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FOURTH
SECTION
CASE OF ASHENDON AND JONES v. THE UNITED KINGDOM
(Applications
nos. 35730/07 and 4285/08)
JUDGMENT
STRASBOURG
13
September 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ashendon and Jones
v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Sverre Erik
Jebens,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 23 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
-
The case originated in two applications (nos. 35730/07
and 4285/08 against the United Kingdom of Great Britain and
Northern Ireland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by British
nationals, Mr Joe Anthony Ashendon (“the first applicant”)
and Ms Marilyn Jones (“the second applicant”),
on 8 August 2007 and 9 January 2008 respectively.
-
The first applicant was represented by Mr G. Bromelow,
a lawyer practising in London with Saunders Law Partnership LLP,
assisted by Mr S. Simblet, counsel. The second applicant
was represented by Mr T. Coolican, a lawyer practising in
Birmingham with Russell Jones & Walker Solicitors. The
United Kingdom Government (“the Government”) were
represented by their Agents, Mr D. Walton and Ms H. Moynihan of the
Foreign and Commonwealth Office.
3.
The applicants alleged that the refusal to award them their defence
costs, after they had been acquitted in their respective criminal
proceedings, was in violation of Article 6 § 2 of the
Convention.
- On
23 April 2008 and 2 October 2009 respectively, the Vice-President of
the Fourth Section of the Court decided to give notice of the
applications and to communicate the complaints concerning Article 6 §
2 to the Government. It was also decided to rule on the admissibility
and merits of each application at the same time (Article 29 §
1).
-
The applicants and the Government each filed written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
A. Mr Ashendon
-
The first applicant was born in 1985 and lives
in London.
- In the early hours of 2 April 2006 the first applicant was
discovered sleeping in a flat in a sheltered accommodation complex.
He was naked from the waist down and intoxicated. Blood tests
subsequently showed that he had consumed alcohol and ecstasy the
night before and that he was a regular cannabis user. The tests also
showed a positive response for cocaine.
-
Police and paramedic personnel were called to the scene. After
investigation it was thought that the first applicant had gained
entry to the flat through another flat in the complex. Upon entering
the second flat, the police discovered its occupant, Mrs B, who was
ninety-seven years of age, lying on the floor. She too was naked from
the waist down. She was covered in faeces, she was upset and
confused, and said she was in pain. She had a number of injuries and
told the police she had been sexually assaulted in the night.
-
The first applicant’s jacket, shoes, trousers and underpants
were found in B’s flat. Faecal material, which was found to
contain components of B’s DNA, was found on the applicant’s
t-shirt. Pubic hair, visually similar to that of B, was found on the
first applicant and elsewhere in the flat where he had been found.
Swabs were taken from the first applicant’s penis but no DNA or
blood was found. There was no semen found anywhere.
-
When interviewed by police the following evening, the first applicant
admitted to having been drinking and to having taken an ecstasy
tablet. He denied having committed any offences and stated that
he had no recollection of events. He was interviewed on a further
four occasions and states that he co-operated with the police each
time.
-
The first applicant was charged with burglary, rape (by penile
penetration), rape (by digital penetration), and sexual assault.
The applicant’s trial began on 5 February 2007. The
prosecution offered no evidence in respect of the burglary charge and
a not guilty verdict was recorded. In respect of the remaining
charges, it was not suggested by the defence that someone other than
the first applicant had assaulted B, or that there had been no
contact between them. Instead, the principal area of dispute was
whether the first applicant’s actions had amounted to rape or,
alternatively, sexual assault. The prosecution’s case was that
they did. The applicant maintained that they did not. In giving
evidence in his defence, the applicant repeated that he had no
recollection of events on the night in question.
12. The trial judge’s summing up to the jury contained the
following direction:
“We all know this is a horrific, a disgusting
episode. We all know that, and we all know – there has not been
any argument about this, has there? – where moral
responsibility lies but we are a court of law, we are not here to
dish out admonitions for immoral conduct, disgusting behaviour. ...
We are here to judge whether a crime has been committed, whether the
criminal law of the land has been broken.
In order to do that you have to be objective. You have
to stand back from the feelings of disgust and revulsion that come
from the facts of this case and be objective. That last thing anyone
would want is to compound an already awful event with another awful
event, which would be a verdict based upon emotion and feelings of
distaste and disgust rather than a verdict based upon a proper,
logical, objective analysis of what has happened and that is what you
are trusted to do.”
