The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by PERSON PERSON , a lawyer practising in GPE with ORG , Solicitors . The respondent Government are represented by their Agent , PERSON , ORG , GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE ORG ( “ C&E ” ) arrested the applicant and his son D , searched the applicant ’s home and seized GBP CARDINAL .

The applicant was charged with an offence of so conducting himself that his conduct must have involved the commission of CARDINAL or more LOC offences in connection with the affairs of ORG , a company of which he was director and secretary . D was also charged with similar offences in relation to the same company as well as CARDINAL other companies , ORG and ORG

As to ORG , the applicant was registered as the owner of CARDINAL of the CARDINAL issued shares , his daughter - in - law ( D ’s wife ) being the registered owner of the remaining share . According to the Government , the applicant represented the company in all dealings with ORG in regard to GPE - related matters . ORG took over the business of LOC D was declared bankrupt in DATE .

On DATE the applicant and D were further charged with , inter alia , failure to operate the PAYE ( Pay as You Earn ) tax system correctly .

On DATE on the ex parte application of ORG under sections CARDINAL and CARDINAL of LAW DATE ( “ the ORG ” ) , PERSON Justice PERSON in ORG made an order against the applicant ( “ the LOC ” ) under the ORG . The general effect of ORG was to prevent the applicant from disposing of his assets as identified in the Order . Furthermore , the applicant ’s home was made subject to a charge in order to secure payment to the ORG of an amount equal to the value of the property .

By a further order under the ORG , PERSON Justice PERSON appointed a Receiver and manager of the applicant ’s realisable property . Under this order , the Receiver was given power to pay all fees , commission and other costs from the proceeds of sale or realisation of the assets subject to the order , and was allowed remuneration in an amount to be agreed by ORG or , in default of agreement , to be determined by the court . The property listed in the schedule to the receivership order included not only the sum of GBP CARDINAL seized from the applicant ’s home , but also the bank accounts of the applicant and of ORG and vehicles used by the latter company .

Similar orders were also made on DATE by PERSON Justice PERSON against NORP

To comply with ORG , the applicant swore an affidavit on DATE in which he identified his assets . He stated inter alia that his assets included a PERCENT share in ORG , and that he had therefore “ an interest in all the assets and liabilities of ORG .... ” He further specified that he had an interest in the money in a bank account of ORG , and that he was owed dividends of ORG CARDINAL by the company . The applicant also stated in the affidavit that some of the money seized from his home ( GBP CARDINAL ) was partly his and partly his wife ’s or belonged to other members of his family .

C&E were authorised to pay over to the Receiver the sum of GBP CARDINAL which it had seized from the applicant ’s home . Pursuant to the terms of ORG , the Receiver took possession of this amount . C&E were not required to give any cross - undertaking in damages in respect of any of the orders obtained from Mr Justice PERSON .

ORG was varied by consent on DATE , DATE , CARDINAL DATE and DATE to enable sums to be paid to the applicant ’s former solicitors for legal costs in connection with his defence in the pending criminal proceedings . In all , sums totalling GBP CARDINAL were released by the Receiver to the applicant ’s solicitors for these purposes , leaving a balance of GBP CARDINAL in the Receiver ’s hands .

Prior to the applicant ’s trial , the Receiver used this balance in payment of her costs and remuneration . The majority of the costs were attributable to the monitoring of ORG including its bank accounts “ and to discussing various vehicle sales and purchases with the applicant in order to maintain the quality of the fleet . ”

D maintained at his trial that the applicant had played no active role within ORG and that he had asked the applicant to be the director and secretary of the company because of his [ D ’s ] impending bankruptcy . He stated that the applicant only signed documents as director of the company on his request , including blank cheques . On DATE D was convicted of cheating the public revenue by failing to declare ORG contributions on the full value of wage payments made to the employees of ORG On DATE D was convicted of the fraudulent evasion of VAT with respect to the affairs of ORG

On DATE the applicant was acquitted of all charges against him . The applicant was awarded his costs from central funds . However , these did not include the costs incurred by , or the remuneration of , the Receiver .

According to the applicant , the trial judge found that D was the beneficial owner of ORG and that the applicant had no interest in its assets . Furthermore , it was at no time asserted by the prosecution during the trial that the GBP CARDINAL or any part of it belonged to NORP

In separate proceedings a confiscation and compensation order was made against D under the ORG .

On DATE the applicant applied to ORG for the discharge of the orders against him . In an affidavit sworn on DATE the applicant indicated that he wished the receivership to be discharged in order to enable ORG to continue trading .

