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    56. The effect of section 22(4) has been explained in the annotations to the 1998 Act in Current Law Statutes, to which the late Peter Duffy QC contributed, as being to enable the Act to be used defensively against public authorities with retrospective effect but not, it appears, offensively. The example is given of a person charged with an offence under subordinate legislation pre-dating the Act's entry into force who would be entitled to rely on the Convention to show that the legislation was invalid but not to bring an application for judicial review for a declaration that it was invalid. There remain however a number of difficult issues in regard to retrospectivity which section 22(4) does not address directly and on which no view has been expressed in the commentary. They include the question whether its effect is to permit a defendant in proceedings brought by or at the instigation of a public authority to rely on his Convention rights where the proceedings at first instance took place before the Act came into force and the point is raised for the first time on appeal. A further question is whether, in criminal cases, it makes any difference whether the breach was brought about by an act of the prosecutor or by a judicial act and, if judicial acts (or at least some judicial acts) are to be treated differently, what it is that enables these acts to be distinguished from acts of the prosecutor.

    57. Section 22(4) provides that section 7(1)(b) applies "to proceedings brought by or at the instigation of a public authority" whenever the act in question took place, but that otherwise that subsection does not apply to an act taking place before the coming into force of that section. The word "proceedings" is not, as such, defined anywhere in the Act. At first sight this provision extends to proceedings of any kind in any court or tribunal, whether at first instance or on appeal. In any event it must be taken to apply to proceedings in every kind of case, whether civil or criminal. Nevertheless, in order to understand fully the scope which is to be given to the word in its context, it is necessary to examine the provisions in section 7 to which section 22(4) refers.

    58. Section 7, as indicated by its side-note, deals with "proceedings." Subsection (1) provides that a person who claims that a public authority has acted, or proposes to act, in a way which is made unlawful by section 6(1) may do one or other of two things. He may bring proceedings against the authority under the Act in the appropriate court or tribunal: section 7(1)(a). Or he may rely on the Convention right or rights concerned in any legal proceedings: section 7(1)(b). Section 22(4) gives retrospective effect only to section 7(1)(b). As retrospective effect is given only to proceedings brought by or at the instigation of a public authority, it would not have been appropriate for section 22(4) to have referred also to section 7(1)(a). That provision refers only to proceedings brought by the victim against the authority whose act is made unlawful by section 6(1).

    59. Lord Clyde referred in R v Lambert [2001] 3 WLR 206, 253A-C to the fact that, in so far as the act for the purposes of section 7(1)(a) is a judicial act, the proceedings must be one or other of those set out in section 9(1). The first of these is by exercising a right of appeal: section 9(1)(a). He said that it did not appear likely that there should be a retrospectivity under section 7(1)(b) in respect of an appeal against a decision given prior to 2 October 2000 if there was none under section 7(1)(a). This was one of the two reasons which he gave for his view that section 22(4) did not extend retrospectivity to appeals. I have looked more closely at this point in the light of the more detailed argument which we have had in this case. With great respect, I do not think that it bears the weight which Lord Clyde would wish to attach to it.

    60. Section 7(1)(a) and section 7(1)(b) are designed to provide two quite different remedies. Section 7(1)(a) enables the victim of the unlawful act to bring proceedings under the Act against the authority. It is intended to cater for free-standing claims made under the Act where there are no other proceedings in which the claim can be made. This provision also differs from that in section 7(1)(b), in that claims made under it are subject to the time limit prescribed by section 7(5). This subsection provides that proceedings under section 7(1)(a) must be brought before the end of the period of one year beginning with the date on which the act complained of took place or such longer period as the court or tribunal considers equitable, but subject to any rule imposing a stricter time limit in relation to the procedure in question. Among the remedies that may be obtained by this means against the public authority is that of damages: see section 8. Section 8(2) provides that damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. The purpose of this provision is to ensure that a claim for damages as a result of a criminal prosecution is brought in a civil court.

