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The Judicial Committee of the Privy Council Decisions
You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Her Majesty's Attorney General for Gibraltar v Shimizu (Gibraltar)  UKPC 26 (28 June 2005)
Cite as:  WLR 3335, 20 BHRC 223, (2005) 20 BHRC 223,  UKPC 26,  1 WLR 3335
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Privy Council Appeal No. 40 of 2004
Her Majesty's Attorney General for Gibraltar Appellant
Takahashi Shimidzu Respondent
(Andrew Ivan Berllaque, Intervenor) Intevenor
THE COURT OF APPEAL OF GIBRALTAR
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 28th June 2005
Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
[Delivered by Lord Bingham of Cornhill]
"229.(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:
(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."
Section 232, governing the award of costs by the Supreme Court, provides:
"232.(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."
"1. 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, …"
Section 8, in this Chapter, is entitled "Provisions to secure protection of law", and provides in subsections (1) and (2):
"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;
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence;
(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;
(e) shall be afforded facilities to examine, in person or by his legal representative, the witnesses called by the prosecution before any court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before that court on the same conditions as those applying to witnesses called by the prosecution; and
(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence,
and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence."
It is evident that these subsections, although not in identical language, are closely based on the criminal limb of article 6 of the European Convention on Human Rights. The European Convention has not been incorporated into the domestic law of Gibraltar and the decisions of the European Court are not strictly binding on the courts of Gibraltar, but they are rightly treated, where pertinent, as persuasive: Ford v Labrador  UKPC 41,  1 WLR 2082, para 16.
1. In this Annex 'the existing laws' means any Ordinances, rules, regulations, orders or other instruments made, or having effect as if they had been made, in pursuance of the existing Order and having effect as part of the law of Gibraltar and includes any Order of Her Majesty in Council (other than the existing Order or any Order made under an Act of Parliament of the United Kingdom) having effect as part of the law of Gibraltar.
2.(1) Subject to the provisions of this section, the existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution."
"There is no power in the magistrates' court to commit a person for trial in the Supreme Court other than in custody or by binding him by recognizance."
Thus no, or virtually no, acquitted defendants can rely on section 232(2)(a). Cases within subsection (2)(b) and (c) are rare. So a privately-funded defendant acquitted on indictment is effectively unable to recover his costs from the prosecutor or any other source, no matter how much he has expended or how strong his claim to reimbursement may be, and despite his liability (on the language of section 232(1)) to reimburse the prosecutor if convicted. Mr Leighton Williams QC contended that the lack of a provision permitting the court to order that Mr Shimidzu recover his costs against the prosecution, if the court in its discretion thought fit to make such an order, denied him the protection of the law, rendered unfair the hearing of the criminal charge against him, was arbitrary and unjust, breached the principle that there be equality of arms between prosecutor and defendant and undermined the presumption of innocence guaranteed by section 8(2)(a) of the Constitution. The Court of Appeal was unanimous in dismissing Mr Leighton Williams' argument based on the presumption of innocence, but the majority held that the absence of a discretion to award costs in favour of an acquitted defendant against the prosecution infringed the fair trial guarantee. Glidewell P said, in para 42 of his judgment:
"42. To quote again a phrase from the passage I quoted earlier from Lord Millett's judgment [in Thomas v Baptiste  2 AC 1, 22] in relation to the phrase 'due process of law', '… it invokes the concept of the rule of law itself and universally accepted standards of justice observed by civilised nations which observe the rule of law'. We know that the legislation in relation to costs in criminal cases in England and Wales, in Scotland, and in those West European countries from which the ECHR decisions cited to us, in each case made provision for an acquitted defendant to be reimbursed the costs of his defence in the court's discretion. This is an indication that some such provision is in accord with the accepted standards of justice observed by civilised nations."
Stuart-Smith JA considered that section 232 infringed the principle of equality of arms (para 8 of his judgment) and infringed Mr Shimidzu's right to a fair trial.
"48. As to whether a 'dispute' over a 'right' existed so as to attract the applicability of Article 6 (1), the Court will first address the issue whether a 'right' to the compensation claimed could arguably be said to be recognised under national law.
49. In view of the status of the Convention within the legal order of the Netherlands, the Court observes firstly that the Convention does not grant to a person 'charged with a criminal offence' but subsequently acquitted a right either to reimbursement of costs incurred in the course of criminal proceedings against him, however necessary these costs might have been, or to compensation for lawful restrictions on his liberty. Such a right can be derived neither from Article (2) nor from any other provision of the Convention or its Protocols. It follows that the question whether such a right can be said in any particular case to exist must be answered solely with reference to domestic law.
In this connection, in deciding whether a 'right', civil or otherwise, could arguably be said to be recognised by Netherlands law, the Court must have regard to the wording of the relevant legal provisions and to the way in which these provisions are interpreted by the domestic courts."
In paras 59-60 of the Court's judgment in Lutz v Germany (1987) 10 EHRR 182 the same point was made (footnotes omitted):
"59. The Court points out, first of all, like the Commission and the Government, that neither Article 6 (2) nor any other provision of the Convention gives a person 'charged with a criminal offence' a right to reimbursement of his costs where proceedings taken against him are discontinued. The refusal to reimburse Mr Lutz for his necessary costs and expenses accordingly does not in itself offend the presumption of innocence. Counsel for the applicant moreover stated, in reply to a question from the President, that his client was not challenging that refusal but solely the reasons given for it.
60. Nevertheless, a decision refusing reimbursement of an accused's necessary costs and expenses following termination of proceedings may raise an issue under Article 6 (2) if supporting reasoning which cannot be dissociated from the operative provisions amounts in substance to a determination of the accused's guilt without his having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence."
One may, like Glidewell P, favour an even-handed discretionary power to order reimbursement of costs incurred by a successful prosecutor or a successful defendant, but he was factually wrong to regard the existence of such a power as universal among civilised Western European countries. There is no power to order payment of costs by the Crown to an acquitted person under solemn procedure in Scotland. In Northern Ireland (as in Gibraltar) there is no power to order that a successful defendant should recover costs out of local or central funds, and a provision permitting costs to be ordered against the prosecution is a dead letter.
"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."