FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 23199/10
by Toby Wilson D’ANGIBAU
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 5 July 2011 as a Chamber composed of:
	Lech Garlicki, President,
	Nicolas Bratza,
	Ljiljana Mijović,
	Sverre Erik Jebens,
	Zdravka Kalaydjieva,
	Nebojša Vučinić,
	Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 1 April 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Toby Wilson D’Angibau, is a British national who was born in 1968 and lives in Burton-On-Trent. He was represented before the Court by Mr D. Clarke, a lawyer practising in Kent with Clarke Kiernan Solicitors. The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban of the Foreign and Commonwealth Office.
A.  The circumstances of the case
On 7 February 2002, the applicant was arrested and charged with contravening section 170 of the Customs and Excise Management Act 1979 by evading excise duty, which was chargeable on consignments of alcoholic drinks. The prosecution case was that there had been a conspiracy to deceive HM Customs and Excise into believing that the consignment would be shipped to other European countries and the duty would be paid in those countries; instead the consignments would be diverted and sold within the United Kingdom. The prosecution relied on mobile telephone records of telephone calls the applicant had made to those who were allegedly responsible for collecting cash payments for the consignments. The applicant’s defence was that, although there may have been a diversion fraud, he was an innocent party and the mobile telephone had been used to conduct legitimate business negotiations.
His trial started on 28 November 2005 and, on 7 November 2006, the applicant was convicted by the jury. On 12 January 2007, the applicant was sentenced to four years’ imprisonment.
The applicant and his co-defendants appealed against their convictions on the grounds that first, the trial had taken too long, and had been disrupted frequently and subject to excessive periods of interruption; and second, that the trial judge’s summing up had been defective. On 25 October 2007, the Court of Appeal allowed the appeal and quashed the applicant and his co‑defendant’s convictions.
After hearing submissions, the court ordered a retrial in the applicant’s case but not in the case of his co-defendants. In the course of submissions, it was observed by the presiding judge that, should a retrial be ordered, there need not be a second trial: the best way for the case to proceed would be for some form of accommodation to be reached between the defence and prosecution. The presiding judge added “[the applicant] hardly comes out of this shining with glory, whether he is guilty or not”. The presiding judge also observed that:
“After all, [the applicant] is morally culpable whatever happens because even as an innocent dupe his checks on the honesty of trade were hardly very adequate.”
Counsel for the applicant appeared to accept on his client’s behalf that there had been an offence and that his client, the applicant, could not avoid the allegation that he had been involved in the conspiracy. In reply, the presiding judge observed that, innocent as the applicant was, he had behaved disgracefully and that “much money as he has got needs to go to customs [and excise] or the tax payer”. Having reiterated that the best means of proceeding would be for the prosecution and defence to negotiate a conclusion to the case, the presiding judge also observed:
“There being now no dispute that whatever participation, whether criminal or not in these matters, this appellant [the applicant] acted in a way which has cost the Exchequer very large sums in evasion of duty by failing to have control over where these goods went”.
The Court of Appeal ordered a retrial. Counsel for the applicant then applied for a defendant’s costs order, pursuant to section 16(4) of the Prosecution of Offences Act 1985 (see relevant domestic law and practice below). The presiding judge replied:
“No, in the particular circumstances of this case and having regard to the fact that – well, I need not identify all those circumstances – the answer is no.”
A retrial did in fact take place on 10 November 2008. The jury was discharged on 18 December 2008. A third trial started on 5 May 2009 and the applicant was unanimously acquitted by the jury on 13 July 2009. Following a request from the applicant, the trial judge made a defendant’s costs order in his favour in respect of the second and third trials. The applicant then applied to the Court of Appeal for a defendant’s costs order in respect of the first trial. By letter of 19 October 2009, the applicant was informed that the application had been refused. The letter did not contain any reason for the refusal.
B.  Relevant domestic law and practice
Section 16 of the Prosecution of Offences Act 1985 (“the 1985 Act”) makes provision for the granting of a defendant’s costs orders. Section 16(6) defines such an order as an order:
“... for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.”
Section 16(2) of the Act 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(4) allows the Court of Appeal to make a defendant’s costs order, inter alia, when it allows an appeal against conviction.
Section 16(11) makes provision for an order to be granted when a person is retried and is acquitted at the retrial. It provides:
“Where a person ordered to be retried is acquitted at his retrial, the costs which may be ordered to be paid out of central funds under this section shall include—
(a) any costs which, at the original trial, could have been ordered to be so paid under this section if he had been acquitted; and
(b) if no order was made under this section in respect of his expenses on appeal, any sums for the payment of which such an order could have been made.”
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.”
COMPLAINT
The applicant complains that the refusal of the Court of Appeal to grant a defendant’s costs order violated the presumption of innocence guaranteed by Article 6 § 2 of the Convention. Since no reasons had been given in the Court of Appeal’s letter of 19 October 2009, the applicant submitted that the only possible reasons were the comments made by the presiding judge at the appeal hearing on 25 October 2007. The Court of Appeal’s refusal showed that it considered that the applicant was guilty despite his acquittal.
