Reference:  EWHC 1585 (Admin)
Court: Administrative Court
Judge: Laws LJ, Stadlen J
Date of judgment: 21 Jun 2011
Summary: Judicial review - disciplinary proceedings - General Medical Council - fitness to practice - doctor - serious allegations - hearsay evidence - fairness - Article 6 ECHR - Panel decision to admit - challenge by practitioner - evidence yet to be heard - whether availability of subsequent appeal sufficient remedy - reliance on hearsay unfair
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The GMC brought fitness to practice proceedings against B, alleging various acts of indecency with youths. The GMC’s case relied mainly on evidence from a witness, X. X’s evidence was the only evidence in support of most of the charges, and all of the most serious ones. X was in Kenya. The police advised the GMC that risks of reprisals meant it would be unsafe for X to attend to give evidence in London. (NB there was no suggestion that B was responsible for any such risk). However, X was willing to travel to London and give live evidence. The GMC applied to the Fitness to Practice Panel for a ruling admitting the evidence of X as hearsay, relying on the police risk assessment. B opposed the application. The FTPP found the police risk assessment to be flawed, and held that the evidence would have been inadmissible in criminal proceedings, but granted the GMC’s application, concluding that it was desirable in the interests of due enquiry to admit the evidence, and that its admission would be fair to B.
B brought proceedings for judicial review alleging that the decision of the FTPP was irrational and unlawful as it misapplied the relevant rules and, in any event, allowed in evidence the admission of which would be in breach of B’s fair trial rights at common law and under Article 6 ECHR. Permission to apply for judicial review was granted and the FTPP proceedings were stayed pending the court’s decision on B’s application.
The GMC argued that it was open to the FTPP to reach the conclusions it did; that B’s point on construction of the rules was flawed; that it was inherently desirable to enquire into serious allegations of this kind against a professional man; that B’s challenge was premature – it could only succeed if he showed that a fair hearing was impossible under any circumstances, and that could not be said in advance; and that the FTPP’s duty to weigh the evidence properly and B’s statutory right of appeal in the event that his fitness to practice was found impaired were sufficient guarantees of fairness.
(1) Did the FTPP err in law in its approach to the GMC rules in question, by concluding that admitting the evidence would be fair, even though it would not be admitted in a criminal case?
(2) Did the FTPP arrive at an irrational conclusion on fairness?
Allowing the application and quashing the FTPP’s decision:-
(1) It was possible for evidence to be fairly and properly admitted under the GMC rules, even if it would not be admissible in a criminal case. That was so even if the consideration of admissibility in a criminal case involved the question of whether admission of the evidence was in the interests of justice. The real question in the case concerned the fairness at common law and/or under Art 6 of admitting evidence from a key witness without affording the accused an opportunity to cross-examine.
(2) There is no absolute rule that a defendant in a disciplinary case must have an opportunity to cross-examine witnesses against him. Nor is there any rule that this is so where the evidence in question is the sole or decisive evidence. However, B’s claim did not depend on establishing any such absolute rule. it depended on the particular and unusual circumstances of his case. The gravity of the allegations, tantamount to criminal charges, was a key matter. Adverse findings could have very serious consequences. In general, the graver the charges, the greater the importance of ensuring that the accused has adequate procedural safeguards. It would require compelling countervailing factors to override B’s right to cross-examine.
(3) The FTPP had made no finding that X would be exposed to any greater risk if he gave evidence live in London than if his evidence was adduced as hearsay in his absence. Nor had the FTPP considered as a relevant factor the absence of safeguards for B, such as are contained in the Criminal Justice Act 2003, in respect of hearsay in criminal cases. There were no compelling factors such as to entitle a reasonable FTPP to reach the conclusion it had, to the effect that B’s rights to cross-examine were outweighed in this serious case.
This is a long judgment, to which no brief summary can do full justice. The Court held that there is no general rule that reliance on hearsay to support serious allegations is unfair, and it may be that the particular circumstances of this case, which led the court to find that admitting hearsay against this individual would be unfair, are unlikely to be repeated.
The analysis of the law conducted by Stadlen J does, however, seem likely to prompt complaints of unfairness in future cases where hearsay evidence is relied on. What is perhaps most striking is that the ruling was made in advance of the substantive Fitness to Practice hearing, whereas the previous authorities were all concerned with retrospective assessment of the fairness of substantive proceedings based on hearsay evidence.
The Court was unimpressed with the argument (see paras - of Appendix 2 to the Judgment) that the possibility of damage to reputation resulting from an adverse finding, later reversed on appeal, is a separate matter from procedural fairness and should be left out of account in assessing the fairness of a hearing (see para - of Stadlen J’s judgment). The reputational risk had been relied on by B (see para (vii) of Appendix 2 to the Judgment) and the Court incorporated the reputational risk into its summary of the relevant principles (see (viii)). This seems a potentially important point for the future. Personal reputation is nowadays considered to be an aspect of the rights protected by Article 8 ECHR, but it does not seem that the protection of reputation has hitherto been considered an aspect of procedural fairness under Article 6.