06 May 2008

FOURTH SECTION
Application no. 33294/06
by Benjamin AYLIFFE and Others
against the United Kingdom
lodged on 11 August 2006

STATEMENT OF FACTS
THE FACTS
There are thirteen applicants in the present case: Mr Benjamin Ayliffe and twelve others. Their names are listed in the Appendix. With the exceptions of Mr Counord, Mr Loewe and Ms Rosato who are French, German and Australian nationals, the applicants are British nationals. With the exceptions of Mr Counord and Ms Rosato who live respectively in Saint Nizier du Moucherotte, France and County Kerry, Ireland, the applicants all live in the United Kingdom. They are represented before the Court by Mr M. Schwartz, a lawyer practising in London with Bindman & Partners, Solicitors.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are all either employees of or volunteers for Greenpeace. On 20 June 2004, they boarded (or assisted others to board) a cargo ship which had the effect of preventing the ship continuing its voyage to harbour. The applicants maintain that they did so because they believed the cargo of the ship contained animal feed which was not licensed by European Union law and thus the importation was in breach of domestic criminal law.
The applicants were arrested the following day and tried at Cardiff Crown Court for an offence of public nuisance. They had also been charged with an offence contrary to section 58 of the Merchant Shipping Act 1995 (conduct in United Kingdom waters endangering ships, structures or individuals), which was dismissed at the committal stage of the case.
In their defence to the public nuisance charge, the applicants pleaded that their action did not amount to a public nuisance and/or was reasonable and necessary in order to prevent the commission of a criminal offence. On this point, the trial judge instructed the jury that they could conclude that the applicants' actions were or may have been a reasonable and proportionate response, in which case the actions would have been authorised by law as actions to prevent the commission of crime and the jury could acquit.
The applicants were all unanimously acquitted of the public nuisance charge by the jury on 16 September 2005.
After their acquittal, the applicants applied for their costs to be paid out of central funds pursuant to section 16(2)(h) of the Prosecution of Offences Act 1985 (see relevant domestic law and practice below). Their total costs were approximately GBP 250,000.
In a ruling delivered on 21 February 2006, the trial judge, relying inter alia on this Court's ruling in Del Latte v. the Netherlands, no. 44760/98, § 30, 9 November 2004, refused this application, giving the following reasons for his decision:
“6. This was a planned operation which involved not only the five activists but a further eight others in various supporting roles, who were also arrested. Following their arrests, the thirteen were interviewed under caution; each replied 'no comment' to all questions....By a defence case statement dated 20th June 2005, the defendants put the prosecution to the strict proof of all the ingredients of the offence of public nuisance and said their case was that their conduct did not cause or amount to a public nuisance and/or was reasonable and in the public interest and/or necessary to prevent the commission of a criminal offence – this was the first indication to anyone that the defendants had been trying to prevent the commission of a crime; the evidence at trial was that nothing to that effect was said to anyone to whom the defendants explained their actions at the time of their actions and following their arrests.”
The trial judge continued (at paragraph 14 of his ruling):
“(i) Conscious as the Court is, and must be, of the presumption of innocence, in my judgment, this is a case where the defendants' own actions brought suspicion on themselves. Their action was planned – the evidence of some of the defendants who gave evidence was that it was 2 years in the planning – and a decision must have been taken to risk breaching the criminal law. They provided nothing by way of an explanation for their actions, choosing to exercise their right to silence but the unchallenged evidence of what was said at the time of the action suggested that their principal motive was to attract publicity for their cause – I repeat that nothing was said about the prevention of crime...
(ii) I have already observed the defence case was not revealed until the service of a defence case statement dated 20th June 2005. In the circumstances, I consider the prosecution cannot be criticised for bringing proceedings against them.”
The trial judge also rejected the defendants' evidence that the reason they had not brought the authorities' attention to their belief that the ship's cargo was in breach of EU law was that they could not trust the authorities to listen to their concerns. This was rejected by him as justification for risking breaches of the criminal law. The trial judge stated:
“In my judgment, the appropriate forum for the resolution of the Greenpeace concerns – and I find as fact that the defendants' actions were taken to specifically advance the cause or beliefs of that organisation – was the civil courts....those who seek to advance a particular cause should do so at their own expense and not at the expense of public funds.
(iv) The defendants' decision involved a risk of conviction; that in my judgment is beyond question because no defendant could be certain either that a jury would consider their actions were a proportionate response to a reasonable belief that a criminal offence was being committed or that the prosecution would not be able to prove to the required standard that their actions caused such substantial inconvenience, which was itself sufficiently widespread and indiscriminate and affected enough people to be described as a public nuisance.
(v) In my judgment, these provide sufficient positive reasons for refusing the application; Greenpeace and the defendants who were acting in its name, brought these proceedings upon themselves. This conclusion in no way impugns the verdict of the jury or implies that there remains a suspicion that the defendants are nonetheless guilty of the offence of public nuisance.”
The applicants' costs in respect of the section 58 of the Merchant Shipping Act 1995 charge which had been dismissed were, however, allowed.

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) [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.”
COMPLAINTS
The applicants complain that the refusal to award them their costs was incompatible with Article 6 § 2 of the Convention. They further complain that since their action in boarding the ship was also a protest, it was protected by Article 10. The trial judge had formed the view that individuals who engaged in that action should be penalised in costs and therefore this was an unjustified interference with their rights under that Article.

APPENDIX

List of applicants

1.	Benjamin AYLIFFE
2.	Nicole COOK
3.	Cedric COUNORD
4.	Frank HEWETSON
5.	Timothy Michael HEWKE
6.	Jens LOEWE
7.	Janet MILLER
8.	Rachel Jane MURRAY
9.	Michele ROSATO
10.	Andrew Martin TAYLOR
11.	Allen Frank VINCENT
12.	Richard WATSON
13.	Huw WILLIAMS

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,  2006‑...)?