AS TO THE ADMISSIBILITY OF
Application No. 22614/93
by Steven LOCHRIE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 8 June 1993 by
Steven LOCHRIE against the United Kingdom and registered on
13 September 1993 under file No. 22614/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
29 July 1994 and the observations in reply submitted by the
applicant on 7 October 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen born in 1958. He is
a shop assistant and lives in London. He is represented before the
Commission by Messrs. Wilson Barca, solicitors, of London. The facts
of the case may be summarised as follows.
The particular circumstances of the case
On 25 September 1992 police officers seized a quantity of
magazines and some videos from the bookshop where the applicant works.
He was subsequently charged with three counts of having had an obscene
article for publication for gain, contrary to Section 2(1) of the
Obscene Publications Act 1959 (as amended).
The applicant was tried on 1 and 2 April 1993 before a judge
(Mr. Recorder Crowther, "the Recorder") and a jury. The defence argued
that the magazines and videos were not obscene, and that in any event
the applicant had not examined the magazines and had no reasonable
cause to suspect that they were obscene. The jury acquitted the
applicant on each count.
The applicant's counsel applied to the Recorder for a defendant's
costs order pursuant to the Prosecution of Offenders Act 1985. The
following exchange took place between Mr. Salter, the applicant's
barrister, and the Recorder:
"Mr. Salter: ... Your Honour is well aware that the starting
point in any case is [that] the successful defendant has its
costs. The normal course is that it is from central funds unless
there is some obvious reason to punish the prosecution. I do not
seek, obviously, to punish the prosecution. The defendant was
working in a shop selling articles which are not obscene. It
would be wrong, therefore, to bring him within any of the
exceptions that the Lord Chief Justice in his practice gave.
Judge Crowther: You can say that. You say they are not obscene,
you do not know. The jury may have felt they were not obscene
or they may have felt they were obscene but he had the statutory
defence.
Mr. Salter: Your Honour, that is something I cannot look behind
and with the greatest of respect I would caution your Honour
against doing so because clearly it is a matter of speculation
on the basis of the jury's verdict, and in theory it can be even
different on different counts. But what your Honour could never
do, and would not wish to do in this case, would be to substitute
your own view - and I do not know what it is either way - for
that of what the jury might have been. I hope that is not a
disrespectful way of putting it, your Honour's discretion on the
point is clear. The views of the lawyers in this case were
irrelevant and they remain irrelevant. Your Honour, this man has
put himself upon the jury, he has been acquitted. There is no
proper exception to an order for defence costs to be taxed.
Judge Crowther: I decline to make the order asked."
The applicant then applied for leave to apply for judicial review
of the Recorder's refusal. In his grounds were included the following:
"..[the Practice Direction] provides that a successful defendant
should have his costs unless there are reasons for refusing to
make such an order. It was and is submitted that no such reasons
existed ... There was no rational basis for this refusal ..."
The application was refused on 21 June 1993. Mr. Justice
Macpherson stated that "[the] authorities establish that a decision
(such as this one) as to costs after trial is not susceptible to
review". The applicant has submitted an Advice from Mr. D. Pannick QC
and Mr. C. Salter of counsel that it is "settled beyond argument ...
[that] there is no possibility of persuading the Court (or the House
of Lords) that it has jurisdiction to entertain Mr. Lochrie's
application".
Relevant domestic law and practice
Section 16 of the Prosecution of Offences Act 1985 provides, so
far as relevant, as follows:
"(2) 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 gave a Practice Direction of the Court
of Appeal (Criminal Division) which is binding on the Crown Court and
which included the following:
"In the Crown Court.
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." (Practice Direction (Crime:
Costs) [1991] 1 WLR 498).
Section 29(3) of the Supreme Court Act 1981 provides that the
High Court has the same powers of judicial review over the Crown Court
as over an inferior court save in respect of the Crown Court's
"jurisdiction in matters relating to trial on indictment".
In the case of Re Sampson [1987] 1 WLR 194, a case concerning a
legal aid contribution order at the end of a trial on indictment, Lord
Bridge of Harwich said:
"... certain orders made at the conclusion of a trial on
indictment are excluded from judicial review as 'relating to
trial on indictment' not because they affect the conduct of the
trial, but rather because they are themselves an integral part
of the trial process."
In that case, the question of the judge's order could not,
therefore, be judicially reviewed.
In the case of Re Ashton and Others ([1993] 2 WLR 846 the House
of Lords rejected a suggestion that the above proposition in Re Sampson
was wrong.
COMPLAINTS
The applicant alleges violation of Articles 6 and 10 of the
Convention.
He considers that Article 6 para. 2 of the Convention is violated
where domestic law provides for costs to be paid to an acquitted
defendant unless there are good reasons for not doing so, and the
judge, as here, refuses costs without good reasons.
