EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 22613/93
James Moody
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 16 October 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-24) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-18). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 19-24). . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 25-48) . . . . . . . . . . . . . . . . . . . . .6
A. Complaints declared admissible
(para. 25). . . . . . . . . . . . . . . . . . . . .6
B. Points at issue
(para. 26). . . . . . . . . . . . . . . . . . . . .6
C. As regards Article 6 para. 2 of the Convention
(paras. 27-36). . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 37). . . . . . . . . . . . . . . . . . . . .8
D. As regards Article 6 para. 1 of the Convention
(paras. 38-40). . . . . . . . . . . . . . . . . . .8
CONCLUSION
(para. 41). . . . . . . . . . . . . . . . . . . . .8
E. As regards Article 10 of the Convention
(paras. 42-44). . . . . . . . . . . . . . . . . . .9
CONCLUSION
(para. 45). . . . . . . . . . . . . . . . . . . . .9
F. Recapitulation
(paras. 46-48). . . . . . . . . . . . . . . . . . .9
DISSENTING OPINION OF Mrs. J. LIDDY, JOINED BY
Mr. I. BÉKÉS . . . . . . . . . . . . . . . . . . . . . . . 10
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 11
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a United Kingdom citizen, born in 1958 and
resident in London. He was represented before the Commission by
Messrs. Wilson Barca, solicitors, of London.
3. The application is directed against the United Kingdom. The
respondent Government were represented by Mr. Martin Eaton, of the
Foreign and Commonwealth Office, London.
4. The case concerns a refusal by the judge at the applicant's trial
to make an order for costs after the applicant had been acquitted. The
applicant invokes Articles 6 and 10 of the Convention.
B. The proceedings
5. The application was introduced on 12 July 1993 and registered on
13 September 1993.
6. On 6 April 1996 the Commission (First Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 29 July 1994
after an extension of the time-limit fixed for this purpose. The
applicant replied on 7 October 1994 after an extension of the time-
limit. On 6 September 1994, the Commission granted the applicant legal
aid for the representation of his case.
8. On 11 January 1995 the Commission declared the application
admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 26 January 1995 and they were invited to submit such
further information or observations on the merits as they wished. No
such observations were submitted.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
12. The text of this Report was adopted on 16 October 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. On 7 May 1992 police officers seized a quantity of magazines and
some videos from the bookshop where the applicant works. He was
subsequently charged with nine counts of having had an obscene article
for publication for gain, contrary to Section 2(1) of the Obscene
Publications Act 1959 (as amended).
17. The applicant was tried on 29 and 30 June 1993 before a judge
(Mr. Assistant Recorder Crowther, "the Recorder") and a jury. The
defence argued that the magazines and videos were not obscene, and that
in any event the prosecution had not proved that the applicant was in
control of the articles, as he was not in the shop at the time of his
arrest. The jury acquitted the applicant on each count.
18. The applicant's counsel applied to the Recorder for a defendant's
costs order pursuant to the Prosecution of Offenders Act 1985. Aware
that the same Recorder had previously refused such an application
without giving reasons, counsel addressed the Recorder at some length
on the domestic law. The following exchange took place between
Mr. Salter, the applicant's barrister, and the Recorder:
"The Recorder: Of course, you and I have no means of knowing,
nor can we find out, whether the jury acquitted on the basis that
the police had not let him get into the shop to be in control or
whether they acquitted on the basis that these matters are not
obscene. That is a matter we cannot go into.
Mr. Salter: We cannot go into it and I am sure you will give the
defendant the benefit of the doubt. The point is, how technical
does a technicality have to be before a defendant is disallowed
his costs?
...
In this case the jury have made findings of fact favourable to
the defendant having heard the evidence of the prosecution.
Clearly, your Honour, it would be highly inappropriate if the
jury had decided that these articles were not obscene that there
would be no offence capable of being committed whether or not the
point on control is right or wrong. That is clearly not a
technicality.
