DECISION

AS TO THE ADMISSIBILITY OF

Application No. 22613/93

by James MOODY

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 12 July 1993 by James MOODY against the United Kingdom and registered on 13 September 1993 under file No. 22613/93;

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 June 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 7 May 1992 police officers seized a quantity of magazines and some videos from the bookshop where the applicant works.  He was subsequently charged with nine 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 29 and 30 June 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 prosecution had not proved that the applicant was in control of the articles, as he was not in the shop at the time of his arrest.  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.  Aware that the same Recorder had previously refused such an application without giving reasons, counsel addressed the Recorder at some length on the domestic law.  The following exchange took place between Mr. Salter , the applicant's barrister, and the Recorder:

The Recorder:  Of course, you and I have no means of knowing, nor can we find out, whether the jury acquitted on the basis that the police had not let him get into the shop to be in control or whether they acquitted on the basis that these matters are not obscene.  That is a matter we cannot go into.

Mr. Salter :  We cannot go into it and I am sure you will give the defendant the benefit of the doubt.  The point is, how technical does a technicality have to be before a defendant is disallowed his costs?

...

In this case the jury have made findings of fact favourable to the defendant having heard the evidence of the prosecution.  Clearly, your Honour, it would be highly inappropriate if the jury had decided that these articles were not obscene that there would be no offence capable of being committed whether or not the point on control is right or wrong.  That is clearly not a technicality.

It is also not a technicality if the jury decided that he was not in control of the articles because that is a decision on the facts, because the other part of that limb is that there is ample evidence to justify a conviction.  The evidence has been placard before the jury and they have adjudicated in the way that they have.  Your Honour, I would say that that limb cannot conceivably apply and I have indicated what I understand to be the scope of the expression technicality, and secondly the fact that this is an acquittal on fact, whichever fact it is.

So one comes to the second limb, which is that the defendant has brought the prosecution on himself by allowing the prosecution to believe that the case is in fact stronger than it in fact is.

... in obscene publications cases, and this is no exception, the proceedings are brought by summons.  The effect of that is that all the evidence is presented to the Director of Public Prosecutions - obviously not personally - including the witness statements and the material, and a decision is made.  The fact is that in this case the material before the Director was exactly the same as the material before the jury;  nothing has changed.  In other words, it does not mean it was improper of the Director to prosecute but the Director thought there was a reasonable possibility of conviction on that material and the jury have disagreed, so there is nothing in the defendant's conduct which would have influenced the bringing of these proceedings.  It is not analogous to where a defendant reserves his defence and springs a surprise on the jury on the court and on the prosecution late in the day.  Quite the reverse is the position.  As I say, the prosecution had exactly the same access to the information as did the jury, and the jury have decided that Mr. Moody was not guilty.

...

there is no jurisdiction over a trial judge on trial on indictment.  This was actually confirmed in ex parte Ashton which was decided in March this year in the House of Lords.  There is no avenue available to a defendant who is refused costs in a trial on indictment.  Your Honour, I say, and ~I am not asking to rake over old ground because that is improper, but I would say that in this case it is an unwarranted interference under European law with freedom of expression to refuse somebody their costs particularly in this sort of case.

The Recorder:  Why is the judge allowed a discretion then?

Mr. Salter :  The judge is allowed to exercise his discretion in accordance with the practice direction.  As I say, I raise that matter tentatively because I think I have brought my application properly within the practice direction but what I am saying is that where an application for costs is ex parte , where I have demonstrated that of the two examples given by the Lord Chief Justice in the practice direction, neither of those exceptions apply so it would have to be a different exception, what I would say is that if your Honour has a different exception in mind, bearing in mind that of course none of these exceptions are being advanced by the Crown in their duty to assist the Court, that I would be grateful if your Honour would tell me whether there are any exceptions that I have not dealt with.

The Recorder:  I do not think at this stage that I am prepared to be cross-examined.

Mr. Salter :  Your Honour, I said at the very beginning that the last think I wanted to do was to do anything to be personal or offensive, and that is not the idea. ...

The Recorder:  "I refuse the order ... The defendant has brought this prosecution on himself by choosing to work among the material that I hope will be shown to the European Court of Justice if this second matter on one of my decisions goes there.  I refuse it."

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 In 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 the 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 12 July 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 1984 the Commission granted the applicant legal aid.

THE LAW

The applicant alleges violation of Articles 6 and 10 of the Convention.

Article 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 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."

In connection with the complaint under Article 6 para. 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, 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 Assistant 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 found, as he was entitled to do, that the prosecution had properly brought the matter before the court and that by choosing to work among pornographic material, the defendant had brought the prosecution upon himself.  They submit that the ruling in question clearly does not imply guilt, rather that the applicant's choosing to work among the material of this kind opened himself to the likelihood of prosecution.  The Recorder did not question the finding by the jury, but pointed out that the applicant had brought the prosecution on himself by his conduct.

Under Article 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, but that in any event the refusal of costs raises no issues separate from that of the prosecution - they say that the criminal law on obscenity is clearly justifiable in terms of Article 10 para. 2, and so the incidental effects of a prosecution, such as having to bear his own costs, did not impose any further restriction.

Under Article 6 para. 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.  He concludes that the judge in the present case was not entitled to form his own view of the applicant's guilt or innocence.

Under Article 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, 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 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)