Webster v Lord Chancellor

Damages for a judicial act done in good faith are barred by section 9(3) of the Human Rights Act 1998, except to the extent required by article 5(5). Judicial bad faith requires a subjective element such as dishonesty, ulterior motive, reckless indifference or a deliberate and knowing breach of judicial duty. Serious errors, procedural blunders and unfairness do not alone establish it.

Detention pursuant to an order of a competent court remains lawful under article 5(1)(a) despite the later quashing of the conviction for errors of fact or law. The position differs where the court lacked jurisdiction, committed a gross and obvious procedural irregularity, or failed to observe a statutory condition precedent. The interpretative obligation in section 3 cannot be used to construe the Human Rights Act 1998 itself.

The appellant’s convictions for rape and assault were quashed in [2011] EWCA Crim 1142 because material errors in the trial judge’s summing-up made them unsafe. He then claimed damages from the Lord Chancellor under the Human Rights Act 1998. He alleged that the judge had acted without good faith and that his imprisonment infringed article 5 of the Convention.

Mitting J struck out the claim and entered summary judgment for the Lord Chancellor in [2014] EWHC 3995 (QB). The issues on appeal were whether the trial judge’s errors could establish bad faith, where the burden of proof lay, whether section 9(3) could be read narrowly to provide an effective remedy, and whether the errors made the appellant’s detention unlawful under article 5.

1. Appeal dismissed. Mitting J was correct to strike out the claim because it was bound to fail.

2. For section 9(3) of the Human Rights Act 1998, want of good faith is analogous to bad faith. The inquiry concerns the judge’s actual state of mind. It may encompass dishonesty, ulterior motive, reckless indifference, actual bias, or a deliberate and knowing breach of the judicial oath. Constructive bad faith is insufficient. Errors of fact or law, irrationality, poor decision-making and procedural mistakes do not themselves establish bad faith.

   The trial judge’s summing-up contained serious errors which justified quashing the convictions. Nevertheless, her accurate general directions and conduct as a whole showed an honest attempt to try the appellant fairly. There was no evidence of ulterior motive. Her failure to appreciate the forensic importance of the dates and her failure to restore balance after replaying the complainant’s video therefore provided no basis for a finding of bad faith.

3. A claimant who alleges bad faith must plead facts capable of supporting it. The appeal did not turn on a formal allocation of the burden of proof because an unsupported allegation could not maintain the action.

4. Article 13 is not a Convention right incorporated by section 1(1) of the Human Rights Act 1998. It could not support the proposed claim or justify reading down section 9(3). Further, section 3 cannot be used to construe the Human Rights Act 1998 itself. The request for a declaration of incompatibility therefore had no basis.

5. Article 5(1)(a) requires lawful detention following conviction by a competent court; it does not guarantee that the conviction itself is free from error. Detention under a court order does not become retrospectively unlawful merely because an appellate court later identifies errors of fact or law. Excess of jurisdiction may arise where the court lacks jurisdiction over the cause, exercises its power through a gross and obvious procedural irregularity, or fails to observe a statutory condition precedent.

   The errors in the summing-up, individually and cumulatively, fell far short of the serious and egregious irregularity required. The article 5 claim consequently failed.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The strike-out and summary judgment for the Lord Chancellor were upheld: [2015] EWCA Civ 742.

2. High Court, Queen’s Bench Division: Mitting J struck out both limbs of the damages claim and entered summary judgment for the Lord Chancellor: [2014] EWHC 3995 (QB).

3. Court of Appeal (Criminal Division): The appellant’s convictions were quashed as unsafe and no retrial was ordered: [2011] EWCA Crim 1142. That decision gave rise to the subsequent civil claim.