    61. The Lord Chancellor's Consultation Paper, Human Rights Act 1998: Rules & Practice Directions, CP5/00, March 2000, proposed in paragraph 12 that what it described as "a free-standing case under section 7(1)(a) of the Act" should be brought (a) by using the existing judicial review procedures, (b) in the county court or in the High Court where a claim of damages is made or (c) in the county court or the High Court following a finding of unlawfulness under section 7(1)(b) in some other court or tribunal which does not have the power to award damages or compensation - where, for example, damages are claimed arising out of a ruling by a magistrates' court or the Crown Court that the prosecution had acted unlawfully. In paragraph 15 reference was made to proposals designed to ensure that issues of article 5(5) damages were determined in the appropriate court. The Civil Procedure (Amendment No 4) Rules 2000 (SI 2000/2092), which made the appropriate amendments to the Civil Procedure Rules 1998, came into force on 2 October 2000. Among the new rules is CPR rule 7.11(1), which provides that a claim under section 7(1)(a) in respect of a judicial act may be brought only in the High Court; see also rule 19.4A(3) and rule 33.9.

    62. Article 5(5) of the Convention provides that everyone who has been the victim of arrest or detention in contravention of that article shall have an enforceable right to compensation. But under English law, there was prior to the Human Rights Act 1998, no right to compensation where the detention took place following the issue of a warrant by a court. The prison governor was protected by the court's warrant, and the judge was protected by his immunity from liability in a civil action for damages in respect of acts done in his judicial capacity: Sirros v Moore [1975] QB 118; see also the Justices of the Peace Act 1997, sections 51 and 52 as regards magistrates. Section 9 of the 1998 Act preserves judicial immunity except to the extent required by article 5(5). Section 9(1) provides that proceedings under section 7(1)(a) in respect of a judicial act may be brought only by exercising a right of appeal, on an application for judicial review or in such other forum as may be prescribed by rules. Section 9(3) provides that in proceedings under the 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, and section 9(4) provides that any award of damages under section 9(3) is to be made against the Crown.

    63. Thus the purpose of section 7(1)(a) is to enable the victim to bring free-standing proceedings against the public authority whose act was unlawful under section 6(1). Section 7(2) provides that the reference in section 7(1)(a) to "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules. The rules make it clear that these proceedings are civil proceedings, and that they cannot be brought in a criminal court. The reference in section 9(1)(a) to exercising a right of appeal is intended to describe one of the means by which a section 7(1)(a) claim may be brought in civil court under the special procedures which apply where the act complained of is a judicial act.

    64. Section 7(1)(a) does not apply where the victim wishes to rely on his Convention rights in his capacity as the defendant in proceedings which have been brought against him by a public authority. His remedy in those proceedings is that provided by section 7(1)(b). The reference in section 9(1)(a) to exercising a right of appeal is intended to describe one of the means by which a section 7(1)(a) claim may be brought in a civil court where the act complained of is a judicial act and where such a right of appeal is available. These provisions are not concerned with the situation where a person claiming to be a victim of a violation wishes to rely on his Convention rights in existing proceedings brought against him by a public authority.

    65. For these reasons I think that the fact that section 22(4) does not give retrospective effect to section 7(1)(a) - and thus to proceedings under that provision in respect of a judicial act which are brought by exercising a right of appeal, as section 9(1)(a) provides - has no bearing on the meaning to be given to the word "proceedings" in section 7(1)(b) as applied retrospectively by section 22(4). The remedy by way of an appeal to which section 9(1) refers is an entirely different remedy from that provided by section 7(1)(b).

    66. The second reason which Lord Clyde gave for his view that section 22(4) did not apply retrospectively to appeals is the same as that given by Lord Slynn, at p 210, para 9 and Lord Hutton, at p 263, para 172. It is based on the wording of section 7(6), which provides:

"In subsection (1)(b) "legal proceedings" includes -

(a) proceedings brought by or at the instigation of a public authority; and

(b) an appeal against the decision of a court or tribunal."

    67. The words used in section 7(1)(b) to describe the proceedings in which the victim may rely on his Convention rights are "any legal proceedings". The words "legal proceedings" are the subject of the definition in section 7(6) which I have just quoted. It is said to distinguish between (a) proceedings brought by or at the instigation of a public authority on the one hand and (b) an appeal against the decision of a court or tribunal on the other. Attention is then drawn to the fact that the words used in section 22(4) to describe the proceedings in which the victim has the benefit of retrospectivity are "proceedings brought by or at the instigation of a public authority". Section 22(4) uses the same words as those which form the first part of the definition in section 7(6), and it does not mention an appeal. This is said to indicate that the retrospective provision does not extend to appeals. In other words, the benefit of section 22(4) is available only in proceedings at first instance.

