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Chapter 14: Costs against the prosecutor

In Attorney General of Gibraltar v Shimidzu (Andrew Ivan Berllaque, Intervenor) (2005) 20 BHRC 223 the Privy Council expressed the view that, 'The jurisprudence on the European Convention lends no support to the argument that article 6 requires a discretion to award costs to an acquitted defendant.’ It also observed that, ‘Equality of arms is an aspect of procedural fairness, protected by section 8 and article 6. It seeks to ensure that the defendant does not suffer an unfair procedural disadvantage: De Haes and Gijsels v Belgium (1998) 25 EHRR 1, para 53.It does not require that the situations of the prosecutor and the defendant should be assimilated.' (Emphasis added.)

It is noteworthy that the Privy Council conceded that, 'it might be thought fair and just that a defendant acquitted by a jury at trial should be entitled to seek reimbursement of costs he has incurred defending himself. It might also be thought fair and just that such a defendant should be compensated for months during which he was detained before trial. If the law provides such remedies they must be the subject of fair adjudication. But section 8 (of the constitution of Gibraltar) and article 6 (of the Convention) do not require that the law provide such remedies.'

 

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