R Dr Harrison v General Medical Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BLAKE |
| Judgment Date | 08 June 2011 |
| Neutral Citation | [2011] EWHC 1741 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5503/2010 |
| Date | 08 June 2011 |
[2011] EWHC 1741 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Blake
CO/5503/2010
The Appellant appeared in person
Mr D Pievsky (instructed by GMC Legal) appeared on behalf of the Respondent
(As approved)
This is an appeal made by Dr Harrison (the appellant), pursuant to section 40 of the Medical Act, against a decision of the Fitness to Practise Panel of the General Medical Council, notice of which was sent out on 26 February 2010. The Panel decided that Dr Harrison's registration be erased on the basis of a finding of impairment of fitness to practise based upon a serious criminal conviction. That conviction was on 12 May 2009 at the Crown Court at Nottingham when he was in fact convicted on an indictment containing three counts: count 1, putting people in fear of violence, count 2, threatening to kill, and count 3, doing a series of acts tending and intended to pervert the course of justice.
He was sentenced on 16 July 2009. On count 2 he was sentenced to a period of imprisonment of seven years extended sentence, with a four-year custodial term and an extension period of three years, days on remand counting, and on the other two counts to three years' imprisonment concurrent. It is therefore apparent that on 26 February 2010, when the GMC sent notice of the decision of the Panel, Dr Harrison was a serving prisoner.
That has given rise to a preliminary issue as to whether this court now has jurisdiction to entertain this appeal. With the assistance of both Dr Harrison, who appears today in person, and Mr Pievsky, who appears for the GMC, the following narrative of events is established. The notice of decision, with an explanatory letter explaining how an appeal is to be lodged against it, the time for lodging an appeal and the place where the appeal forms could be obtained, was sent both to the registered address of Dr Harrison, understood to be his then home address in Bristol, and to his prison address where he had asked information also to be sent to him during the course of the disciplinary proceedings. His home address, we understand, was also occupied by his parents, including his father, the Reverend Harrison, who had represented him (although not a professional advocate) at the GMC disciplinary proceedings, and who had communicated with the GMC about Dr Harrison's proceedings for some time before and after.
It appears that the notice was received at the home address (the registered address) on 1 March 2010, but Reverend Harrison, Dr Harrison's father, communicated with the GMC to say that he had heard that his son had not received it and pointed out that it sometimes takes time for correspondence to be received by a prisoner in the particular prison where he was serving his sentence.
As a result of that email exchange the Adjudication Coordinator for the GMC indicated that allowing some extra time for the document to have made its way through the prison system the deemed date under the scheme for time to appeal was adjudicated to be 5 March 2010. That would have been a few days later than the normal deemed date for service under the statutory scheme, to which I will return in one moment.
There were further emails about the matter, but for present purposes the next relevant date is that something was sent to this court—Dr Harrison tells me on 29 March 2010—and that was received by this court on 1 April 2010. That which was sent and received was considered not to be a valid Notice of Appeal because it was not accompanied by a fee, as required by the Civil Proceedings Fees Order 2008, in the sum of £200 or a fee exemption application, and therefore the court rejected the matter and wrote to Dr Harrison to this effect on 7 April.
It seems something else was then sent after 7 April because the Court Office wrote again to Dr Harrison in prison on 13 April 2010 saying:
"Your application for Fee Remission has not been processed because you need to provide the following evidence.
A completed and signed EX160 form (the form must be signed by the applicant and not the sponsor or solicitor.)
To be eligible for Remission 3 you need to
• Provide an original Prisoner's Income & Expenditure Statement (PIES). This needs to be dated within the month and needs to include the following information:
The full name and title of the person applying
Whether on remand or serving a custodial sentence,
The prison number of the person applying
The name of the prison
Full details of income and expenditure Details of the current available balance.
We will look forward to hearing from you."
It seems that the completed appeal form, with the satisfactory fee exemption application and supporting evidence, was received in this court on 29 April 2010 and the matter is date stamped then. The questions that that brief history gives rise to are, firstly, whether there was a valid appeal lodged in time, secondly, whether, if not, this court has power to extend the time for lodging the appeal, and thirdly, if it does have power, whether applying the scheme under the CPR 52 (3) it is in the interest of justice to extend that time.
The statutory scheme is set out in the Medical Act 1983 and the following provisions are material: section 35E requires the registrar to:
"forthwith serve on the person concerned notification of the direction… and of his right to appeal against it under section 40."
Under section 40 (4A):
"A person in respect of whom an appealable decision… has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served, appeal against the decision to the relevant court."
Therefore there is a 28-day period for appeal under the statute.
Schedule 4 to the Act sets out provisions for service of notification. Paragraph 8 (2) of the schedule indicates that the notice may be served by delivering it to him or by sending it by registered post service to either, under regulation 8 (3), the address in the register, or his last known address if that differs and it appears that it is more likely to reach him at the last known address. In fact, as we have seen, the decision was sent to both addresses and it was in fact effectively received at both addresses: at the home address we know and at least by 1 March at the prison, or some time later.
Dr Harrison contends today in advancing his case that he did not in fact receive it until 10 March. There is in fact no witness statement to that effect and there is some reference in his father's email to something being actually received by him on 8 March. It is a little difficult to achieve clarity as to when he came into personal possession of the document. However, given the difficulties in communication with prison it was, under the statute, at least sufficient service to have served on his registered address, which did come to the attention of the person who had assisted him and was continuing to assist him in this matter, and who communicated with the GMC. Therefore I see no basis for disturbing the conclusion that at least 5 March was the date to which effective service of the notice should have been considered under paragraph 8 (5) of the regulation which says:
"(a) the serving of a notice effected by sending it by post shall be deemed to have been effected at the time when the letter containing it would be delivered in the ordinary course of post…"
By paragraph 9 of the schedule there is provision in the GMC to extend time for appealing where:
"(b) the Registrar is satisfied, on an application of that person, that the person did not receive the notice within 14 days beginning with the day of the giving of the decision to which the notification relates, the Registrar may, if he thinks fit, by authorisation in writing extend the time within which an appeal under section 40 of this Act may be brought against the decision."
It seems those conditions were probably not met and in any event the registrar on being informed by the Reverend Harrison of the practical difficulties in communicating with the prison concluded that a deemed date of 5 March was appropriate. I can see no basis why that is not a reasonable response to the problems of communicating with a serving prisoner, bearing in mind that the notice had been effectively received on 1 March at the registered address.
The hearing has proceeded on the basis that an appeal notice has to be a notice that complies with the statutory requirements. Since it is a requirement that a fee be paid an appeal notice, which is not accompanied either by a fee or a fee exemption application, is not a valid appeal. Therefore, this appeal was only lodged on 29 April 2010. That is way beyond the period of 28 days provided for by the statute. On the GMC conclusion that 5 March should be taken as the deemed date of receipt, allowing a couple of extra days for the letter to work its way through the prison authority, that would mean a Notice of Appeal had to be received by 2 April 2010. Even if a more extended period is appropriate, having regard to the date he says that he actually received this document in prison when it was given to him by a prison officer, that would suggest that something in the region of 7 April would have been the appropriate date, depending upon whether that was a working day or not.
At the outset of this hearing Mr Pievsky had anticipated that an application may be made by Dr...
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