CASE OF YASSAR HUSSAIN v. THE UNITED KINGDOM
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed
Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Rait Maruste
4. The applicant was born in 1981 and lives in Stoke-on-Trent. 5. The applicant was arrested on 14 May 2002 on suspicion of having intimidated witnesses. In an identity parade held the same afternoon, he was positively identified by one of the two witnesses. The applicant states that this witness accepted in her original statement of evidence to the police that she was a heroin user and an inherently unreliable witness. The applicant was subsequently charged with five counts of doing acts tending and intended to pervert the course of public justice. 6. The applicant pleaded not guilty on 2 August 2002 and the trial was adjourned to the Stoke-on-Trent Crown Court on 7 October 2002. On that date no judge was available and the trial was moved to 3 February 2003. On the second day of the trial the witness who had identified the applicant did not attend and the trial had to be aborted. At the re-listed trial on 15 September 2003, Counsel for the Crown addressed the court in the following terms: “When this matter was listed for trial in February, [L.] attended on the first day. She wasn't called to give evidence and didn't come back on the second day. Certainly, that caused some concern. I think it is fair to say, at different stages of the entire case, she has blown slightly hot and cold. [L.] indicated to the police when they contacted her recently and, in fact, again yesterday, that she was reluctant to give evidence. She has attended court today and with my learned friend's permission, I have had the chance to sit down and have a chat to her. Your Honour, the reality is that she does not want to give evidence. She has personal reasons I don't propose to divulge in open court. She has formed a new relationship. She has moved on. She is trying very hard to put the events of this entire case behind her. She has satisfied the police who spoke to her yesterday and satisfied those who instruct me that no threats have been made toward her in relation to today's proceedings. She insists that there has been no contact from [the applicant] or others acting on his behalf. We don't feel that, due to the nature of this allegation, she ought to be compelled to give evidence in this case. Your Honour, there has been a very full discussion and the view we have taken is that without her evidence, plainly, we can't proceed. I offer no evidence. Verdicts must follow.” 7. The applicant was duly acquitted. On his counsel's application for a defendant's costs order, the judge refused to make an order and stated: “That order will be refused. There is clear evidence on the court papers. The Crown have taken the view that they are not going to compel this witness although there is compelling evidence in respect of those matters. It is a discretion which I am afraid I am not going to exercise in your favour.” 8. The applicant's attempted appeal was dismissed on 14 November 2003 as “to be appealable as a sentence, the order must be contingent upon conviction. As the defendant's costs order only arises when a prosecution is unsuccessful, it cannot be a sentence and cannot be appealed at the Court of Appeal Criminal Division”. 9. Section 16(2)(b) of the Prosecution of Offences Act 1985 provides that where “... any person is tried on indictment and acquitted on any count in the indictment the Crown Court may make a defendant's costs order in favour of the accused”. 10. Practice Direction (Crime: Defence Costs) [1999] 1 WLR 1832, which was in force at the time of the applicant's trial, provided that: “Where a person is not tried for an offence for which he has been indicted or committed for trial or has been acquitted on any count in the indictment, the court may make a defendant's costs order. Such an order should normally be made whether or not an order for costs inter partes is made, unless there are positive reasons for not doing so, as where, for example, the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him is stronger than it is.” 11. As noted above, no appeal lies to the Court of Appeal against a refusal of a defendant's costs order. 12. By virtue of section 29(3) of the Supreme Court Act 1981, the High Court may not exercise its power of judicial review over the Crown Court in matters relating to “trial on indictment”. 13. An argument that the incorporation of the Convention into United Kingdom law required a remedy against a refusal of a defendant's costs order was rejected in R (Shields) v. Liverpool Crown Court [2001] EWHC Admin 90, in which Lord Justice Brooke stated that “... unless and until Parliament decides to remove the anomaly, that an acquitted defendant has no right of appeal against the refusal of a defendant's costs order, however unjust the refusal may be, he has no Convention right of challenge to his decision in an English court and he is still bound to go to Strasbourg if he wishes to make the assertions he sought to raise unsuccessfully in the Administrative Court”.