-
On 14 February 2007 the jury acquitted the applicant of the three
remaining charges. When the first applicant applied for his costs
(which exceeded GBP 100,000 and had been met by his family) his
counsel stated:
“This is a case in which [the first applicant] was
inevitably going to be charged with a criminal offence, I do not
doubt that for a moment, and the point I made to the jury was that
had a different criminal offence been charged he may have had no
alternative but to plead guilty, but costs have been expended on
defending him on charges for which he has been found not guilty.
Bearing in mind everything Your Honour has said about
his conduct that, in my submission, would not be a relevant
consideration to the application that I make now because once he was
interviewed by the police he did his best...to tell the truth as he
understood it and remembered it to be so he did not do anything more
at that stage to bring this prosecution upon himself, simply the
conduct which ended him up where he was.”
14. In refusing the application, the trial judge said:
“With regard to a defendant’s costs you
[Counsel] are right, the costs should and almost invariably would
follow the event. I cannot think of another case in my 35 years’
experience in the criminal courts in which it is more apparent that a
defendant’s conduct, albeit that it had led to him being
acquitted, but a defendant’s conduct has led to him being
brought before the court and, given the nature of the circumstances
and the consequences to the very vulnerable victim, the injuries that
were seen upon her, where they were seen, the combination of facts,
it is one of those cases where I feel it is right for the court to
exceptionally say a defendant’s costs order will be refused. He
[the applicant] will have an opportunity, I have not the least doubt,
in the months and years ahead to make some recompense to his family
who have stood so loyally by him. It is not an order that I lightly
refuse but this is one of those exceptional cases where it seems to
me to be justified.”
B. Ms Jones
-
The second applicant was born in 1949 and lives in Stourton, West
Midlands.
-
In 2005, the police began investigating the business affairs of a
company where, it was alleged, there had been money laundering, theft
and fraud. The second applicant is an accountant and the company had
been one of her clients. In the course of their investigation the
police came into possession of an audio tape, which recorded a
conversation between the applicant and another person under
investigation, A.R., in which the applicant was alleged to have
provided advice on how to steal from the company.
-
The second applicant was interviewed under caution on 1 June 2006.
The tape was played to her and, on the advice of her solicitor at
that time, she declined to reply to the questions put to her. It
appears that, at this time, the police did not know the provenance of
the tape or the date the conversation was recorded; the applicant
maintains that, when interviewed, she was unable to remember the
conversation or the date of it.
-
On 11 July 2006, the second applicant was charged with an offence of
perverting the course of justice and, in September 2006, with two
co-accused including A.R., she was charged with conspiring to
steal from the company between 1 June 2000 and 31 October 2004.
- A
defence statement was served by the applicant on 18 January 2007 in
which she addressed the tape recording. She denied any discussion of
impropriety, challenged the admissibility of the tape as evidence and
stated that, if the prosecution established her voice was on the
tape, any comments she had made in the conversation had been taken
out of context.
-
The second applicant maintained that, at the start of the trial, the
prosecution offered to drop the charges against her and three
co-defendants if A.R and another defendant, C.R., pleaded guilty to a
significant proportion of the charges against them. She alleges that
if this offer had been accepted her application for her costs would
inevitably have been granted. The Government, in their observations
to this Court, do not accept that such an offer was made or that, if
it had been accepted, the second applicant’s application for
her costs would inevitably have been granted.
-
At trial the second applicant sought to have the tape excluded from
evidence but the trial judge ruled that it was admissible. The second
applicant then gave evidence in her own defence in which she
explained that she had been able to calculate the date of the
recording (1996) by reference to matters referred to in it. She also
stated that, even if the tape was genuine and had not been edited as
she alleged, the conversation was not in any way criminal or
dishonest in purpose.
-
In his closing speech, counsel for the prosecution argued that the
jury could and should draw an adverse inference from the fact that
the applicant had relied on many facts in her defence, none of which
she had mentioned when she was interviewed. In his summing up, the
trial judge told the jury that the second applicant had failed to
mention something in her police interview that she now relied upon in
court. He also indicated that if the jury concluded that the second
applicant had genuinely and reasonably relied on legal advice they
should not draw an adverse inference.
