Neutral Citation Number: [2014] EWHC 3995 (QB)
Case No:  IHQ/14/0236

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Strand 
London 
WC2A 2LL

Thursday, 23 October 2014
BEFORE:

MR JUSTICE MITTING

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BETWEEN:
	
WEBSTER	

Respondent	
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	MINISTRY OF JUSTICE 	
Applicant	
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MR PAUL GARLICK QC (instructed by GT Stewart) appeared on behalf of the Respondent Claimant
MR OLIVER SANDERS (instructed by the Treasury Solicitors) appeared on behalf of the Applicant Defendant
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Judgment
MR JUSTICE MITTING:

1.	On 16 July 2009 following a retrial before the late Judge Kershaw QC and a jury at Leeds Crown Court, the claimant was convicted of the rape of his 14 year old step-daughter between 8 July 2007 (her fourteenth birthday) and 31 August 2007 and of an assault by digital penetration of her vagina on 17 October 2007.  He was sentenced to nine years' imprisonment for the rape and one year concurrent for the assault.
2.	On 21 March 2011 the Court of Appeal Criminal Division, allowed his appeal and quashed his conviction for reasons which were given in a reserved judgment handed down on 5 May 2011.  He was immediately released on 21 March 2011.  No order was made for his retrial.
3.	The grounds on which is his conviction were quashed were that there had been serious cumulative misdirections in the judge's summing-up and in her handling of the jury's request to see the complainant's video evidence again after they had retired, in consequence of which the defence case had not been fairly presented to the jury.
4.	Five particular defects were identified of which two gave cause for particular concern: the first concerned the date of the offence of rape, one of the two which gave cause for serious concern.  The complainant's evidence was that the claimant had raped her in the stables of their house on a Sunday, following which she had gone to spend the night with her natural father who had taken her to school on the following day.  The defence case was that this was impossible within the time frame stated in the indictment, which the Crown accepted, unusually, would be determinative of the period within which the offence must have occurred if the jury were to convict.  The only date on which the facts could have fitted with the complainant's account was Sunday 15 July 2007.  8 July was her birthday and the activities of the family were spoken for on that day.  On all subsequent Sundays she could not have been taken by her natural father to school because term had ended.  On 15 July 2007 photographs had captured a family event attended by both the claimant and the complainant showing both cheerful and relaxed, an attitude inconsistent with a rape having occurred earlier that day.  Other later Sundays were excluded for different reasons.  On appeal, the Crown conceded that:

"There was no Sunday within the indictment period when the complainant could have been picked up by her father and taken to school the next day."
5.	The judge's final direction to the jury about this topic was as follows:

"Insofar as dates are an issue in Count 1, as I have said, in the circumstances in which you are trying this case you have to be sure that the date fell between 8 July and 31 August 2007.  It does not, however, matter if the complainant has got the day of the week wrong or if she has got the time of the day wrong or if she has got it wrong about seeing her father afterwards and being taken to school and so on and so forth.  What matters overall is the overall spell of dates between 8 July and 31 August 2007."
6.	The Court of Appeal's conclusion on that ground of appeal was as follows:

"Of course, what the judge intended to tell the jury was that in law the indictment would not be defective as long as the jury were sure that the alleged rape occurred at some time within the stated period, but unfortunately she expressed herself in such a way as in effect to remove from the jury the defence's factual challenge to the credibility of the complainant's account.  We consider that there is considerable force in this submission.  On behalf of the Crown Mr McEwan went so far as to concede the relevance of this while submitting that it did not affect the safety of the convictions.  In our judgment, this amounts to a material misdirection." 
7.	The second error was in relation to motive.  The evidence of the complainant and her mother was that the matter came to a head on 19 October 2007 after the claimant had seen a text message to her suggestive of sexual activity, past or prospective, with an unknown boyfriend.  Her mother told her to leave, to stay with her natural father, whereupon she became hysterical and upset.  Accordingly, according to the claimant's case, she made the false allegations against him out of fear of separation from her mother and anger at the reaction that the claimant had shown to the text -- anger and a complaint to her mother.  The Crown conceded and the Court of Appeal held that the judge did not sum up this aspect of the claimant's case to the jury at all. 
8.	The third aspect of the summing-up which was criticised was that there were inconsistent explanations for the complainant's delay in telling her mother about the alleged rape and of doing so on 19 October.  As to the first she did not wish to destroy her younger step-sister's family; as to the latter, she later decided that her interests lay in freeing herself from the claimant.  In her evidence she said that both went through her mind after the rape, but in summing-up the issue to the jury, the judge erroneously stated that the two states of mind were successively present before and then after the rape.
9.	The fourth matter was that in her concluding remarks at the end of the summing-up the judge did not put the defence case at all,

"Other than that it amounted to an irrational denial." 
10.	The fifth and the second aspect which gave particular concern to the Court of Appeal was the way in which the judge handled the jury's request to see and hear again the complainant's video recorded evidence-in-chief.  The judge acceded to this request after a gap of two working days (four days including a weekend) yet it seems that she did not prepare remarks to address to the jury about how they should approach the replayed evidence.  In particular, she did not warn the jury about giving it disproportionate weight or remind the jury of the claimant's case and of the criticisms which he had advanced and which had been advanced on his behalf about her evidence.  In consequence, the Court of Appeal concluded as follows:

"Although it may not be possible to generalise about what is necessary to achieve a fair balance in such situations, nevertheless the jurisprudence demonstrates that the achieving of a fair balance is what is necessary and, in particular, in the absence of any warning, we do not consider the judge came close to achieving that balance in this case."

