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
Full & Egal Universal Law Academy