TC09684 - [2025] UKFTT 01336 (TC)

Article 6 is headed “right to a fair hearing” and it includes the following provisions

“1 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…

2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3 Everyone charged with a criminal offence has the following minimum rights:

a)

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b)

to have adequate time and facilities for the preparation of his defence;

c)

to defend himself in person or through legal assistance of his own choosing…

d)

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

e)

to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

In Mr Young’s submission, it followed from Article 6(1) that Mr Dreyer had the right to a hearing, and the time limit provisions were therefore of no effect.

However, as Mr Puzey pointed out, that position is not supported by the case law. In Han, Potter LJ gave the leading judgement. He said (emphasis in original):

“83….It must be remembered that the requirements of article 6(1) in relation to a fair trial, together with what has been held to be the implicit recognition of a right to silence and a privilege against self-incrimination, are of a general nature and are not prescriptive of the precise means or procedural rules by which domestic law recognises and protects such rights.

84.

It by no means follows from a conclusion that Article 6 applies that civil penalty proceedings are, for other domestic purposes, to be regarded as criminal and, therefore, subject to those provision[s] of PACE and/or the Codes produced thereunder, which relate to the investigation of crime and the conduct of criminal proceedings as defined by English law…”

Mance LJ, giving a concurring judgment, said at [88]:

“The classification of a case as criminal for the purposes of Article 6(3) of the Convention on Human Rights, using the tests established by the Strasbourg jurisprudence, is a classification for the purposes of the Convention only. It entitles the defendant to the safeguards provided expressly or by implication by that Article. It does not make the case criminal for all domestic purposes. In particular, it does not, necessarily, engage protections such as those provided by the Police and Criminal Evidence Act 1984.”

In Khan v HMRC [2006] EWCA Civ 89, Mr Young also represented the appellant. He submitted that HMRC’s interview of Mr Khan should have been conducted under Code C issued under PACE, which inter alia required a formal caution to be issued. That submission was rejected. Buxton LJ said:

“87.

Section 60 of the Value Added Tax Act 1994 [VATA] introduces a regime for the imposition of a penalty where a person has acted dishonestly for the purpose of evading VAT. The interviews of which complaint is made in this case were conducted under that regime. In Commissioners of Customs and Excise v Han [2001] STC 1188 this court held that the characteristics of that regime rendered proceedings under it criminal for the purposes of Article 6 of the ECHR . On that basis Mr Young argued that the Convention therefore required that there should be applied to the VAT evasion regime all the rules applying to a criminal process in English domestic law. In particular, at the interview with the Customs officials Mr Khan should have been cautioned in the terms required by s10(4) of PACE Code C. Failure to do so meant that he was “denied the constitutional protections of [PACE ]”.

88.

This argument, if correct, would have marked a very striking departure from the usual understanding of Convention jurisprudence. While the Convention will require the exclusion of some categories of evidence obtained by serious misconduct (e.g. torture, Montgomery v HM Advocate [2003] 1 AC at 649D, per Lord Hoffmann; or entrapment, Allan v UK (2003)36 EHRR 12) the Convention’s characteristic mission is to determine whether proceedings viewed as a whole have been fairly conducted, without mandating specific general rules of evidence or procedure for the law of the member state: see the ECtHR in Schenk v Switzerland (1988) 13 EHRR 242 [46]:

‘While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law.’

89.

Convention jurisprudence could not, therefore, require the use of PACE procedures in the VAT evasion regime even though the latter is, in Convention terms, a criminal process. All that it could do is to control the general fairness of the whole of a particular set of proceedings. PACE can only be brought into the case by the further step of arguing that the decision in Han caused the VAT evasion process to be criminal in domestic as well as in Convention terms, and therefore the whole of the domestic regime of criminal process must be applied to it: it would seem as a matter of English domestic, not of Convention, law.

90.

The premise behind that argument is clearly wrong. In Han this court continued, to cite from §88 of the judgment of Mance LJ (as he then was):

“The classification of a case as criminal for the purposes of art 6(3) of the Convention, using the tests established by the Strasbourg jurisprudence, is a classification for the purposes of the ECHR only. It entitles the defendant to the safeguards provided expressly or by implication by that article. It does not make the case criminal for all domestic purposes. In particular, it does not, necessarily, engage protections such as those provided by the Police and Criminal Evidence Act 1984 ”

That, with respect, must be so. It is trite law that the Convention operates an autonomous regime of classification, and that the criteria under that regime for determining whether proceedings are criminal are to be found in the jurisprudence of the ECtHR, dating from Engel v Netherlands (1979–80) 1 EHRR 647 . Those criteria are the domestic classification of the proceedings; the nature of the offence; and the severity of the penalty to which the subject is at risk. Of these, the first, the domestic classification, is only a starting point: Benham v UK (1996) 22 EHRR 293 [56]. If the domestic law does classify the proceedings as criminal, then that will conclude the issue under the Convention. But, as Han itself demonstrated, even if the domestic regime is specifically distinguished from domestic criminal proceedings, as the VAT evasion regime is so distinguished by section 60(6) of VATA , it may still be found to be “criminal” in nature under the Convention. As the ECtHR said in Engel, at its §81, “the autonomy of the concept of ‘criminal’ operates, as it were, one way only”. Accordingly, although proceedings can be classified as criminal under the Convention when they are not so classified in domestic law, such a Convention decision cannot affect, and is recognised in the jurisprudence cited above as being quite different from, the classification of proceedings in domestic law.”

 It is thus beyond doubt that classification as criminal for the purposes of Article 6 does not mean that the time limit requirement in VATA s 83G is of no effect. As Buxton LJ said in Khan, “the Convention’s characteristic mission is to determine whether proceedings viewed as a whole have been fairly conducted, without mandating specific general rules of evidence or procedure for the law of the member state”. VATA gives appellants a right of appeal, with the proviso that the appeal must be made within 30 days unless the Tribunal gives permission for a longer period. There is nothing unfair about those provisions, and they are not rendered ineffective by Article 6. I thus reject Mr Young’s submissions in reliance on the Convention.