Friday, July 01, 2005

Decision not unconstitutional - says Privy Council

Shimidzu ‘cost’ case

Failure to award costs in criminal cases is not unconstitutional according to a ruling by the Privy Council published by the Gibraltar Government yesterday.

The judgment overturns an earlier decision by the local Court of Appeal awarding costs to Takahashi Shimidzu on an acquittal, on the grounds that failure to award costs was unconstitutional and infringed the defendant’s right to a fair trial. The Privy Council held that the constitution had not been infringed.

A Convent Place spokesman said:

“This was the ruling of the Privy Council on Tuesday 28 June 2005 following a 2-day appeal brought by the Attorney General back in May. The respondent in the appeal, Takahashi Shimidzu had been acquitted by a jury following a 3-day trial in April 2003.

Shimidzu’s Defence Counsel had applied for costs incurred in defending the case but the Chief Justice held that there was no power to award costs on an acquittal.

Mr Shimidzu appealed to the Court of Appeal on the basis that the lack of a power to award costs contravened the provisions of the Gibraltar Constitution Order.

Before the Court of Appeal, in which Brian Berllaque intervened since following his acquittal by a jury in October 2003 he had also been denied his costs, it was held that Section 232 of the Criminal Procedure Ordinance was unconstitutional.

The Court of Appeal found that a failure to award costs on an acquittal infringed the right to a fair trial (Section 8(1) of the Gibraltar Constitution Order).

The Attorney General appealed to the Privy Council and the Court of Appeal judgment has now been overturned.

The Judicial Committee of the Privy Council, consisting of Lord Bingham of Cornhill, Lord Steyn, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Carswell unanimously held that Section 8 of the Gibraltar Constitution Order, which is drafted in similar terms to Article 6 of the European Convention of Human Rights, had not been infringed by the failure of a statutory power to award costs.

The Attorney General, Ricky Rhoda QC appeared in person before the Privy Council, together with Mrs Sharon Peralta, Crown Counsel. John Leighton Williams QC together with David Hughes appeared for the Respondent, Takahashi Shimidzu.


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