Yau and Others v Customs & Excise
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,LORD JUSTICE POTTER |
| Judgment Date | 03 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1040,[2001] EWCA Civ 1048 |
| Docket Number | Case No: A3/2001/0149A,C/2000/2530 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 July 2001 |
[2001] EWCA Civ 1040
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
(Mr Justice Lightman)
Royal Courts of Justice
Strand
London WC2
Lord Justice Keene
C/2000/2530
The Matter Of An Application For Judicial Review
The Applicant Mr Kandeel appeared in person.
The Respondent was not represented
This is an application by Mr Kandeel for an extension of time in which to appeal the judgment of Mr Justice Lightman on 14th January 2000, and for permission to appeal that judgment itself. On that date the judge refused, at an oral hearing, a renewed application by the applicant for permission to apply for judicial review of a decision of the Driving Standards Agency ("the DSA").
The appellant's notice was lodged with the Civil Appeals Office on 10th July 2000, so it can be seen that the appeal was over five months out of time. Mr Kandeel, who has appeared on his own behalf today, says that he only received a copy of Mr Justice Lightman's order on 24th January 2000. That, however, would only explain some ten days of the delay, and in any event the applicant had been present, as I understand it, when the order was made on 14th January 2000. Having said that and indicated the problem that arises, I do nonetheless propose to consider the merits of the proposed appeal.
The case arose out of the applicant's wish to become an approved driving instructor, and to this end he took a written examination in December 1996. It seems that he had taken it before, on at least two occasions, without success. In any event, on 18th December 1996 he was notified that he had failed, although only narrowly. His mark was just one below the minimum mark required. The letter notifying him of this also explained that he could sit the written part of the examination again if he wished, there being no limit on the number of attempts which could be made.
Mr Kandeel was unhappy about this outcome and he consulted solicitors. In February 1997, the DSA refused to release details of the questions which the applicant had answered incorrectly. Further correspondence followed. On 16th June 1998 the DSA again refused to provide such information or to carry out any further review. They made the point that current and past examination papers were not issued because the subject area was limited and the examination could be compromised if they released questions.
The record shows that on 2nd November 1998 Form 86A, seeking permission to apply for judicial review, was filed at the Crown Office. Mr Kandeel tells me that he had in fact filed such a form on an earlier occasion, and he has produced before me this morning an affidavit in support of the application at that time which bears the date stamp 24th September 1998. For present purposes, I am prepared to assume that Form 86A was originally lodged on that date in September and must have become mislaid somehow within the Crown Office (now the Administrative Court Office). However, even doing that and even treating the letter of 16th June 1998 as the decision being challenged, this was still beyond the normal three months time limit for judicial review proceedings, as the judge below pointed out.
The position was made worse, first, because, as I have indicated already, the letter of 16th June 1998 was really only repeating a decision earlier indicated by the DSA and, secondly, because it seems that there had been a previous application by Mr Kandeel seeking judicial review against the DSA on essentially the same grounds, albeit referring to an earlier failure in the same exam. That earlier indication was refused permission in open court by Mr Justice Tucker on 14th May 1997, and no appeal seems to have been brought against that decision.
It is quite clear to me that, in all those circumstances, Mr Justice Lightman was entitled to regard the application before him as being out of time, with no proper basis for an extension of time having been provided. Moreover, the real dispute between the parties arose soon after 18th December 1996, not far short of two years before Form 86A was filed. Judicial review is a discretionary procedure and it is intended to provide for a swift determination of whether a public body has acted unfairly or in excess of its powers. It is very important that one knows within a short time-frame whether such administrative decisions are valid or not and are being challenged or not.
Having emphasised that, I must say that I cannot in any event see any sensible basis on which judicial review proceedings would have been likely to succeed, even if they had been commenced in proper time.
Mr Kandeel argues that the DSA acted irrationally, because he believes that there was no correct answer to some of the questions in the examination and because the chances of an applicant getting the same examination paper were very small. The first of those two points deals with the content of the examination itself, and I must emphasise that that is something which is not properly the subject of judicial review. It relates essentially to academic matters, which this court is not fitted to determine. The second point does not demonstrate irrationality on the part of the DSA. It is not irrational for such a body to keep the examination questions routinely asked confidential, so as to limit so far as possible advance knowledge of them by candidates.
This morning Mr Kandeel has said that he seeks, not so much a sight of the questions themselves, but rather to have those questions marked by an independent marker. I cannot see that such external scrutiny of the DSA's activities is required in order to achieve fairness. There is no reason why the DSA should not be left to mark the answers in this examination without such external independent scrutiny.
Having said that, there is no real prospect of this applicant demonstrating that Mr Justice Lightman's exercise of discretion was improper. He was entitled to say that this application was out of time, as it was; and that, in the circumstances of this case, is something which can properly be seen as fatal to it.
In those circumstances, this application for permission to appeal and for an extension of time in which to appeal is dismissed.
Order: application for permission to appeal and for an extension of time in which to appeal dismissed; application for transcript of this judgment at public expense refused.
[2001] EWCA Civ 1048
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM VAT AND DUTIES TRIBUNAL
(President: Stephen Oliver QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Potter
Lord Justice Mance and
Sir Martin Nourse
Case No: A3/2001/0149A
A3/2001/0149
Kenneth Parker QC and Timothy Ward Esq. (instructed by the Solicitor, Customs and Excise for the appellant)
Eleanor Sharpston QC and Andrew Young Esq. (instructed by Penningtons for the respondent)
INTRODUCTION:
This is an appeal by the Commissioners of Customs and Excise against a decision of the Chairman of the VAT and Duties Tribunal (Stephen Oliver QC) ("the Chairman") made upon a preliminary issue, released on 19 December 2000 and certified by the Tribunal pursuant to CPR Part 52 PD 21.6 on 20 December 2000. The decision is reported at [2000] V & DR 312. Leave to appeal directly to this court was granted by Aldous L.J. on 9 March 2001.
The decision relates to a preliminary issue raised in three appeals before the Tribunal, each of which raised a fundamental issue of law concerning the applicability of the European Convention of Human Rights ("the ECHR") to VAT and Excise procedures, namely whether or not the imposition by the Commissioners of Customs and Excise ("the Commissioners") of (ostensibly civil) penalties for alleged dishonest evasion of tax pursuant to S.60(1) of the Value Added Tax Act 1994 (" VATA") and s.8(1) of the Finance Act 1994 ("FA94") gave rise to criminal charges within the meaning of Article 6(1) of the ECHR, as each of the taxpayers contended.
The Chairman determined the issue in favour of the taxpayers, who are the respondents in this appeal. The Commissioners seek an order setting aside that determination and substituting the determination by this court that the imposition of the penalties did not give rise to criminal charges within the meaning of Article 6.
The importance of the question lies in the consequences which flow from the decision of the Tribunal in terms of the protection afforded to taxpayers by the 'fair trial' provisions of Article 6. Where what is at issue is the "determination….of a criminal charge" (see Article 6(1)), various "minimum rights" are provided for by Article 6(2) and Article 6(3) which are particularly pertinent in cases such as the present, where penalties have been raised against non-English speakers such as Mr Yau, or inadequate English speakers such as Mr Martins, and there are also alleged to be doubts in respect of the observation of the procedural safeguards which it is contended should have been available to all three respondents.
THE FACTUAL BACKGROUND
The Tribunal made no findings of fact. However,...
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