Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22614/93

by Steven LOCHRIE

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 8 June 1993 by

Steven LOCHRIE against the United Kingdom and registered on

13 September 1993 under file No. 22614/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

29 July 1994 and the observations in reply submitted by the

applicant on 7 October 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen born in 1958. He is

a shop assistant and lives in London. He is represented before the

Commission by Messrs. Wilson Barca, solicitors, of London. The facts

of the case may be summarised as follows.

The particular circumstances of the case

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).

The applicant was tried on 1 and 2 April 1993 before a judge

(Mr. 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.

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.

Judge Crowther: 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.

Judge Crowther: I decline to make the order asked."

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 ..."

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".

Relevant domestic law and practice

Section 16 of the Prosecution of Offences Act 1985 provides, so

far as relevant, as follows:

"(2) 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 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).

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".

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."

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

therefore, be judicially reviewed.

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.

COMPLAINTS

The applicant alleges violation of Articles 6 and 10 of the

Convention.

He considers that Article 6 para. 2 of the Convention is violated

where domestic law provides for costs to be paid to an acquitted

defendant unless there are good reasons for not doing so, and the

judge, as here, refuses costs without good reasons.

He also contends that the refusal to give reasons, and the fact

that the Recorder had evidently resolved to punish the applicant by not

making a defendant's costs order, violates Article 6 para. 1 of the

Convention.

Under Article 10 of the Convention, the applicant considers that

the refusal to make a costs order in his favour can only, in the

circumstances of this case, be seen as a penalty - or at least a

formality - imposed on him by the Recorder. He considers that the

penalty or formality was not prescribed by law, and that given his

acquittal on the charges which it was the court's function to consider,

it was not necessary in a democratic society.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 June 1993 and registered on

13 September 1993.

On 6 April 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

29 June 1994. The applicant replied on 7 October 1994.

On 6 September 1994 the Commission granted the applicant legal

aid.

THE LAW

The applicant alleges violation of Articles 6 and 10

(Art. 6, 10) of the Convention.

Article 6 (Art. 6) 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 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."

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 ...

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, ...

or for maintaining the authority and impartiality of the

judiciary."

The Government submit that the decision on costs was not a

determination of any issues independent from the criminal offence the

applicant was charged with. They accept that judicial decisions should

normally state the reasons upon which they are based, but submit that

whether and how much reasoning is required depends on the nature of the

decision. They also accept that United Kingdom law does not recognise

a general duty to give reasons for administrative decisions, and that

the statute provides only that costs may be awarded if the court thinks

fit: it does not require reasons to be given. They point out that

decisions as to costs are within the discretion of the court, and there

is no right to an award of costs.

The Government argue that Article 6 para. 1 (Art. 6-1) does not

require every decision in a criminal trial to be subject to appeal, and

consider that the need to give reasons is less pressing in cases where

no appeal is available, as the need for reasoning is closely linked to

the question of remedies against the decision.

In connection with the complaint under Article 6 para. 2

(Art. 6-2) of the Convention, 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 upon 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.

Under Article 10 (Art. 10) of the Convention, the Government

consider that the refusal to make a costs order was not a formality,

condition, restriction or penalty within the meaning of Article 10

para. 2 (Art. 10-2), but that in any event the refusal of costs raises

no issues separate from that of the prosecution.

In connection with Article 6 para. 1 (Art. 6-1) of the

Convention, the applicant notes a range of areas in which domestic

courts are under a duty to give reasons, and underlines the importance

for a person who is the subject of an adverse decision to know the

reasons for that decision, both for himself and because an obligation

to give reasons promotes high standards by tribunals and is an

important protection against arbitrary decisions. They submit that

there was no justification for not giving reasons in the present case,

and that the Government do not advance any.

Under Article 6 para. 2 (Art. 6-2) of the Convention, the

applicant relies on the case of Sekanina (Eur. Court H.R., judgment of

25 August 1993, Series A no. 266) to distinguish his case from previous

case-law before the Strasbourg organs. He points out that in previous

cases, there had not been a final finding on the merits that the

applicant was not guilty, and that in both Sekanina and his case, there

was a formal acquittal.

Under Article 10 (Art. 10) of the Convention, the applicant

submits that a detriment was imposed on him in that he was deprived of

what the Practice Direction recognises he is entitled to receive

"unless there are positive reasons not to award him costs". The

detriment was imposed, the applicant continues, because the applicant

was involved in the sale of the books, even though the jury had found

that no criminal offence was committed. He refers to the deterrent

effect that such orders will have those who own and manage bookshops,

even though they are confident that they are not committing a criminal

offence and that a jury will not convict. He disagrees with the

Government's analysis that if a criminal law is justifiable under

Article 10 (Art. 10), the incidental effects of a prosecution can

impose no further restriction on freedom of expression. Finally, the

applicant notes that the Government do not appear to seek to justify

the judge's decision on the costs, but submits that it could not be

justified.

The Commission finds that the application raises complex issues

of fact and law which must be examined on the merits. The application

cannot therefore be rejected as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for inadmissibility have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

LOCHRIE v. THE UNITED KINGDOM

LOCHRIE v. THE UNITED KINGDOM

LEXI