European Court of Human Rights

06 May 2008

FOURTH SECTION

Application no. 35730/07
by Joe Anthony ASHENDON
against the United Kingdom
lodged on 8 August 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Joe Anthony Ashendon, is a British national who was born in 1985 and lives in London. He is represented before the Court by Mr G. Bromelow, a lawyer practising in London with Saunders Solicitors LLP.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant stood trial on charges of burglary, rape, attempted rape and assault by penetration. The victim was alleged to have been a ninety-seven year old woman.

The circumstances of the decision to prosecute the applicant appear to have been that he was discovered sleeping in a flat in a sheltered accommodation complex. Police and paramedic personnel were called and they attempted to rouse the applicant. After investigation it was thought that the applicant had gained entry to the flat through another flat in the complex. Upon entering the second flat, the police discovered the alleged victim lying on the floor.

When interview by police the following evening, the applicant admitted to have been drinking and to have taken an ecstasy tablet. He denied having committed any offences. He was interviewed on a further four occasions and states that he co-operated with the police each time.

The applicant's trial began on 5 February 2007. The prosecution offered no evidence in respect of the charge of burglary and a not guilty verdict was recorded. On 14 February 2007 the jury acquitted the applicant of the remaining three counts.

When the applicant applied for his costs (which exceeded GBP 100,000 and had been met by his family) the trial judge said:

“With regard to a defendant's costs you [Counsel] are right, the costs should and almost invariably would follow the event. I cannot think of another case in my 35 years' experience in the criminal courts in which it is more apparent that a defendant's conduct, albeit that it had led to him being acquitted, but a defendant's conduct has led to him being brought before the court and, given the nature of the circumstances and the consequences to the very vulnerable victim, the injuries that were seen upon her, where they were seen, the combination of facts, it is one of those cases where I feel it is right for the court to exceptionally say a defendant's costs order will be refused. He [the applicant] will have an opportunity, I have not the least doubt, in the months and years ahead to make some recompense to his family who have stood so loyally by him. It is not an order that I lightly refuse but this is one of those exceptional cases where it seems to me to be justified.”

B.  Relevant domestic law and practice

Section 16(2) of the Prosecution of Offences Act 1985 provides that were any person is tried on indictment and acquitted of any count in the indictment, the Crown Court may make a defendant's costs order in favour of the accused. Section 16(6) provides that such an order shall be for the payment out of central funds of such an amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by the defendant in the proceedings.

The Practice Direction (On Costs in Criminal Proceedings) [2004] 2 Cr. App. R. 26 provides:

“Where a person is not tried for an offence for which he has been indicted, or in respect of which proceedings against him have been sent for trial or transferred for trial, or 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 whether or not an order for costs between the parties is made, unless there are positive reasons for not doing so. For example, where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be left to pay his own costs. The court when declining to make a costs order should explain, in open court, that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct but the order is refused because of the positive reason that should be identified.”

COMPLAINTS

The applicant complains that the refusal to award his costs was incompatible with Article 6 § 2 of the Convention. He also complains that he had no effective remedy in respect of the breach of Article 6 § 2, in violation of Article 13 of the Convention since there was no right of appeal or other right of challenge to the trial judge's ruling.

QUESTION TO THE PARTIES

Was the refusal of a defendant's costs order in the present case compatible with the presumption of innocence set out in Article 6 § 2 of the Convention (Yassar Hussain v. the United Kingdom, no. 8866/04, (2006) 43 EHRR 22 )?