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Cite as: [2016] QB 676, [2015] EWCA Civ 742, [2015] WLR(D) 316, [2015] 3 WLR 1909

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		Neutral Citation Number: [2015] EWCA Civ 742
		Case No: A2/2014/3594

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Mitting
HQ12X00878

Royal Courts of Justice
Strand, London, WC2A 2LL

14th July 2015

B e f o r e :

THE MASTER OF THE ROLLS (LORD DYSON)
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
and
LORD JUSTICE TOMLINSON
____________________

Between:

	WEBSTER	Appellant
	- and -
	LORD CHANCELLOR	Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Mr Paul Garlick Q.C. and Mr Muthupandi Ganesan (instructed by Marsans) for the Appellant
Mr Oliver Sanders (instructed by Treasury Solicitor) for the Respondent
Hearing date : 2 July 2015
____________________

HTML VERSION OF JUDGMENT
____________________

Sir Brian Leveson P :

The Court of Appeal (Criminal Division), established initially by the Criminal Appeal Act 1966 and thereafter by the Criminal Appeal Act 1968, replaced the Court of Criminal Appeal (set up by the Criminal Appeal Act 1907) and, as did its predecessor court, provides a mechanism (among other things) for the review of a conviction recorded in the Crown Court on the grounds that it is unsafe. It focuses on misdirection of law or irregularity in the conduct of the trial and, as a result, the approach of the judge to all aspects of the trial falls under particular scrutiny. This appeal concerns the circumstances in which those whose convictions are quashed might recover compensation from the Lord Chancellor as a consequence of the way in which their trials were conducted.

This litigation arises following a successful appeal against conviction that dates back to 2011. On 16 July 2009, in the Crown Court at Leeds, following a retrial before the late Judge Kershaw Q.C. and a jury, the appellant was convicted of the rape of his 14 year old stepdaughter (to whom I shall refer as "X") between 8 July 2007 and 17 October 2007 and of an assault by digital penetration of her vagina on 17 October 2007. He was sentenced to a total of 9 years' imprisonment. An appeal against conviction (with leave of the full court) only came before the Court of Appeal nearly two years later, on 21 March 2011, advanced by counsel who had not appeared at the trial. That court (Rix LJ, Maddison J and the Recorder of Redbridge) quashed the conviction and did not order a retrial. Its reasons were provided on 5 May 2011: see [2011] EWCA Crim 1142.

Thereafter, the appellant commenced civil proceedings seeking damages pursuant to s. 6 of the Human Rights Act 1998 ("the 1998 Act") on the grounds that a public authority (the court) had acted incompatibly with his rights under the European Convention for Human Rights ("the Convention") and was not protected on the grounds that the failures did not constitute judicial acts done in good faith. A further argument was mounted that the claim also fell within Article 5 of the Convention: his detention was not lawful because the judge had failed "to conform to the substantive and procedural rules" of the criminal law of England and Wales.

Initially, proceedings were brought against the Home Office and the Ministry of Justice. They were discontinued against the Home Office and, before Mitting J, it was accepted that the correct defendant was the Lord Chancellor (see CPR Part 19, para. 6.6(2) of the Practice Direction). An order of substitution was made whereupon the judge embarked upon applications to strike out the claim and for summary judgment. In the event, Mitting J acceded to these applications and rejected both limbs of claim advanced on behalf of the appellant; he struck out the claim and entered summary judgment for the respondent: [2014] EWHC 3995 (QB). With the leave of Dame Janet Smith, this is an appeal against that decision.

The Trial and Appeal

In order to understand the context for this claim, it is necessary to set out the facts that formed the basis of the indictment, the approach of Judge Kershaw and the conclusions of the Court of Appeal. Complaint was first made about the appellant's conduct towards X on 19 October 2007, after he had found a text on X's mobile phone suggestive of a sexual relationship between her and a boyfriend. He was angry and asked his wife to deal with it. When X was challenged by her mother and told she would have to go and live with her natural father, X said that the appellant had touched her by putting his hand down her trousers when they were in the stables. Later that day, she was interviewed on video; pursuant to the provisions of Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999, this video was later played to the jury as her evidence in chief.