-
On 11 July 2007 the second applicant was acquitted unanimously of the
two counts facing her. Three defendants, including A.R. and C.R.,
were convicted of the majority of the charges against them. One
defendant, M.R., was acquitted of all charges against him and
another, S.R., was acquitted of all but one charge against her. M.R.
and S.R. were legally aided but were granted defendant’s costs
orders in respect of their own expenses.
-
The second applicant applied immediately for a defendant’s
costs order, pursuant to section 16(2) of the Prosecution of Offences
Act 1985 (see relevant domestic law and practice below). The trial
judge refused the application. He stated:
“The relevant features, in my judgment, in this
case are these: that [the second applicant], acting very much on the
advice of her then solicitor [name omitted], exercised her right to
silence when answering ‘no comment’ in her police
interview. I emphasise she cannot be criticised for that, and the
advice was given in good faith and it was accepted in good faith by
[her]. However, in my judgment it is a relevant consideration in
deciding whether a defendant’s costs order should be made in
this case. Her failure to answer questions, in my judgment, to some
extent had the effect of bringing this prosecution on herself,
allowing the police to believe that the case against her was stronger
than it in fact has turned out to be. In particular, a cardinal plank
of the prosecution case against her on the conspiracy count was a
taped phone call between her and [A.R.] in which on the face of it
she appeared to give advice to [A.R.] as to how to steal from the
company. Her failure, in my judgment, of putting that phone call into
its true context and true timescale clearly influenced the
prosecution decision to bring charges against her, and it is for that
reason, and that reason alone, that I have come to the conclusion
that to that extent she brought this prosecution upon herself and in
my judgment that is a proper reason for refusing a defendant’s
costs order. In no way is that decision meant to indicate that she is
in any way guilty of this offence, she is not, she has rightly been
acquitted by this jury.”
-
On 30 July 2007, the second applicant renewed her application in
writing, relying inter alia on the fact the she had been
unable to recall the conversation on the tape recording until the
trial had started and that one of the reasons her solicitor had
sought disclosure of the tape was to consider whether to propose to
the police that they should re-interview her. The trial judge
declined to hold an oral hearing on the renewed application and
stated that he was unable to make the order for the reasons he had
already given.
II. RELEVANT DOMESTIC LAW AND PRACTICE
-
Section 16(2) of the Prosecution of Offences Act 1985 provides that
where any person is tried on indictment and acquitted of any count in
the indictment, the Crown Court may make a defendant’s costs
order in favour of the accused. Section 16(6) provides that such an
order shall be for the payment out of central funds of such an amount
as the court considers reasonably sufficient to compensate him for
any expenses properly incurred by the defendant in the proceedings.
- The Practice Direction (On Costs in Criminal Proceedings) [2004]
2 Cr. App. R. 26 provides:
“Where a person is not tried for an offence for
which he has been indicted, or in respect of which proceedings
against him have been sent for trial or transferred for trial, or 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 whether or not an order for costs between the
parties is made, unless there are positive reasons for not doing so.
For example, where the defendant’s own conduct has brought
suspicion on himself and has misled the prosecution into thinking
that the case against him was stronger than it was, the defendant can
be left to pay his own costs. The court when declining to make a
costs order should explain, in open court, that the reason for not
making an order does not involve any suggestion that the defendant is
guilty of any criminal conduct but the order is refused because of
the positive reason that should be identified.”
-
In Dowler v. Merseyrail [2009] EWHC 558 (Admin), the High
Court found that the phrases in the Practice Direction “where
the defendant’s own conduct has brought suspicion on himself”
and “has misled the prosecution into thinking that the case
against him was stronger than it was” had to be read
conjunctively. A court could not refuse to make a defendant’s
costs order on the ground that a defendant had brought suspicion on
himself unless it was also satisfied that he had also misled the
prosecution into thinking the case against him was stronger than it
was. The High Court also found that there was a duty to give reasons
for not making an order.
- The High Court reached the same conclusion as to a conjunctive
reading of the Practice Direction in R. (on the application of
Spiteri) v. Basildon Crown Court [2009] EWHC 665 (Admin). In
that case, the High Court also found that an acquittal on the basis
of a procedural irregularity was not a proper reason for refusing to
make an order.
