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AS TO THE ADMISSIBILITY OF

Application No. 38200/97

by John William WRIGHT

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 June 1997 by

John William WRIGHT against the United Kingdom and registered on

14 October 1997 under file No. 38200/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, resident in Colchester. He

is not represented before the Commission. The facts, as submitted by

the applicant, may be summarised as follows.

A. The particular circumstances of the case

On 26 February 1996, the applicant was interviewed by the police

in connection with an incident which had taken place on 16 February

1996 in front of the applicant's house. On 2 April 1996, the applicant

received a summons to appear before Harwich Magistrates' Court on a

charge of driving without due care and attention contrary to Section 3

of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic

Offenders Act 1988.

The applicant sought legal advice. The applicant's solicitors

asked the Crown Prosecution Service for voluntary disclosure of the

prosecution witness statements to ensure "that the hearing concentrates

upon the issues and the court's time is not wasted whilst the defence

advocate obtains instructions from the defendant ... ". The applicant

also applied for legal aid.

Legal aid was refused on 30 April 1996 on the grounds, inter

alia, that the offence did not carry with it a risk of imprisonment,

and that no legal grounds had been given as to why expert cross-

examination was necessary. The decision states that if the dispute is

"purely factual the defendant will be assisted by the clerk". The

applicant's solicitors considered that it was unreasonable to expect

the applicant to represent himself on allegations about which he had

no firm information.

On 2 May 1996 the Crown Prosecution Service confirmed that the

witness statements would not be voluntarily disclosed.

On 3 June 1996, legal aid was again refused.

On 25 June a pre-trial review was held at Harwich Court which

fixed the trial date for 27 August. On 27 August, however, the hearing

was deferred due to the large number of prosecution witnesses present.

A new date was given, setting aside a full day on 22 November. On

6 November, the prosecution made an application to postpone the hearing

date because one of its witnesses was unable to attend. A new date was

fixed for 15 January 1997 at Colchester Court.

Before the proceedings began on 15 January 1997, the prosecutor

approached the applicant's solicitor and offered to drop the case if

the applicant would accept a bind over order. On the advice of his

solicitor, the applicant agreed to be bound over. He was duly bound

over in the sum of £500 to keep the peace for one year.

The applicant applied for a defendant's costs order to cover his

legal fees. The magistrates ordered that only 50% would be paid out

of central funds. The applicant paid his solicitors' bill of £626.95

plus VAT. The applicant was advised that an appeal to the High Court

against the costs order, although possible, would be very expensive and

unlikely to succeed.

On 10 September 1997 the clerk to the magistrates informed the

applicant that the "reason you only received half the costs was due to

the fact that you agreed to be bound over and in court you accepted

that you were not without culpability in the incident and to an extent

you had brought the proceedings on yourself".

B. Relevant law and practice

Section 16 of the Prosecution of Offences Act 1985 makes

provision for the award of defence costs out of central funds. A

Practice Note (Criminal Law: Costs) [1991] ([1991] 2 All ER 924)

provides that:

"Where an information laid before a justice of the peace ... is

not proceeded with ... the court may make a defendant's costs

order ... such an order should normally be made unless there are

positive reasons for not doing so ...

... Examples of such reasons are: the defendant's own conduct has

brought suspicion upon himself and has misled the prosecution

into thinking that the case against him is stronger than it is

..."

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

and complains that he did not have a hearing within a reasonable time,

that he was not informed promptly of the accusation, nor did he have

adequate time to prepare his defence and did not receive legal aid.

He also complains about the amount of costs he was ordered to pay.

THE LAW

The applicant alleges violation of Article 6 (Art. 6) of the

Convention which provides, so far as relevant, as follows:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law...

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of

the accusation against him;

b. to have adequate time and facilities for the

preparation of his defence;

c. to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient

means to pay for legal assistance, to be given it free when

the interests of justice so require."

