Information Note on the Court’s case-law No. 144
August-September 2011
Ashendon and Jones v. the United Kingdom - 35730/07
Judgment 13.9.2011 [Section IV]
Article 6
Article 6-2
Presumption of innocence
Refusal to make defendants’ costs orders following their acquittals: no violation
Facts – Both applicants were refused applications for their costs after being acquitted of criminal charges at their respective trials on the grounds that, by their conduct, they had brought the prosecutions upon themselves. The first applicant (Mr Ashendon) had been charged, inter alia, with the rape and sexual assault of a vulnerable elderly woman after being found, intoxicated and in apparently compromising circumstances, in the sheltered accommodation where she lived. In refusing to grant him costs, the judge commented that he could not think of another case in which it was more apparent that the defendant’s conduct had led to him being brought before the court. The second applicant (Ms Jones), an accountant, had been charged with perverting the course of justice and conspiracy to steal from one of her corporate clients. In rejecting her application for costs following her acquittal, the trial judge explained that by refusing to answer questions before her trial, in particular regarding what on the face of it was an incriminating taped phone call, she had allowed the police to believe that the case against her was stronger than in fact it was and to that extent had brought the prosecution on herself.
In their applications to the European Court, the applicants complained that the trial judge’s refusal to award them their costs following their acquittal of criminal charges had violated their right to be presumed innocent, contrary to Article 6 § 2 of the Convention.
Law – Article 6 § 2: After reviewing the case-law in a series of past cases against the United Kingdom*, the Court considered that, in the context of defendants’ costs orders, the Convention organs had consistently applied the following principles: (i) it was not the Court’s role to decide whether a defendant’s costs order should have been made in any given case; (ii) it was not for the Court to determine whether, in granting or refusing such an order, the trial judge had acted compatibly with the relevant domestic practice direction; (iii) the Court’s task was to consider whether, in refusing to make an order, the trial judge’s reasons indicated a reliance on suspicions as to the applicant’s innocence after he had been acquitted; (iv) it was not incompatible with the presumption of innocence for a trial judge to refuse to make an order because he considered that the applicant had brought suspicion on himself and misled the prosecution into believing that the case against him was stronger than it was in reality; (v) this will also be the case if the applicant brought the prosecution upon himself because he availed himself of the right to silence; and (vi) the refusal to make an order did not amount to a penalty for exercising that right.
(a) First applicant’s case – While the trial judge’s reasons were somewhat imprecise, their meaning was clear from the context. The facts clearly showed that he had been entitled to find that the first applicant – who had been found half-naked in a state of intoxication with the complainant’s bodily materials on him – had brought the prosecution on himself. There was nothing in the judge’s remarks to indicate a belief that the first applicant’s actions meant that he was guilty of rape or sexual assault; disapproval by a judge of a defendant’s conduct did not necessarily mean that the judge had formed a view as to whether that conduct amounted to a criminal offence. Further, the judge’s reasons for refusing the defendant’s costs’ order also had to be read alongside his prior direction to the jury to stand back from any feelings of disgust and revulsion and to base their verdict on a “proper, logical, objective analysis” of what had happened. That was an entirely fair direction and supported the Court’s view that the trial judge, in refusing the defendant’s costs order, did not hold lingering suspicions as to the first applicant’s innocence.
Conclusion: no violation (unanimously).
(b) Second applicant’s case – The principal issue in the case had been the tape recording of a conversation between the second applicant and a third party. The trial judge, who was the person best placed to determine the issue, had concluded that the tape recording was a “cardinal plank” of the prosecution case and that the second applicant’s failure to answer questions had allowed the police to believe that the case against her was stronger than it in fact turned out to be. His reasons were carefully phrased and not only did he state that his decision was in no way meant to indicate guilt, he added that she had been rightly acquitted by the jury. The trial judge had also been correct to consider that, while the applicant could not be criticised for exercising her right to silence, that was a relevant consideration in deciding whether a defendant’s costs order should be made. In that connection, the Court endorsed the view that had been expressed by the Commission in the cases of D.F., Byrne and Fashanu that a refusal to make a defendant’s costs order did not amount to a penalty for exercising the right to silence.
Conclusion: no violation (unanimously).
* The Court’s judgment in Yassar Hussain v. the United Kingdom, no. 8866/04, 7 March 2006, and the European Commission of Human Rights’ decisions or reports in D.F. v. the United Kingdom, no. 22401/93, 24 October 1995; Moody v. the United Kingdom, no. 22613/93, 16 October 1996; Byrne v. the United Kingdom, no. 37107/97, 16 April 1998; and Fashanu v. the United Kingdom, no. 38440/97, 1 July 1998.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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