THE LAW
I. JOINDER
-
Given their similar factual and legal background, the Court decides
that the two applications should be joined pursuant to Rule 42 §
1 of the Rules of Court.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 2 OF THE
CONVENTION
A. The parties’ submissions
-
The applicants complained that the refusal to
grant them defendant’s costs orders was incompatible with
Article 6 § 2 of the Convention, which reads as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
1. Mr Ashendon
-
Mr Ashendon submitted that the trial judge had not given any positive
reasons for his refusal to make a defendant’s costs order. In
his comments, the trial judge had not identified any conduct ulterior
to that which was the subject of the criminal charges. Despite their
submissions in his case (see paragraphs 37 and 38 below), the
Government, had been unable to explain these comments. If they were
to be understood as suggesting that he should be denied his costs
because he was guilty of other offences, that too would amount to a
violation of Article 6 § 2.
-
The first applicant also submitted that his conduct was different to
the conduct considered by the Court in D.F. v. the United Kingdom,
no. 22401/93, Commission decision of 24 October 1995; and
Fashanu v. the United Kingdom, no. 38440/97, Commission
decision of 1 July 1998 (both unreported). In those cases, the
defendants’ conduct had made it look as if the cases against
them were stronger than they were. By contrast, it had never been
suggested that the first applicant had led the prosecution to believe
it had a stronger case than it did: he had co-operated with the
prosecution throughout the proceedings. It was also not appropriate
to ask the Court to look at the context of the case, as the
Government had done; this could only mean examining the circumstances
surrounding the criminal offences of which he had been acquitted.
2. Ms Jones
-
Ms Jones submitted that the refusal to award her costs was based on
the trial judge’s false assumption that she should have
explained the tape recording at an early stage of proceedings.
However, the jury’s acquittal meant there could be no
conceivable criticism of her conduct. She could not be criticised for
her failure to answer questions about the tape when first
interviewed. At that time, she could not recall the conversation.
Later, she had sought to explain the conversation to the police but
had been denied that opportunity. She had been entitled to contest
the admissibility of the tape recording before trial. It was not for
the trial judge to infer that, had she provided her explanation for
the tape recording before trial, the prosecution would not have
proceeded; that was a matter for the prosecution. If the trial judge
had accepted that she was innocent, and had also accepted her account
as to why she had not explained the tape recording earlier, he would
have had to grant the defendant’s costs order. Therefore, in
refusing to make the order, the trial judge must have had lingering
suspicions as to her guilt.
-
Ms Jones also submitted that the trial judge had also erred in
proceeding on the assumption that exercising one’s right to
silence was, in itself, enough to justify refusing a defendant’s
costs order. Moreover, the right to silence would be unacceptably
curtailed if defendants who relied upon it knew that they risked
being refused their costs if acquitted. The cases of D.F. and
Fashanu (both cited above) and Byrne v. the United Kingdom,
no. 37107/97, Commission decision of 16 April 1998, were all
distinguishable from her case. In those cases, the defendants had
been refused their costs because they chose to say nothing to explain
their actions; she, on the other hand, had been unable to say
anything when first interviewed.
3. The Government
-
The Government contested each applicant’s arguments. The issue
was not whether a defendant’s costs order should have been made
in each case but whether, in refusing the applications for
defendants’ costs orders, the trial judge in each case had
relied on suspicions as to the applicant’s innocence after each
applicant had been acquitted (Yassar Hussain v. the United
Kingdom, no. 8866/04, § 19, ECHR 2006 III). In their
submission, neither trial judge had done so.
- In Mr Ashendon’s case the trial judge’s reasons were
short and somewhat imprecise, which was unsurprising because they had
been given ex tempore. Nevertheless, the obvious
interpretation of those reasons was that the trial judge, having
regard to the context of the case, had considered that the first
applicant, by his reprehensible behaviour, had brought suspicion upon
himself. Those reasons could not be construed as relying on
continuing suspicions as to the applicant’s innocence. This
interpretation was supported by three factors. First, the trial judge
had expressly acknowledged the first applicant’s acquittal.
Second, counsel had recognised that the first applicant’s
conduct had “ended him up where he was”. Third, the trial
judge had previously directed to the jury to disregard any feelings
of disgust they might have had and to reach a verdict based on a
“proper, logical, objective analysis” of what had
happened (see paragraph 12 above). Therefore, the trial judge had
formed the view that, although the first applicant’s conduct
was reprehensible, it did not follow that he was guilty of the
offences charged. That view was consistent with Article 6 § 2
of the Convention.
- Finally, the Government submitted that the first applicant’s
case had to be distinguished from Yassar Hussein, cited above,
where the trial judge had referred to “compelling evidence”
on the file against the applicant, notwithstanding that no evidence
had been called, and where the Court found that the applicant had not
done anything to bring the prosecution on himself.
