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
Full & Egal Universal Law Academy