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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Coppard v Customs and Excise [2003] EWCA Civ 511 (09 April 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/511.html Cite as: [2003] 2 WLR 1618, [2003] 3 All ER 351, [2003] EWCA Civ 511, [2003] QB 1428 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(HIS HONOUR JUDGE RICHARD SEYMOUR QC -
Sitting as a High Court Judge)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SEDLEY
and
LORD JUSTICE MANCE
____________________
EDGAR JOHN COPPARD |
Appellant |
|
- and - |
||
HM CUSTOMS AND EXCISE |
Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MICHAEL PATCHETT-JOYCE (instructed by Custom & Excise Legal Services of London SE1 9PJ) appeared for the respondent
PHILIP SALES (instructed by Treasury Solicitors of London) appeared for the Lord Chancellor's Department
____________________
Crown Copyright ©
SEDLEY LJ:
The Issue
Time
The nature of the challenge
i) Did Judge Seymour sit and give judgment as a judge-in-fact of the High Court?
ii) Did he in that event constitute a tribunal established by law?
The law
"In one class of case there is a long-standing doctrine that collateral challenge is not to be allowed: where there is some unknown flaw in the appointment or authority of some officer or judge. The acts of the officer or judge may be held to be valid even though his own appointment is invalid and in truth he has no legal power at all."
"It may well be that the principle which validates the acts of a judge de facto cannot be invoked for their own protection by any who wilfully abuse the office, still less by mere usurpers."
"But what if the court usher had been persuaded to sit and everyone in court had behaved as if he were entitled to do so? There must come a point at which, whatever the public perception, there is no basis for applying the de facto doctrine. The dividing line between what is and is not sufficient 'colour' in borderline cases may not be as clear as one would like, but fortunately the point does not arise for decision here."
Sedley LJ said (para 43):
"In the present state of authority the position of the usurper, in the sense of someone who discharges an office in the actual or constructive knowledge that he has no title to it, is in my view uncertain. If the purpose of the de facto doctrine is the maintenance of stability and confidence in the legal system and the prevention of disputes about the formalities of appointment, it might well be said that a sufficiently clearly reputed tenure of office should not be open to challenge even on the ground of the purported officer's knowledge of his own incapacity. Yet, as Mr Sales' response on behalf of the Lord Chancellor confirms, it goes entirely against the grain to validate the acts of someone who knows, even if the world does not, that he is not qualified to hold the office he is exercising."
Ward LJ declined to speculate on the acts of an impostor beyond expressing the tentative view that the judgment of a knowing impostor is a nullity, and that likewise the decision of a judge exercising a jurisdiction he knew he did not possess would be "a decision that never was" (para. 60-61).
Was the judge a usurper?
"The Judge told me that he was appointed as a Judge of the Technology and Construction Court (the "TCC") in July 2000, This was his first full-time judicial appointment. The Judge recalled that, on his appointment, the Judge in charge of the TCC lists (then Mr Justice Dyson) explained that, during the times when the Judge had unexpected capacity in his TCC list, he would be expected to volunteer to assist in the Queen's Bench Division or the Chancery Division of the High Court.
The Judge explained that he understood he did have authority to sit in the QBD and Chancery Division by virtue of his appointment as a TCC judge alone and that no further authorisation was required."
She goes on to explain that the TCC is part of the High Court, and that a judge appointed to that court has authority by virtue of s.68 of the Supreme Court Act 1981 to hear and decide TCC business.
Article 6
"The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place."
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
By section 6 of the Human Rights Act
1998:
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) ….
(3) In this section "public authority" includes … a court or tribunal …"
i) Does the de facto doctrine validate the act or the office?
ii) If it is the latter, is this a sufficient compliance with the requirement of Article 6 that a person's civil rights are to be determined by a tribunal established by law?
Does the de facto doctrine validate the act or the office?
"An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised [irregularly]."
Does a judge-in-fact come within Article 6?
Established by law
"That the judicial organisation in a democratic society must not depend on the discretion of the Executive, but that it should be regulated by law emanating from Parliament."
The Court has made it clear (see Sunday Times v United Kingdom (1979) 2 EHRR 245) that law declared by the courts ranks for these purposes with that made by Parliament. We do not consider, however, that this passage in Zand (which s.2 of the Human Rights Act requires us to take into account) answers the question. First of all, it is addressed to the issue then before the Commission, which concerned the use of ministerial powers to create courts – hence the focus on the executive. Secondly, it seems to us that independence from the executive is what the word "independent" in Article 6(1) is principally concerned with. Thirdly, and perhaps most importantly, it is plain that much more than this is involved in the concept of a tribunal established by law. Among other things, the purpose (especially when one remembers the period of European history of which the Convention was intended to mark a definitive end) is to ensure that justice is administered by, and only by, the prescribed exercise of the judicial power of the state, not by ad hoc "people's courts" and the like. Such a principle must be fundamental to any concept of the rule of law. Implicit in it is that the composition and authority of a court must not be arbitrary.
Compatibility with the Convention
"Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law."
This reproduces the language of Article 6(1) of the Convention with the striking addition of the word "previously". If it were part of the language of the Convention we might well have been driven to hold that the de facto doctrine did not comply with it. But is it, as Mr Macpherson urges, implicit in the Convention? No jurisprudence of the Commission or the Court indicates that it is, but that could be because the question has not yet come before either body.
Conclusion