YASSAR HUSSAIN v. THE UNITED KINGDOM - 8866/04 [2006] ECHR 206 (7 March 2006)

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This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

1. The case originated in an application (no. 8866/04) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Yassar Hussain.

2. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, of the Foreign and Commonwealth Office, London.

3. On 16 February 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

5. The applicant was arrested on 14 May 2002 on suspicion of having intimidated witnesses. At an identity parade held the same afternoon, he was positively identified by one of the two witnesses. The applicant states that this witness accepted in her original statement of evidence to the police that she was a heroin user and an inherently unreliable witness. The applicant was subsequently charged with five counts of doing acts tending and intended to pervert the course of public justice.

6. The applicant pleaded not guilty on 2 August 2002 and the trial was adjourned to the Stoke on Trent Crown Court on 7 October 2002. On that date no judge was available and the trial was re-fixed for 3 February 2003. On the second day of the trial the witness who had identified the applicant did not attend and the trial had to be aborted. At the re-listed trial on 15 September 2003 counsel for the Crown addressed the court in the following terms:

“When this matter was listed for trial in February, [L] attended on the first day. She wasn’t called to give evidence and didn’t come back on the second day. Certainly, that caused some concern. I think it is fair to say, at different stages of the entire case, she has blown slightly hot and cold.

[L] indicated to the police when they contacted her recently and, in fact, again yesterday, that she was reluctant to give evidence. She has attended court today and with my learned friend’s permission, I have had the chance to sit down and have a chat to her.

Your Honour, the reality is that she does not want to give evidence. She has personal reasons I don’t propose to divulge in open court. She has formed a new relationship. She has moved on. She is trying very hard to put the events of this entire case behind her. She has satisfied the police who spoke to her yesterday and satisfied those who instruct me that no threats have been made toward her in relation to today’s proceedings. She insists that there has been no contact from [the applicant] or others acting on his behalf. We don’t feel that, due to the nature of this allegation, she ought to be compelled to give evidence in this case.

Your Honour, there has been a very full discussion and the view we have taken is that without her evidence, plainly, we can’t proceed. I offer no evidence. Verdicts must follow.”

7. The applicant was duly acquitted. On his counsel’s application for a defendant’s costs order, the judge refused to make an order and stated:

“That order will be refused. There is clear evidence on the court papers. The Crown have taken the view that they are not going to compel this witness although there is compelling evidence in respect of those matters. It is a discretion which I am afraid I am not going to exercise in your favour.”

8. The applicant’s attempted appeal was returned on 14 November 2003 as “to be appealable as a sentence, the order must be contingent upon conviction. As the Defendant’s Costs Order only arises when a prosecution is unsuccessful, it cannot be a sentence and cannot be appealed at the Court of Appeal Criminal Division”.

9. Section 16(2)(b) of the Prosecution of Offences Act 1985 (“the 1985 Act”) provides that where:

“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.”

10. The Practice Direction (Crime: Defence Costs) [1999] 1 WLR 1832, which was in force at the time of the applicant’s trial, provided that:

“Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant’s costs order. Such an order should normally be made whether or not an order for costs inter partes is made, unless there are positive reasons for not doing so, as where, for example, 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.”

11. As noted above, no appeal lies to the Court of Appeal against a refusal of a defendant’s costs order.

12. By virtue of Section 29(3) of the Supreme Court Act 1981 the High Court may not exercise its power of judicial review over the Crown Court in matters relating to “trial on indictment”.

13. An argument that the incorporation of the Convention into United Kingdom law required a remedy against a refusal of a defendant’s costs order was rejected in R (Shields) v. Liverpool Crown Court [2001] EWHC Admin 90, in which Lord Justice Brooke stated that:

“... unless and until Parliament decides to remove the anomaly, that an acquitted defendant has no right of appeal against the refusal of a defendant’s costs order, however unjust the refusal may be, he has no Convention right of challenge to his decision in an English court and he is still bound go to Strasbourg if he wishes to make the assertions he sought to raise unsuccessfully in the Administrative Court.”

14. The applicant complained that the judge’s comments on refusing a defendant’s costs order were incompatible with Article 6 § 2 of the Convention, which reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

16. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

17. The Government submitted that the observations made by the trial judge did not attribute guilt to the applicant either expressly or by clear implication, and that they did not amount in substance to a determination of guilt.

18. The applicant contended that the judge’s comments, put at their lowest, amounted to the voicing of suspicion in respect of the applicant after final acquittal. He added that one witness, who had stated that she had seen the applicant at least ten times, did not identify him in an identity parade, and that the only witness who did identify the applicant lacked credibility. He submitted that the prosecution should never have been brought.