To the extent that the applicant complains about the length of

the proceedings, the Commission notes that the proceedings lasted a

little under 11 months, from 26 February 1996, when the applicant was

first interviewed in the case, to 15 January 1997, when the proceedings

were dropped and the applicant was bound over. The Commission

considers that this period does not exceed the "reasonable time"

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

The applicant also complains that because of the refusal to

disclose prosecution witness statements, he was unable properly to

prepare his defence and, indeed, that the amount of costs he had to pay

his solicitors was greater than necessary because of the failure to

disclose and because of the length of the proceedings.

In connection with the complaints about the refusal to disclose

witness statements, the Commission notes that the refusal cannot have

had any impact on the fairness of the proceedings because the criminal

proceedings were dropped before the trial began.

As to the costs element, the Commission considers that the

question of costs incurred as a result of the length of proceedings is

a matter to be considered, if at all, in the context of Article 50

(Art. 50) of the Convention. The Commission has, however, found that

the "reasonable time" requirement of Article 6 (Art. 6) of the

Convention was met in the present case. The question of costs in

connection with the length of the proceedings does not, therefore, fall

to be considered.

The Commission notes, however, that the applicant was required

to pay one half of the costs of his defence, notwithstanding the

provisions of a Practice Note that where an information before the

magistrates' court is not proceeded with, costs should normally be

allowed unless there are positive reasons for not doing so. The

applicant complains expressly about having to pay these costs. The

Commission will consider the complaint in the context of Article 6

para. 2 (Art. 6-2) of the Convention.

The Commission recalls that the Convention does not guarantee,

to a defendant who has been acquitted or in respect of whom proceedings

have been discontinued, the right to reimbursement of his costs (Eur.

Court HR, Masson and Van Zon v. the Netherlands judgment of

28 September 1995, Series A no. 327, p. 19, para. 49; Eur. Court HR,

Lutz, Englert and Nölkenbockhoff v. Germany judgment of 29 November

1986, Series A no. 123, p. 25, para. 60). Notwithstanding the absence

of a right to reimbursement of costs, it is incompatible with Article 6

para. 2 (Art. 6-2) of the Convention for a court to rely on suspicions

as to the applicant's guilt in, for example, determining an application

for costs, if the applicant has been finally acquitted (Eur. Court HR,

Sekanina v. Austria judgment of 25 August 1993, Series A no. 266,

p. 13, para. 22; No. 22613/93, Moody v. United Kingdom, Comm. Report

16.10.96). On the other hand, where proceedings result in the

discontinuance of proceedings, rather than a formal acquittal, there

may be room for expressions of continuing suspicion (Eur. Court HR,

Lutz, Englert and Nölkenbockhoff v. Germany, op. cit., p. 25,

para. 62), provided that those expressions of suspicion do not amount

to a determination of the accused's guilt (ibid, para. 60).

In the present case the applicant was not acquitted: the criminal

proceedings were dropped when he agreed to be bound over. The reasons

given on 10 September 1997 for the decision only to make a defendant's

costs order in respect of one half of the applicant's costs were that

the applicant agreed to be bound over, that he accepted in court that

he was not without culpability, and that to an extent he had brought

the proceedings upon himself.

The Commission must ascertain whether these reasons amount to a

determination that the applicant had, in fact, committed the offence

with which he was charged.

The fact that the applicant agreed to be bound over does not

indicate that the magistrates considered that he was guilty of the road

traffic offence, nor does the statement by the magistrates' clerk that

the applicant accepted in court that he was not without culpability.

Similarly, the statement that the applicant had brought the proceedings

upon himself does not, of itself, indicate that the magistrates

considered that the applicant was guilty, and if it is taken as a

statement that there was continuing suspicion as to the applicant's

guilt, such continuing suspicion is permissible where, as here, the

applicant was not formally acquitted.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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WRIGHT v. THE UNITED KINGDOM

WRIGHT v. THE UNITED KINGDOM

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