19 February 2009
by Mamdouh HAMZA
against the United Kingdom
lodged on 10 August 2006
STATEMENT OF FACTS
The applicant, Dr Mamdouh Hamza, is an Egyptian national who was born in 1947 and lives in Cairo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 13 July 2004, the applicant was charged with four counts of soliciting to murder. It was alleged by the prosecution that the applicant had attempted to contract with a man he thought was an assassin in order to effect the deaths of four prominent Egyptian politicians. The case for the prosecution was based on telephone conversations the applicant had with undercover police officers, which were recorded on audio and video tapes. The applicant, in his defence, broadly accepted the content of the tapes. His defence was rather that he had become concerned with the current situation in Egypt and the conversations were simply part of research for a book he was writing. As part that process, he had carried out research on the security of Egypt’s political elite. He had therefore created a fictitious plot to assassinate the politicians. He called evidence to this effect.
At the end of his first trial in December 2005, the jury were unable to reach a verdict. At his retrial on 27 June 2006 at the Central Criminal Court, the applicant was unanimously acquitted. He then applied for his costs. At a separate hearing on 14 July 2006, the trial judge refused to grant the applicant a defendant’s costs order. In his ruling, the trial judge considered the relevant case-law of this Court and the European Commission of Human Rights, notably Moody v. the United Kingdom, no. 22613/93, Commission’s report of 16 October 1996. He concluded:
“In the light of his acquittal, Dr Hamza has been vindicated, and I approach this application on the basis that the jury accepted his defence and his name has been cleared and I will not, in anything I say, go behind that.
In the skeleton argument submitted on behalf of the applicant, it is accepted that his own conduct, his conversations in particular with [the undercover police officers] brought, not only suspicion, but also, in that limited sense, it is said, the prosecution upon himself. However, it is said that it is impermissible, following an acquittal, to refuse costs on the basis of that suspicion or the conduct giving rise to that suspicion.
It is important, in my view, to remember that there is no dispute that the applicant had meetings in which he appeared to plan and negotiate killings with people who he thought were professional killers. In his role-playing simulation research, he wanted those who he thought were professional killers to believe that he did want to carry out contract killings. What was in dispute was his reason for doing this. Was it role-playing simulation research into whether security could be penetrated, or genuine solicitation of the services of a hitman? The jury’s verdict has determined that it was indeed simulation research.
I have no doubt that the applicant brought this prosecution upon himself by his admitted conduct, and indeed, led the prosecution into believing that the case was stronger against him than it in fact was. In my view, to refuse costs in this case does not leave any lingering suspicion as to the applicant’s guilt. This case can be distinguished from the application of Moody where the applicant had denied control of the material in question and indeed the fact that it was indecent so that the trial judge’s decision was tantamount to making an adverse finding on the facts against the applicant.
The jury in this case have resolved the question as to why Dr Hamza conducted the simulation research, however, his admitted conduct remains. [Counsel for Dr Hamza] has argued that this is an artificial distinction and that the only reason that his conduct was irresponsible was because it was suspicious. In my view, [Counsel for the prosecution’s] submission that there is a clear distinction between the conduct itself which is admitted and the reason why, which has been resolved by the jury, is a correct submission. Accordingly, in my view, to refuse this order would not be in breach of Article 6 § 2 [of the Convention].”
In then refusing to exercise his discretion to award costs, the trial judge reiterated that he was not in any way making an adverse finding on the facts as against the applicant and there was no proper inference of suspicion to be drawn from his decision.
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)  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.”
The applicant complains that the refusal to award his costs was incompatible with Article 6 § 2 of the Convention. He relies on the finding of the trial judge that by his behaviour before his arrest, the applicant brought the prosecution upon himself. By inference, this finding implied some continuing suspicion of him. In addition, the applicant disputes the trial judge’s ruling that he led the prosecution into believing that the case was stronger against him than it in fact was. This was not supported by his behaviour in relation to the police or prosecution and his defence was set out at the first opportunity
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, ECHR 2006 ...)?