It is also not a technicality if the jury decided that he was not
in control of the articles because that is a decision on the
facts, because the other part of that limb is that there is ample
evidence to justify a conviction. The evidence has been placed
before the jury and they have adjudicated in the way that they
have. Your Honour, I would say that that limb cannot conceivably
apply and I have indicated what I understand to be the scope of
the expression technicality, and secondly the fact that this is
an acquittal on fact, whichever fact it is.
So one comes to the second limb, which is that the defendant has
brought the prosecution on himself by allowing the prosecution
to believe that the case is in fact stronger than it in fact is.
... in obscene publications cases, and this is no exception, the
proceedings are brought by summons. The effect of that is that
all the evidence is presented to the Director of Public
Prosecutions - obviously not personally - including the witness
statements and the material, and a decision is made. The fact
is that in this case the material before the Director was exactly
the same as the material before the jury; nothing has changed.
In other words, it does not mean it was improper of the Director
to prosecute but the Director thought there was a reasonable
possibility of conviction on that material and the jury have
disagreed, so there is nothing in the defendant's conduct which
would have influenced the bringing of these proceedings. It is
not analogous to where a defendant reserves his defence and
springs a surprise on the jury on the court and on the
prosecution late in the day. Quite the reverse is the position.
As I say, the prosecution had exactly the same access to the
information as did the jury, and the jury have decided that
Mr. Moody was not guilty.
... there is no jurisdiction over a trial judge on trial on
indictment. This was actually confirmed in ex parte Ashton which
was decided in March this year in the House of Lords. There is
no avenue available to a defendant who is refused costs in a
trial on indictment. Your Honour, I say, and I am not asking to
rake over old ground because that is improper, but I would say
that in this case it is an unwarranted interference under
European law with freedom of expression to refuse somebody their
costs particularly in this sort of case.
The Recorder: Why is the judge allowed a discretion then?
Mr. Salter: The judge is allowed to exercise his discretion in
accordance with the practice direction. As I say, I raise that
matter tentatively because I think I have brought my application
properly within the practice direction but what I am saying is
that where an application for costs is ex parte, where I have
demonstrated that of the two examples given by the Lord Chief
Justice in the practice direction, neither of those exceptions
apply so it would have to be a different exception, what I would
say is that if your Honour has a different exception in mind,
bearing in mind that of course none of these exceptions are being
advanced by the Crown in their duty to assist the Court, that I
would be grateful if your Honour would tell me whether there are
any exceptions that I have not dealt with.
The Recorder: I do not think at this stage that I am prepared
to be cross-examined.
Mr. Salter: Your Honour, I said at the very beginning that the
last think I wanted to do was to do anything to be personal or
offensive, and that is not the idea. ...
The Recorder: I refuse the order ... The defendant has brought
this prosecution on himself by choosing to work among the
material that I hope will be shown to the European Court of
Justice if this second matter on one of my decisions goes there.
I refuse it."
B. Relevant domestic law
19. Section 16 of the Prosecution of Offences Act 1985 provides, so
far as relevant, as follows:
"(2) Where -
(a) ...
(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."
20. 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).
21. 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".
22. In the case of In 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."
23. In that case, the question of the judge's order could not,
therefore, be judicially reviewed.
24. 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.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
25. The Commission has declared admissible the applicant's complaints
under Articles 6 and 10 (Art. 6, 10) of the Convention concerning the
refusal to make a defendant's costs order in his favour.
B. Points at issue
26. The points at issue in the present case are:
- whether there has been a violation of Article 6 para. 2
(Art. 6-2) of the Convention;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention, and
- whether there has been a violation of Article 10 (Art. 10) of the
Convention.
C. As regards Article 6 para. 2 (Art. 6-2) of the Convention
27. 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."
