Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36384/97

by B.S., E. and N.P.A.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 15 January 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 9 September 1996

by B.S., E. and N.P.A. against the United Kingdom and registered on

9 June 1997 under file No. 36384/97;

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 first applicant is a British citizen born in 1953. She is

a pharmacist by profession and a director of the second applicant, a

limited company which owns a pharmacy. The third applicant is an

association whose object is to provide benefits for the pharmacy

profession. In particular the third applicant provides indemnity for

the costs of the legal defence of the prosecution of any person (such

as the first applicant) employed by one of its members (such as the

second applicant). The applicants are represented before the

Commission by Charles Russell Solicitors, London. The facts of the

application, as submitted by the applicants' representative, may be

summarised as follows.

A. The particular circumstances of the case

The first applicant has worked since 1985 as a pharmacist in a

pharmacy owned by the second applicant. In 1993 she set in place, with

the co-operation of a local doctor's surgery, a system of repeat

prescriptions, which meant that patients were not obliged to visit

their doctor in person to receive their repeat prescription. Under the

new system, repeat prescriptions falling due were sent by the pharmacy

to the local surgery. The doctor would sign the prescription and

return it to the pharmacy, who then prepared the drugs for collection

by, or delivery to, the patients.

Under this scheme, it nevertheless remained necessary for the

patient, or the patient's representative, to sign the prescription form

to certify whether they were entitled to free medication. This form

was submitted by the pharmacy to the Health Authority who reimbursed

the pharmacy for drugs that had been supplied free of charge.

From late 1993 until August 1994 the first applicant completed

the prescription form in a number of cases where the patient had

omitted to do so. As the responsible pharmacist the applicant had

authority to complete this form as the patient's representative. In

fact, she frequently completed prescription forms by writing or signing

the patient's name, rather than signing herself as their

representative.

The second applicant's records were examined and subsequently

several patients were interviewed by the police. It was suspected that

the first applicant was signing prescription forms in patients' names

and then receiving reimbursement for drugs that were never issued to

patients.

On the evening of 26 October 1994, the first applicant was

arrested and was taken to the police station where she was interviewed.

The first applicant states that she was advised by a solicitor that if

she admitted having signed the prescription forms she would be charged

with a criminal offence forthwith. The first applicant denied signing

prescription forms in patients' names. The first applicant supplied

the police with samples of her handwriting and the police instructed

a hand writing expert.

The first applicant sought legal advice and on 31 January 1995

she confessed to the police that she had signed the prescription forms

in the names of patients. However, she maintained that the patients had

always received the drugs in question and the signing of the forms had

merely been a way of ensuring paperwork was completed each month.

Full committal proceedings were held from 27 to 29 September

1995, at which various patients were heard, some of whom asserted they

had not received the medicines which appeared on the prescriptions. The

first applicant, who was represented, did not make a submission of no

case to answer and she was committed for trial at the Crown Court.

Prior to the trial, the first applicant served upon the

prosecution considerable evidence. This included witness statements

of numerous patients who affirmed that they had received the drugs

referred to on prescription forms signed by the first applicant and

also statements from prescribing doctors emphasising the severe medical

consequences that would have resulted had certain patients not received

repeat prescriptions.

The trial of the first applicant commenced in the Crown Court

before His Honour Judge Devaux on 18 March 1996. The first applicant

was represented by counsel throughout. Before the close of the

prosecution case, the prosecution chose to discontinue their case

against the first applicant. The judge directed the jury to enter

verdicts of not guilty on each count, and this was accordingly done.

The evidence of the defence was thus never put before the jury, as this

stage of the trial was never reached.

The first applicant sought a defendant's costs order. The judge

refused the application stating as follows:

"The fact remains that the defendant, on a number of occasions,

wrote, on prescription forms, the names of the patients and

ticked those forms with the box indicating that they had been

signed by the patients. ... plainly, that would have brought

suspicion on herself and led the police to believe that they had

a stronger case than was, in fact, the case.

Then, for whatever reason, she lied in the interview. That

meant that the police had to consult a handwriting expert. The

handwriting expert indicated that it was likely that the

defendant had written the signatures, and at a later interview,

after new solicitors had been instructed and fresh advice had

been given, she started to tell the truth. ... in two very

important respects this lady brought suspicion upon herself, led

the prosecution to believe the case against her was stronger than

it was, and this is one of those relatively rare cases where it

seems to me that the order for costs should not follow."

