Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37107/97

by Rosemary BYRNE

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 21 July 1997 by

Rosemary BYRNE against the United Kingdom and registered on 30 July

1997 under file No. 37107/97;

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 an Irish citizen born in 1971 and resident in

London. She is represented before the Commission by Michael Yule of

Powell Spencer & Partners, solicitors, London. The facts of the

application, as submitted by the applicant's representative, may be

summarised as follows.

A. The particular circumstances of the case

The applicant was charged, (together with her husband and two

others), with conspiracy to defraud the Secretary of State for Social

Security by making false claims for Income Support and Housing Benefit

between 1 April 1991 and 29 July 1996. The total ascertainable claims

paid out amounted to £186,000. The applicant's husband was accused of

being the principal party in the conspiracy.

On 31 July 1996, the applicant and her husband were arrested at

51 Geary Road, a house purchased by the applicant in April 1994.

Following her arrest, the applicant was taken to the police station and

advised by a duty solicitor, who also acted for her husband, to remain

silent during the police interview. She followed this advice and did

not state her case until she came to trial.

The DSS claimed that £26,350.50 had been paid out on an Income

Support claim to a "Mr John Young" whose address was given as 51A Geary

Road (a non-existent address). "Mr John Young" had also made a claim

for Housing Benefit and 56 payments amounting to a total sum of £13,530

were paid into the applicant's bank account from April 1994 to July

1996. When the applicant purchased 51 Geary Road, her husband had

agreed to arrange for a tenant to move in and for the rental payments

to be made to her bank account. The applicant later denied that the

money was fraudulently claimed. She asserted that she had not been

living at 51 Geary Road during the period of the claim. As far as she

was concerned, "Mr John Young" lived at 51 Geary Road and was making

a genuine claim. It was not possible to verify how the claim had been

made as the relevant local authority had lost all the documents

relating to the claim.

The trial of the four defendants, including the applicant, began

at Harrow Crown Court on 7 April 1997. All defendants submitted that

the proceedings were an abuse of process and ought to be stayed because

the prosecution had either failed to produce or had lost important

documents. The submission was rejected by the judge and on 10 April

1997 three of the defendants, including the applicant's husband,

pleaded guilty to various substantive counts in the indictment. No

evidence was offered by the Crown against the applicant on the count

of conspiracy to defraud and the judge directed the jury to render a

verdict of not guilty in respect of the applicant. The applicant had

been refused Legal Aid on the grounds of her means test and paid her

own costs of £33,689.30.

After the applicant's acquittal, an application was made on her

behalf for costs incurred in defending herself to be paid out of

central funds. The judge refused her costs and said:

"It does seem to me that there was evidence which justified

bringing this case and involving this defendant in the conspiracy

count although it is, of course, accepted by the prosecution that

her involvement was peripheral. Nevertheless involvement, on the

prosecution case, there was. I, of course, have full regard to

the practice direction in relation to the exercise of my

discretion. Since I have a discretion I may make an Order; I do

not have to. The practice direction suggest[s] that such an

Order should normally be made unless there are positive reasons

for not doing so and examples are given. The defendant's conduct

in this case is receiving quite substantial sums on a regular

basis into her account in relation to the property and when she

was interviewed about this matter she chose, I am told, following

the advice of her solicitor, to make no reply. That, as I have

already indicated, is her right but if she chooses to do so then

it must make it very much more difficult for the prosecuting

authorities to decide whether or not she has an account which

might be believed by the jury and which might justify no

proceedings being brought against her. As I have indicated, she

cannot simply hide behind the advice which I am told was given

by her solicitor without law and it does seem to me that by so

doing and not revealing her case until the last minutes, as it

were, when the matter was before the court, she has allowed the

prosecution to continue and has as a result incurred costs. In

those circumstances, I take the view that there should not be any

Order for defence costs... in this case."

The applicant was subsequently advised by Counsel in writing that

there could be no appeal available to a person who is acquitted of a

criminal charge against a refusal to make a defendant's costs order.