28. The applicant considers that in refusing him a defendant's costs
order, the judge expressed his own view of the applicant's guilt or
innocence, and in so doing, violated the applicant's presumption of
innocence. He relies on the case of Sekanina (Eur. Court HR, Sekanina
v. Austria judgment of 25 August 1993, Series A no. 266) and points out
that in previous cases before the Convention organs, there was no final
finding on the merits that the applicant was not guilty, whereas in
both Sekanina and his case, there was a formal acquittal.
29. 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 the
indictment, but rather found, as he was entitled to do, that the
prosecution had properly brought the matter before the court and that
by choosing to work among pornographic material, the defendant had
brought the prosecution upon himself.
30. The Commission recalls that in the case of Sekanina, the European
Court of Human Rights found that Article 6 para. 2 (Art. 6-2) of the
Convention could apply even where the substantive criminal proceedings
have ended, provided that there is a sufficient nexus between the
criminal proceedings and the events at issue (Eur. Court HR, Sekanina
v. Austria judgment of 25 August 1993, Series A no. 266, p. 13,
para. 22). The Court, after having confirmed that Article 6 para. 2
(Art. 6-2) does not guarantee a right to compensation for detention on
remand imposed in conformity with the requirements of Article 5
(Art. 5), continued, at page 15:
"29. Notwithstanding this decision [to acquit Mr. Sekanina], the
Linz Regional court rejected the applicant's claim for
compensation ... In its view, there remained strong indications
of Mr. Sekanina's guilt capable of substantiating the suspicions
against him ... The court inferred from the record of the jury's
deliberations that in acquitting the applicant they had given him
the benefit of the doubt ...
The Linz Court of Appeal ... concluded: 'The jury took the view
that the suspicion was not sufficient to reach a guilty verdict;
there was, however, no question of that suspicion's being
dispelled' ...
Such affirmations - not corroborated by the judgment acquitting
the applicant or by the record of the jury's deliberations - left
open a doubt both as to the applicant's innocence and as to the
correctness of the Assize Court's verdict. Despite the fact that
there had been a final decision acquitting Mr. Sekanina, the
courts which had to rule on the claim for compensation undertook
an assessment of the applicant's guilt on the basis of the
contents of the Assize Court's file. The voicing of suspicions
regarding an accused's innocence is conceivable as long as the
conclusion of criminal proceedings has not resulted in a decision
on the merits of the accusation. However, it is no longer
admissible to rely on such suspicions once an acquittal has
become final. Consequently, the reasoning of the Linz Regional
Court and the Linz Court of Appeal is incompatible with the
presumption of innocence."
31. The Convention does not guarantee a defendant who has been
acquitted the right to re-imbursement 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; see also No. 22401/93,
Dec. 24.10.95).
32. The Commission first notes that the domestic law in the United
Kingdom does not require a judge to continue to harbour suspicion
against an acquitted defendant if he is to refuse a defendant's costs
order. Whilst Section 16 (2) (b) of the Prosecution of Offences Act
1985 provides for a simple discretion for the Crown Court to make a
defendant's costs order, the statutory framework has been supplemented
by a Practice Direction which provides that an order should normally
be made unless there are positive reasons for not doing so.
33. The Practice Direction does not as such call for any assessment
of continuing suspicion before a defendant's costs order can be
refused: the first example of a "positive reason" in Paragraph 2.2.(a)
of the Practice Direction relates purely to questions of the
defendant's conduct in relation to the prosecution (see, for example,
the above-mentioned decision in Application No. 22401/93), and the
second example, in Paragraph 2.2.(b) states that a judge is not
required to make a costs order where the defendant is acquitted on a
"technicality which has no merit". The mere application of the
Practice Direction cannot therefore give rise to issues under Article 6
para. 2 (Art. 6-2) of the Convention.
34. The question for the Commission under Article 6 para. 2 (Art. 6-2)
is whether the trial judge in the applicant's case relied on suspicions
against the applicant after the applicant had been acquitted.
