Fashanu v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 38440/97

by John FASHANU

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 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 29 October 1997

by John FASHANU against the United Kingdom and registered on 5 November

1997 under file No. 38440/97;

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 a British citizen, born in 1962 and resident in

London. He is represented before the Commission by Henri Brandman, a

solicitor practising in 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

On 14 March 1995, the applicant (who was a professional

footballer) and two other footballers (Mr S. and Mr G.) were arrested,

together with Mr L., a businessman. Three charges were made against

them:

(a) On count 1, the applicant, Mr G. and Mr L. were accused of

conspiring to give and receive corrupt payments for influencing

the outcome of football matches.

(b) On count 2, the applicant, Mr S. and Mr L. were accused in

similar terms.

(c) On count 3, Mr G. was accused of accepting a corrupt

payment of £2000 from another individual.

After his arrest, the applicant was interviewed by the police.

The applicant exercised his right to remain silent and declined to

answer questions put to him by the police. On 4 July 1995, the police

again attempted to interview him and he again declined to answer

questions. However, in March 1995, the applicant did give the police

permission to examine bank accounts under his control.

On 14 January 1997, the trial of all four defendants began but,

after hearing all the evidence, the jury was unable to agree on its

verdicts and so was discharged on 4 March 1997.

A re-trial began on 4 June 1997 and finished on 8 August 1997.

The jury unanimously acquitted the applicant on each of the two counts

faced by him. The jury also unanimously acquitted the other defendants

on counts 1 and 2. The jury was unable to agree on the third count in

relation to Mr G. and the judge entered a not guilty verdict, it being

inappropriate to hold a third trial on that issue. The applicant chose

not to give evidence himself at either of the trials.

The amount of costs incurred by the applicant in defending

himself was about £535,000. Following the acquittal, the applicant's

counsel applied to the judge for a defendant's costs order pursuant to

section 16(2) of the Prosecution of Offences Act 1985, that is for the

applicant's costs in defending himself to be paid out of central funds.

The judge refused to grant the applicant's request for a

defendant's costs order and said:

"I do not grant [the applicant] an order that his defence costs

be paid out of public funds. The practice direction, which deals

with the exercise of the court's discretion in circumstances such

as these, says so far as material this:

"When 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 brought suspicion on

himself and has misled the prosecution into thinking

that the case against him is stronger than it is."

That in my judgment is the situation here. [The applicant]

chose, for reasons best known to himself, to receive very

substantial sums of money from Joseph/Ellie in the Far East, not

in his own name but into accounts in the names of three other

people, Miss K., as she then was, Miss A. and an account which

he operated with the permission, let it be acknowledged, of the

National Westminster Bank, in the name of P.B. When the police

searched his premises, no document was found which explained the

receipt of any of these sums of money. That can only mean,

either that there never were documents to explain the receipt of

these sums of money, or such documents as there were had been

removed or destroyed. They have never come to the eyes of the

police. In those circumstances it seems to me clear that [the

applicant's] own conduct has brought suspicion on himself and

misled the prosecution into thinking that the case against him

was stronger than it was."

Each of the three other defendants was partly legally aided.

Neither Mr L., nor Mr G. made an application for a defendant's costs

order. Mr S. did apply for such an order but was also refused.

The applicant was advised by counsel that an acquitted defendant

has no right of appeal against a refusal to make a defendant's costs

order. 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 Cou

rt 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 complains that he has been penalised for exercising

his right to remain silent. He asserts that the judge's refusal to

grant him a costs' order is unreasonable and unfair and is in breach

of Article 6 para. 2 of the Convention. He adds that by the time of

the second trial, his stance was completely clear, and to refuse a

defendant's costs order in respect of that second trial itself violated

Article 6 para. 2.

THE LAW

The applicant complains that his right to the presumption of

innocence has been breached contrary to Article 6 para. 2 (Art. 6-2)

of the Convention.

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

follows:

"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. 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 he was acquitted (cf. B.S., E. and N.P.A. v.

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 on

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).

The judge in the present case did not express an opinion that the

applicant was guilty of the charges made against him. Rather, he made

an express finding in relation to the applicant (in accordance with the

practice direction) that it was the applicant's conduct prior to and

during the prosecution (he remained silent during both trials and never

offered the police an explanation in relation to the bank accounts)

which had brought suspicion on himself and misled the prosecution into

thinking the case was stronger than it was. The judge's comments

relate solely to the applicant's behaviour at the initial stages of the

prosecution, and not to any continuing suspicion that the applicant

might, in fact, have been guilty of the offences he had been acquitted

of.

The Commission does not accept that the applicant was penalised

for exercising his 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.

As to the applicant's contention that he should, at least, have

been granted his costs in respect of the second trial, the Commission

notes that the question is not whether a defendant's costs order should

or should not be made, but whether the judge relied on continuing

suspicion after the acquittal. Having found that the judge did not so

rely, the merits of whether a costs order should be made in respect of

various stages of the proceedings is not relevant to the arguments

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

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