On DATE ORG were discharged by order of Mr Justice PERSON with liberty to the applicant to apply for his costs . The applicant ’s home was released from the charging order and the applicant and his daughter - in - law were permitted to deal in property relating to ORG to enable it to continue trading . The conduct of the business of the company remained under the supervision of the Receiver .

The remaining GBP CARDINAL was not returned to the applicant after the discharge of ORG . By letter to the Receiver dated DATE the applicant ’s solicitors sought repayment of the balance of the GBP CARDINAL after deduction of the amounts already released to cover his legal costs . However , by letter dated DATE the Receiver stated that no funds remained to be returned because all balances had been used to defray the “ prior costs of the receivership ” . From the ORG ’s affidavit sworn on DATE , it appears that the Receiver utilised the balance of the applicant ’s funds prior to his acquittal , largely for the purpose of monitoring the business of ORG ( see above ) . On DATE ( the date of discharge of ORG ) the Receiver held a balance of GBP CARDINAL arising from the sale of certain of ORG vehicles , which funds “ were utilised to settle costs arising subsequent to the applicant ’s acquittal . ”

On DATE the applicant applied for an order that ORG pay his costs arising out of the civil proceedings in which ORG had been made including the Receiver ’s costs , expenses and remuneration .

On DATE the applicant ’s application was heard by Mr Justice PERSON . It was made clear that the application was limited to seeking an order for payment of the balance of GBP CARDINAL . Mr Justice PERSON dismissed the applicant ’s application and refused leave to appeal . In relation to the applicant ’s claim to be repaid the sum of GBP CARDINAL , Mr Justice PERSON stated :

“ Now the applicant says , “ it is unfair that I should not have that money . ” One can well see his point of view . The result is unfair . However , we live in a society where sometimes unfairness will and must occur . It was necessary to appoint the Receiver to act as was the case . There was no way at the time to separate the GBP CARDINAL,CARDINAL from the other assets . ”

Mr Justice PERSON further observed :

“ In my judgment , it would not be at all proper to order [ C&E ] to repay the £ MONEY as to which , as I have already explained , the applicant may feel that he has been hard done by . The social explanation for that is , as a result of his son ’s criminal behaviour , the order had to be made and if he has lost this money , as he has , then he should put it down to his son ’s criminal behaviour . There was nothing improper in the action of the [ C&E ] , or in the order which was made by the court . ”

Mr Justice PERSON further considered that negligence could not be imputed to the Receiver such as to bring section CARDINAL of the ORG into play ; nor were the ORG guilty of any serious default in its investigation or prosecution of the offences at issue which could have allowed the applicant to invoke the compensation provisions of LAW of the ORG .

On DATE leave to appeal against the decision of Mr Justice PERSON was granted by Lord Justices PERSON and GPE . Leave was restricted to the question of whether the applicant could recover the sum of ORG CARDINAL by way of an order that ORG pay his costs of the civil proceedings including the Receiver ’s costs , expenses and remuneration .

On DATE the applicant ’s appeal was heard by ORG ( Lord Justices PERSON , PERSON and ORG ) . Lord Justice Ward summarised the issue before the court as follows :

“ ... if a receiver is appointed under the [ Criminal Justice Act DATE ] to receive and manage a defendant ’s property and incurs costs and expenses in so doing , who bears that cost and expenses if the defendant is subsequently acquitted by ORG and awarded his costs of defence out of public funds ? ”

Lord Justice Ward summarised the law relating to the payment of ORG costs as follows :

“ The ordinary rule is that receivers should not accept their appointment unless satisfied that the receivable assets will be sufficient to meet their claim for costs and for remuneration or that they would be otherwise indemnified , by contract or by order of the court , by the party responsible for their appointment . In this case there was an agreement between the receiver and [ C&E ] that [ C&E ] would indemnify the receiver if she were unable to bring in sufficient assets to meet her costs . That did no more than replicate the statutory position ... ”

ORG considered that the remuneration of the Receiver was not costs incidental to the receivership proceedings . In the court ’s opinion the charges incurred by the Receiver in supervising the running of the company during the relevant period were expenses of the receivership and were not therefore recoverable by the applicant even if he had ultimately been successful in the receivership proceedings .

