FIRST SECTION

DECISION

Application no. 32479/16 Philip WEBSTER against the United Kingdom

The European Court of Human Rights (First Section), sitting on 2 4 March 2020 as a Chamber composed of:

Ksenija Turković , President, Krzysztof Wojtyczek , Aleš Pejchal , Pauliine Koskelo , Tim Eicke, Jovan Ilievski , Raffaele Sabato , judges,

and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 3 June 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Philip Webster, is a British national, who was born in 1951 and lives in Beverley. He was represented before the Court by Mr A. Jaiswal, of Aliant Law , a law firm based in London.

2 . The United Kingdom Government (“the Government”) were represented by their Agent, Ms Sarah Macrory .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 16 July 2009, following a retrial in the Crown Court at Leeds, the applicant was convicted on two counts; rape and assault by penetration of his 14 year old step daughter. He was sentenced to a total of 9 years ’ imprisonment, and sent to prison.

5 . The applicant appealed and on 21 March 2011 the Court of Appeal (Criminal Division) quashed his conviction and did not order a retrial.

6 . In its reasons, handed down on 5 May 2011, the Court of Appeal criticised the final part of the trial, when the judge summed up the evidence for the jury. The Court of Appeal accepted the applicant ’ s arguments that the judge had made material errors in her summing up, the effect of which were that she failed to sum up the main aspects of the defence in a way which fairly presented that defence to the jury . In considering the safety of the applicant ’ s conviction it concluded:

“41. 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 that all the points discussed above are not without their weight in undermining the safety of the conviction on count 1 [rape]. 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 of each other, we feel compelled to regard the conviction on count 2 [assault] as also unsafe.”

7 . The applicant was released following the judgment of the Court of Appeal, and his conviction was quashed.

8 . The applicant brought civil proceedings in the High Court seeking damages under Section 6 of the Human Rights Act 1998 on the grounds that the court, as a public authority, had acted incompatibly with his rights under Articles 5 and 6 of the Convention.

9 . That claim was refused on 23 October 2014 by way of summary judgment. Mr Justice Mitting recalled that in order for the applicant to claim damages in such a situation it would need to be established that the trial judge had acted in “bad faith”. He recalled that the trial judge had conducted most of the trial appropriately. He characterised her directions to the jury at the start of the summing up as “unimpeachable” and highlighted that the criticism of the Court of Appeal was only in respect of the final parts of the summing up. Accordingly, he remarked:

“27. In my judgment, the claimant ’ s case gets nowhe re near establishing that Judge K. acted in bad faith.

...

“30. Accordingly , the claim based on Article 6 ... must fail ...”

10 . As to the applicant ’ s claim for damages under Article 5 of the Convention, with reference to Benham v. the United Kingdom (10 June 1996, §§ 40 ‑ 42, Reports of Judgments and Decisions 1996 ‑ III), he found that the applicant ’ s detention had not been unlawful within the meaning of Article 5.

11 . The applicant was granted permission to appeal to the Court of Appeal (Civil Division), which refused his appeal on 14 July 2015.

12 . As to the question of whether the initial criminal proceedings had breached Article 6, Sir Brian Levenson giving the lead judgment commented:

“27. 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 ... 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 [the applicant ’ s representative] 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. ...”

13 . Like the High Court, the Court of Appeal found that the trial judge had not acted in bad faith, commenting:

“34. 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 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...”

14 . The applicant argued that where there had been a breach of Article 6, Article 13 required an effective remedy before the national courts and that a successful appeal to the Court of Appeal (Criminal Division) was not a remedy because it could not lead to an award of damages. Relying on the provisions in domestic law, the Court of Appeal characterised this argument as “hopeless”, and concluded that Mr Justice Mitting was “entirely right” to strike out the claim brought on the basis of the lack of good faith.

15 . The Court of Appeal analysed the applicant ’ s complaint under Article 5 with reference to domestic case law and the case law of this Court. It recalled that:

“42. 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.”

16 . The applicant argued that the trial judge had committed a “gross and obvious irregularity”. The Court of Appeal concluded:

“47. 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 [trial] 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 the argument [by the applicant ’ s representative]. In any event, to engage this aspect of Benham v United Kingdom , 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.”

17 . The applicant applied to the Supreme Court for permission to appeal. The Supreme Court refused permission on 8 December 2015 stating:

“... the application does not raise an arguable point of law. The Court of Appeal were right for the reasons they gave.”

18 . Section 9 (3) of the Human Rights Act 1998 limits the possibility of claiming damages where the act or failure of which an individual complains is a judicial act or failure:

“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.”

19 . A summary of the relevant provisions is set out in Hammerton v the United Kingdom , no. 6287/10, §§ 44-61, 17 March 2016.

20 . Financial compensation is payable under section 133 of the Criminal Justice Act 1988 if two conditions are met. The first is that either the applicant ’ s conviction has been "reversed" or he has been granted a Free Pardon. The second condition is that the conviction must have been reversed, or the applicant pardoned, on the ground that a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence, unless the non–disclosure of this fact was wholly or partially attributable to the applicant.

21 . Applications for compensation must be made to the Secretary of State for Justice, who will consider them under the statutory guidance. The decision taken by the Secretary of State is subject to judicial review.

COMPLAINTS

22 . The applicant complained under Article 6 of the Convention that his right to a fair trial had been violated by the conduct of the trial judge. He complained under Article 13 that he should be entitled to compensation as his conviction had been quashed.

THE LAW

23 . Article 35 of the Convention reads:

“35...

3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or

...