All that she had done by way of reminder of criticisms of the claimant's evidence was to repeat by reading out part of her note some of the answers given in cross-examination by the complainant to questions asked by the claimant's counsel.
11.	The overall conclusion of the Court of Appeal was as follows:

"Finally we have asked ourselves whether the convictions are safe in these circumstances.  We have concluded that they are not.  We think that the first, the dating of the rape, and last, the second run through of the grounds considered above are of particular significance, but all the points discussed above are not without their weight in undermining the safety of a conviction on Count 1.  

Although the judge at various points in her summing-up had made the point to the jury that one or other of the protagonists was lying and that it was their job to decide whether they had been made sure that the complainant was telling the truth, nevertheless she gave the jury little help and less help than was necessary about how to approach determining the issues which had been raised by the defence.  In circumstances where the two counts were cross-supportive with each other, we feel compelled to regard the conviction on Count 2 as also unsafe." 
12.	The Court of Appeal's criticisms of the summing-up of the judge and of the manner in which she handled the replaying of the video recording were trenchant, but by no means the most striking of those which have been made by Court of Appeal judges in recent decades.
13.	The claimant has brought a civil claim for damages.  There is now no issue but that the correct representative of Her Majesty's Government has been identified, the Lord Chancellor.  There is an issue about whether or not the claim has been brought in time, within the one year time limit prescribed for human rights claims, with which it is not necessary for me to deal at this stage.  This is not a claim in tort; it is a claim for damages under statute.
14.	Section 6 of the Human Rights Act 1998 provides:

"(1)  It is unlawful for a public authority to act in a way which is incompatible with a Convention right...

(3)  In this section "public authority includes --
	
		(a) a court or tribunal..."
 
Claims for damages against the UK State arising out of a trial of a criminal offence are, however, governed by special restrictive rules.  First, section 8 provides:

"...(3)  No award of damages is to be made unless, taking account of all the circumstances of the case, including --

(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. 

Section 9 contains a further restriction:

(1)  Proceedings under section 7(1)(a) in respect of a judicial act may be brought only--

(a) by exercising a right of appeal;

(b) on an application (in Scotland a petition) for judicial review; or

(c) in such other forum as may be prescribed by rules.

(2)  That does not affect any rule of law which prevents a court from being the subject of judicial review.

(3)  In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention."

15.	The focus of the debate before me today has been on section 9(3).  I observe in relation to section 9(1) and (2) that it is not an issue for present purposes that the claimant is entitled to bring a claim in the High Court for damages otherwise than by way of judicial review, because of interlocking statutory provisions which make that difficult or impossible in relation to the conduct of a trial on indictment by a Crown Court.
16.	The limitation on an award for damages in section 8 is in play, but only arises if under section 9(3) the action can in any event be maintained.
17.	The Lord Chancellor has applied both to strike out the claim on the ground that it discloses no reasonable grounds of claim and for summary judgment on the claim in the alternative.
18.	It is common ground that the claimant's case is based and based only on the conduct of the trial as manifested in the transcript of the summing-up and of the manner in which the judge dealt with the jury's request to see the video and on nothing else.  There is no extraneous evidence. 
19.	Accordingly, it is common ground (and if it were not I would find) that I am in as good a position as a trial judge to determine two questions: (1) whether or not the material contained in the transcript is capable of giving rise to the conclusion that a judge was acting in bad faith; (2) whether or not she was acting in bad faith.  
20.	Bad faith is not defined in the legislation and there is no readily applicable definition from the case law.  Mr Sanders for the Lord Chancellor has drawn my attention to a definition in a different context advanced by Megaw LJ in Cannock Chase District Council v Kelly [1978] 1 WLR at page 1.  At page 6 he observed:

