England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE ROGERS)

		Royal Courts of Justice Strand London, WC2A 2LL
		22 July 2015

1. SIR DAVID KEENE: This is a renewed application for permission to appeal against the refusal on 25 October 2013 of His Honour Judge Rogers sitting as a High Court Judge in the Administrative Court to grant permission for judicial review. It is a renewed application because the application was refused on the papers by Lewison LJ.
2. The Applicant, Dr Razoq, seeks a judicial review of, in form, a number of decisions of the General Medical Council. According to the claim form, those decisions, eight in all, are variously dated between 29 April 2009 and 22 May 2013. The claim form in these proceedings was sealed on 3 July 2013.
3. The Applicant also seeks an extension of time for permission to appeal from Judge Rogers' decision. I do not propose to determine that application for an extension of time until I have considered the merits of the substantive application for permission to appeal.
4. There is a long and quite complex history to this case which I will try to take as briefly as possible because it is well-known to the Applicant, who appears in person today and who has argued his case succinctly and with some persuasiveness.
5. It is, of course, well-known that the GMC, the proposed Defendant, is a statutory body vested with certain regulatory powers in respect of medical practitioners. Certain matters concerning allegations of misconduct are dealt with by the Medical Practitioners Tribunal Service, which has fitness to practise panels.
6. In broad terms, Dr Razoq was suspended from the register for a considerable time, but is now back on it. It has been suggested in the past that there is no point in judicial review because the Applicant's suspension is now over and quashing the decisions of the GMC or applying any other remedy in respect of those decisions would be of no material effect.
7. Dr Razoq says to me that these proceedings are not academic just because the suspension has passed. He particularly wants a declaration from the courts so that the GMC, as he puts it, learns its lesson and does not do this again.
8. I have to say that I agree that this is not an academic proceeding. If a public body errs in law or behaves in some other fashion which renders its decisions contrary to fairness, then, in principle, the courts should say so. So a declaration would be an appropriate remedy. May I make it clear that I say that merely in broad terms of principle before dealing with the facts of this case?
9. Let me turn, therefore, to deal with the events in a little more detail. As of 2009 the Applicant was registered as a doctor, but it was around then alleged that he was not properly qualified. After some initial investigation, that allegation was amended to one that he had dishonestly made false representations about his qualifications.
10. As a result, in April 2009 the Defendant body attached conditions to his registration, but soon after that in June 2009 the Applicant was arrested for fraud. The Defendant postponed its regulatory processes pending the outcome of the criminal prosecution. In the event, Dr Razoq was convicted on 27 May 2011, after a trial in the Crown Court, on seven counts of fraud and in due course was sentenced to two years' imprisonment.
11. He says to me that he is still challenging the correctness of his conviction, but I understand from what he has said that he sought to appeal against that conviction and his appeal was unsuccessful. I therefore today have to assume that he was rightly convicted and I proceed on that basis.
12. He was eventually released from prison in August 2012. I pause there for a moment. The Applicant has a more general case about delay which I shall come to in due course. But I want to start with the specific matters in the claim form because it is convenient to deal with those as I go through the history of the events in this case.
13. Amongst the decisions which the Applicant now seeks to challenge are, first of all, the decision of the GMC of 29 April 2009 attaching conditions to his registration; secondly, a decision of 16 June 2011 not to proceed with a fitness to practise hearing given his interim restriction; and thirdly, a decision on or about 21 June 2012 to apply to the High Court for an extension of the interim suspension order.
14. All three of those decisions precede his release from prison in August 2012. All three of them are obviously well out of time for judicial review. The normal time limit for judicial review under CPR 54.5 is three months and indeed the order requires filing "promptly and in any event not later than three months after the grounds" first arose. Here the claim form, as I have indicated, was filed in July 2013, which is respectively over four years, over two years and over one year after the decision that I have just been referring to.
15. Dr Razoq argues that those decisions are all part of a series of decisions. That may well be, but that is no justification for the delay in seeking to challenge them. Moreover, I have to say that I can see no merit in any of the grounds of challenge to those decisions.