4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”

24 . The Government argued that it is the well-established case law of this Court that a person may not claim to be a ‘ victim ’ pursuant to Article 34 of the Convention of a violation alleged to have taken place in the course of criminal proceedings in which he was acquitted or his conviction quashed (with the exception of complaints concerning excessive length of proceedings). Also, there is no right to compensation under the Convention simply on the basis that a criminal conviction is quashed in accordance with domestic law. The Government also underlined that the domestic courts found that no violation of Article 6 had been established in the domestic proceedings and that, even if there had been an error during the trial which amounted to a violation of Article 6, this was remedied by the Court of Appeal and as such the procedure as a whole complied with Article 6.

25 . The applicant argued that his right to a fair trial under Article 6 § 1 of the Convention was violated by the conduct of the trial judge and that as a result he was entitled to just satisfaction. However, he could not claim just satisfaction due the provisions in the Human Rights Act 1998 which exclude the possibility of claiming damages in respect of judicial acts in good faith. For the same reasons he argues that there has been a violation of Article 13.

26 . The applicant seeks financial compensation for an error of judicial procedure in the course of the domestic criminal proceedings which terminated with his conviction being set aside on appeal. He argues that this amounted to a violation of Article 6 for which he should receive financial compensation.

27 . The Court has noted in the past that at the domestic level in the member States there is no uniform approach in respect of the law and practice on compensation proceedings following discontinuation or acquittal. It has observed that the vast majority of surveyed States operate compensation schemes which are far more generous than the one in place in the United Kingdom, where compensation is only available where it can be shown that a particular judge did not act in good faith, or under the terms of section 133 of the Criminal Justice Act 1988 (see paragraphs 18-20 above and Allen v. the United Kingdom [GC ], no. 25424/09, §§ 73-77, ECHR 2013).

28 . According to the Court ’ s and the Commission ’ s settled case-law, a person may not claim to be a victim of a breach of his or her right to a fair trial under Article 6 that allegedly took place in the course of proceedings in which he or she was acquitted or which were discontinued (see, among other authorities Flor Lemos v. Portugal no. 15729/15, § 23, 18 October 2018; Blagoy v. Ukraine, no. 18949/04, § 30, 15 October 2013; Lenev v. Bulgaria , no. 41452/07, § 157, 4 December 2012, and Üstün v. Turkey, no. 37685/02, § 24, 10 May 2007 with further references ). In the Court ’ s view, this provision applies because a criminal defendant cannot claim to be a victim of a violation of Article 6 before he or she is finally convicted (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 77, 2 November 2010, which concerned review proceedings following the applicant ’ s conviction on appeal).

29 . Acquiring and losing victim status are not governed by the same rules. If an applicant is finally convicted in proceedings which breached Article 6 and therefore acquires victim status, it is then for the State to provide him or her with adequate and sufficient redress in respect of that complaint in a timely manner (see Sakhnovskiy , cited above, § 78, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § § 180 -182, ECHR 2006 ‑ V ). The Court would then assess whether those subsequent proceedings deprived the applicant of victim status because he or she had been provided sufficient redress (see Sakhnovskiy , cited above, § 83, Khayrullin v. Russia ( dec. ), no. 58272/09, 2 July 2019 and Dzasokov v. Georgia, § 22 ( dec. ), no. 70243/11, 19 March 2019).

30 . In Hammerton v. the United Kingdom , no. 6287/10, 17 March 2016, the Court considered that a violation of Article 6 had occurred where the applicant had been sentenced to prison for contempt of court without having had the benefit of legal representation. In the domestic criminal proceedings against the applicant, the Court of Appeal had ordered the committal order and consequential sentence to be set aside (annulled) (see Hammerton , cited above, §§ 24 and 135). However, when the Court of Appeal examined the case, the conviction was already final. A subsequent appeal was granted out of time on an exceptional basis as the Court of Appeal examined the merits of his case and considered the errors committed by the first instance judge to have been particularly grave (see Hammerton , cited above, § 17). Moreover, in light of the conclusions of the domestic courts about the manner in which the violation of Article 6 had occurred, the Court was able to define the consequence of the violation of Article 6 on the proceedings, stating that “... a significantly shorter sentence would have been imposed if the applicant ’ s Article 6 rights had been respected” (see Hammerton , cited above, §§ 132 and 136-137). It therefore considered that the applicant had retained the victim status he acquired once his conviction became final at first instance, and concluded that an award of compensation was necessary, in line with the principles set out in Scordino , cited above, § 180 (see Hammerton , cited above, § 131).

31 . The circumstances in the present case are not the same as those in Hammerton , cited above.

32 . In the present case, for the reasons set out by the Court of Appeal in its judgment of 21 March 2011, the trial judge made material errors of law in her ‘ summing up ’ of the evidence for the jury which rendered the applicant ’ s conviction unsafe (see paragraph 6 above). The Court of Appeal therefore quashed the applicant ’ s conviction in the context of the normal application of the criminal appeals procedure, and he was released. Accordingly, the Court does not consider that the applicant acquired victim status within the meaning of the relevant case-law (see paragraph 28 above). Accordingly, his complaint under Article 6 is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4 of the Convention

33 . Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). The Court has found above that the applicant ’ s complaint under Article 6 is inadmissible. Accordingly, in so far as he is complaining under Article 13 in conjunction with Article 6, this complaint must be rejected as manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention (see ÄŒonka v. Belgium , no. 51564/99, § 76, ECHR 2002 ‑ I and Black v. the United Kingdom ( dec. ), no. 56745/00, 27 September 2005).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 May 2020 .

Renata Degener Ksenija Turković Deputy Registrar President