19. The Court recalls that the presumption of innocence enshrined in Article 6 § 2 is one of the elements of a fair criminal trial required by Article 6 § 1. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty unless he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards that person as guilty (see Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000-X; A.L. v. Germany, no. 72758/01, § 31, 28 April 2005). Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Daktaras, cited above, § 43). The provision applies even where the substantive criminal proceedings have ended, provided that there is a sufficient nexus between the criminal proceedings and the events at issue (Sekanina v. Austria judgment of 25 August 1993, Series A no. 266-A, p. 13, § 22). In such circumstances, the question is whether the trial judge relied on suspicions as to the applicant’s innocence after the applicant had been acquitted (Sekanina v. Austria, § 30, see also Moody v. the United Kingdom, no. 22613/93, Commission’s report of 16 October 1996; D.F. v. the United Kingdom, no. 22401/93, Commission decision of 24 October 1995, which both concerned Practice Directions on the making of defendants’ costs orders).

20. However, neither Article 6 § 2 nor any other provision of the Convention gives a person "charged with a criminal offence" a right to compensation for lawful detention on remand where proceedings taken against him are discontinued (see, for example, Sekanina v. Austria, referred to above, pp. 13-14, § 25). Further, the Convention does not guarantee a defendant who has been acquitted the right to re-imbursement of his costs (cf. Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327-A, p 19, § 49).

21. In the present case, the prosecution failed because a key witness declined to attend court, and in the circumstances, the prosecution preferred to drop the case rather than compel the witness. There was no question of any conduct by the applicant which could have brought him within the Practice Direction’s examples of cases in which a costs order may be refused, and no suggestion that he was in any way responsible for the non-attendance of the witness.

22. The reasons given by the judge for refusing the costs order were “There is clear evidence on the court papers ... there is compelling evidence in respect of those matters”. The only natural interpretation which can be put on those words is that the judge was refusing the order because he 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.

23. This amounts, in the view of the Court, to a reliance on suspicions as to the applicant’s innocence after he had been acquitted, and is incompatible with the presumption of innocence.

25. The applicant also complained that he had no effective remedy in respect of the breach of Article 6 § 2, in violation of Article 13 of the Convention, and that if the case had been heard in the Magistrates’ Court, the High Court would have had jurisdiction to consider an application for judicial review. In this latter aspect he saw a violation of Article 14 of the Convention.

26. The Court has examined these complaints as they have been submitted and finds that they are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. In particular, the Court recalls that Article 13 cannot be read as requiring the provision of an effective remedy that would enable the individual to complain about the absence in domestic law of access to a court as secured by Article 6 § 1 (Kudła v. Poland [GC], no. 30210/96, § 151, ECHR 2000-XI), which is the substance of the applicant’s complaint under Article 13.

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

29. In respect of pecuniary damage and costs, the applicant claimed the costs of the domestic proceedings, including the abortive appeal proceedings, and the costs of the application to the Court. The applicant put his costs at 3,540.00 British pounds (GBP) plus VAT in respect of solicitors’ costs relating to avenues of appeal against the trial judge’s order and the application to Strasbourg; GBP 25.00 plus VAT for a transcript of the Crown Court hearing; GBP 300.00 plus VAT in respect of counsel’s advice on avenues of appeal, and GBP 3,919.50 plus VAT in respect of counsel’s fees for the application to Strasbourg (in total approximately EUR 11,336).

30. The Government considered that the applicant’s figures were excessive. In particular, they noted that it was clear that no appeal lay against the refusal to make a defendant’s costs order, and that no costs should be allowed in respect of advice on appeals. They also noted that the applicant’s bill provided no breakdown between sums incurred as to the aborted domestic appeal and those connected with the Strasbourg application. They consider that counsel’s fees should have been of the order of GBP 1,500 (approximately EUR 2,185).

31. The Court makes no award in respect of the costs of the attempted appeal proceedings, no appeal lying against the trial judge’s order. As to costs and expenses for the application to the Court, the Court recalls that an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 7,500 for the proceedings before the Court.

32. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

1. Declares the complaint concerning Article 6 § 2 of the Convention admissible and the remainder of the application inadmissible;

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros) in respect of costs and expenses to be converted into pounds sterling at the date of settlement, plus any tax that may be chargeable;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 7 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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You are here: BAILII >> Databases >> European Court of Human Rights >> YASSAR HUSSAIN v. THE UNITED KINGDOM - 8866/04 [2006] ECHR 206 (7 March 2006) URL: http://www.bailii.org/eu/cases/ECHR/2006/206.html Cite as: [2006] ECHR 206, (2006) 43 EHRR 22