Communicated on 11 May 2018

FIRST SECTION

Application no. 32479/16 Philip WEBSTER against the United Kingdom lodged on 3 June 2016

STATEMENT OF FACTS

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

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The criminal proceedings

3. 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.

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

5. In its decision, the Court of Appeal criticised the final part of the trial, when the judge sums 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 . ”

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

2. The civil proceedings

7. 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.

8. 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 nowhere near establishing tha t Judge K. acted in bad faith.

...

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

9. 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.

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

11. 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. ... ”

12. 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 criticized in this case do not constitute prima facie evidence of want of good faith without there also be 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...”

13. 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.

14. 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 . ”

15. 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 . ”

16. 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 ri ght for the reasons they gave.”

B. Relevant domestic law and practice

1. The Human Rights Act 1988

17. 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.”

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

2. The Criminal Justice Act 1988

19. 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 must have 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.

20. 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

The applicant complains under Article 6 of the Convention that his right to a fair trial was violated by the conduct of the trial judge. Under Article 13, acknowledging that the article does not require any particular form of remedy and that states have a margin of appreciation in respect of how to comply with the violation, he complains that he should be entitled to compensation as his conviction was quashed.

QUESTIONS TO THE PARTIES

1. Can the applicant claim to be a victim of a violation of the Convention, within the meaning of Article 34 (see for example Jozef Oleksy v. Poland ( dec. ), no. 1379/06, 16 June 2009)?

2. Did the criminal proceedings brought against the applicant breach the requirements of a fair hearing under Article 6 § 1 of the Convention?

3. Did the applicant exhaust all effective domestic remedies in relation to his complaint under Article 6 § 1 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?

In particular, could the applicant have applied for compensation under the Criminal Justice Act 1988, and subsequently sought judicial review of any decision taken, in light of this Court ’ s decision in Hammerton v. the United Kingdom , no. 6287/10, 17 March 2016?