    68. The Crown do not dispute that the word "proceedings" is capable of including an appeal against a decision at first instance in the same action. As Lord Slynn said in R v Lambert [2001 ] 3 WLR 206, 210, para 9 an appeal may be considered as part of the proceedings initiated by a particular party. The same point was made by Lord Steyn in Ex p Kebilene [2000] 2 AC 326, 368B-C and by Lord Woolf CJ in R v Benjafield [2001] 3 WLR 75, 93, para 51. Indeed Mr McGuinness QC for the Crown put much emphasis on the point that an appeal remains part of the original criminal proceedings brought by the prosecuting authority when he was submitting that neither a reference by the Criminal Cases Review Commission nor an appeal by the Crown were separate proceedings for the purposes of section 22(4).

    69. If the intention was to restrict the meaning of the word in this context to proceedings at first instance only, one would have expected this to have been made clear in section 22(4). For example, the Legal Aid Act 1988 is careful to define the courts and tribunals in which legal aid is available, with the result that proceedings in each court or tribunal are separate proceedings for the purposes of legal aid: see sections 14(1) and 19(1). There is no indication in section 22(4) that it was seeking to make that kind of distinction. It does not distinguish between proceedings according to whether they are civil or criminal or restrict them to those before any particular court or tribunal. Nor does it restrict the benefit of retrospectivity to proceedings which were commenced after section 7(1)(b) was brought into force.

    70. The only point of distinction to which section 22(4) refers relates to the person by whom or at whose instigation the proceedings are brought. It applies only to proceedings brought by or at the instigation of a public authority. Why then did the provision take this form? In my opinion the answer is not hard to seek. The purpose of the provision was to give effect in domestic law to article 13 of the Convention, which sets out everyone's right to an effective remedy for a violation of his Convention rights notwithstanding that the violation has been committed by persons acting in an official capacity. As I said in Brown v Stott [2001] 2 WLR 817, 847B, sections 7 to 9 were intended to lay down a remedial structure for giving effect to the Convention rights as defined by section 1(1) of the Act. Section 22(4), in so far as it gives retrospectivity to section 7(1)(b), is part of that structure. This fact suggests that, although the provision is limited to proceedings brought by or at the instigation of a public authority, it was not the intention to restrict its effect to any particular stage in those proceedings. It is not possible to identify any good reason, consistent with the principles which underpin Convention rights, for preventing the state from taking advantage of its pre-commencement breach in proceedings at first instance but allowing it do so on appeal.

    71. The majority view that section 22(4) does not extend to appeals depends entirely on the words used in section 7(6). The first thing to notice about this provision is that the word which it uses to introduce the definition is the word "includes". The definition does not pretend to be a restrictive or an exhaustive one. It seeks instead, by stating what is to be included in the words "legal proceedings", to put the two matters with which it deals beyond doubt. The second thing to notice about it is that the two matters which are dealt with in it are each directed to different questions. The matters with which it deals are not mutually exclusive. The first question is whether the expression "legal proceedings" includes proceedings brought by or at the instigation of a public authority. The second question is whether the expression includes an appeal against the decision of a court or tribunal. The definition seeks to clarify the circumstances in which the victim of an act of a public authority made unlawful by section 6(1) may exercise the remedy in section 7(1)(b), bearing in mind the fact that section 6(3)(a) provides that a court or tribunal is included in the expression "public authority". The word "proceedings" in section 7(6)(a) appears simply to be a shorthand way of referring back to the words "legal proceedings" in section 7(1)(b). On this view, the reference to an appeal in section 7(6)(b) is available to explain what is meant by "proceedings" in section 7(6)(a). The effect of section 7(6)(b) is that the word "proceedings" in section 7(6)(a) includes an appeal in those proceedings.

    72. For these reasons it seems to me that it does not follow from the fact that section 7(6)(b) mentions an appeal against the decision of a court or tribunal that appeals against decisions taken in proceedings brought by or at the instigation of a public authority are excluded from section 7(6)(a). I consider, with great respect, that the balance of the argument is quite plainly the other way. In any event I regard the position favoured by the majority in R v Lambert as unclear, in the absence of an express provision in section 22(4) which limits the retrospective effect of section 7(1)(b) to decisions taken at first instance. In this situation it is necessary to examine the consequences of a reading of section 22(4) which would limit its effect in this way by implication.