Lord Justice Ward , although sympathetic to the applicant ’s situation , stated :

“ The true position , as it now appears to me , is that the investigation of whether or not the defendant has suffered loss by reason of the receivership is an investigation which should be and ordinarily would be conducted in deciding whether or not damages should be awarded against the plaintiff for the breach of the usual undertakings as to damages a plaintiff would normally be required to give . Such an investigation would enable justice to be done . Here no undertaking was given and none ordinarily is . ”

Lord Justice Ward then observed that LAW of the ORG only provided the applicant with the possibility to obtain compensation from the ORG on proof that the latter authority had been guilty of serious default in the investigation and prosecution of the offences with which the applicant was charged . In the words of Lord Justice Ward , LAW “ simply does not provide an adequate remedy . ” With reluctance he concluded that :

“ ... even if the expenses of the receivership are within the definition of costs , they are not costs of and incidental to the proceedings . ”

Lord Justice PERSON observed that :

“ ... on the facts ... the [ applicant ] may seem to have been treated unfairly by the conclusion that I have reached , as his GBP CARDINAL,CARDINAL was used up as an expense of the receivership and therefore can not be recovered . That in my view is the result of the type of proceedings and the conditions for recovery laid down in the LAW . ORG in LAW of the LAW specifically limited the right to recover from a receiver to cases where negligence is established . It is accepted for the purposes of these proceedings that there was no negligence .

I would add that in my judgment [ counsel for ORG ] was right in his submission that this really was a claim for compensation dressed up as an application for an award of costs , and it is therefore most significant that by LAW ORG laid down a carefully regulated code for such a claim . Consequently , in my judgment , LAW is the proper avenue for a compensation claim of this kind , provided of course the claimant can bring himself within the rather strict requirements of that section . ”

In its judgment on DATE , ORG dismissed the appeal . It refused leave to appeal to ORG . The applicant did not petition for leave to appeal to ORG , having being advised by counsel that this course of action offered no prospects of success .

( CARDINAL ) ORG may by order ( referred to in this Part of this LAW as a “ restraint order ” ) prohibit any person from dealing with any realisable property , subject to such conditions and exceptions as may be specified in the order .

( CARDINAL ) Without prejudice to the generality of subsection ( CARDINAL ) above , a restraint order may make such provision as the court thinks fit for living expenses and legal expenses .

( CARDINAL ) A restraint order may apply–

( a ) to all realisable property held by a specified person , whether the property is described in the order or not ; and

( b ) to realisable property held by a specified person , being property transferred to him after the making of the order .

( CARDINAL ) This section shall not have effect in relation to any property for the time being subject to a charge under section CARDINAL below :

( CARDINAL ) A restraint order–

( a ) may be made only on an application by the prosecutor ;

( b ) may be made on an ex parte application to a judge in chambers ; and

( c ) shall provide for notice to be given to persons affected by the order .

( CARDINAL ) A restraint order–

( a ) may be discharged or varied in relation to any property ; and

[ ( b ) shall be discharged on the conclusion of the proceedings or application in question . ]

( CARDINAL ) An application for the discharge or variation of a restraint order may be made by any person affected by it .

( CARDINAL) Where ORG has made a restraint order , the court may at any time appoint a receiver–

( a ) to take possession of any realisable property , and

( b ) in accordance with the court ’s directions , to manage or otherwise deal with any property in respect of which he is appointed ,

subject to such exceptions and conditions as may be specified by the court ; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver .

“ ( CARDINAL ) ORG may make a charging order on realisable property for securing the payment to the GPE

( a ) where a confiscation order has not been made , of an amount equal to the value from time to time of the property charged ; and

( b ) in any other case , of an amount not exceeding the amount payable under the confiscation order .

( CARDINAL ) For the purposes of this Part of this LAW , a charging order is an order made under this section imposing on any such realisable property as may be specified in the order a charge for securing the payment of money to the ORG .

( CARDINAL ) A charging order–

( b ) may be made on an ex parte application to a judge in chambers ;

( c ) shall provide for notice to be given to persons affected by the order ; and

( d ) may be made subject to such conditions as the court thinks fit and , without prejudice to the generality of this paragraph , such conditions as it thinks fit as to the time when the charge is to become effective .

( CARDINAL) An application for the discharge or variation of a charging order may be made by any person affected by it . ”

“ ( CARDINAL ) Where a receiver appointed under this Part of this LAW or in pursuance of a charging order takes any action–

( a ) in relation to property which is not realisable property , being action which he would be entitled to take if it were such property ;

( b ) believing , and having reasonable grounds for believing , that he is entitled to take that action in relation to that property ,

he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence .

( CARDINAL ) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall , if no sum is available to be supplied in payment of it under section CARDINAL ) above , be paid by the prosecutor or , in a case where proceedings for an offence to which this Part of this Act applies are not instituted , by the person on whose application the receiver was appointed . ”

“ ( CARDINAL ) If proceedings are instituted against a person for an offence or offences to which this Part of this Act applies and either–

( a ) the proceedings do not result in his conviction for any such offence , or

( b ) where he is convicted of CARDINAL or more such offences–

( i ) the conviction or convictions concerned are quashed , or

( ii ) he is pardoned by Her Majesty in respect of the conviction or convictions concerned ,

ORG may , on an application by a person who held property which was realisable property , order compensation to be paid to the applicant if , having regard to all the circumstances , it considers it appropriate to make such an order .

( CARDINAL ) The High Court shall not order compensation to be paid in any case unless the court is satisfied–

( a ) that there has been some serious default on the part of a person concerned in the investigation or prosecution of the offence concerned , being a person mentioned in subsection ( CARDINAL ) below ; and

( b ) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of[–

( i ) an order under this Part of this LAW ; or

[ ( ii ) an order of ORG under section CARDINAL , DATE , DATE or DATE of the Proceeds of Crime ( Scotland ) Act DATE . ] ]

( CARDINAL ) The ORG shall not order compensation to be paid in any case where it appears to the ORG that the proceedings would have been instituted or continued even if the serious default had not occurred .

( CARDINAL ) ORG payable under this section shall be paid–

( a ) where the person in default was or was acting as a member of a police force , out of the police fund out of which the expenses of that police force are met ;

( b ) where the person in default was a member of ORG or acting on behalf of the service , by ORG ;

( c ) where the person in default was a member of ORG , by the Director of that ORG ;


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr F. Shiels of ORG , a lawyer practising in GPE .

NORP The facts of the case , as submitted by the applicant , may be summarised as follows .

NORP The applicant is currently serving a DATE sentence in GPE GPE . At all material times he was held in PERSON , which was a segregated wing for NORP prisoners . Facilities such as the exercise yard and the gymnasium were used separately and the only place where segregated prisoners such as the applicant could come into contact with other prisoners was in the visiting hall .

ORG Standing Orders stated that prisoners were not permitted to wear emblems outside their cells or display emblems in their cells . In GPE , an exception was made with respect to the wearing of shamrock on PERSON and the wearing of poppies on DATE as these emblems were deemed to be “ nonpolitical and non - sectarian ” if worn at the appropriate time .

NORP On GPE DATE , the applicant affixed an GPE lily to his outer clothing in commemoration of the NORP republican combatants who died during or were executed after the DATE Easter Rising . A prison officer asked him to remove the ORG lily and when he refused he was charged with disobeying a lawful order under the Prison and Young Offenders Centre Rules ( GPE ) DATE . The applicant was subsequently found guilty of disobeying a lawful order and was given DATE of cellular confinement by way of punishment .

The applicant applied for leave to bring judicial review proceedings challenging , inter alia , the policy of ORG in respect of the wearing of GPE lilies . In particular , he submitted that the policy represented a disproportionate interference with his right under LAW freely to express his political beliefs and cultural identity . Moreover , while he accepted that the aim of the policy was the prevention of disorder and crime , he argued that the policy was disproportionate because , as a prisoner held in a segregated wing , there was no risk that he would have contact with anyone who would be offended by the GPE lily . He further argued that the policy was discriminatory as it unjustly differentiated CARDINAL analogous comparators , namely prisoners wishing to wear a poppy and prisoners wishing to wear an GPE lily .

On DATE ORG refused his application for leave to apply for judicial review . Relying on earlier case - law , ORG judge held that any interference with the applicant ’s LAW rights was proportionate and there had been no discrimination .

The applicant appealed to ORG . Following the hearing , the court reserved judgment . In its judgment of DATE , ORG indicated that as all the material relied upon was before it , it would apply the procedure under LAW and Rule CARDINAL(CARDINAL ) of LAW ( GPE ) DATE , which permitted it to treat the application as an appeal rather than as a renewed application for leave . Consequently , it granted the applicant leave to apply for judicial review and dismissed the appeal on its merits . It found that :

“ Conflict emblems in a divided society where the emblems represent CARDINAL view or the opposite view are by their nature divisive and have the potential to inflame those who do not agree with them . This must be so particularly where the divisions have led to years of violence , even though a period of relative calm has ensued . Many of those caught up in the conflict from both sides inhabit or have inhabited the prisons . Therefore it is necessary and reasonable that the prison service have a policy about the wearing of such emblems which forms part of its policy to prevent disorder within the prison system and which is uniformly applicable . Does the existence of a separated regime within the prison demand that a different policy be applicable in that regime ? I do not think that it does . While the likelihood of contact between those with opposing views may be reduced in a separated unit , it can not be excluded . Whether in a separated regime or not , there will always be contact with members of staff . ORG considered such conflict emblems had no place in a working environment and a prison should be no different . As part of its policy to prevent disorder the prison service are entitled to have rules relating to emblems which are applicable throughout the prison . As PERSON stated in ORG this policy is soundly based .

