CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 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. 38200/97                       by John William WRIGHT                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 21 May 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 11 June 1997 by John William WRIGHT against the United Kingdom and registered on 14 October 1997 under file No. 38200/97;        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 a British citizen, resident in Colchester.   He is not represented before the Commission.   The facts, as submitted by the applicant, may be summarised as follows.   A.    The particular circumstances of the case        On 26 February 1996, the applicant was interviewed by the police in connection with an incident which had taken place on 16 February 1996 in front of the applicant's house.   On 2 April 1996, the applicant received a summons to appear before Harwich Magistrates' Court on a charge of driving without due care and attention contrary to Section 3 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.        The applicant sought legal advice.   The applicant's solicitors asked the Crown Prosecution Service for voluntary disclosure of the prosecution witness statements to ensure "that the hearing concentrates upon the issues and the court's time is not wasted whilst the defence advocate obtains instructions from the defendant ... ".   The applicant also applied for legal aid.        Legal aid was refused on 30 April 1996 on the grounds, inter alia, that the offence did not carry with it a risk of imprisonment, and that no legal grounds had been given as to why expert cross- examination was necessary.   The decision states that if the dispute is "purely factual the defendant will be assisted by the clerk".   The applicant's solicitors considered that it was unreasonable to expect the applicant to represent himself on allegations about which he had no firm information.        On 2 May 1996 the Crown Prosecution Service confirmed that the witness statements would not be voluntarily disclosed.        On 3 June 1996, legal aid was again refused.        On 25 June a pre-trial review was held at Harwich Court which fixed the trial date for 27 August.   On 27 August, however, the hearing was deferred due to the large number of prosecution witnesses present. A new date was given, setting aside a full day on 22 November.   On 6 November, the prosecution made an application to postpone the hearing date because one of its witnesses was unable to attend.   A new date was fixed for 15 January 1997 at Colchester Court.        Before the proceedings began on 15 January 1997, the prosecutor approached the applicant's solicitor and offered to drop the case if the applicant would accept a bind over order.   On the advice of his solicitor, the applicant agreed to be bound over.   He was duly bound over in the sum of £500 to keep the peace for one year.        The applicant applied for a defendant's costs order to cover his legal fees.   The magistrates ordered that only 50% would be paid out of central funds.   The applicant paid his solicitors' bill of £626.95 plus VAT.   The applicant was advised that an appeal to the High Court against the costs order, although possible, would be very expensive and unlikely to succeed.        On 10 September 1997 the clerk to the magistrates informed the applicant that the "reason you only received half the costs was due to the fact that you agreed to be bound over and in court you accepted that you were not without culpability in the incident and to an extent you had brought the proceedings on yourself".   B.    Relevant law and practice        Section 16 of the Prosecution of Offences Act 1985 makes provision for the award of defence costs out of central funds.   A Practice Note (Criminal Law: Costs) [1991] ([1991] 2 All ER 924) provides that:        "Where an information laid before a justice of the peace ... is      not proceeded with ... the court may make a defendant's costs      order ... such an order should normally be made unless there are      positive reasons for not doing so ...        ... Examples of such reasons are: 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      ..."   COMPLAINTS        The applicant alleges a violation of Article 6 of the Convention and complains that he did not have a hearing within a reasonable time, that he was not informed promptly of the accusation, nor did he have adequate time to prepare his defence and did not receive legal aid. He also complains about the amount of costs he was ordered to pay.   THE LAW        The applicant alleges violation of Article 6 (Art. 6) of the Convention which 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 within a      reasonable time by an independent and impartial tribunal      established by law...        2.     Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law.        3.     Everyone charged with a criminal offence has the following      minimum rights:              a.     to be informed promptly, in a language which he            understands and in detail, of the nature and cause of            the accusation against him;              b.     to have adequate time and facilities for the            preparation of his defence;              c.     to defend himself in person or through legal            assistance of his own choosing or, if he has not sufficient            means to pay for legal assistance, to be given it free when            the interests of justice so require."            To the extent that the applicant complains about the length of the proceedings, the Commission notes that the proceedings lasted a little under 11 months, from 26 February 1996, when the applicant was first interviewed in the case, to 15 January 1997, when the proceedings were dropped and the applicant was bound over.   The Commission considers that this period does not exceed the "reasonable time" requirement of Article 6 para. 1   (Art. 6-1) of the Convention.        The applicant also complains that because of the refusal to disclose prosecution witness statements, he was unable properly to prepare his defence and, indeed, that the amount of costs he had to pay his solicitors was greater than necessary because of the failure to disclose and because of the length of the proceedings.        In connection with the complaints about the refusal to disclose witness statements, the Commission notes that the refusal cannot have had any impact on the fairness of the proceedings because the criminal proceedings were dropped before the trial began.        As to the costs element, the Commission considers that the question of costs incurred as a result of the length of proceedings is a matter to be considered, if at all, in the context of Article 50 (Art. 50) of the Convention.   The Commission has, however, found that the "reasonable time" requirement of Article 6 (Art. 6) of the Convention was met in the present case.   The question of costs in connection with the length of the proceedings does not, therefore, fall to be considered.        The Commission notes, however, that the applicant was required to pay one half of the costs of his defence, notwithstanding the provisions of a Practice Note that where an information before the magistrates' court is not proceeded with, costs should normally be allowed unless there are positive reasons for not doing so.   The applicant complains expressly about having to pay these costs.   The Commission will consider the complaint in the context of Article 6 para. 2 (Art. 6-2) of the Convention.        The Commission recalls that the Convention does not guarantee, to a defendant who has been acquitted or in respect of whom proceedings have been discontinued, the right to reimbursement of his costs (Eur. Court HR, Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327, p. 19, para. 49; Eur. Court HR, Lutz, Englert and Nölkenbockhoff v. Germany judgment of 29 November 1986, Series A no. 123, p. 25, para. 60).   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 (Eur. Court HR, Sekanina v. Austria judgment of 25 August 1993, Series A no. 266, p. 13, para. 22; No. 22613/93, Moody v. United Kingdom, Comm. Report 16.10.96).   On the other hand, where proceedings result in the discontinuance of proceedings, rather than a formal acquittal, there may be room for expressions of continuing suspicion (Eur. Court HR, Lutz, Englert and Nölkenbockhoff v. Germany, op. cit., p. 25, para. 62), provided that those expressions of suspicion do not amount to a determination of the accused's guilt (ibid, para. 60).        In the present case the applicant was not acquitted: the criminal proceedings were dropped when he agreed to be bound over.   The reasons given on 10 September 1997 for the decision only to make a defendant's costs order in respect of one half of the applicant's costs were that the applicant agreed to be bound over, that he accepted in court that he was not without culpability, and that to an extent he had brought the proceedings upon himself.        The Commission must ascertain whether these reasons amount to a determination that the applicant had, in fact, committed the offence with which he was charged.        The fact that the applicant agreed to be bound over does not indicate that the magistrates considered that he was guilty of the road traffic offence, nor does the statement by the magistrates' clerk that the applicant accepted in court that he was not without culpability. Similarly, the statement that the applicant had brought the proceedings upon himself does not, of itself, indicate that the magistrates considered that the applicant was guilty, and if it is taken as a statement that there was continuing suspicion as to the applicant's guilt, such continuing suspicion is permissible where, as here, the applicant was not formally acquitted.        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