-
In Ms Jones’s case, the Government disputed that the trial
judge had only refused the order because Ms Jones had exercised her
right to silence. Instead, he had taken the view that the tape was
the “cardinal plank” of the prosecution case. The trial
judge had accepted that, in remaining silent, the second applicant
had followed her solicitor’s advice; he had nevertheless
concluded that the tape recording called for an explanation from the
applicant. That explanation had only been provided at trial; had it
been provided earlier, the prosecution might not have brought charges
against her.
-
In any event, this Court had found that the right to silence was not
absolute (John Murray v. the United Kingdom, 8 February 1996,
§ 47, Reports of Judgments and Decisions 1996 I) and
there was no reason why a defendant’s exercise of her right to
silence should not be taken into account in assessing whether she
should be granted her costs (D.F.¸ Byrne, and
Fashanu, all cited above). The trial judge, in relying
on the second applicant’s silence, in no way called into
question the jury’s verdict. There was nothing in the trial
judge’s reasons which would allow the Court to draw an
inference that he had relied on continuing suspicions as to the
applicant’s guilt. It did not follow that, because the trial
judge had considered that the applicant had been late in explaining
the tape recording, he continued to believe she was guilty of the
offences charged. Those issues were quite distinct.
B. Admissibility
-
The Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
C. Merits
1. General principles applicable to both cases
-
The relevant general principles on the presumption of innocence were
most recently set out in Yassar Hussein, cited, above, §§
19 and 20:
“... the presumption of innocence enshrined in
Article 6 § 2 is one of the elements of a fair criminal trial
required by Article 6 § 1. It will be violated if a statement of
a public official concerning a person charged with a criminal offence
reflects an opinion that he is guilty unless he has been proved so
according to law. It suffices, even in the absence of any formal
finding, that there is some reasoning to suggest that the official
regards that person as guilty (see Daktaras v. Lithuania,
no. 42095/98, § 41, ECHR 2000-X, and A.L. v.
Germany, no. 72758/01, § 31, 28 April 2005). Whether a
statement of a public official is in breach of the principle of the
presumption of innocence must be determined in the context of the
particular circumstances in which the impugned statement was made
(see Daktaras, cited above, § 43). The provision applies
even where the substantive criminal proceedings have ended, provided
that there is a sufficient nexus between the criminal proceedings and
the events in issue (see Sekanina v. Austria, 25 August 1993,
§ 22, Series A no. 266-A). In such circumstances, the question
is whether the trial judge relied on suspicions as to the applicant’s
innocence after the applicant had been acquitted (ibid., § 30;
see also Moody v. the United Kingdom, no. 22613/93,
Commission’s report of 16 October 1996, unpublished,
and D.F. v. the United Kingdom, no. 22401/93,
Commission decision of 24 October 1995, unreported, which both
concerned Practice Directions on the making of defendants’
costs orders).
20. However, neither Article 6 § 2 nor
any other provision of the Convention gives a person “charged
with a criminal offence” a right to compensation for lawful
detention on remand where proceedings taken against him are
discontinued (see, for example, Sekanina,
cited above, § 25). Further, the Convention does not
guarantee a defendant who has been acquitted the right to
reimbursement of his costs (see Masson and Van Zon v. the
Netherlands, 28 September 1995, § 49, Series A no. 327 A).”
- The Court also observes that the parties have either relied upon,
or sought to distinguish, a number of previous cases against the
United Kingdom in which the Court and former Commission considered
complaints arising from the refusal to make defendants’ costs
orders, applying the provisions of a practice direction in
substantially the same terms as that of 2004 (see paragraph 27
above). Accordingly, it is appropriate to set out the approach taken
in those cases.
- Moody, cited above, the applicant was acquitted of
having obscene articles for publication for gain. The applicant’s
defence had been that the articles were not obscene. The defendant’s
costs order was refused on the basis that the applicant had brought
the prosecution on himself by choosing to work among the material in
question. The Commission concluded that there had been a violation of
Article 6 § 2. The only material before the trial judge was the
material on the basis of which the applicant had just been acquitted.
The applicant could be said to have brought suspicion on himself by
working in a shop which sold such material, and he could not be said
to have misled anyone as to the strength of the prosecution case when
his defence was clear from the outset.