The wearing of an emblem as a mode of expression is a small element of what LAW is designed to protect . The basic tenets of LAW are the rights to hold opinions and to impart and receive information and ideas . None of these matters are restricted by the prison policy . Prisoners are permitted to wear Easter Lilies in their cells . The only restriction is that they may not be worn in communal areas . That restriction in the context of LAW is a very minimal interference . It is entirely proportionate to the objective of preventing or maintaining good order in a prison .

PERSON emphasised that in ORG FAC expressed the view that the arguments were finely balanced . He submitted that in those circumstances a change of emphasis in CARDINAL argument should or could tilt the balance . I do not think the arguments are finely balanced . The case for an objective policy on emblems as part of the necessary aim to prevent disorder within a prison and which is applicable throughout the prison , including separated regimes , is substantial if not more so . In my view the policy which is minimally restrictive , complies with LAW . ”

On DATE the applicant was advised by Counsel that he was unlikely to be granted leave to appeal to ORG . The applicant has not submitted a copy of ORG ’s advice to the ORG as it was confidential and privilege was not waived in respect of it on the applicant ’s behalf , save as to indicate that Counsel referred , inter alia , to the number of prisoners affected by the desire to wear the disputed emblem and advised that the case was not one where the test for leave to appeal was likely to be satisfied .

Paragraph QUANTITY of ORG Standing Orders dated DATE stated that :

“ Prisoners may not wear emblems , nor should they be displayed by prisoners in their cells . ”

On DATE the Governor of GPE issued a notice to prisoners concerning the wearing of shamrock on PERSON and poppies for DATE . The notice stated that :

“ These emblems are non - political and non - sectarian and will , in future , be permitted to be worn at the appropriate time by any prisoners who wish to wear them . ”

NORP This notice echoes the guidance issued to employers by ORG , which provided as follows :

“ Personal Emblems

There are some individual emblems and symbols that , through their history and associations , and whether intended or not , have come to have a significance that has the potential to make those of a different identity feel uncomfortable or unwelcome .

In this category are likely to fall a variety of symbols and emblems with the potential to cause disharmony , and especially those that have been directly linked to community conflict in GPE and/or to local politics . These include :

• Badges and insignia , e.g. Easter Lilies , Orange symbols

There are many ways in which we convey our religious or political identity to others . In this category would fall emblems that may be associated primarily with CARDINAL religion or community but are not directly linked to community conflict .

Such marks of identity are unlikely to be regarded as creating an intimidating or hostile working environment . There are many examples of such emblems , including :

PERSON of remembrance , celebration or commemoration ( e.g. poppies , shamrock ) ”

The legality of the ban on wearing the GPE lily in GPE prisons has been challenged before the domestic courts on a number of occasions . In the case of In PERSON [ DATE ] ORG CARDINAL the applicant had been charged with a disciplinary offence after he refused to remove an GPE lily . As the applicant was being held in an integrated prison , ORG found that the ban on the wearing of GPE lilies in communal areas did not violate his rights under LAW as the interference with his freedom of expression was prescribed by law and was necessary to prevent potential conflict within the prison .

The case of In Re McCafferty [ DATE ] NIQB CARDINAL was brought by an applicant who was being held in FAC , the segregated wing of GPE GPE . He brought judicial review proceedings after he was asked to remove an LOC lily on GPE DATE and the thrust of his case was that there was a fundamental difference between the position of prisoners in the integrated part of a prison and those housed in the segregated regime . ORG argued that the measures were justified by the imperative of minimising the distinction between integrated and segregated prisoners and preventing the development of paramilitary control . Moreover , they argued that there was a need to protect the rights of persons ( other than prisoners ) who could come into contact with a prisoner wearing an emblem and to ensure a neutral working environment for prison officers . ORG concluded that the policy operated by ORG was soundly based as it was entitled to ensure an objectively based system throughout the prison .