Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22614/93

Steven Lochrie

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. 16-26) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-20). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 21-26). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 27-53) . . . . . . . . . . . . . . . . . . . . .6

A. Complaints declared admissible

(para. 27). . . . . . . . . . . . . . . . . . . . .6

B. Points at issue

(para. 28). . . . . . . . . . . . . . . . . . . . .6

C. As regards Article 6 para. 2 of the Convention

(paras. 29-41). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 42). . . . . . . . . . . . . . . . . . . . .8

D. As regards Article 6 para. 1 of the Convention

(paras. 43-45). . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 46). . . . . . . . . . . . . . . . . . . . .9

E. As regards Article 10 of the Convention

(paras. 47-49). . . . . . . . . . . . . . . . . . .9

CONCLUSION

(para. 50). . . . . . . . . . . . . . . . . . . . .9

F. Recapitulation

(paras. 51-53). . . . . . . . . . . . . . . . . . .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 8 June 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 25 September 1992 police officers seized a quantity of

magazines and some videos from the bookshop where the applicant works.

He was subsequently charged with three counts of having had an obscene

article for publication for gain, contrary to Section 2(1) of the

Obscene Publications Act 1959 (as amended).

17. The applicant was tried on 1 and 2 April 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 applicant had not examined the magazines and had no

reasonable cause to suspect that they were obscene. The jury acquitted

the applicant on each count.

18. The applicant's counsel applied to the Recorder for a defendant's

costs order pursuant to the Prosecution of Offenders Act 1985. The

following exchange took place between Mr. Salter, the applicant's

barrister, and the Recorder:

"Mr. Salter: ... Your Honour is well aware that the starting

point in any case is [that] the successful defendant has its

costs. The normal course is that it is from central funds unless

there is some obvious reason to punish the prosecution. I do not

seek, obviously, to punish the prosecution. The defendant was

working in a shop selling articles which are not obscene. It

would be wrong, therefore, to bring him within any of the

exceptions that the Lord Chief Justice in his practice gave.

The Recorder: You can say that. You say they are not obscene,

you do not know. The jury may have felt they were not obscene

or they may have felt they were obscene but he had the statutory

defence.

Mr. Salter: Your Honour, that is something I cannot look behind

and with the greatest of respect I would caution your Honour

against doing so because clearly it is a matter of speculation

on the basis of the jury's verdict, and in theory it can be even

different on different counts. But what your Honour could never

do, and would not wish to do in this case, would be to substitute

your own view - and I do not know what it is either way - for

that of what the jury might have been. I hope that is not a

disrespectful way of putting it, your Honour's discretion on the

point is clear. The views of the lawyers in this case were

irrelevant and they remain irrelevant. Your Honour, this man has

put himself upon the jury, he has been acquitted. There is no

proper exception to an order for defence costs to be taxed.

The Recorder: I decline to make the order asked."

19. The applicant then applied for leave to apply for judicial review

of the Recorder's refusal. In his grounds were included the following:

"..[the Practice Direction] provides that a successful defendant

should have his costs unless there are reasons for refusing to

make such an order. It was and is submitted that no such reasons

existed ... There was no rational basis for this refusal ..."

20. The application was refused on 21 June 1993. Mr. Justice

Macpherson stated that "[the] authorities establish that a decision

(such as this one) as to costs after trial is not susceptible to

review". The applicant has submitted an advice from Mr. D. Pannick QC

and Mr. C. Salter of counsel that it is "settled beyond argument ...

[that] there is no possibility of persuading the Court (or the House

of Lords) that it has jurisdiction to entertain Mr. Lochrie's

application".

B. Relevant domestic law

21. 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."

22. 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).

23. 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".

24. In the case of Re Sampson [1987] 1 WLR 194, a case concerning a

legal aid contribution order at the end of a trial on indictment, Lord

Bridge of Harwich said:

"... certain orders made at the conclusion of a trial on

indictment are excluded from judicial review as 'relating to

trial on indictment' not because they affect the conduct of the

trial, but rather because they are themselves an integral part

of the trial process."

25. In that case, the question of the judge's order could not,

therefore, be judicially reviewed.

26. 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

27. 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

28. 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

29. 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."

30. 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.

31. The Government submit that the principles of English law and

practice in this area are in accordance with the presumption of

innocence in Article 6 para. 2 (Art. 6-2), and that the presumption of

innocence is relevant to related matters, such as costs, only to the

extent that such a decision may reflect an opinion that the defendant

is guilty. They submit that this does not mean that an acquitted

person must be put in the same position as someone who was never

proceeded against. The Government consider that in this case the

Recorder did not question the verdict of the jury or the presumption

of the defendant's innocence in relation to the charges on indictment,

but rather drew attention to the fact that the acquittal could have

been based on more than one reason. They state that the Recorder was

entitled to have regard to all the circumstances of the case, including

the conduct of the defendant, and that that is what he did.

32. 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."

33. 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).

34. 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.

35. 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.

36. 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.

37. In refusing the defendant's costs order to which, unless there

were positive reasons for not doing so, the applicant was entitled, the

Recorder did not formally state any express reasons. In reply to the

applicant's counsel's argument that it would be wrong to bring the

applicant within the exceptions set out in the Practice Direction, he

did, however, say: "You can say that. You say they [the articles] are

not obscene, you do not know. The jury may have felt that they were

not obscene or they may have felt that they were obscene but he had the

statutory defence."

38. The Commission is no more in a position to assess the reasons for

the jury's decision to acquit the applicant than was the Recorder or

the applicant's counsel. However, given that the defence had argued

that the articles were not obscene and that in any event the applicant

had not examined them and so had no cause to suspect that they were

obscene, it considers that the jury must have concluded either that the

elements of the offence had not been made out or that the defendant had

a substantive defence to the charge.

39. The Recorder was not required under the Convention to make a

defendant's costs order, but in refusing, he was not permitted to rely

on continuing suspicions as to the applicant's guilt.

40. In the absence of any attempt on the part of the Recorder to

justify his refusal of a costs order by reference to the Practice

Direction concerning the matter, the Commission is of the opinion that

the obvious construction to be given to the refusal is that the

Recorder 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.

41. 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

42. 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

43. 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 ..."

44. The applicant complains that the judge's refusal to give reasons

for not making a costs order, and the fact that he had evidently

resolved to punish the applicant by not making the order, violated

Article 6 para. 1 (Art. 6-1) of the Convention.

45. 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

46. 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

47. 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 ..."

48. The applicant alleges a violation of Article 10 (Art. 10) of the

Convention by virtue of the refusal of a defendant's costs order.

49. 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

50. 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

51. 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. 42).

52. 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. 46).

53. 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. 50).

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

(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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LOCHRIE v. THE UNITED KINGDOM

LOCHRIE v. THE UNITED KINGDOM

LEXI