AS TO THE ADMISSIBILITY OF
Application No. 38440/97
by John FASHANU
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 1 July 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 29 October 1997
by John FASHANU against the United Kingdom and registered on 5 November
1997 under file No. 38440/97;
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, born in 1962 and resident in
London. He is represented before the Commission by Henri Brandman, a
solicitor practising in 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
On 14 March 1995, the applicant (who was a professional
footballer) and two other footballers (Mr S. and Mr G.) were arrested,
together with Mr L., a businessman. Three charges were made against
them:
(a) On count 1, the applicant, Mr G. and Mr L. were accused of
conspiring to give and receive corrupt payments for influencing
the outcome of football matches.
(b) On count 2, the applicant, Mr S. and Mr L. were accused in
similar terms.
(c) On count 3, Mr G. was accused of accepting a corrupt
payment of £2000 from another individual.
After his arrest, the applicant was interviewed by the police.
The applicant exercised his right to remain silent and declined to
answer questions put to him by the police. On 4 July 1995, the police
again attempted to interview him and he again declined to answer
questions. However, in March 1995, the applicant did give the police
permission to examine bank accounts under his control.
On 14 January 1997, the trial of all four defendants began but,
after hearing all the evidence, the jury was unable to agree on its
verdicts and so was discharged on 4 March 1997.
A re-trial began on 4 June 1997 and finished on 8 August 1997.
The jury unanimously acquitted the applicant on each of the two counts
faced by him. The jury also unanimously acquitted the other defendants
on counts 1 and 2. The jury was unable to agree on the third count in
relation to Mr G. and the judge entered a not guilty verdict, it being
inappropriate to hold a third trial on that issue. The applicant chose
not to give evidence himself at either of the trials.
The amount of costs incurred by the applicant in defending
himself was about £535,000. Following the acquittal, the applicant's
counsel applied to the judge for a defendant's costs order pursuant to
section 16(2) of the Prosecution of Offences Act 1985, that is for the
applicant's costs in defending himself to be paid out of central funds.
The judge refused to grant the applicant's request for a
defendant's costs order and said:
"I do not grant [the applicant] an order that his defence costs
be paid out of public funds. The practice direction, which deals
with the exercise of the court's discretion in circumstances such
as these, says so far as material this:
"When 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 brought suspicion on
himself and has misled the prosecution into thinking
that the case against him is stronger than it is."
That in my judgment is the situation here. [The applicant]
chose, for reasons best known to himself, to receive very
substantial sums of money from Joseph/Ellie in the Far East, not
in his own name but into accounts in the names of three other
people, Miss K., as she then was, Miss A. and an account which
he operated with the permission, let it be acknowledged, of the
National Westminster Bank, in the name of P.B. When the police
searched his premises, no document was found which explained the
receipt of any of these sums of money. That can only mean,
either that there never were documents to explain the receipt of
these sums of money, or such documents as there were had been
removed or destroyed. They have never come to the eyes of the
police. In those circumstances it seems to me clear that [the
applicant's] own conduct has brought suspicion on himself and
misled the prosecution into thinking that the case against him
was stronger than it was."
Each of the three other defendants was partly legally aided.
Neither Mr L., nor Mr G. made an application for a defendant's costs
order. Mr S. did apply for such an order but was also refused.
The applicant was advised by counsel that an acquitted defendant
has no right of appeal against a refusal to make a defendant's costs
order. 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 Cou
rt 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 complains that he has been penalised for exercising
his right to remain silent. He asserts that the judge's refusal to
grant him a costs' order is unreasonable and unfair and is in breach
of Article 6 para. 2 of the Convention. He adds that by the time of
the second trial, his stance was completely clear, and to refuse a
defendant's costs order in respect of that second trial itself violated
Article 6 para. 2.
THE LAW
The applicant complains that his right to the presumption of
innocence has been breached contrary to Article 6 para. 2 (Art. 6-2)
of the Convention.
Article 6 para. 2 (Art. 6-2) of the Convention provides as
follows:
"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. 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 he was acquitted (cf. B.S., E. and N.P.A. v.
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 on
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).
The judge in the present case did not express an opinion that the
applicant was guilty of the charges made against him. Rather, he made
an express finding in relation to the applicant (in accordance with the
practice direction) that it was the applicant's conduct prior to and
during the prosecution (he remained silent during both trials and never
offered the police an explanation in relation to the bank accounts)
which had brought suspicion on himself and misled the prosecution into
thinking the case was stronger than it was. The judge's comments
relate solely to the applicant's behaviour at the initial stages of the
prosecution, and not to any continuing suspicion that the applicant
might, in fact, have been guilty of the offences he had been acquitted
of.
The Commission does not accept that the applicant was penalised
for exercising his 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.
As to the applicant's contention that he should, at least, have
been granted his costs in respect of the second trial, the Commission
notes that the question is not whether a defendant's costs order should
or should not be made, but whether the judge relied on continuing
suspicion after the acquittal. Having found that the judge did not so
rely, the merits of whether a costs order should be made in respect of
various stages of the proceedings is not relevant to the arguments
under Article 6 para. 2 (Art. 6-2) of the Convention.
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