EHRM, 15-12-2011, nr. 35730/07, nr. 4285/08

Mr Ashendon submitted that the trial judge had not given any positive reasons for his refusal to make a defendant's costs order. In his comments, the trial judge had not identified any conduct ulterior to that which was the subject of the criminal charges. Despite their submissions in his case (see paragraphs 37 and 38 below), the Government, had been unable to explain these comments. If they were to be understood as suggesting that he should be denied his costs because he was guilty of other offences, that too would amount to a violation of Article 6 § 2.

The first applicant also submitted that his conduct was different to the conduct considered by the Court in D.F. v. the United Kingdom, no. 22401/93, Commission decision of 24 October 1995; and Fashanu v. the United Kingdom, no. 38440/97, Commission decision of 1 July 1998 (both unreported). In those cases, the defendants' conduct had made it look as if the cases against them were stronger than they were. By contrast, it had never been suggested that the first applicant had led the prosecution to believe it had a stronger case than it did: he had co-operated with the prosecution throughout the proceedings. It was also not appropriate to ask the Court to look at the context of the case, as the Government had done; this could only mean examining the circumstances surrounding the criminal offences of which he had been acquitted.

Ms Jones submitted that the refusal to award her costs was based on the trial judge's false assumption that she should have explained the tape recording at an early stage of proceedings. However, the jury's acquittal meant there could be no conceivable criticism of her conduct. She could not be criticised for her failure to answer questions about the tape when first interviewed. At that time, she could not recall the conversation. Later, she had sought to explain the conversation to the police but had been denied that opportunity. She had been entitled to contest the admissibility of the tape recording before trial. It was not for the trial judge to infer that, had she provided her explanation for the tape recording before trial, the prosecution would not have proceeded; that was a matter for the prosecution. If the trial judge had accepted that she was innocent, and had also accepted her account as to why she had not explained the tape recording earlier, he would have had to grant the defendant's costs order. Therefore, in refusing to make the order, the trial judge must have had lingering suspicions as to her guilt.

Ms Jones also submitted that the trial judge had also erred in proceeding on the assumption that exercising one's right to silence was, in itself, enough to justify refusing a defendant's costs order. Moreover, the right to silence would be unacceptably curtailed if defendants who relied upon it knew that they risked being refused their costs if acquitted. The cases of D.F. and Fashanu (both cited above) and Byrne v. the United Kingdom, no. 37107/97, Commission decision of 16 April 1998, were all distinguishable from her case. In those cases, the defendants had been refused their costs because they chose to say nothing to explain their actions; she, on the other hand, had been unable to say anything when first interviewed.

The Government contested each applicant's arguments. The issue was not whether a defendant's costs order should have been made in each case but whether, in refusing the applications for defendants' costs orders, the trial judge in each case had relied on suspicions as to the applicant's innocence after each applicant had been acquitted (Yassar Hussain v. the United Kingdom, no. 8866/04, § 19, ECHR 2006-III). In their submission, neither trial judge had done so.

In Mr Ashendon's case the trial judge's reasons were short and somewhat imprecise, which was unsurprising because they had been given ex tempore. Nevertheless, the obvious interpretation of those reasons was that the trial judge, having regard to the context of the case, had considered that the first applicant, by his reprehensible behaviour, had brought suspicion upon himself. Those reasons could not be construed as relying on continuing suspicions as to the applicant's innocence. This interpretation was supported by three factors. First, the trial judge had expressly acknowledged the first applicant's acquittal. Second, counsel had recognised that the first applicant's conduct had ‘ended him up where he was’. Third, the trial judge had previously directed to the jury to disregard any feelings of disgust they might have had and to reach a verdict based on a ‘proper, logical, objective analysis’ of what had happened (see paragraph 12 above). Therefore, the trial judge had formed the view that, although the first applicant's conduct was reprehensible, it did not follow that he was guilty of the offences charged. That view was consistent with Article 6 § 2 of the Convention.

Finally, the Government submitted that the first applicant's case had to be distinguished from Yassar Hussein, cited above, where the trial judge had referred to ‘compelling evidence’ on the file against the applicant, notwithstanding that no evidence had been called, and where the Court found that the applicant had not done anything to bring the prosecution on himself.

In Ms Jones's case, the Government disputed that the trial judge had only refused the order because Ms Jones had exercised her right to silence. Instead, he had taken the view that the tape was the ‘cardinal plank’ of the prosecution case. The trial judge had accepted that, in remaining silent, the second applicant had followed her solicitor's advice; he had nevertheless concluded that the tape recording called for an explanation from the applicant. That explanation had only been provided at trial; had it been provided earlier, the prosecution might not have brought charges against her.

