R (Bonhoeffer) v General Medical Council

Lawyers are unloved. This is especially true in disciplinary procedures where the prevailing rule is that a colleague or a trade union representative or official can accompany an employee under examination but not an external lawyer. This is endorsed not only in the current code of practice published by ACAS, but also by statute. So, the general opinion is that in this context lawyers are bad news and should be kept at bay.

The courts are, however, undermining this principle and the Administrative Court has contributed to the process in R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin). The case concerned an eminent consultant paediatric cardiologist of international repute who was accused of a serious sexual assault of a young man in Kenya. The GMC brought proceedings against the consultant before their Fitness to Practise Panel (FPP). They had one main witness who was willing to attend the hearing but the GMC did not want to call him and applied for permission to admit his hearsay evidence in various forms. The FPP agreed although this deprived the consultant of the opportunity to test the evidence by cross-examining the witness. The reasons the GMC did not want to call the witness were fear of reprisal by the consultant’s supporters and the allegation that the witness would put himself at risk in Kenya where homosexual practice is illegal. The FPP held that although depriving the Consultant of the opportunity to cross-examine was to his disadvantage on balance it would be fair to permit hearsay evidence.

The consultant appealed to the court relying in particular on Article 6 of the European Convention on Human Rights which required that he be given the right to cross-examine witnesses. He also argued that the decision of the FPP had been irrational Article 6 also provides for the right to legal assistance and although this is overtly directed to criminal offences the scope of the article is interpreted to apply to civil issues as well where sufficiently serious issues arise for the individual concerned. The potential implications of this decision therefore are therefore wider than simply the right to cross-examine witnesses (which of course could be done by non-lawyers).

The way the court decided that the FPP had been wrong to allow the evidence was to examine a wide range of authorities and set out certain principles, which have to be considered in every case. Although this case concerned the particular regulatory rules of one profession the judgment is not expressed to apply only to such circumstances. Potentially, therefore, all types of disciplinary regimes may be affected.

The principles are that, whilst there is no absolute right to cross-examine, disciplinary proceedings against a professional person (although not classified as criminal) may still bring into play some of the requirements for a fair trial in Article 6, including the right to cross-examine.

Whether this will apply in any particular case is fact specific and has to be judged ‘in the round’ in each case. The seriousness and nature of the allegations and the gravity of the adverse consequences to the accused party, in the event that the allegations are upheld are of central importance in this exercise. It is the gravity of the impact of the case on the accused that is more determinative than whether the charges are criminal or civil.

It takes little imagination to visualize these same arguments being deployed to argue that lawyers should be allowed to attend such hearings and also for the concept of who is a professional being similarly stretched. It may be time to learn to love a lawyer!

First published in The Grapevine Magazine July 2011
Further Information contact Sejal Raja, sejal.raja@rlb-law.com


Disclaimer

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