Lexploria

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.

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MOODY v. THE UNITED KINGDOM

MOODY v. THE UNITED KINGDOM

LEXI