-
In D.F., cited above, the trial judge had directed the jury to
acquit the applicant and, in refusing to make a full order in the
applicant’s favour, had commented that the applicant’s
commercial activity “stinks of greed”. The Commission
rejected the application as manifestly ill-founded. It found that the
trial judge did not indicate any continuing suspicions against the
applicant, particularly when greed was not a criminal offence. It
rejected the applicant’s argument that he had been penalised
for exercising his right to silence as it was inevitable that a
defendant who declined to produce any evidence until trial would
incur costs until trial, and that those costs would then have to be
borne by the defendant. Moreover, the trial judge’s decision
was based on the fact that, by his conduct in making a statement to
the police which was less than candid, the applicant had brought
suspicion on himself and misled the prosecution into thinking the
case against him was stronger that it was.
-
In Byrne, cited above, the applicant was charged with benefit
fraud and availed herself of her right to silence until trial. No
evidence was offered against her and she was acquitted. The trial
judge had observed that the applicant, in relying on her right to
silence, had made it much more difficult for the prosecution to
decide whether to proceed. She could not “hide behind”
the advice she had received to remain silent. In rejecting the
application as manifestly ill-founded, the Commission observed that
the trial judge was clearly not of the opinion that the applicant was
guilty. Furthermore, he had made an express finding that the
applicant’s conduct had allowed the prosecution to continue
with the result that costs were incurred. The Commission did not
accept that the applicant had been penalised for exercising her right
to silence, particularly when, had the applicant explained her
position before trial, the prosecution would in all likelihood have
been dropped and there would have been no question of a defendant’s
costs order.
-
In Fashanu, cited above, the applicant had been acquitted of
conspiracy to give and receive corrupt payments for influencing the
outcome of football matches. He had exercised his right to silence
and declined to explain how he had received substantial sums of
money. A defendant’s costs order was refused on the basis
that the applicant’s conduct had brought suspicion on himself
and misled the prosecution into thinking that the case was stronger
than it was. The Commission did not accept that the trial judge’s
reasons were based on any continuing suspicion that the applicant was
guilty or that the applicant had been penalised for exercising his
right to silence. The application was therefore rejected as
manifestly ill-founded.
- Finally, in Yassar Hussein, cited above, the prosecution
of the applicant failed because a key witness had not attended court.
There was no suggestion that the applicant was responsible for the
non-attendance of the witness. The reason given by the judge for
refusing the application for a defendant’s costs order was that
there was “compelling evidence” in the court papers. The
Court found that the only natural interpretation which could be put
on those words was that the trial judge was of the view that,
although the key witness had not given evidence and the applicant had
been acquitted, the applicant was, in fact, guilty of the offence. In
the Court’s view, this amounted to a reliance on suspicions as
to the applicant’s innocence after he had been acquitted, and
was a violation of Article 6 § 2 of the Convention.
-
On the basis of these cases, the Court considers that, in the context
of defendants’ costs orders, the Convention organs have
consistently applied the following principles. First, it is not the
Court’s role to decide whether a defendant’s costs order
should have been made in any given case. Second, it is not for the
Court to determine whether, in granting or refusing such an order,
the trial judge has acted compatibly with the relevant Practice
Direction, set out at paragraph 27 above. Third, the Court’s
task is to consider whether, in refusing to make an order, the trial
judge’s reasons indicate a reliance on suspicions as to the
applicant’s innocence after the applicant has been acquitted.
Fourth, the Convention organs have found that it is not incompatible
with the presumption of innocence for a trial judge to refuse to make
an order because he or she considers that the applicant has brought
suspicion on himself and misled the prosecution into believing that
the case against him or her was stronger than it was in reality. This
will also be the case if the applicant brought the prosecution upon
himself because he availed himself of the right to silence. Finally,
the refusal to make an order does not amount to a penalty for
exercising that right.
2. Mr Ashendon’s case
-
In applying these principles to Mr Ashendon’s case, the Court
agrees with the Government that the trial judge’s reasons were
somewhat imprecise. However, their meaning is clear from the context
in which they were given. The facts of the case (summarised at
paragraphs 7–14 above) clearly show that the trial judge was
entitled to find that the first applicant had brought the prosecution
on himself. The first applicant had been found half-naked in a state
of intoxication with bodily materials of B on him. It was not denied
that he had had contact with B or that she had suffered injuries. Nor
was it denied that his actions that night were reprehensible. The
only issue was whether his actions amounted to rape or sexual
assault. The Court finds nothing in the trial judge’s remarks
which would indicate a belief that the applicant’s actions
meant that he was guilty of rape or sexual assault; disapproval by a
trial judge of a defendant’s conduct does not necessarily mean
that the trial judge has formed a view as to whether that conduct
amounts to a criminal offence (see D.F., cited above).