THE LAW
A.  The parties’ submissions
The Government argued that the application should be rejected for non‑exhaustion of domestic remedies. After he was acquitted at the retrial, the proper course was to apply to the trial judge for a defendant’s costs order for the expenses incurred at the original trial, not to write to the Court of Appeal asking it to reconsider its decision. Section 16(11) of the 1985 Act made specific provision for this course. Once the applicant had been acquitted at the retrial, the question of costs at the original trial was not within the jurisdiction of the Court of Appeal but the jurisdiction of the judge presiding at the retrial. The applicant had incorrectly assumed that the judge at the retrial had no power to make an order for the original trial, when, pursuant to section 16(11), the judge had precisely that power.
The applicant considered that he had exhausted domestic remedies. In his submission, section 16(11) appeared to draw a distinction between, on the one hand, legal costs and, on the other, personal expenses. The only application in his case related to his personal expenses, which was caught by section 16(11)(b). However, the Court of Appeal had made an order refusing the applicant his expenses. This meant section 16(11) had no effect and no application was available to him under that subsection. The applicant also submitted that, even if this Court found that the trial judge at the retrial had jurisdiction to award the costs for the original trial, no order would have been made. In making the application for a defendant’s costs order, he would have had to draw the trial judge’s attention to the Court of Appeal’s earlier decision and the reasons for it. The trial judge would have considered it inappropriate to make an order which went against the Court of Appeal’s decision. Moreover, if the application had been made to the trial judge and refused, any attempt to write to the Court of Appeal asking it to reconsider its previous decision would have been seen as circumventing the rule that there was no appeal from a trial judge’s decision to refuse a defendant’s costs order. This would have prevented the simple and direct approach he had taken in writing directly to the Court of Appeal.
In their final observations, the Government replied that section 16(11) did not make any distinction between legal costs and personal expenses. The section was headed “Defence costs”. Section 16(6) provided that a defendant’s costs order could be made in respect of “any expenses properly incurred”, which included both legal costs and personal expenses. In the applicant’s case, the Court of Appeal had not made an order concerning his expenses on appeal. Instead, it had refused to make a defendant’s costs order in respect of the original trial: this was not an order for the purposes of section 16(11)(b). The trial judge therefore had jurisdiction to make an order in respect of the applicant’s expenses on appeal. The Government did not accept that the trial judge would not have made an order because of the Court of Appeal’s earlier decision. This was conjecture on the applicant’s part. The trial judge’s discretion to make the order was to be exercised in the circumstances which pertained at the time of the application, in accordance with the Practice Direction. The applicant could have made submissions as to the exercise of that discretion. Finally, having failed to do so, it was unsatisfactory to ask this Court to determine for itself whether the discretion should have been exercised and an order made.
B. The Court’s assessment
The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 55). The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems’ safeguarding of human rights (Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see T. v. the United Kingdom, cited above, § 55); NA. v. the United Kingdom, no. 25904/07, § 88, 17 July 2008; and D. v. Ireland (dec.), no. 26499/02, §§ 83 and 84, 27 June 2006).
Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000). However, the Court has consistently held that mere doubts as to the prospects of success of national remedies do not absolve an applicant from the obligation to exhaust those remedies (see, inter alia, Pellegrini v. Italy (dec.), no. 77363/01, 26 May 2005).
In the present case, the Court observes firstly that it is not its task to determine whether the refusal of the Court of Appeal to make a defendant’s costs order in respect of the original trial was an “order” for the purposes of section 16(11)(b). It is also not for the Court to determine whether a trial judge at a retrial has jurisdiction to grant a defendant’s costs order in respect of an original trial. These are matters of interpretation of domestic law.
It is, however, clear that the purpose of section 16 is to allow acquitted defendants to recover their costs, no matter when they are acquitted. To this end, section 16(2) allows an order to be made when a defendant is acquitted at trial and section 16(4) allows the Court of Appeal to make an order when allowing an appeal against conviction. It is also clear that the purpose of section 16(11) is to allow a defendant who has been retried and acquitted to recover both his costs at the retrial and his costs in respect of his original trial. Given the clear purpose of section 16(11) the Court considers that it was incumbent on the applicant, when he had been acquitted at his retrial, to apply to the trial judge for his costs and expenses in respect of the original trial and to let that judge decide whether he had jurisdiction or not. The Court further agrees with the Government that it is conjecture for the applicant to assert that, if the trial judge had decided that he had jurisdiction, inevitably he would have refused to make an order. This is all the more so when the applicant had already applied (and been granted) a defendant’s costs orders in respect of the second and third trials by the trial judge. The applicant’s submission is, therefore, a “mere doubt” as to the prospects of success of the remedy contained in section 16(11) and cannot be relied on to absolve him of the obligation to exhaust that remedy.
Moreover, if the trial judge had refused to make the order (either because he had no jurisdiction or because he considered it inappropriate to make an order in the applicant’s case), nothing would have prevented the applicant from drawing this ruling to the attention of the Court of Appeal and requesting that it reconsider its earlier decision. The Court is not persuaded, therefore, that it was simpler and more direct for the applicant to write to the Court of Appeal and, in effect, circumventing the trial judge. Even if it was, the Court does not consider that the mere fact of writing a letter to the Court of Appeal is sufficient to excuse the applicant from exhausting the statutory remedy which was provided for in section 16(11).
Accordingly, the Court concludes that the application should be dismissed for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously
Declares the application inadmissible.
	Lawrence Early	Lech Garlicki	
	Registrar	President