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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Webster v Lord Chancellor  EWCA Civ 742 (14 July 2015)
Cite as:  EWCA Civ 742,  3 WLR 1909,  QB 676,  WLR(D) 316
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Mitting
Strand, London, WC2A 2LL
B e f o r e :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
LORD JUSTICE TOMLINSON
|- and -
(Transcript of the Handed Down Judgment of
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Mr Oliver Sanders (instructed by Treasury Solicitor) for the Respondent
Hearing date : 2 July 2015
Crown Copyright ©
Sir Brian Leveson P :
The Trial and Appeal
"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."
"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."
"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 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."
The Framework of the Claim
" (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).
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.
"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."
"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."
"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; …"
"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)…"
"The claimants contended, and the Divisional Court accepted … that the interpretative obligation in section 3 of the  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."
Right to Liberty
"(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..".
"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)."
"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."
"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). "
Tomlinson LJ :
Lord Dyson MR :