European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2010/756.html
Cite as: [2010] ECHR 756

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19 May 2010

FOURTH SECTION

Application no. 23199/10
by Toby Wilson D'ANGIBAU
against the United Kingdom
lodged on 1 April 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Toby Wilson D'Angibau, is a British national who was born in 1968 and lives in Burton-on-Trent. He is represented before the Court by Clarke Kieran, a firm of solicitors practising in Tonbridge, Kent.

A. The circumstances of the case

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

On 7 February 2002, the applicant was arrested and charging with contravening section 170 of the Customs and Excise Management Act 1979 by evading excise duty, which was chargeable on consignments of alcoholic drinks. The prosecution case was that there had been a conspiracy to deceive HM Customs and Excise into believing that the consignment would be shipped to other European countries and the duty would be paid in those countries; instead the consignments would be diverted and sold within the United Kingdom. The prosecution relied on mobile telephone records of telephone calls the applicant had made to those who were allegedly responsible for collecting cash payments for the consignments. The applicant's defence was that, although there may have been a diversion fraud, he was an innocent party and the mobile telephone had been used to conduct legitimate business negotiations.

His trial started on 28 November 2005 and, on 7 November 2006, the applicant was convicted by the jury. The applicant appealed against his conviction on the grounds that first, the trial had taken too long, and had been disrupted frequently and subject to excessive periods of interruption; and second, that the trial judge's summing up had been defective On 25 October 2007, the Court of Appeal allowed the appeal and quashed the applicant's conviction.

In the course of submissions before the Court of Appeal as to whether there should be a re-trial, it was observed by the presiding judge that, should a retrial be ordered, there need not be a second trial: the best way for the case to proceed would be for some accommodation to be reached between the defence and prosecution. The presiding judge added “[the applicant] hardly comes out of this shining with glory, whether he is guilty or not”. The presiding judge also observed that:

“After all, [the applicant] is morally culpable whatever happens because even as an innocent dupe his checks on the honesty of trade were hardly very adequate.”

Counsel for the applicant appeared to accept on his client's behalf that there had been an offence and that his client, the applicant, could not avoid the allegation that he had been involved in the conspiracy. In reply, the presiding judge observed that, innocent as the applicant was, he had behaved disgracefully and that “much money as he has got needs to go to customs [and excise] or the tax payer”. Having reiterated that the best means of proceeding would be for the prosecution and defence to negotiate a conclusion to the case, the presiding judge also observed:

“There being now no dispute that whatever participation, whether criminal or not in these matters, this appellant [the applicant] acted in a way which has cost the Exchequer very large sums in evasion of duty by failing to have control over where these goods went”.

The Court of Appeal ordered a retrial. Counsel for the applicant then applied for a defendant's costs order, pursuant to section 16(2) of the Prosecution of Offences Act 1985 (see relevant domestic law and practice below). The presiding judge replied:

“No, in the particular circumstances of this case and having regard to the fact that – well, I need not identify all those circumstances – the answer is no.”

A retrial did in fact take place on 10 November 2008. The jury was discharged on 18 December 2008. A third trial started on 5 May 2009 and the applicant was unanimously acquitted by the jury on 13 July 2009. The trial judge made a defendant's costs order in favour of the applicant in respect of the second and third trials but did not have the power to make a similar award in respect of the first trial: the only court that could grant that order was the Court of Appeal. The applicant therefore applied to the Court of Appeal for the order. By letter of 19 October 2009, the applicant was informed that the application had been refused. The letter did not contain any reason for the refusal.

B. Relevant domestic law and practice

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

In Dowler v. Merseyrail [2009] EWHC 558 (Admin), the High Court found that the phrases in the Practice Direction “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” had to be read conjunctively. A court could not refuse to make a defendant's costs order on the ground that a defendant had brought suspicion on himself unless it was also satisfied that he had also misled the prosecution into thinking the case against him was stronger than it was. The High Court also found that there was a duty to give reasons for not making an order.

In R. (on the application of Spiteri) v. Basildon Crown Court [2009] EWHC 665 (Admin) the High Court found that an acquittal on the basis of a procedural irregularity was not a proper reason for refusing to make an order.

COMPLAINT

The applicant complains that the refusal of the Court of Appeal to grant a defendant's costs order violated the presumption of innocence guaranteed by Article 6 § 2 of the Convention. Since no reasons had been given in the Court of Appeal's letter of 19 October 2009, the applicant submitted that the only possible reasons were the comments made by the presiding judge at the appeal hearing on 25 October 2007. The Court of Appeal's refusal showed that it considered that the applicant was guilty despite his acquittal.

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 ...)?