The statutory framework of appeal to the Criminal Court of Appeal set

out in the Criminal Appeal Act 1968 does not include the right to

appeal against a refusal to grant costs. There is no appeal by way of

judicial review to the High Court from a costs refusal because of the

restriction in section 29(3) of the Supreme Court Act 1981.

B. Relevant domestic law and practice

Section 16 (2) of the Prosecution of Offences Act 1985 provides,

so far as relevant, as follows:

"Where -

(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."

On 3 May 1991 Lord Lane issued a Practice Direction of the Court

of Appeal (Criminal Division) concerning costs in criminal proceedings

(1991 93 Cr. App. R. 89). This Practice Direction, which is binding

on the Crown Court, states at para. 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."

Costs decisions made by the Crown Court are deemed to be an

integral part of the trial process made in the exercise of the Crown

Court's jurisdiction relating to trial on indictment. Accordingly

under domestic law costs decisions by the Crown Court are not subject

to judicial review (see Re Sampson [1987] 1 WLR 195).

COMPLAINTS

The applicant alleges a violation of Article 6 para. 2 of the

Convention and complains that the judge, in refusing her costs for

defending herself in the criminal proceedings against her, implied that

she is guilty. She complains that the judge's refusal to grant her a

costs order violates her right to be presumed innocent until proven

guilty and that she has been penalised for exercising her right to

silence during police questioning.

THE LAW

The applicant complains under Article 6 para. 2 (Art. 6-2) of the

Convention that the refusal of a costs order in her favour, despite her

acquittal, constituted a violation of the presumption of innocence.

Article 6 para. 2 (Art. 6-2) of the Convention provides as

follows:

"2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission recalls that the Convention does not guarantee,

to a defendant who has been acquitted, the right to reimbursement 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).

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 (see Eur. Court HR, Sekanina v. Austria judgment

of 25 August 1993, Series A no. 266, p. 13, para. 22 and No. 22613/93,

Moody v. the United Kingdom, Comm. Report 16.10.96).

The question for the Commission under Article 6 para. 2

(Art. 6-2) is whether the trial judge relied, when making his ruling

on the application for costs, on suspicions against the applicant,

despite the fact that she had been acquitted (cf. B.S., E. and N.P.A.

v. the United Kingdom, No. 36384/97, Dec. 15.1.98, unpublished).

The Commission notes that under domestic law in the United

Kingdom, an acquitted defendant will only be refused his costs if there

are positive reasons for doing so. The practice direction on costs in

criminal proceedings gives the following example of such a positive

reason which would justify refusing to award costs to an acquitted

defendant:

"Where ... 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".

The Commission further notes that the part of the practice

direction referred to above, and relied upon by the judge in the

present case, relates purely to questions of the defendant's conduct

prior to and during the prosecution and does not involve any assessment

of whether, despite acquittal, there is continuing suspicion against

the defendant. The mere application of this provision under domestic

law cannot therefore give rise to issues under Article 6 para. 2

(Art. 6-2) of the Convention (see also No. 22401/93, Dec. 24.10.95,

unpublished).

As to the judge's reasoning in the present case, the Commission

notes that the judge was clearly not of the opinion that the applicant

was guilty of the charges made against her: no evidence had been

offered by the prosecution, and the judge directed an acquittal.

Further, and in accordance with the practice direction, he made an

express finding that it was the applicant's conduct in the course of

the prosecution which had allowed the prosecution to continue with the

results that the costs were incurred.

The Commission does not accept that the applicant was penalised

for exercising her right to silence: in the absence of a right to

reimbursement of costs on acquittal, the fact that a person has to bear

his or her own costs on acquittal cannot be equated to a penalty.

Rather, it is an inevitable consequence of the bringing of proceedings.

The Commission notes, in agreement with the judge, that had the

applicant explained the position before the trial, the prosecution

would in all likelihood have been dropped, and there would have been

no question of a defendant's costs order.

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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BYRNE v. THE UNITED KINGDOM

BYRNE v. THE UNITED KINGDOM