16. Given the allegations of fraud and then the criminal proceedings to which I have referred, the Defendant's conduct cannot be seen as unlawful or improper. The GMC was in no position to anticipate or forecast the outcome of the criminal proceedings. It was right that it should await those rather than coming to a view in advance which might well have conflicted with the findings of the jury at trial.
17. In addition, I note that there is a statutory right of appeal against decisions of a fitness to practise panel: an appeal to the High Court under section 41A(10) of the Medical Act 1983. That is a further reason why judicial review is quite inappropriate in respect of those three decisions to which I have just referred.
18. I should add that the application to the High Court by the GMC in June 2012 was clearly soundly based because it was an application that was granted by the High Court and permission to appeal to this court was refused.
19. I return to the sequence of events. On 17 September 2012 the GMC decided to maintain the suspension of Dr Razoq. That too forms one of the decisions which it is now sought to challenge.
20. I can take the merits of that challenge quite briefly. First of all, again, clearly the claim is long out of time. Secondly, there was a statutory right of appeal which should have been exercised if any challenge was sought to be brought. Thirdly, as I shall indicate, further extensions of time of the suspension were, in due course, granted by the High Court.
21. Next, the Applicant attacks the decision by the Defendant for permission to extend his suspension in about March 2013. I think it was 22 March 2013 and certainly that is the date given in the claim form. That is only slightly out of time, but judicial review, I have to say, is again not appropriate. The statutory right of appeal was available to the Applicant.
22. What then happened was that a date for a fitness to practise hearing was fixed. It was fixed for 29 April 2013 and three further days.
23. At that hearing on 1 May 2013 the panel rejected an application by Dr Razoq for the hearing to be held in private. He based that application partly on arguments about his and his family's safety and partly on health reasons. He argued that he was a Syrian national who had sought asylum in the United Kingdom and that he would be at risk if the hearing was public. In addition, he suffered from depression, which would be aggravated.
24. The panel noted that his criminal trial had been held in public and it was satisfied that no new information on matters concerning his safety would be revealed. It also found that it had not been provided with any material evidence on the health issue, but it did say that any reference to health matters would be heard in private.
25. Dr Razoq has not put that at the forefront of his arguments in the renewed application to this court, but he does in form at least challenge that decision also and I therefore have to deal with it.
26. In his written submissions he has explained that he did not wish to exclude the public, but only the press because of the extensive media coverage that he had already suffered, particularly at the time of his criminal trial and conviction.
27. That is not something that I find in any way persuasive. There is a provision in the relevant rules governing such hearings that they should be held in public unless the panel decides otherwise. There is no way that such a body could exclude the press, but not the public. The press forms part of the public for these purposes. I have read the panel's reasons for its decision and it seems to me that it acted lawfully and on a proper basis in reaching the decision it made.
28. Coming a little more to the nub of the present application, Dr Razoq complains about the panel's decision at that hearing on 2 May 2013 to adjourn until 27 August 2013 rather than to conclude it then and there with the effect, of course, that his suspension was continued for a further four months.
29. He contends that when you see this in the context of the time that was taken to set up the hearing after his release from prison and in the context of the amount of delay which had occurred since the allegations against him were first brought, this was an unconscionably long time to add to the period of his suspension.
30. My understanding is that the Defendant had allotted some three and a half days for the hearing in the belief that that would suffice. I have seen nothing in the papers in which the Applicant had suggested that an unusually long hearing would be required. On the face of it, one would have thought that three and a half days should, in the circumstances, have been sufficient.
31. One of the reasons that it was not enough was the number of applications made at the hearing, principally by the Applicant himself; for example, the one that I have referred to already for it to be heard in private. There was also an application, as I understand it, objecting to the legal assessor.
32. Anyway, in the event, at the end of day three the Applicant had not finished his own evidence-in-chief. In the circumstances, the panel decided that an adjournment was required.
