SHIMIDZU AND BERLLAQUE v. THE UNITED KINGDOM
Inadmissible
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicants, Mr Takahashi Shimidzu and Mr Andrew Ivan Berllaque, are British nationals who were born in 1982 and 1965 respectively. They live in Gibraltar. Mr Shimidzu was represented before the Court by Mr D. Hughes, a barrister practising in Gibraltar; Mr Berllaque by Mr S. Bossino, a barrister also practising in Gibraltar. They were each assisted by Ms J. Simor and Mr C. Nicholls Q.C., counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. On 1–3 April 2003, the first applicant, Mr Shimidzu, was tried before a judge and jury in the Supreme Court of Gibraltar on charges of assault occasioning bodily harm, obstructing a police officer and resisting a police officer in the execution of his duty. He was acquitted by the jury after a submission of no case to answer was rejected by the trial judge. When Mr Shimidzu’s counsel made application for costs after the trial, the Chief Justice said: “But, Mr Hughes, you know that you can’t get costs. I would grant them, if I could, you know that the law is against you.” When counsel persisted the Chief Justice said: “You keep trying, Mr Hughes, I understand why you keep trying, but in my opinion it is an unjust system, which says, you can award costs against the defendant on conviction, you cannot award costs in the Supreme Court on acquittal. It is not a just system, but it’s not something that I can get round, however much I would enjoy trying to weave it. I just cannot, and it is a matter for the Legislature, but it is a matter perhaps that the Legislature ought to be invited to give their attention to.” On 13 – 16 October 2003, the second applicant, Mr Berllaque, was tried before the same court on charges of rape. At the conclusion of the prosecution case, the trial judge upheld a defence submission of no case to answer and, on his direction, the jury acquitted the second applicant. Mr Shimidzu made a motion to challenge the refusal to award costs. This was referred by the Supreme Court to the Court of Appeal of Gibraltar on 30 September 2003. Mr Berllaque was given leave to intervene in the proceedings before the Court of Appeal in Mr Shimidzu’s case. Before the Court of Appeal, the applicants argued, inter alia, that the relevant provision of Gibraltarian criminal law, section 232 of the Criminal Procedure Ordinance, violated the Gibraltar Constitution. They relied on sections 1 and 8 of the Constitution. In respect of section 8, they argued that section 232 violated their right to a fair hearing and was a violation of the presumption of innocence. It appears that it was accepted before the Court of Appeal that while section 232 (2) allowed the Supreme Court to order the prosecution to pay costs to an acquitted defendant, all defendants before the Supreme Court would be unable to fulfil the conditions laid down in section 232 (2) since in order for a person to be committed for trial they would have to be detained in custody or bound by recognizance (see section 232 (2) (a) below). The Court of Appeal unanimously rejected the applicant’s submissions in respect of the presumption of innocence and the prohibition on discrimination contained in section 1. By a majority, it found that section 232 violated the right to a fair hearing contained in section 8. The Attorney-General for Gibraltar appealed to the Judicial Committee of the Privy Council. On 28 June 2005, the Privy Council allowed the appeal, holding that section 232, while unattractive and lacking even-handedness, did not violate the Constitution. This unattractiveness was relieved by the fact that the subsection (1) of the section, allowing the prosecution to claim costs from a convicted defendant, was a dead letter. The Privy Council, relying on this Court’s rulings in Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327A, §§ 48-49 and Lutz v. Germany, judgment of 25 August 1987, Series A no. 123, § 59, found that Article 6 of the Convention did not require a discretion to award costs to an acquitted defendant. While an even-handed discretionary power to order reimbursement of costs incurred by a successful prosecutor or a successful defendant would be desirable, it was not correct to find, as the Court of Appeal had, that such a power was universal among Western European countries. The principle of equality of arms sought to ensure that a defendant did not suffer an unfair procedural disadvantage but did not require that the situations of the prosecutor and defendant should be assimilated and neither applicant had been able to show any procedural disadvantage in the conduct of the trial from the inability to recover his costs. In respect of the presumption of innocence (and referring to this Court’s findings in Lutz, cited above; Leutscher v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996II; and Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62), the Privy Council found that where the domestic court had a discretion to order costs against a prosecutor in favour of an acquitted defendant, the court should not refuse to make such an order in terms which threw doubt on the presumption of innocence. However, where domestic law granted no discretion and did not permit the making of an order, the failure to make such an order could not be rationally understood as throwing doubt on the defendant’s innocence. Section 1 of the Gibraltar Constitution Order 1969 (now superseded by a 2006 Order), in so far as it is relevant, provided as follows: “It is hereby recognised and declared that in Gibraltar there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms, namely― (a) the right of the individual to life, liberty, security of the person and the protection of the law; ... ...and the provisions of this Chapter shall have effect for the purpose of affording protection to the said rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.” Section 8 (1) and (2), insofar as they are relevant, provided as follows: ““Provisions to secure protection of law 8.(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. (2) Every person who is charged with a criminal offence ― (a) shall be presumed to be innocent until he is proved or has pleaded guilty; ... (c) shall be given adequate time and facilities for the preparation of his defence; (d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense...” Sections 6 and 7 also provided protection against deprivation of property. Part XI of the Ordinance governs costs and other ancillary orders in criminal cases. Section 229, governing the award of costs by Magistrates’ Courts, so far as it is relevant, provides: “(1) On the summary trial of an information the magistrates’ court shall have power to make such order as to costs ― (a) on conviction, to be paid by the defendant to the prosecutor; and (b) on dismissal of the information, to be paid by the prosecutor to the defendant, as it thinks just and reasonable: Provided that ― (i) where under the conviction the court orders payment of any sum as a fine, penalty, forfeiture or compensation, and the sum so ordered to be paid does not exceed £1, the court shall not order the defendant to pay any costs under this subsection unless in any particular case it thinks fit to do so; (ii) and where the defendant is a child or young person, the amount of the costs ordered to be paid by the defendant himself under this subsection shall not exceed the amount of any fine ordered to be so paid. (2) The court shall specify in the conviction, or, as the case may be, the order of dismissal, the amount of any costs that it orders to be paid under subsection (1). (3) Where examining justices determine not to commit the accused for trial on the ground that the evidence is not sufficient to put him upon his trial, and are of opinion that the charge was not made in good faith, they may order the prosecutor to pay the whole or any part of the costs incurred in or about the defence.” At the relevant time, section 232, governing the award of costs by the Supreme Court, provided: “(1) The Supreme Court may, if it thinks fit, order any person convicted before it to pay the whole or any part of the costs incurred in or about the prosecution and conviction, including any proceedings before the examining justices. (2) Where any person is acquitted on indictment, then, if ― (a) he has not been committed to or detained in custody or bound by recognizance to answer the indictment; or (b) the indictment is for an offence under the Merchandise Marks Ordinance; (c) the indictment is by a private prosecutor for the publication of a defamatory libel or for any corrupt practice within the meaning of the House of Assembly Ordinance, the Supreme Court may order the prosecutor to pay the whole or any part of the costs incurred in or about the defence, including any proceedings before the examining justices. (3) Costs payable under this section shall be taxed by the Registrar.” Section 231(1) was repealed by the Criminal Procedure (Amendment) Ordinance 2005 with effect from 22 December 2005.