R (Bonhoeffer) vGMC [2011] EWHC 1585 (Admin)

Background facts

1. Professor Bonhoeffer faced allegations before a Fitness to Practise Panel [FTPP] that he had been guilty of serious sexual misconduct while working in Kenya. The complaint was made in 2009.

2. A Metropolitan Police investigation in Kenya was undertaken. The police concluded that they could not bring charges because of the timing of events concerning the allegations made by witness A and because the other witnesses whom they interviewed denied that the events alleged by A had occurred.

3. At the start of the FTPP hearing in October 2010 the GMC made clear that they did not propose calling A to give evidence, in person or by video link because of the risk to him and they made an application for his evidence to be adduced as hearsay evidence under Rule 34 of the FTP Rules 2004. Submissions were made on the effect of Sections 114, 116 and 125 of the Criminal Justice Act 2003, which provide a mechanism by which criminal courts can admit hearsay evidence.

4. Evidence was given by 2 police officers, an FFW Solicitor and another witness, Z. The FTPP decided to allow the GMC to rely on the hearsay evidence of A.

5. An application for Judicial Review was made. The case was heard by Lord Justice Laws and Mr. Justice Stadlen. Judgment was given on 21 June 2011 by Mr. Justice Stadlen; Lord Justice Laws agreed. st

The judgment

6. The Court held the FTPP’s decision to admit the hearsay evidence of A was irrational and a breach of Professor Bonhoeffer’s Article 6 right to a fair hearing.

7. In relation to Rule 34(2) of the FTP Rules 2004 the Court held that the potential desirability of admitting evidence cannot trump questions of fairness. He made the point that there is no power under Rule 34(2) to admit unfair evidence.

8. Stadlen, J said (paragraph 129) that:" The more serious the allegation, the greater the importance of ensuring that the accused doctor is afforded fair and proper procedural safeguards. There is no public interest in a wrong result."

9. Further, Stadlen, J said (paragraph 1) that the case "raises important issues relating to the circumstances in which hearsay evidence may be admitted in disciplinary proceedings" but went on to note (paragraph 40) the "particular and very unusual facts…" of the case.

10. However, he set out a number of propositions (paragraph 108) that he derived from the authorities he had reviewed.

They are:

i. Even in criminal proceedings the right conferred by Article 6(3)(d) to crossexamine is not absolute. It is subject to exceptions referable to the absence of the witness sought to be crossexamined, whether by reason of death, absence abroad or the impracticability of securing his attendance.

ii. In criminal proceedings there is no "sole or decisive" rule prohibiting in all circumstances the admissibility of hearsay evidence where the evidence sought to be admitted is the sole or decisive evidence relied on against the defendant.

iii. In proceedings other than criminal proceedings there is no absolute entitlement to the right to crossexamine pursuant to Article 6(3)(d).

iv. However disciplinary proceedings against a professional man or woman, although not classified as criminal, may still bring into play some of the requirements of a fair trial spelt out in Article 6(2) and (3) including in particular the right to crossexamine witnesses whose evidence is relied on against them.

v. The issue of what is entailed by the requirement of a fair trial in disciplinary proceedings is one that must be considered in the round having regard to all relevant factors.

vi. Relevant factors to which particular weight should be attached in the ordinary course include the seriousness and nature of the allegations and the gravity of the adverse consequences to the accused party in the event of the allegations being found to be true. The principal driver of the reach of the rights which Article 6 confers is the gravity of the issue in the case rather than the case’s classification as civil or criminal.

vii. The ultimate question is what protections are required for a fair trial. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.

viii. In disciplinary proceedings which raise serious charges amounting in effect to criminal offences which, if proved, are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed on the evidence of an accuser between whom and the accused party there is an important conflict of evidence as to whether the misconduct alleged took place, there would, if that evidence constituted a critical part of the evidence against the accused party and if there were no problems associated with securing the attendance of the accuser, need to be compelling reasons why the requirement of fairness and the right to a fair hearing did not entitle the accused party to crossexamine the accuser."

Commentary

1. The applicability of Article 6 to disciplinary hearings has been considered in a number of cases recently including Kulkarni [2009] EWCA Civ 789, Puri [2011] EWHC 970 (Admin) and R(G) vX School Governors [2010] 1 WLR 2218. In that last case, in which Lord Justice Laws gave a Judgment in the Court of Appeal, an appeal was heard in April 2011 by the Supreme Court on the right to legal representation in internal disciplinary hearings. The decision is awaited.

2. The comments of Stadlen, J are directed to disciplinary hearings in general and not limited to GMC hearings.

3.The practical features of the fair trial rights under Article 6 that an individual practitioner will have in a particular hearing forum will depend on all the relevant factors. This may have to be worked out in a number of other cases, unless the issue is settled by the Supreme Court in X.

4.The gravity of the adverse consequences to the practitioner is one of the factors to which particular weight must be paid.

5. It is notable that the Court did not mention the forum for determination as a relevant factor and the principles identified by Stadlen J should apply, by extension, to Trust disciplinary proceedings and to cases before the Independent Safeguarding Authority.

6. In Trust disciplinary cases where the practitioner faces a charge with serious consequences it is permissible to assert that the Trust has to make witnesses available for crossexamination.

7. Finally, there are many telling phrases in the judgment; an example being the round statement that there is no public interest in a wrong result.

© RadcliffesLeBrasseur

Alex Leslie
alex.leslie@rlb-law.com

Stewart Duffy
stewart.duffy@rlb-law.com


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.