33. Pausing there, that decision seems to have been one properly open to it. It was a procedural decision, something par excellence, therefore, which was a matter for the body conducting the hearing to decide in its discretion. Such procedural matters are matters of discretion for the body in question with which these courts will be reluctant to interfere. I can see nothing ultra vires or otherwise improper in its decision to adjourn. Effectively, it had run out of time.
34. As for the length of adjournment, that had to turn on when next this particular panel could be reconvened. Clearly, the resumed hearing could not take place before a different panel. The three experienced members of the panel had to be got together again and, of course, they would have had other commitments. It is, and indeed I accept, regrettable that there had to be a delay until the end of August, which was a period of another four months or so. As I say, it is regrettable that a date apparently could not be found until late August, but there was nothing that I can see that was legally wrong with that decision to adjourn until then.
35. The final decision cited in the claim form is the Defendant's application on 22 May 2013 to the High Court to extend the Applicant's suspension. I understand that the Applicant consented on 17 June 2013 to that order and it was duly made on that basis. It is dated 18 June 2013. The order itself is subject to a right of appeal as opposed a judicial review.
36. I have to say it seems to me that Dr Razoq is really seeking to attack the order of the court itself by focusing on the decision to apply for it. This court cannot judicially review High Court decisions. It is not open to us. Judicial review does not apply to decisions of the High Court and it should not be prepared to do that by some subterfuge.
37. Moreover, as I have indicated, my understanding is that the Applicant consented to the order being made. It follows that an application for judicial review of that decision is quite hopeless.
38. Let me just complete the story. The Defendant revoked the interim order on 30 August 2013 and instead came to its conclusion at the end of the hearing to suspend the Applicant's registration for 12 months from 3 October 2013. There was a right of appeal against that decision which the Applicant successfully exercised and he was allowed to return to medical practise as from 13 January 2014. But in any event, that final decision by the GMC is not the subject of the judicial review claim.
39. Now, I have dealt with these matters in some detail because they are actually the decisions of which, according to the claim form, judicial review is sought. It is right to emphasise that the Applicant does make a more general point about delay and about the length of time which, in total, he has been subject to suspension.
40. It took some four and a half years from the first allegations being made to the eventual final order. He says that this was a massively lengthy time to keep someone under interim measures and not bring the matter to a full hearing before the appropriate panel.
41. In particular, he asserts that out of that total of four and a half years, there was at least 12 months pure and unjustified delay, if I may use his words. That, he submits, is what this judicial review case is all about. He identifies those 12 months as being between August 2012 when he was released from prison and August 2013.
42. On 8 August 2012 he was released from prison and he argues that by that date the Defendant had had all the time on earth to prepare for the hearing. He goes on to say that the case could easily and should have been concluded by August 2012, whereas, in fact, it was not concluded until 30 August 2013, a 12 month delay.
43. I can accept that the process has taken a long time and that that has been very unfortunate for Dr Razoq. Of course, the full length of time to which he has referred, the four and a half years, was to a significant degree the result of the criminal proceedings, the outcome of which, as I have said already, the Defendant could not properly anticipate. It was entitled to await the outcome of those criminal proceedings and indeed to await the Applicant's release from prison. That did indeed take events to August 2012.
44. I cannot see any way in which the proceedings could have been concluded in August 2012 immediately after Dr Razoq's release from imprisonment. The GMC needed to set a panel together. It needed time for the Applicant to get his case together. In addition, the Applicant all this time had his statutory rights of appeal against the continuation of his suspension.
45. The GMC hearing started at the end of April 2013. The adjournment to August 2013, while it may have been regrettable, was, as I have indicated already, proper in the circumstances.
46. Moreover, the period of suspension was throughout subject to the oversight and control by the High Court, which regularly endorsed Dr Razoq's suspension, as did this court, the Court of Appeal, when called upon to make any pronouncement on it.
47. In these circumstances, there simply is no room for a judicial review on the basis of undue delay. As the judge below said, it and the other matters now being advanced are unarguable. So however persuasively and courteously Dr Razoq has advanced this case this afternoon, as he has, I am afraid it must follow that this renewed application and the application for an extension of time must be dismissed.