During the course of the tape recorded interview, X made two allegations. One was of an allegation of rape in the stables "a few months ago". The appellant had stood behind her, put his hands down her trousers, fingered her and then put his penis (his "willy") down her trousers and up her. He stopped and she ran off. The dates chosen for the indictment in relation to this incident were X's 14^th birthday (it not being suggested that it was before then) and the 17 October being the date of a second incident. She described that latter incident as being two days prior to the date of her complaint when she and the appellant were both watching a film in the living room. He had "started to do it again" by putting his hand down her pyjama bottoms and fingering her whereupon she ran off to bed.

Although X had been vague about the date of the rape, when cross examined, she became increasingly precise: "maybe in like the beginning of August"; "it was on the weekend"; "it was a Sunday, I think"; "before we broke up [from school]". Using this material, and challenging X's evidence root and branch, the defence then sought to undermine the possibility of any Sunday in that period, reducing the possible Sundays to 15 July which itself was said to be discounted because of a family party, away from home, attended by the appellant and X, in which there were photographs of them in happy poses.

Other challenges were to motive generally, to X's explanations (said to be inconsistent) for her delay in telling her mother and to her reasons for doing so on 19 October. As to the delay, X said that she did not wish to destroy her younger step-sister's family; she said that her reason ultimately for telling what had happened was that she decided that her interests lay in freeing herself from the appellant. In her evidence, she said that both explanations went through her mind after the rape.

The trial proceeded on entirely conventional grounds and no complaint is made about its management, the conduct of the trial judge or the rulings that she made. When it came to her summing up, subject to what follows, it is clear that she provided exemplary directions as to the law, accurately summarising the issue to be that "someone is lying and it is for you to decide who it is". No criticism is made of any of these directions. Moving to her summary of the facts, she spoke of carrying out a selective exercise and said:

"If in making the selection that I do I miss out something that you thought mattered, then mention it to your colleagues when you get to your room and make sure that it goes into the discussion. Do not leave it out just because I missed it out. It is your judgment about the facts that matters, not mine."

The judge then summarised both the prosecution and defence evidence; a number of criticisms are made of the way in which some of these matters were put. Significantly, however, after the jury retired, they requested to see X's "testimony with the social worker … the original footage". This referred to her video interview; the request may be explained by a comment Mr Duffy, counsel for the appellant, made to the judge thereafter to the effect that in cross examination and his speech he required the jury "to think back and recall certain of the gestures and certain of the statements" that X had made. The authorities are clear that, in those circumstances, re-playing the video or part of it may be permissible.

Although it is not clear from the papers, Mr Duffy does not appear to have advised that there were grounds to pursue an appeal against conviction not least because it was only in July 2010 that the application was considered by the single judge. It was then refused. On 23 November 2010, the application was renewed to the full court by leading counsel (who had not appeared at the trial) and was granted on the single ground that the judge had made material errors in summing the case up to the jury the effect of which being that she had failed to sum up main aspects of the defence. It was contended that, as a result, the conviction for rape and (necessarily) the conviction for assault were both unsafe.

There were five strands of complaint. The first, giving rise to serious criticism, related to the treatment by the judge of the date of the incident of rape. Judge Kershaw directed the jury in these terms:

"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."

Complaint was made that this emasculated the forensic case mounted by the defence as to the impossibility of the incident occurring on any Sunday in the relevant period. It was said that this fact utterly undermined X's credibility. In the Court of Appeal, Rix LJ concluded:

"21. … 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.

22. We consider that there is considerable force in this submission. On behalf of the Crown Mr McKone 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."

The next three complaints, which the Court of Appeal also considered to constitute material errors, can be taken more shortly. The second concerned motive. The case for the appellant was that X had made false allegations out of fear of separation from her mother and anger at the reaction that he had shown to the text. The judge did not summarise this aspect of the appellant's case to the jury at all but referred to the relevance of the text message as being related to the medical findings.

The third concerned what the defence contended were inconsistent explanations for the delay in reporting the allegation which also touched motive on the basis that her explanation embraced whether or not she wanted the relationship between her mother and step father to survive. The Crown submitted that there was no inconsistency but a succession of emotional responses. The Court of Appeal recognised this latter possibility but concluded that the judge's direction had the effect of removing the issue of whether there was an inconsistency.

The fourth complaint concerns the judge's summary of the respective contentions of the parties. This was after she had summarised the evidence and set out the Crown's case in 15 lines of transcript; she then summarised the defence case (in 7 lines) as including the description of X as "a 'venomous liar' … despite the defendant having treated her from first to last in a perfectly appropriate and indeed devoted manner". The Court of Appeal suggested that this was a reprise of the prosecution case and represented a failure to put the defence case other than that it amounted to an "irrational denial". For my part, I do not fully understand this criticism but, for the purposes of this judgment, it is unnecessary further to investigate it.

Finally, the court criticised the way in which the judge dealt with the re-playing of the video. In particular, she failed to warn the jury not to give disproportionate weight to the evidence because it was repeated after all the other evidence. She did remind them of the cross examination but not of any relevant part of the defendant's evidence: cf R v McQuiston [1998] 1 Cr App R 139. In that regard, in a comment upon which emphasis is placed, Rix LJ observed (at [40]) that:

"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 that the judge came close to achieving that balance in this case."

In that regard, the court was referring to achieving a balance in the replaying of the video and the reminder of the other evidence that the jury had heard (rather than any wider criticism). In any event, it concluded that the convictions were unsafe, the first and last grounds being "of particular significance", the others being "not without their weight".

The Framework of the Claim

The claim for damages is firmly based on the provisions of the 1998 Act on the grounds that, by s. 6(1) it is unlawful for a public authority (which includes a court) to act in a way which is incompatible with certain rights prescribed by "the Convention" and, by s. 7(1) an action may be brought by a victim of the unlawful act, relying on such Convention rights. If proved, pursuant to s. 8, a relevant court or tribunal "may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate" including (where there is power) the award of damages or the payment of compensation, in civil proceedings but only where "the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made".

These provisions are subject to s. 9 of the 1998 Act the relevant part of which is in these terms:

" (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 … for judicial review; or

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

(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.

(4) An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined.

(5) In this section— …

"judicial act" means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge; and "rules" has the same meaning as in section 7(9).

A claim under s. 7(1)(a) of the 1998 Act in respect of a judicial act may only be brought in the High Court (see CPR 7.11(1) prescribing that court as the forum in which proceedings may be brought pursuant to s. 9(1)(c) of the CPR against an appropriate person (in this case the Lord Chancellor: see CPR 19.4A(3)(b) and (4)). It is thus common ground that the effect of these provisions is that an award of damages may be made against the Lord Chancellor in respect of judicial acts in one of two circumstances namely:

i) if the relevant act or acts were not done in good faith, in respect of a breach of any Convention right; or

ii) if the relevant act or acts were done in good faith, only in respect of a breach of Article 5 of the Convention, even if the act or acts are or were incompatible with other Convention rights.

It was agreed that the appellant's case was based solely on the conduct of the trial judge as evidenced in the transcript of the summing up (together with the way in which the judge dealt with the jury's request to see the video) although Mr Paul Garlick Q.C. for the appellant relied also on the opinions expressed in the judgment of the Court of Appeal. It was also accepted by both parties that Mitting J was in as good a position as a trial judge to determine whether the material was capable of giving rise to the conclusion that the judge acted in bad faith and whether or not she was so acting. The basis for the application to strike out the claim or for summary judgment and the focus of the argument before Mitting J related to whether bad faith could be established and whether the detention of the appellant was lawful.

Mitting J held that the case got "nowhere near" establishing that the judge acted in bad faith, thereby removing any claim based upon a Convention right other than under Article 5. He said:

"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."

In relation to Article 5, it was submitted that the failure to conform to the substantive and procedural rules of the criminal law constituted "an exercise of power in a procedural manner that involved a gross and obvious irregularity" so as to constitute an excess of jurisdiction. Relying on Benham v United Kingdom [1996] 22 EHRR 293, Mitting J held that the errors of fact or law in the handling of the case did not retrospectively affect the validity of any detention; he thus struck the case out in its entirety.

Good Faith

In this court, Mr Garlick argued that the judge was wrong to conclude that the conduct of the trial judge was not capable of amounting to conduct otherwise than "a judicial act in good faith" and, in any event, should have accepted that the burden of proving good faith fell upon the Lord Chancellor. In the alternative, he submitted that the judge should have been prepared to interpret narrowly or read down s. 9(3) of the 1998 Act so as not to deprive the appellant of an effective remedy in accordance with Article 13 of the Convention.

Before embarking on a consideration of the meaning of the term "good faith", a prerequisite to liability is that the conduct of the trial was in breach of Convention rights other than Article 5. Mr Garlick submitted that, in this case, a breach of the fair trial provisions contained within Article 6 was clear because of the failure to comply with the overriding objective to conduct trials justly which includes dealing with the defence fairly and recognising his rights under Article 6: see CrimPR 1.1(1) and (2)(b) and (c). He also relied on the observations of the Court of Appeal at [40] cited above (at [17]) that they did not consider the judge "came close" to achieving a fair balance of what was necessary.

This issue has not been the subject of argument and neither have we been referred to the relevant authorities in relation to Article 6 but, for my part, I should not be taken as agreeing that such a breach has been established. The comment to which Mr Garlick referred was not a conclusion as to the conduct of the trial as a whole but, rather, a much more focussed criticism of the way in which the judge dealt with the request to replay the video in circumstances in which the defence appear to have foreshadowed that possibility by asking the jury to reflect on the manner in which X gave evidence. That the judge failed to have regard to the procedure recommended by the authorities in these circumstances does not, necessarily or of itself, demonstrate a breach of Article 6 even if it is sufficient to render the subsequent convictions unsafe. In any event, Mr Garlick did not suggest that every error in the conduct of a trial, involving a breach of the Criminal Procedure Rules would lead to a breach of the Convention. Having identified this reservation, however, this aspect was not argued and I proceed on the premise that, absent an unanswerable defence under s. 9(3) of the 1998 Act, this part of the claim should not be struck out.

Turning to the proper meaning of want of good faith or, putting it the other way around, the meaning of bad faith, Mr Garlick relied again on the overriding objective within the Criminal Procedure Rules and submitted that if the conduct of the judge amounted to "some gross and obvious irregularity of procedure" bad faith would arguably be established. When pressed, he was not able to come up with a definition of bad faith or to do otherwise than to identify what he argued might be evidence of bad faith; in that context, before Mitting J he had contended that it could be inferred from the conduct of the trial judge which was "unbalanced", "highly questionable" and "blatantly unfair".

Mr Garlick said that not every mistake, or even every serious mistake, would be sufficient but repeated that demonstrable unfairness to a defendant would be evidence from which bad faith could be inferred. The furthest he felt able to go was to say that dishonesty was not a necessary ingredient (and he did not suggest that Judge Kershaw was dishonest) but that if a judge knew or ought to have known that he was acting in breach of the rules, that would be sufficient. How far this approach moves beyond a test of simple negligence is not clear.

Mr Oliver Sanders for the Lord Chancellor challenged this approach and referred to the concept of bad faith albeit in a very different context of possession proceedings. Thus, in Cannock Chase District Council v Kelly [1978] 1 WLR 1, Megaw LJ put the matter in this way (at p. 6):

"I would stress — for it seems to me that an unfortunate tendency has developed of looseness of language in this 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 a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant."

Mr Sanders also referred to decisions of the Federal Court of Australia. In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, the concept was discussed by the Full Court (Tamberlin, Mansfield and Jacobson JJ) and a series of propositions formulated which, in the light of the dearth of authority in this jurisdiction, it is worth setting out in full albeit omitting the citation of authority (at [43]-[48]):

"43. First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial….

44. The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; …

45. Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; … . Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; … Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; …

47. Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; ….

48. Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; …"

The same court returned to the question in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, when the ninth proposition was qualified (per Heerey and Kiefel JJ) in this way:

"8. As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. … Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty…

10. Bad faith may manifest itself in the form of actual bias. Actual bias in this context is a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented. It is something more than a tendency of mind or predisposition: … Apprehended bias, resting as it does on what may be observed objectively, as distinct from the actual state of mind of the decision-maker, is quite different. While it has been suggested that actual bias may occur subconsciously, that would not establish bad faith in the relevant sense for the purposes of s 474(1)…"

Another formulation of the test for want of good faith (which I accept is analogous to bad faith) in the context of judicial acts is deliberate and knowing breach of the judicial oath to do right to all manner of people after the laws and usages of the realm without fear or favour, affection or ill will. In my judgment, although it is important to interpret the words "fear or favour, affection or ill will" in the context of the judicial oath and no further, that does no more or less than encapsulate the rather lengthier analysis above.

Thus, errors of approach such as are criticised in this case do not constitute prima facie evidence of want of good faith without there also being evidence of ulterior motive of which, here, there is none. On the contrary, it is clear that the judge did her best to try the appellant fairly. Her general directions were without fault and she took care to ensure that the jury understood the respective roles of judge and jury. As to the law relating to the bracket of dates within which the offence had to be committed, what she said was entirely accurate: her serious error, however, was her lack of recognition (and, thus, the absence of any direction to the jury) that because the offence could not have been committed on a Sunday in that period, the jury should reflect on the impact of that fact on X's credibility.

Similarly, the lack of balance in reminding the jury of the defence case following replaying the video failed to have regard to prevailing practice but does not reveal anything else. Indeed, it is worth underlining that counsel (who had raised the question of the approach to this material) did not submit that she should go further than she did: the only submission that was made was that she should remind them of the cross examination, which she acted upon. The other errors are less significant than these and, on their own, would not have put the convictions in jeopardy not least because the jury had heard the entirety of the case: neither, in relation to want of good faith, do they add to the weight to be attached to the other failures.

The second ground of appeal concerns the burden of proof in relation to good faith. Mr Garlick contrasts the terms of s. 9(3) of the 1998 Act with s. 29(1) of the Arbitration Act 1996 which provides immunity for an arbitrator "unless the act or omission is shown to have been in bad faith" which clearly casts the burden on the party asserting it. He argues that the immunity in s. 9(3) is qualified and thus must be established by the state. In my judgment, these issues are unlikely to turn on an application of the burden of proof not least because to maintain the action, bad faith will have to be pleaded and cannot be unsupported (see Marsh v Clare [2003] EWCA Civ 284 per Chadwick LJ at [57]).

As an alternative submission, Mr Garlick argued the third ground of appeal that s. 9(3) of the 1998 Act should be interpreted narrowly and/or read down so as not to deprive the appellant of an effective remedy and just satisfaction for a violation of his Convention rights. He went as far as to suggest that, if his primary submissions were not accepted, there should be a declaration of incompatibility pursuant to s. 4 of the Act although acknowledged that he had not given appropriate notice under s. 5(1).

His ground for arguing incompatibility was that that if s. 9(3) prevented the appellant claiming damages in cases where Article 6 rights were breached, Article 13 required an effective remedy before the national courts for any violation of the Convention. In that regard, successful appeal to the Court of Appeal (Criminal Division) did not provide such a remedy on the basis that it could not lead to an award of damages and s. 175 of the Antisocial Behaviour, Crime and Policing Act 2014 had further restricted the ability of acquitted defendants to obtain compensation from the state.

This argument is hopeless. First, Article 13 of the Convention is excluded as a Convention right for the purposes of s. 1(1) of the 1998 Act and so cannot be relied upon in a claim under s. 7(1)(a): the legislation contains its own provisions as to remedies in s. 4 and s. 8. Second, the interpretative obligation in s. 3 of the 1998 Act cannot be applied to the interpretation of s. 9. That principle is clear: see R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153, per Lord Bingham (at [15(2)]) who put the matter:

"The claimants contended, and the Divisional Court accepted … that the interpretative obligation in section 3 of the [1998] Act could be applied to interpretation of the Act itself. This is not an argument which the Court of Appeal expressly accepted. In my opinion it was right not to do so. Section 3 provides an important tool to be used where it is necessary and possible to modify domestic legislation to avoid incompatibility with the Convention rights protected by the Act, but it cannot be used to determine the content or extent of the rights which are to be protected. It is in my view plain that section 3 was not intended to be used in construing the Act itself."

In the circumstances, Mitting J was entirely right to strike out the claim brought on the basis of the lack of good faith of Judge Kershaw. It was doomed to fail.

Right to Liberty

The alternative claim mounted by the appellant specifically saved by s. 9(3) of the 1998 Act is the enforceable right to compensation contained within Article 5(5) of the Convention for everyone who has been a victim of the provisions of Article 5, which provides:

"(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;

(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law..".

This provision has been considered by Strasbourg over the years and is not itself intended to provide compensation for those whose convictions have been quashed on appeal but which had been reached by a lawfully constituted court. In Krzycki v Germany (1978) 13 DR 57, the Commission made it clear:

"Art.5(1)(a) does not require a "lawful conviction" but only speaks of "lawful detention". This detention must be ordered "in accordance with a procedure prescribed by law" as Art.5(1) lays down. Consequently the Commission has always refused to consider applications of prisoners who have been convicted and sentenced in accordance with a procedure prescribed by law and who complain that their conviction was based on error of law or fact (Decisions on the admissibility of Application Nos. 458/59, Yearbook 3, pp.222, 232; 1140/61, Coll. of Dec. 8, pp.57, 62)."

The European Court underlined that proposition in Benham v United Kingdom (1996) 22 EHRR 293 (ECtHR) which concerned the quashed committal of an unrepresented defendant to prison for non-payment of the community charge. Although the tests which permitted committal were found not to have been satisfied, the court concluded that there was no breach of Article 5(1) because the lawfulness of detention was a matter of national, domestic law.

The Court went on to adopt the distinction drawn by the House of Lords in Re McC (A Minor) [1985] AC 528 between custody decisions which are, on the one hand, voidable because they are wrong in law by reason of errors within jurisdiction and, on the other hand, those which are void ab initio and ex facie because they are so wrong in law as to be outside or in excess of jurisdiction. These were summarised in Benham in this way (at [25]):

"In its judgment [i.e. that of the House of Lords], a magistrates court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause; (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent."

Benham goes on to make it clear what is meant by lawful detention. It does so in these terms (at [46]):

"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 (see the Bozano v. France judgment of 18 December 1986, Series A no. 111, p. 23, para. 55, and the report of the Commission of 9 March 1978 on application no. 7629/76, Krzycki v. Germany, Decisions and Reports 13, pp. 60-61). "

Mr Garlick alighted upon the phrase "gross and obvious irregularity" on the basis that, in this (as in any) criminal case, the judge is required to spell out clearly to the jury the nature of the defence case and any inconsistency in the prosecution case. He also underlines that the Court of Appeal held that the trial judge failed to put the defence case at all, other than that it amounted to an irrational denial and, after the replaying of the video evidence, did not come close to achieving a fair balance.

Once again, that does not do justice to the summing up. I have already dealt with the latter point; as to the former, it is accurate that the court criticised the final summary of the defence case which followed the few sentences in which she had summarised the prosecution case but the judge had fully reminded the jury of the way in which the defence put its case and had reminded them extensively not only of the cross examination of the prosecution witnesses but also of the defence evidence. I would thus reject the premise of Mr Garlick's argument. In any event, to engage this aspect of Benham, it must be the exercise of power in a way that reveals a gross and obvious irregularity: in this case, although there were errors in the summing up, whether considered individually or cumulatively, they fall far short of being so serious and egregious as to amount to gross and obvious irregularities. This ground of appeal also fails.

Conclusion

In my judgment, Mitting J was entirely right to strike out this claim: it was always doomed to fail. I would dismiss the appeal.

Tomlinson LJ :

I agree.

Lord Dyson MR :

I also agree.