The first applicant had to bear the legal costs of conducting her

defence which amounted to £93,204.95. In the event the first applicant

was aided in the payment of these costs by an indemnity provided by the

third applicant to her, as an employee of the second applicant.

The first applicant sought to appeal this costs order. On

30 April 1996 the Registrar of Criminal Appeals informed her that there

was no jurisdiction upon which such an appeal could be made.

B. Relevant domestic law and practice

Section 16 (2) of the Prosecution of Offences Act 1985 gives the

Crown Court the power to make a defendant's costs order in favour of

a defendant who is acquitted on any count in the indictment.

In May 1993 Lord Lane gave a Practice Direction of the Court of

Appeal (Criminal Division) concerning costs in criminal proceedings

(1991 93 Cr. App. R. 89). This Practice Direction is binding on the

Crown Court. At para. 2.2 the Practice Direction states:

"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 normally 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 upon

himself and has misled the prosecution into thinking that the

case against him 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 applicants invoke Articles 6, 8, 13 and 14 of the Convention

and Article 1 of Protocol No. 1. They complain that they had to bear

the burden of the costs incurred in defending a prosecution which was

abandoned by the prosecution part way through the trial. They complain

that the imposition of a costs burden was incompatible with the

presumption of innocence and further complain that there was no means

by which to appeal against the costs decision of the Crown Court.

THE LAW

1. In so far as the second and third applicants complain under

Article 6 (Art. 6) of the Convention, the Commission notes that neither

of these applicants was party to the criminal proceedings.

It follows that this part of the application is incompatible

ratione personae with the provisions of the Convention within the

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

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

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 (see 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. 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 first

applicant, despite the fact that she had been acquitted.

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 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).

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

notes that the judge made clear in his summing up that he refused to

award the first applicant her defence costs as she had brought

suspicion upon herself and misled the prosecution into thinking that

the case against her was stronger than it actually was. He based this

finding on the fact that she had signed prescription forms in the names

of her patients, and further that, for the first three months of the

investigation, she had maintained to the police that she had not done

so. There is no suggestion in the transcript of the costs application

that the judge harboured or voiced to the jury any suspicion that the

first applicant was guilty of the offences charged. On the contrary,

he stated plainly to the jury that the charges on the indictment could

not be sustained, that the prosecution would be stopped and that the

jury should return verdicts of not guilty to all the charges.

It follows that this part of the application is manifestly ill-

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

Convention.

3. The first applicant invokes Article 6 para. 1 (Art. 6-1) of the

Convention. She complains that the procedure, which resulted in her

having to bear the defence costs, was unfair.

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

The Commission recalls that it may only received petitions from

a person claiming to be a victim of an alleged violation of the

Convention. In the present case, the applicant was acquitted of the

charges brought against her, and she may not therefore claim to be a

victim of unfairness in respect of the substantive proceedings.

Even if it were open to the applicant to claim to be a victim of

a violation of Article 6 (Art. 6) of the Convention in connection with

the fairness of the proceedings in which the costs order was refused,

the Commission is unable to discern any lack of fairness. In

particular, the applicant had the opportunity to make any submission

she wished as to the costs order and the Practice Direction, and the

prosecution made very few comments on the costs order. In the absence

of a right to reimbursement of costs, the mere fact that the costs

order was not made cannot, of itself, amount to unfairness within the

meaning of Article 6 (Art. 6) of the Convention.

It follows that this part of the application is manifestly ill-

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

Convention.

4. The applicants allege that the refusal to award the first

applicant her costs amounted to violations of Articles 8, 14 and

Article 1 of Protocol No. 1 (Art. 8, 14, P1-1). The Commission has

commented on the complaints concerning the costs order above. The

Commission has considered the remainder of the applicants' complaints

and finds that, even assuming that all applicants may claim to be

"victims" of alleged violations of the Convention within the meaning

of its Article 25 (Art. 25), the complaints do not disclose any

appearance of violation of the Convention.

It follows that this part of the application is manifestly ill-

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

Convention.

5. Finally, the applicants complain under Article 13 (Art. 13) of

the Convention that there was no appeal against the judge's costs order

and that there was no effective remedy in respect of the alleged

Convention breaches.

Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this

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 Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment

of 21 February 1990, Series A no. 172, p. 14, para. 31). In the

present case, the Commission has rejected the substantive claims as

disclosing no appearance of a violation of the Convention. For similar

reasons, they cannot be regarded as "arguable".

It follows that this part of 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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B.S., E. AND N.P.A. v. THE UNITED KINGDOM

B.S., E. AND N.P.A. v. THE UNITED KINGDOM