Webster v Ministry of Justice (Rev 1)

For the purposes of the Human Rights Act 1998, serious judicial error or an unfair criminal trial does not, without more, establish bad faith. Bad faith requires conduct sufficiently connected with an ulterior purpose to the judicial function, such as dishonesty, acting on improper instructions, or seeking a result for an ulterior purpose. A claim under Article 6 is therefore barred by section 9(3) where the material shows judicial error but cannot support an inference of bad faith.

A conviction later quashed for material misdirection does not, without more, make the resulting detention unlawful under Article 5. An appellate finding of error in fact, law, or trial handling does not retrospectively invalidate detention pursuant to the conviction.

The claimant had been convicted at retrial of rape and assault and sentenced to imprisonment. The Court of Appeal Criminal Division quashed both convictions because of cumulative defects in the summing-up and in the judge’s handling of the jury’s request to replay the complainant’s evidence.

The claimant then brought a claim for damages under the Human Rights Act 1998, relying on Articles 5 and 6. The Ministry of Justice applied to strike out the claim or obtain summary judgment. The central issues were whether the trial judge’s conduct was capable of, or did in fact, establish bad faith for section 9(3), and whether the quashed convictions made the claimant’s detention unlawful under Article 5.

1. Applications allowed. The statement of case was struck out and summary judgment was entered for the defendant.
2. The claim was based solely on the trial transcript and the handling of the jury’s request to replay the complainant’s video evidence. The court was therefore in as good a position as a trial judge to decide whether those materials could establish bad faith and whether they did so.
3. Bad faith is not defined by the Human Rights Act 1998. Dishonesty may constitute bad faith, but dishonesty is not essential. Examples include acting on improper instructions or for an ulterior purpose, such as seeking to secure a conviction for a purpose unrelated to the judicial function. A judge’s honest but seriously mistaken or procedurally irregular conduct does not automatically amount to bad faith.
4. The Court of Appeal’s trenchant criticism established serious misdirections and an unfair presentation of the defence case. It did not establish, or provide a sufficient basis for inferring, that the trial judge had an ulterior purpose. The Article 6 claim was accordingly barred by section 9(3), whether the issue was approached as capability to establish bad faith or as proof of bad faith.
5. The Article 5 claim also failed. The detention followed conviction by a competent court. Applying the principle stated in Benham v United Kingdom [1996] 22 EHRR 293, a subsequent appellate finding of error in fact or law in the criminal proceedings did not retrospectively invalidate the detention. The case did not establish arbitrariness or anything beyond such error.

The claimant’s convictions were quashed by the Court of Appeal Criminal Division on 21 March 2011 after a reserved judgment handed down on 5 May 2011. The present High Court claim was a subsequent civil claim for damages under the Human Rights Act 1998, determined at first instance.