He also contends that the refusal to give reasons, and the fact
that the Recorder had evidently resolved to punish the applicant by not
making a defendant's costs order, violates Article 6 para. 1 of the
Convention.
Under Article 10 of the Convention, the applicant considers that
the refusal to make a costs order in his favour can only, in the
circumstances of this case, be seen as a penalty - or at least a
formality - imposed on him by the Recorder. He considers that the
penalty or formality was not prescribed by law, and that given his
acquittal on the charges which it was the court's function to consider,
it was not necessary in a democratic society.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 June 1993 and registered on
13 September 1993.
On 6 April 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
29 June 1994. The applicant replied on 7 October 1994.
On 6 September 1994 the Commission granted the applicant legal
aid.
THE LAW
The applicant alleges violation of Articles 6 and 10
(Art. 6, 10) of the Convention.
Article 6 (Art. 6) of the Convention provides, so far as
relevant, as follows:
"1. In the determination of his civil rights and obligations or
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."
Article 10 (Art. 10) of the Convention provides, so far as
relevant, as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, ... for the prevention
of disorder or crime, for the protection of health or morals, ...
or for maintaining the authority and impartiality of the
judiciary."
The Government submit that the decision on costs was not a
determination of any issues independent from the criminal offence the
applicant was charged with. They accept that judicial decisions should
normally state the reasons upon which they are based, but submit that
whether and how much reasoning is required depends on the nature of the
decision. They also accept that United Kingdom law does not recognise
a general duty to give reasons for administrative decisions, and that
the statute provides only that costs may be awarded if the court thinks
fit: it does not require reasons to be given. They point out that
decisions as to costs are within the discretion of the court, and there
is no right to an award of costs.
The Government argue that Article 6 para. 1 (Art. 6-1) does not
require every decision in a criminal trial to be subject to appeal, and
consider that the need to give reasons is less pressing in cases where
no appeal is available, as the need for reasoning is closely linked to
the question of remedies against the decision.
In connection with the complaint under Article 6 para. 2
(Art. 6-2) of the Convention, the Government submit that the principles
of English law and practice in this area are in accordance with the
presumption of innocence in Article 6 para. 2 (Art. 6-2), and that the
presumption of innocence is relevant to related matters, such as costs,
only to the extent that such a decision may reflect an opinion that the
defendant is guilty. They submit that this does not mean that an
acquitted person must be put in the same position as someone who was
never proceeded against. The Government consider that in this case the
Recorder did not question the verdict of the jury or the presumption
of the defendant's innocence in relation to the charges on indictment,
but rather drew attention to the fact that the acquittal could have
been based upon more than one reason. They state that the Recorder was
entitled to have regard to all the circumstances of the case, including
the conduct of the defendant, and that that is what he did.
Under Article 10 (Art. 10) of the Convention, the Government
consider that the refusal to make a costs order was not a formality,
condition, restriction or penalty within the meaning of Article 10
para. 2 (Art. 10-2), but that in any event the refusal of costs raises
no issues separate from that of the prosecution.
In connection with Article 6 para. 1 (Art. 6-1) of the
Convention, the applicant notes a range of areas in which domestic
courts are under a duty to give reasons, and underlines the importance
for a person who is the subject of an adverse decision to know the
reasons for that decision, both for himself and because an obligation
to give reasons promotes high standards by tribunals and is an
important protection against arbitrary decisions. They submit that
there was no justification for not giving reasons in the present case,
and that the Government do not advance any.
Under Article 6 para. 2 (Art. 6-2) of the Convention, the
applicant relies on the case of Sekanina (Eur. Court H.R., judgment of
25 August 1993, Series A no. 266) to distinguish his case from previous
case-law before the Strasbourg organs. He points out that in previous
cases, there had not been a final finding on the merits that the
applicant was not guilty, and that in both Sekanina and his case, there
was a formal acquittal.
Under Article 10 (Art. 10) of the Convention, the applicant
submits that a detriment was imposed on him in that he was deprived of
what the Practice Direction recognises he is entitled to receive
"unless there are positive reasons not to award him costs". The
detriment was imposed, the applicant continues, because the applicant
was involved in the sale of the books, even though the jury had found
that no criminal offence was committed. He refers to the deterrent
effect that such orders will have those who own and manage bookshops,
even though they are confident that they are not committing a criminal
offence and that a jury will not convict. He disagrees with the
Government's analysis that if a criminal law is justifiable under
Article 10 (Art. 10), the incidental effects of a prosecution can
impose no further restriction on freedom of expression. Finally, the
applicant notes that the Government do not appear to seek to justify
the judge's decision on the costs, but submits that it could not be
justified.
The Commission finds that the application raises complex issues
of fact and law which must be examined on the merits. The application
cannot therefore be rejected as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
grounds for inadmissibility have been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy