CASE OF ASHENDON AND JONES v. THE UNITED KINGDOM
Remainder inadmissible;No violation of Art. 6-2
Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
6. The first applicant was born in 1985 and lives in London. 7. In the early hours of 2 April 2006 the first applicant was discovered sleeping in a flat in a sheltered accommodation complex. He was naked from the waist down and intoxicated. Blood tests subsequently showed that he had consumed alcohol and ecstasy the night before and that he was a regular cannabis user. The tests also showed a positive response for cocaine. 8. Police and paramedic personnel were called to the scene. After investigation it was thought that the first applicant had gained entry to the flat through another flat in the complex. Upon entering the second flat, the police discovered its occupant, Mrs B, who was ninety-seven years of age, lying on the floor. She too was naked from the waist down. She was covered in faeces, she was upset and confused, and said she was in pain. She had a number of injuries and told the police she had been sexually assaulted in the night. 9. The first applicant’s jacket, shoes, trousers and underpants were found in B’s flat. Faecal material, which was found to contain components of B’s DNA, was found on the applicant’s t-shirt. Pubic hair, visually similar to that of B, was found on the first applicant and elsewhere in the flat where he had been found. Swabs were taken from the first applicant’s penis but no DNA or blood was found. There was no semen found anywhere. 10. When interviewed by police the following evening, the first applicant admitted to having been drinking and to having taken an ecstasy tablet. He denied having committed any offences and stated that he had no recollection of events. He was interviewed on a further four occasions and states that he co-operated with the police each time. 11. The first applicant was charged with burglary, rape (by penile penetration), rape (by digital penetration), and sexual assault. The applicant’s trial began on 5 February 2007. The prosecution offered no evidence in respect of the burglary charge and a not guilty verdict was recorded. In respect of the remaining charges, it was not suggested by the defence that someone other than the first applicant had assaulted B, or that there had been no contact between them. Instead, the principal area of dispute was whether the first applicant’s actions had amounted to rape or, alternatively, sexual assault. The prosecution’s case was that they did. The applicant maintained that they did not. In giving evidence in his defence, the applicant repeated that he had no recollection of events on the night in question. 12. The trial judge’s summing up to the jury contained the following direction: “We all know this is a horrific, a disgusting episode. We all know that, and we all know – there has not been any argument about this, has there? – where moral responsibility lies but we are a court of law, we are not here to dish out admonitions for immoral conduct, disgusting behaviour. ... We are here to judge whether a crime has been committed, whether the criminal law of the land has been broken. In order to do that you have to be objective. You have to stand back from the feelings of disgust and revulsion that come from the facts of this case and be objective. That last thing anyone would want is to compound an already awful event with another awful event, which would be a verdict based upon emotion and feelings of distaste and disgust rather than a verdict based upon a proper, logical, objective analysis of what has happened and that is what you are trusted to do.” 13. On 14 February 2007 the jury acquitted the applicant of the three remaining charges. When the first applicant applied for his costs (which exceeded GBP 100,000 and had been met by his family) his counsel stated: “This is a case in which [the first applicant] was inevitably going to be charged with a criminal offence, I do not doubt that for a moment, and the point I made to the jury was that had a different criminal offence been charged he may have had no alternative but to plead guilty, but costs have been expended on defending him on charges for which he has been found not guilty. Bearing in mind everything Your Honour has said about his conduct that, in my submission, would not be a relevant consideration to the application that I make now because once he was interviewed by the police he did his best...to tell the truth as he understood it and remembered it to be so he did not do anything more at that stage to bring this prosecution upon himself, simply the conduct which ended him up where he was.” 14. In refusing the application, 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.” 15. The second applicant was born in 1949 and lives in Stourton, West Midlands. 16. In 2005, the police began investigating the business affairs of a company where, it was alleged, there had been money laundering, theft and fraud. The second applicant is an accountant and the company had been one of her clients. In the course of their investigation the police came into possession of an audio tape, which recorded a conversation between the applicant and another person under investigation, A.R., in which the applicant was alleged to have provided advice on how to steal from the company. 17. The second applicant was interviewed under caution on 1 June 2006. The tape was played to her and, on the advice of her solicitor at that time, she declined to reply to the questions put to her. It appears that, at this time, the police did not know the provenance of the tape or the date the conversation was recorded; the applicant maintains that, when interviewed, she was unable to remember the conversation or the date of it. 18. On 11 July 2006, the second applicant was charged with an offence of perverting the course of justice and, in September 2006, with two coaccused including A.R., she was charged with conspiring to steal from the company between 1 June 2000 and 31 October 2004. 19. A defence statement was served by the applicant on 18 January 2007 in which she addressed the tape recording. She denied any discussion of impropriety, challenged the admissibility of the tape as evidence and stated that, if the prosecution established her voice was on the tape, any comments she had made in the conversation had been taken out of context. 20. The second applicant maintained that, at the start of the trial, the prosecution offered to drop the charges against her and three co-defendants if A.R and another defendant, C.R., pleaded guilty to a significant proportion of the charges against them. She alleges that if this offer had been accepted her application for her costs would inevitably have been granted. The Government, in their observations to this Court, do not accept that such an offer was made or that, if it had been accepted, the second applicant’s application for her costs would inevitably have been granted. 21. At trial the second applicant sought to have the tape excluded from evidence but the trial judge ruled that it was admissible. The second applicant then gave evidence in her own defence in which she explained that she had been able to calculate the date of the recording (1996) by reference to matters referred to in it. She also stated that, even if the tape was genuine and had not been edited as she alleged, the conversation was not in any way criminal or dishonest in purpose. 22. In his closing speech, counsel for the prosecution argued that the jury could and should draw an adverse inference from the fact that the applicant had relied on many facts in her defence, none of which she had mentioned when she was interviewed. In his summing up, the trial judge told the jury that the second applicant had failed to mention something in her police interview that she now relied upon in court. He also indicated that if the jury concluded that the second applicant had genuinely and reasonably relied on legal advice they should not draw an adverse inference. 23. On 11 July 2007 the second applicant was acquitted unanimously of the two counts facing her. Three defendants, including A.R. and C.R., were convicted of the majority of the charges against them. One defendant, M.R., was acquitted of all charges against him and another, S.R., was acquitted of all but one charge against her. M.R. and S.R. were legally aided but were granted defendant’s costs orders in respect of their own expenses. 24. The second applicant applied immediately 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 trial judge refused the application. He stated: “The relevant features, in my judgment, in this case are these: that [the second applicant], acting very much on the advice of her then solicitor [name omitted], exercised her right to silence when answering ‘no comment’ in her police interview. I emphasise she cannot be criticised for that, and the advice was given in good faith and it was accepted in good faith by [her]. However, in my judgment it is a relevant consideration in deciding whether a defendant’s costs order should be made in this case. Her failure to answer questions, in my judgment, to some extent had the effect of bringing this prosecution on herself, allowing the police to believe that the case against her was stronger than it in fact has turned out to be. In particular, a cardinal plank of the prosecution case against her on the conspiracy count was a taped phone call between her and [A.R.] in which on the face of it she appeared to give advice to [A.R.] as to how to steal from the company. Her failure, in my judgment, of putting that phone call into its true context and true timescale clearly influenced the prosecution decision to bring charges against her, and it is for that reason, and that reason alone, that I have come to the conclusion that to that extent she brought this prosecution upon herself and in my judgment that is a proper reason for refusing a defendant’s costs order. In no way is that decision meant to indicate that she is in any way guilty of this offence, she is not, she has rightly been acquitted by this jury.” 25. On 30 July 2007, the second applicant renewed her application in writing, relying inter alia on the fact the she had been unable to recall the conversation on the tape recording until the trial had started and that one of the reasons her solicitor had sought disclosure of the tape was to consider whether to propose to the police that they should re-interview her. The trial judge declined to hold an oral hearing on the renewed application and stated that he was unable to make the order for the reasons he had already given. 26. 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. 27. 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.” 28. 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. 29. The High Court reached the same conclusion as to a conjunctive reading of the Practice Direction in R. (on the application of Spiteri) v. Basildon Crown Court [2009] EWHC 665 (Admin). In that case, the High Court also found that an acquittal on the basis of a procedural irregularity was not a proper reason for refusing to make an order.