    73. There are a number of points which arise under this heading.

    A prosecution appeal by way of case stated under section 28 of the Supreme Court Act 1981 against an acquittal in the magistrates' court is a proceeding by a public authority. Although it is described as an appeal, the Crown accepts that it is also a separate proceeding by the public authority which is brought in the High Court. This means that a person can rely on a violation of his Convention rights at a trial which took place before 2 October 2000 if the prosecution appeals by way of case stated against his acquittal. But if the majority view is right, he cannot do so if he was convicted and he wishes to appeal by way of case stated on the ground that there was a violation of his Convention rights at his trial against his conviction. This is because section 22(4) does not extend to an appeal, and the proceeding which the defendant brings by way of case stated is not by or at the instigation of a public authority.

    A reference by the Attorney General to the Court of Appeal under section 36 of the Criminal Justice Act 1988 for review of a sentence pronounced in the Crown Court prior to 2 October 2000 which he considers to be unduly lenient is a separate proceeding by a public authority. Here again the person against whom the sentence was passed can rely on his Convention rights in those proceedings so far as they may be relevant to the question whether his sentence was unduly lenient. But if the majority view is right, he cannot do so if he wishes to appeal against his sentence under section 9 of the Criminal Appeal Act 1968 on the ground that it was imposed in violation of his convention rights. The Crown says that there is no anomaly here, as no examples can be envisaged in the case of a section 36 reference which would engage a possible incompatibility with Convention rights. I do not agree. Sections 36(1)(b)(i) and (ii) make it clear that if the original sentence is quashed the whole sentencing process is re-opened. Articles 3, 5, 7 and 14 all have potential relevance to sentencing exercises carried out by any court.

    If the majority view is right, a person would not be able to rely on a violation of his Convention rights as a ground of appeal against a conviction at a trial which took place before 2 October 2000. The Court of Appeal would not be able to quash the conviction and order a retrial on this ground, as the defendant would not be entitled to ask the Court of Appeal to take account of the violation when it was considering whether the appeal should be allowed and whether or not there should be a retrial. The Crown says that if he was successful in his appeal against his conviction on other grounds and a retrial was ordered, he would be able to rely at the retrial on the same violation of his Convention rights. I agree. But it seems to me that difficult questions may arise as to whether the Court of Appeal can have regard to the violation when it is deciding whether or not there should be a retrial, bearing in mind that it was not open to it to have regard to the violation when it was considering whether the conviction is unsafe. It would not be satisfactory to have to wait for the retrial if the question whether or not there was a violation which would make a conviction in that trial unsafe could be decided before the appeal was disposed of.

    If the majority view is right, a defendant in civil proceedings brought against him by or at the instance of a public authority based upon a pre-commencement act which he says was a violation of his Convention rights would not be able to use this as ground of appeal retrospectively against a decision which went against him at first instance. Examples of appeals in civil proceedings to which this proposition would apply which are likely to raise issues about Convention rights are where the appeal was against a committal order, a refusal to grant habeas corpus or the making of a secure accommodation order under section 25 of the Children Act 1989; see also Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2001] 3 All ER 393, where the right to peaceful enjoyment of possessions was said to have been breached by a repair notice. Nor would he be able to rely on the violation if the decision was in his favour and an appeal was taken against that decision after 2 October 2000 by the public authority. This is because, on the majority view, section 22(4) does not apply to an appeal.

    74. It seems to me that these four examples suggest that serious anomalies could result if the majority view is right. They would disappear if the word "proceedings" is given the wider meaning which it is capable of bearing so as to include appeals in the same proceedings. To give it that wider meaning would be consistent with what I understand to have been the purpose of section 22(4), namely to give effect to the state's treaty obligation under article 13 to provide an effective remedy in domestic law in proceedings brought by or at the instigation of a public authority. The underlying policy is that the state should no longer be able to take advantage in those proceedings of its breach of its obligation not to act incompatibly with the Convention rights. On the majority view, the remedy provided by section 22(4) would be effective against violations of Convention rights at first instance in some situations, but not in others. The situations in which it would be effective against those violations would appear, at least in some cases, to depend upon initiatives taken by the public authority which was alleged to have acted unlawfully. It is hard to believe that the framers of the Act, who must have been aware of basic Convention rights principles such as those which require that there be equality of arms between the defendant and the prosecutor and that the victim is afforded an effective remedy, intended this to be so.