"I would suggest - that it seems to me that an unfortunate tendency has developed of looseness of language in the respect - that bad faith or, as it is sometimes put, "lack of good faith," means dishonesty, not necessarily for a financial motive, but still dishonesty.  It always involves a grave charge.  It must not be treated as pseudonym of honest though mistaken, taking into consideration of a factor which in law is irrelevant." 
There must be a word missing there.  It must be "mistaken belief" or "conclusion".
21.	Dishonesty is theoretically possible in the judicial context.  If, for example, a judge accepted a bribe to determine a civil or a criminal case in a particular manner, then he would be acting dishonestly.  But a judge need not act dishonestly to act in bad faith.  The judges of the state courts in Moscow in the 1930s were undoubtedly acting in bad faith when they condemned the victims of Stalin's purges to death, in effect, on instructions from him.  No dishonesty would have been involved in that, but no one would have any difficulty in recognising that the judges were acting in bad faith.
22.	It is not straightforward to arrive at an abstract comprehensive definition of bad faith.  I have given two examples which everyone would acknowledge.  A third would be if the judge were acting in a civil or criminal case for an ulterior purpose -- in a criminal case, for example, to secure the conviction of an enemy or the friend of an enemy.
23.	Mr Garlick QC, for the claimant likewise, as I have done, struggled to arrive at a comprehensive abstract definition of bad faith.  He suggested that it was the mirror image of good faith, so that, if a judge was not acting in good faith so he must be acting in bad faith.  His definition of good faith included the duty to conduct a trial fairly, so that it would, I think, necessarily follow from his proposed definition that if a judge were to conduct a trial in a manner that was later adjudged to be unfair by the Court of Appeal, so that judge should be taken to have been acting in bad faith.  I cannot accept that submission.
24.	Mr Sanders has referred to a domestic authority in Re McC (A Minor) [1985] AC 528 in which Lord Bridge observed at page 546 to 7 that:

"Justices will of course be acting "without jurisdiction or in excess of jurisdiction" within the meaning of s.15..."
	(He was referring to Article 15 of a Northern Ireland order):
"if in the course of hearing a case within their jurisdiction they were guilty of some gross and obvious irregularity of procedure, as, for example, if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or if the rules of natural justice, as for example, if the justices refused to allow the defendant to give evidence."
25.	As the transcript will show, I misunderstood Mr. Sanders to concede that "some gross and obvious irregularity of procedure "on the part of a judge might amount to bad faith".  I doubt that that is so, but am content to assume, for present purposes, that it is. [Correction made on 4 February2015].
26.	If I were to attempt a partial definition of bad faith, it would be that the judge was acting for a purpose ulterior to her judicial function.  For my part, I doubt that summings-up of yesteryear which would now be categorised as grossly unfair, fall into this category, because for all of the criticisms that might be made of the judges, they were at least trying to fulfil their judicial duty.
27.	In my judgment, the claimant's case gets nowhere near establishing that Judge Kershaw acted in bad faith.  
28.	To reach that conclusion it is necessary, as I think Mr Garlick accepts, to infer from her justly criticised summing-up and handling of the video recording that she had an ulterior purpose in making the errors that she did.  He would submit that an ulterior purpose of seeking to convict a defendant by misrepresenting or failing to state adequately the evidence that had been given to the jury would suffice.  I do not in fact accept that proposition, but even if I were to do so I would conclude that, on a fair reading of the summing-up, it falls significantly short of establishing facts from which that inference can be drawn.
29.	The judge gave unimpeachable directions about the approach that the jury should take to the issues at the start of her summing-up.  She summed up the defendant's evidence fully.  What she is rightly criticised for is that she failed to sum up the thrust of the defence case insofar as it tended to undermine the complainant's evidence.  That falls a good way short of facts from which an inference of bad faith (or even an inference of lack of good faith) could be drawn.
30.	Accordingly, the claim based on Article 6, which is caught by section 9(3) of 1998 Act, must fail whether the issue is approached as one of capability to give rise to a finding in favour of the claimant or justifying a finding in favour of the claimant. 
31.	That does not, however, dispose of the claim.  There remains the claim under Article 5.  That provides that:

"(1)  Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court...

(5)   Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

32.	The only right to compensation given in English law to those who have been the victims of a miscarriage of justice is that given on stringent terms by section 133 (as recently amended) of the Criminal Justice Act 1988.  This is not such a case.
33.	Mr Sanders submits that the position in Strasbourg is settled and is accurately summarised in paragraph 42 of Benham v United Kingdom [1996] 22 EHRR 293:

"42.   A period of detention will in principle be lawful if it is carried out pursuant to a court order.  A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention.  For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law."
34.	Mr Garlick submits that this case goes well beyond that.  It was not based on an error of fact or law, but on something that the court had identified in an earlier paragraph of its judgment at paragraph 40:

"40.   The main issue to be determined in the present case is whether the disputed detention was "lawful", including whether it complied with "a procedure prescribed by law".  The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 (art. 5), namely to protect individuals from arbitrariness."

As I understand it, arbitrariness is not as such argued here.
35.	What Mr Garlick relies on is (as he would put it) the judge's failure "to conform to the substantive and procedural rules" of the criminal law of England and Wales.
36.	If he is right then any significant error in summing-up or in the handling of a criminal trial sufficient to cause it to be quashed by the Court of Appeal, must result in the conclusion that detention consequent upon conviction would be unlawful, but that is certainly contrary to settled domestic law.  It also goes well beyond what has been established in the Strasbourg Court.
37.	In my judgment, what happened here falls squarely within the statement in paragraph 42 and can properly be categorised as an error of fact or law in the handling of the criminal case, against the claimant.  It therefore follows that any claim for damages under Article 5 cannot succeed.  
38.	For those reasons I allow both of the applications made by the Lord Chancellor.  I strike out the statement of case.  I enter summary judgment for the defendant.
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