-
Moreover, in this case, the trial judge’s remarks must also be
seen in the light of his prior exchange with counsel who had conceded
that, if the first applicant had been charged with different
offences, he would have had to plead guilty. The Court does not
understand the trial judge’s comments as to B’s injuries
as reflecting anything other than the concession which had been made
by counsel. Finally, the trial judge’s reasons for refusing the
order must be read alongside his prior direction to the jury that
they had to stand back from any feelings of disgust and revulsion and
base their verdict on a “proper, logical, objective analysis”
of what had happened. This was an entirely fair direction to the jury
and, given their decision to acquit the applicant, it must inevitably
have carried some weight with them. The direction supports the
Court’s view that the trial judge, in refusing the defendant’s
costs order, did not hold lingering suspicions as to the innocence of
the applicant.
The
Court therefore concludes that there has been no violation of
Article 6 § 2 of the Convention in respect of the first
applicant.
3. Ms Jones’ case
-
In Ms Jones’ case, the Court notes that the principal issue in
the case was the tape recording of a conversation between the
applicant and A.R. The second applicant has submitted that she was
not to blame for the fact that she could not provide an explanation
for that conversation prior to trial and that, as a consequence she
could not be said to have brought the prosecution on herself.
However, in the Court’s view, the trial judge was the person
best placed to evaluate the significance of the tape recording to the
prosecution case and whether, on the basis of the evidence led at
trial, the applicant had brought the prosecution on herself. He
concluded that the tape recording was a “cardinal plank”
of the prosecution case and that the second applicant’s failure
to answer questions allowed the police to believe that the case
against her was stronger than it in fact turned out to be. The Court
sees no reason to doubt these findings. Moreover, it considers that
the trial judge was entitled to treat these issues as distinct from
the issue of the applicant’s innocence of the offence.
-
In the Court’s view, the trial judge’s reasons were
carefully phrased. He stated that his decision was in no way meant to
indicate that she was guilty of the offence. In fact, he went further
and stated that she had been rightly acquitted by the jury.
Therefore, it cannot be inferred that, in refusing to make the
defendant’s costs order, the trial judge must have had
lingering suspicions as to her guilt.
-
Furthermore, the Court considers that the trial judge was correct to
consider that, while the applicant could not be criticised for
exercising her right to silence, this was a relevant consideration in
deciding whether a defendant’s costs order should be made.
Despite the applicant’s submissions as to the importance of the
right to silence, the Court finds no reason to depart from the
Commission’s findings in D.F., Byrne and Fashanu,
all cited above, that the refusal to make a defendant’s costs
order does not amount to a penalty for exercising the right to
silence. The Court also shares the Commission’s view, as
expressed in D.F., cited above, that it is inevitable that a
defendant who declines to produce any evidence until trial will incur
costs until trial and that those costs will have to be incurred by
the defendant.
-
The Court concludes, therefore, that the second applicant’s
case cannot be distinguished from D.F., Byrne and
Fashanu, all cited above. Accordingly, it finds that there has
been no violation of Article 6 § 2 of the Convention in respect
of the second applicant.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 8 of the Convention
-
The second applicant also complained that refusing to award her costs
on the basis that she had exercised her right to silence also
amounted to a violation of Article 8 of the Convention, which
provides as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms
of others.”
-
The Court considers that the refusal to make a defendant’s
costs order – whether as a result of the second applicant
exercising her right to silence or otherwise – does not amount
to an interference with the right to respect for one’s private
or family life. It follows that this complaint must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
B. Article 13 of the Convention
-
The first applicant also complained of a
violation of Article 13 of the Convention since he had no right of
appeal or other right of challenge to the trial judge’s ruling.