In any event, this Court had found that the right to silence was not absolute (John Murray v. the United Kingdom, 8 February 1996, § 47, Reports of Judgments and Decisions 1996-I) and there was no reason why a defendant's exercise of her right to silence should not be taken into account in assessing whether she should be granted her costs (D.F., Byrne, and Fashanu, all cited above). The trial judge, in relying on the second applicant's silence, in no way called into question the jury's verdict. There was nothing in the trial judge's reasons which would allow the Court to draw an inference that he had relied on continuing suspicions as to the applicant's guilt. It did not follow that, because the trial judge had considered that the applicant had been late in explaining the tape recording, he continued to believe she was guilty of the offences charged. Those issues were quite distinct.

The relevant general principles on the presumption of innocence were most recently set out in Yassar Hussein, cited, above, §§ 19 and 20:

The Court also observes that the parties have either relied upon, or sought to distinguish, a number of previous cases against the United Kingdom in which the Court and former Commission considered complaints arising from the refusal to make defendants' costs orders, applying the provisions of a practice direction in substantially the same terms as that of 2004 (see paragraph 27 above). Accordingly, it is appropriate to set out the approach taken in those cases.

In Moody, cited above, the applicant was acquitted of having obscene articles for publication for gain. The applicant's defence had been that the articles were not obscene. The defendant's costs order was refused on the basis that the applicant had brought the prosecution on himself by choosing to work among the material in question. The Commission concluded that there had been a violation of Article 6 § 2. The only material before the trial judge was the material on the basis of which the applicant had just been acquitted. The applicant could be said to have brought suspicion on himself by working in a shop which sold such material, and he could not be said to have misled anyone as to the strength of the prosecution case when his defence was clear from the outset.

In D.F., cited above, the trial judge had directed the jury to acquit the applicant and, in refusing to make a full order in the applicant's favour, had commented that the applicant's commercial activity ‘stinks of greed’. The Commission rejected the application as manifestly ill-founded. It found that the trial judge did not indicate any continuing suspicions against the applicant, particularly when greed was not a criminal offence. It rejected the applicant's argument that he had been penalised for exercising his right to silence as it was inevitable that a defendant who declined to produce any evidence until trial would incur costs until trial, and that those costs would then have to be borne by the defendant. Moreover, the trial judge's decision was based on the fact that, by his conduct in making a statement to the police which was less than candid, the applicant had brought suspicion on himself and misled the prosecution into thinking the case against him was stronger that it was.

In Byrne, cited above, the applicant was charged with benefit fraud and availed herself of her right to silence until trial. No evidence was offered against her and she was acquitted. The trial judge had observed that the applicant, in relying on her right to silence, had made it much more difficult for the prosecution to decide whether to proceed. She could not ‘hide behind’ the advice she had received to remain silent. In rejecting the application as manifestly ill-founded, the Commission observed that the trial judge was clearly not of the opinion that the applicant was guilty. Furthermore, he had made an express finding that the applicant's conduct had allowed the prosecution to continue with the result that costs were incurred. The Commission did not accept that the applicant had been penalised for exercising her right to silence, particularly when, had the applicant explained her position before trial, the prosecution would in all likelihood have been dropped and there would have been no question of a defendant's costs order.

In Fashanu, cited above, the applicant had been acquitted of conspiracy to give and receive corrupt payments for influencing the outcome of football matches. He had exercised his right to silence and declined to explain how he had received substantial sums of money. A defendant's costs order was refused on the basis that the applicant's conduct had brought suspicion on himself and misled the prosecution into thinking that the case was stronger than it was. The Commission did not accept that the trial judge's reasons were based on any continuing suspicion that the applicant was guilty or that the applicant had been penalised for exercising his right to silence. The application was therefore rejected as manifestly ill-founded.

Finally, in Yassar Hussein, cited above, the prosecution of the applicant failed because a key witness had not attended court. There was no suggestion that the applicant was responsible for the non-attendance of the witness. The reason given by the judge for refusing the application for a defendant's costs order was that there was ‘compelling evidence’ in the court papers. The Court found that the only natural interpretation which could be put on those words was that the trial judge was of the view that, although the key witness had not given evidence and the applicant had been acquitted, the applicant was, in fact, guilty of the offence. In the Court's view, this amounted to a reliance on suspicions as to the applicant's innocence after he had been acquitted, and was a violation of Article 6 § 2 of the Convention.