    75. For these reasons I would, with great respect, depart from the majority view in R v Lambert on this point. I would hold that a defendant whose trial took place before the date of the coming into force of section 7(1)(b) is entitled to rely in an appeal after that date on an alleged breach of his Convention rights at the trial by the prosecutor.

    76. I should add that I have considered whether it might be possible to confine the majority view to criminal cases only, as R v Lambert was a criminal case and one of the principal concerns of the majority was about the effect of retrospectivity on past convictions: see Lord Slynn [2001] 3 WLR 206, 210-211, para 10, Lord Clyde, at p 255, para 147 and Lord Hutton, at pp 263-264, para 173. The question, as it has been put to us in this case, is once again confined to criminal cases. So once again was the argument, as the speeches of my noble and learned friends Lord Slynn and Lord Hutton demonstrate. But the reference in section 7(6)(b) to an appeal is unqualified. It extends to any appeal against a decision by a court or tribunal, whether criminal or civil. So the majority view is not capable of being applied to an appeal of one kind only and not to others. It embraces all appeals of whatever kind from decisions at first instance in any kind of case, whether civil or criminal, by any tribunal and by any court. I do not believe that the implications of this result were fully explored in R v Lambert, and they do not appear to have been addressed by Parliament. That is why I think that it would be right for your Lordships now to depart from that reasoning.

    77. As I do not feel able to decide this case by following the majority view in R v Lambert, I must now turn to the reasons which I gave for agreeing with the majority that on the facts of that case the appellant, whose trial took place before 2 October 2000, was not entitled to rely on an alleged breach of his Convention rights by the trial court. The arguments which I shall now consider were dealt with only briefly in the oral argument. But they have been dealt with fully in written submissions which were put in afterwards. The question is whether the decision in R v Lambert can still be supported, albeit for different reasons than those given by the majority.

    78. As I explained in R v Lambert [2001] 3 WLR 206, 242, para 109 I based my decision on the view that a court or tribunal is not a party to the proceedings which are brought before it in its judicial capacity and that, for this reason, the words used in section 7(1)(b) are not capable of being applied to a judicial act in the course of those proceedings. But I would be the first to recognise, after hearing further argument, that this approach gives rise to a number of problems and that it is not satisfactory.

    79. The first point which I would at once accept is that all three branches of government, including the judiciary, are bound by the treaty obligations which have been assumed by the state under the Convention. This suggests that it is not possible in the context of sections 7 to 9 of the 1998 Act, which are designed to give effect to the state's obligations under article 13 where a person claims that a public authority has acted in a way which is incompatible with a Convention right, to maintain a rigid distinction between acts of a court or tribunal on the one hand and acts of the prosecutor on the other. Furthermore, all public authorities are dealt with in the same way by section 6.

    80. In the context of the Scotland Act 1998 the position is different, for the reasons which I gave in Montgomery v HM Advocate [2001] 2 WLR 779,796-798 and Brown v Stott [2001] 2 WLR 817, 846-848. The system which the legislation provides ensures that the state's obligations are respected both by the Scottish Parliament and the Scottish Executive by limiting their competence. The Lord Advocate is a member of the Scottish Executive and all those who prosecute in his name or under his authority have no power to do anything that is incompatible with any of the Convention rights: section 57(2). But these limits on competence do not apply to the court, which is a separate branch of government from the Scottish Executive. The limits on the court's competence are to be found in section 6(1) of the Human Rights Act 1998. But the relevant provisions of that Act came into force on a different date from the relevant provisions of the Scotland Act 1998, and there are important differences between the systems laid down by these two Acts with regard to the provision of an effective remedy. As Lord Coulsfield said in Mills v Lord Advocate (No 2), 2001 SLT 1359, 1365, para 20, intriguing issues may arise as to the interrelationship between the duty imposed on the court under the Convention - which does not raise any kind of devolution issue - and the duty or duties imposed by the devolution legislation on the Lord Advocate. In that context the drawing of a distinction between acts of the court and acts of the prosecutor may be inevitable. But that is not so in cases to which the special features of the devolution legislation do not apply.