2 Bedford Row

The Cost of a No Comment Interview 27 September 2011
Posted by: 2bedfordrowchambers

In Ashendon and Jones v. UK, the European Court of Human Rights has recently confirmed that a trial judge is entitled to reduce a defence costs order following acquittal where the defendant made a No Comment interview. The Court considered Dowler v. Merseyrail [2009] EWHC 558 and R (Spiteri) v. Basildon Crown Court [2009] EWHC 665 but agreed with the Government's submissions that the defendants' failure to provide a meaningful account in interview led the prosecution to think that its case was stronger than it was in reality.

Whilst a judge must be careful not to infer that a defendant is in fact guilty of the indicted offence, the European Court did not preclude the possibility of a reduction in the amount of a defendant's costs order on the basis that the defendant had engaged in "reprehensible conduct" (whatever that means) falling short of the offence charged. To reduce or refuse such an award did not amount to a penalty against a defendant for exercising his right to silence at interview. The European Court felt that the trial judge was the person best placed to decide whether or not any reduction (or extinction) of a defendant's costs order was appropriate. Bizarrely, the Court does not seem to have considered that the inevitable "adverse inference" direction redressed any perceived imbalance between the prosecution and defence. The wording of the "new" police caution seems to have been completely overlooked by the European Court.

We can safely assume that judges will be alive to every opportunity in today's climate to minimise costs to the public purse. One logical consequence of this decision is that defendants may have to be warned at the police station about the possible consequences for their pocket if they decide to give a No Comment interview and are subsequently acquitted; solicitors who fail to give that advice may find an acquitted - but impoverished - client looking to them to pay any costs lost as a result. Ironically, given that the majority of defendants nowadays are obliged to make some sort of legal aid contribution to their defence costs, this advice may have to be given to legal aid clients, as well as those paying privately.

Jamas Hodivala, 2011