On the basis of these cases, the Court considers that, in the context of defendants' costs orders, the Convention organs have consistently applied the following principles. First, it is not the Court's role to decide whether a defendant's costs order should have been made in any given case. Second, it is not for the Court to determine whether, in granting or refusing such an order, the trial judge has acted compatibly with the relevant Practice Direction, set out at paragraph 27 above. Third, the Court's task is to consider whether, in refusing to make an order, the trial judge's reasons indicate a reliance on suspicions as to the applicant's innocence after the applicant has been acquitted. Fourth, the Convention organs have found that it is not incompatible with the presumption of innocence for a trial judge to refuse to make an order because he or she considers that the applicant has brought suspicion on himself and misled the prosecution into believing that the case against him or her was stronger than it was in reality. This will also be the case if the applicant brought the prosecution upon himself because he availed himself of the right to silence. Finally, the refusal to make an order does not amount to a penalty for exercising that right.

In applying these principles to Mr Ashendon's case, the Court agrees with the Government that the trial judge's reasons were somewhat imprecise. However, their meaning is clear from the context in which they were given. The facts of the case (summarised at paragraphs 7–14 above) clearly show that the trial judge was entitled to find that the first applicant had brought the prosecution on himself. The first applicant had been found half-naked in a state of intoxication with bodily materials of B on him. It was not denied that he had had contact with B or that she had suffered injuries. Nor was it denied that his actions that night were reprehensible. The only issue was whether his actions amounted to rape or sexual assault. The Court finds nothing in the trial judge's remarks which would indicate a belief that the applicant's actions meant that he was guilty of rape or sexual assault; disapproval by a trial judge of a defendant's conduct does not necessarily mean that the trial judge has formed a view as to whether that conduct amounts to a criminal offence (see D.F., cited above).

Moreover, in this case, the trial judge's remarks must also be seen in the light of his prior exchange with counsel who had conceded that, if the first applicant had been charged with different offences, he would have had to plead guilty. The Court does not understand the trial judge's comments as to B's injuries as reflecting anything other than the concession which had been made by counsel. Finally, the trial judge's reasons for refusing the order must be read alongside his prior direction to the jury that they had to stand back from any feelings of disgust and revulsion and base their verdict on a ‘proper, logical, objective analysis’ of what had happened. This was an entirely fair direction to the jury and, given their decision to acquit the applicant, it must inevitably have carried some weight with them. The direction supports the Court's view that the trial judge, in refusing the defendant's costs order, did not hold lingering suspicions as to the innocence of the applicant.

The Court therefore concludes that there has been no violation of Article 6 § 2 of the Convention in respect of the first applicant.

In Ms Jones' case, the Court notes that the principal issue in the case was the tape recording of a conversation between the applicant and A.R. The second applicant has submitted that she was not to blame for the fact that she could not provide an explanation for that conversation prior to trial and that, as a consequence she could not be said to have brought the prosecution on herself. However, in the Court's view, the trial judge was the person best placed to evaluate the significance of the tape recording to the prosecution case and whether, on the basis of the evidence led at trial, the applicant had brought the prosecution on herself. He concluded that the tape recording was a ‘cardinal plank’ of the prosecution case and that the second applicant's failure to answer questions allowed the police to believe that the case against her was stronger than it in fact turned out to be. The Court sees no reason to doubt these findings. Moreover, it considers that the trial judge was entitled to treat these issues as distinct from the issue of the applicant's innocence of the offence.

In the Court's view, the trial judge's reasons were carefully phrased. He stated that his decision was in no way meant to indicate that she was guilty of the offence. In fact, he went further and stated that she had been rightly acquitted by the jury. Therefore, it cannot be inferred that, in refusing to make the defendant's costs order, the trial judge must have had lingering suspicions as to her guilt.

Furthermore, the Court considers that the trial judge was correct to consider that, while the applicant could not be criticised for exercising her right to silence, this was a relevant consideration in deciding whether a defendant's costs order should be made. Despite the applicant's submissions as to the importance of the right to silence, the Court finds no reason to depart from the Commission's findings in D.F., Byrne and Fashanu, all cited above, that the refusal to make a defendant's costs order does not amount to a penalty for exercising the right to silence. The Court also shares the Commission's view, as expressed in D.F., cited above, that it is inevitable that a defendant who declines to produce any evidence until trial will incur costs until trial and that those costs will have to be incurred by the defendant.

The Court concludes, therefore, that the second applicant's case cannot be distinguished from D.F., Byrne and Fashanu, all cited above. Accordingly, it finds that there has been no violation of Article 6 § 2 of the Convention in respect of the second applicant.