-
Article 13 of the Convention provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] 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 Court recalls that, in Yassar Hussein, cited above, the
applicant complained that there was no effective remedy under Article
13 for his Article 6 § 2 complaint. The Court found that
complaint to be manifestly
ill-founded because Article 13 could
not be read as requiring the provision of an effective remedy that
would enable an individual to complain about the absence in domestic
law of access to a court (see paragraph 26 of the judgment). In the
present case, the Court finds no reason to depart from its ruling in
Yassar Hussein. Accordingly, this complaint must be rejected
as manifestly ill-founded, pursuant to Article 35 §§ 3 and
4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins the applications;
- Declares each applicant’s complaint
under Article 6 § 2 of the Convention admissible
and the remainder of their complaints inadmissible;
- Holds that there has been no violation of
Article 6 § 2 of the Convention in respect of Mr Ashendon;
- Holds that there has been
no violation of Article 6 § 2 of the Convention in respect of Ms
Jones.
Done in English, and notified in writing on 13 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge De
Gaetano is annexed to this judgment.
L.G.
F.A.
SEPARATE OPINION OF JUDGE DE GAETANO
I
voted with the majority in this case because, like the other six
judges, I do not believe that there was a violation of Article 6 §
2. However I would have been prepared to go even further and to say
that in the instant case, and with regard to both applicants,
Article 6 § 2 was not even engaged.
Article
6 deals with the right to a fair trial, not with the right not to be
defamed by suggestions, direct or subliminal, that one has committed
acts that amount to a criminal offence notwithstanding that one has
been acquitted of any corresponding criminal charges. In the instant
case both applicants received a fair hearing and were acquitted.
There is no suggestion that they could have been re-tried on the
same facts and on the same evidence as a result of what the judges
said in the course of the proceedings on costs. Nor was it argued by
the applicants that what was said in the course of these costs
proceedings could have influenced the outcome of potential civil
proceedings instituted by them (for example, for malicious
prosecution or, as in Sekanina v. Austria, no. 13126/87, 25
August 1993, for damage sustained on account of having been kept in
detention), or against them by third parties (see, for example, the
joint or contemporaneous procedure for civil compensation in Orr
v. Norway, no. 31283/04, 15 May 2008).
Ever
since paragraph 2 was launched into a separate orbit from that of
Article 6 in Minelli v. Switzerland, (no. 8660/79) 25 March
1983, § 37, it has unnecessarily hampered judges in civil
proceedings arising from the same facts which had given rise to the
criminal charge (see passim the dissenting opinions of Judges
Jebens, Nicolaou and Vajić in Orr, above). To state that
judges (and semble other public officials) casting doubt as
to the innocence of a person who has been acquitted when there
appears to be no realistic possibility of such pronouncements
influencing the fairness of other ongoing, or reasonably
anticipated, proceedings, are violating Article 6 § 2 is to
give an entirely distorted interpretation to this provision.
In
her concurring opinion in Bok v. The Netherlands, (no.
45482/06) 18 January 2011, Judge Power poignantly observes:
“1. The presumption of innocence when charged with
a criminal offence is a sacrosanct principle of Convention law but
the wording of Article 6 § 2, when taken alone, is open to
different interpretations. What does “Everyone charged”
actually mean? Does it mean “Everyone ever charged –
no matter how long ago”? Or does it mean “Everyone when
charged or likely to be charged with a criminal offence and for as
long as such charges are pending”? Is the presumption of
innocence “eternally live”, attaching to every person at
all times regardless of whether one is actually facing a criminal
charge or not? Or is the presumption something that is “triggered”,
that only becomes legally meaningful when events occur through which
a person is, in reality, facing or likely to be facing a criminal
charge which has not, as yet, been determined? To my mind, these are
not only neat philosophical questions; how they are answered is
critical to the determination of this case.
“2. The free-standing, post-acquittal “eternally
live” model of interpretation of Article 6 § 2 is
appealing and attractive and there is some support for this model in
the case law to date – at least where a sufficient “link”
exists between the post-acquittal observations of a court and the
criminal responsibility of an accused. However, without advocating a
rigid and unwavering adherence to the doctrine of “original
intent”, common sense and the overall “fair trial”
context within which the presumption of innocence is articulated
within the Convention lead me to the view that the “events
occurring” model of interpretation is the better one. Based on
that interpretation, I voted with the majority in finding no
violation of Article 6 § 2 of the Convention. The
alternative would have established, in my view, an unreasonable and
potentially unlimited extension of the scope of Article 6 § 2 to
civil proceedings.”
Perhaps it is time to effect a “recall” of Article 6 §
2 for a thorough re-examination as to its proper place in the scheme
of Article 6. The instant case, however, was not the proper place
for that re-examination.