35. The Recorder refused the application for a defendant's costs
order on the ground that the applicant had "brought this prosecution
upon himself by choosing to work among the material ...". In so doing,
he was expressing an opinion that a person who works in a bookshop
where magazines and videos of a sexually explicit nature are sold must
accept that he may be prosecuted under the Obscene Publications
Act 1959, and that if he is prosecuted and acquitted, he should not be
entitled to benefit from the general rule that a defendant's costs
order should usually be made.
36. However, the only material before the Recorder was the material
on the basis of which the applicant had just been acquitted. The
Commission considers that the applicant cannot be said to have brought
suspicion on himself by working in a shop which sold such material, and
he cannot be said to have misled anyone as to the strength of the
prosecution case when his defence was clear from the outset.
Accordingly, the obvious construction to be given to the Recorder's
refusal to make a defendant's costs order is that he was of the opinion
that the material was obscene, and that in the absence of a conviction,
the applicant should nevertheless be penalised in costs for dealing
with such material. This amounts, in the Commission's opinion, to the
"voicing of suspicions as to an accused's innocence" after he has been
acquitted, which was proscribed by the Court in the Sekanina case.
CONCLUSION
37. The Commission concludes, by 12 votes to 2, that there has been
a violation of Article 6 para. 2 (Art. 6-2) of the Convention.
D. As regards Article 6 para. 1 (Art. 6-1) of the Convention
38. Article 6 para. 1 (Art. 6-1) 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 ..."
39. The applicant complains that the judge's refusal to make a costs
order violated Article 6 para. 1 (Art. 6-1) of the Convention as it was
manifestly unfair, and because no appeal lay against it.
40. The Commission has above examined the applicant's complaints
concerning the refusal to make a defendant's costs order under
Article 6 para. 2 (Art. 6-2) of the Convention. It finds it
unnecessary also to examine the complaints under Article 6 para. 1
(Art. 6-1) of the Convention.
CONCLUSION
41. The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention.
E. As regards Article 10 (Art. 10) of the Convention
42. 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 and regardless of frontiers. ...
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 ..."
43. The applicant alleges a violation of Article 10 (Art. 10) of the
Convention by virtue of the refusal of a defendant's costs order.
44. The Commission has above examined the applicant's complaints
concerning the refusal to make a defendant's costs order under
Article 6 para. 2 (Art. 6-2) of the Convention. It finds it
unnecessary also to examine the complaints under Article 10 (Art. 10)
of the Convention.
CONCLUSION
45. The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 10 (Art. 10)
of the Convention.
F. Recapitulation
46. The Commission concludes, by 12 votes to 2, that there has been
a violation of Article 6 para. 2 (Art. 6-2) of the Convention (para.
37).
47. The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention (para. 41).
48. The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 10 (Art. 10)
of the Convention (para. 45).
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
49.
(Or. English)
DISSENTING OPINION OF Mrs. J. LIDDY
JOINED BY Mr. I. BÉKÉS
On balance, it appears to me that the applicant has not shown
that the words of the Recorder could only be interpreted as meaning
that the applicant was still suspected or was guilty of the offence of
which he had been acquitted. I note that while the majority of the
Commission consider that the obvious construction of the Recorder's
words is to the effect that he believed the material to be obscene,
they do not fully take account of the fact that the Recorder had
discretion in domestic law as to whether to make a defendant's costs
order or not. A non-exhaustive list of examples of reasons for
exceptionally refusing to make such an order after acquittal is
contained in the Practice Direction of 3 May 1991. It seems to me that
the Recorder's words can equally be construed as meaning that in
addition to examples (a) and (b) set out in that Practice Direction,
he was entitled to use his discretion to refuse a costs order where the
nature of the defendant's occupation involved testing the extent to
which the law permitted the sale of salacious material and testing the
borderline beyond which such material would be regarded as obscene
within the meaning of the Obscene Publications Act 1959 (as amended).
Accordingly I have voted against a finding of violation.
Full & Egal Universal Law Academy