claim.   As far as she was concerned, "Mr John Young" lived at 51 Geary Road and was making a genuine claim.   It was not possible to verify how the claim had been made as the relevant local authority had lost all the documents relating to the claim.        The trial of the four defendants, including the applicant, began at Harrow Crown Court on 7 April 1997.   All defendants submitted that the proceedings were an abuse of process and ought to be stayed because the prosecution had either failed to produce or had lost important documents.   The submission was rejected by the judge and on 10 April 1997 three of the defendants, including the applicant's husband, pleaded guilty to various substantive counts in the indictment.   No evidence was offered by the Crown against the applicant on the count of conspiracy to defraud and the judge directed the jury to render a verdict of not guilty in respect of the applicant.   The applicant had been refused Legal Aid on the grounds of her means test and paid her own costs of £33,689.30.        After the applicant's acquittal, an application was made on her behalf for costs incurred in defending herself to be paid out of central funds.   The judge refused her costs and said:        "It does seem to me that there was evidence which justified      bringing this case and involving this defendant in the conspiracy      count although it is, of course, accepted by the prosecution that      her involvement was peripheral.   Nevertheless involvement, on the      prosecution case, there was.   I, of course, have full regard to      the practice direction in relation to the exercise of my      discretion.   Since I have a discretion I may make an Order; I do      not have to.   The practice direction suggest[s] that such an      Order should normally be made unless there are positive reasons      for not doing so and examples are given.   The defendant's conduct      in this case is receiving quite substantial sums on a regular      basis into her account in relation to the property and when she      was interviewed about this matter she chose, I am told, following      the advice of her solicitor, to make no reply.   That, as I have      already indicated, is her right but if she chooses to do so then      it must make it very much more difficult for the prosecuting      authorities to decide whether or not she has an account which      might be believed by the jury and which might justify no      proceedings being brought against her.   As I have indicated, she      cannot simply hide behind the advice which I am told was given      by her solicitor without law and it does seem to me that by so      doing and not revealing her case until the last minutes, as it      were, when the matter was before the court, she has allowed the      prosecution to continue and has as a result incurred costs.   In      those circumstances, I take the view that there should not be any      Order for defence costs... in this case."        The applicant was subsequently advised by Counsel in writing that there could be no appeal available to a person who is acquitted of a criminal charge against a refusal to make a defendant's costs order. The statutory framework of appeal to the Criminal Court of Appeal set out in the Criminal Appeal Act 1968 does not include the right to appeal against a refusal to grant costs.   There is no appeal by way of judicial review to the High Court from a costs refusal because of the restriction in section 29(3) of the Supreme Court Act 1981.   B.    Relevant domestic law and practice        Section 16 (2) of the Prosecution of Offences Act 1985 provides, so far as relevant, as follows:        "Where -            (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."        On 3 May 1991 Lord Lane issued a Practice Direction of the Court of Appeal (Criminal Division) concerning costs in criminal proceedings (1991 93 Cr. App. R. 89).   This Practice Direction, which is binding on the Crown Court, states at para. 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."        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 applicant alleges a violation of Article 6 para. 2 of the Convention and complains that the judge, in refusing her costs for defending herself in the criminal proceedings against her, implied that she is guilty.   She complains that the judge's refusal to grant her a costs order violates her right to be presumed innocent until proven guilty and that she has been penalised for exercising her right to silence during police questioning.   THE LAW        The applicant complains under Article 6 para. 2 (Art. 6-2) of the Convention 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 (cf. 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. the 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 applicant, despite the fact that she had been acquitted (cf. B.S., E. and N.P.A. v. the United Kingdom, No. 36384/97, Dec. 15.1.98, unpublished).        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 further 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, unpublished).            As to the judge's reasoning in the present case, the Commission notes that the judge was clearly not of the opinion that the applicant was guilty of the charges made against her:   no evidence had been offered by the prosecution, and the judge directed an acquittal. Further, and in accordance with the practice direction, he made an express finding that it was the applicant's conduct in the course of the prosecution which had allowed the prosecution to continue with the results that the costs were incurred.        The Commission does not accept that the applicant was penalised for exercising her right to silence:   in the absence of a right to reimbursement of costs on acquittal, the fact that a person has to bear his or her own costs on acquittal cannot be equated to a penalty. Rather, it is an inevitable consequence of the bringing of proceedings. The Commission notes, in agreement with the judge, that had the applicant explained the position before the trial, the prosecution would in all likelihood have been dropped, and there would have been no question of a defendant's costs order.        It follows that 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