QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| In the matter of a reference under Section 29(4) of the National Health Service Reform and Health Care Professions Act 2002
|THE COUNCIL FOR THE REGULATION OF HEALTH CARE PROFESSIONALS
|- and -
|GENERAL DENTAL COUNCIL
Mr Alexander Fleischmann
Mr Neil Garnham QC (instructed by Capsticks) for the First Respondent
Mr David Fisher QC (instructed by Bankside Law) for the Second Respondent
Hearing dates: 8th and 9th December 2004
Crown Copyright ©
The charges were, as is common in these cases, specimen charges. Again, as is common, the judge at the Crown Court was provided with a document being a descriptive schedule of the images, the subject matter of the counts on the indictment. No proper consideration of the gravity of offences such as this can take place without a schedule of this sort and/or viewing of the images themselves. For present purposes I shall refer only to the ages of the children involved as they appear from the schedule. On count 1, the girl was aged 6. On count 2, aged 3. On count 3, two children – one aged 10 and the other aged 12. On count 4, a baby aged 18 months. On count 5, a girl aged 5 years. Count 6, a child aged 2 years. On count 7, a child aged 10 years. On count 8, a girl aged 6 years. On count 9, boys and girls including a girl aged 10 years. On count 10, a girl aged 4 years. On count 11, a girl aged 6 years. And on count 12, a girl aged 4 years.
The Crown Court hearing
"In my opinion Mr Fleischmann's thoughts and feelings underpinning his offending behaviour are greatly distorted".
"In my opinion, Mr Fleischmann's level of risk is likely to be lowered if his knowledge and understanding of the thoughts and feelings that underpin his offending behaviour can be increased. This I believe would improve his ability to devise effective relapse prevention strategies. It is my view that these objectives are most likely to be achieved by him being subjected to a lengthy period of statutory supervision."
"I am satisfied that he was suffering from a depressive episode at the time these offences took place but I find it difficult to relate his mental state to the offending behaviour in the absence of any admission from him that the pornographic images were sexually arousing".
He also concluded, in connection with a suggestion that Mr Fleischmann had, in truth, been engaged in punishing himself rather than obtaining any measure of sexual pleasure from the material:
"I find it difficult to accept that he would have looked at such a large number of images, over a significant period of time, simply as a way of punishing himself for his failings in other areas".
Dr McClintock considered whether Mr Fleischmann posed a direct risk to children. He concluded as follows:
"I find it challenging to comment on the risk of direct harm to any child which Mr Fleischmann may encounter as psychiatry is very poor at identifying those individuals who will translate their fantasy life into behaviour in terms of contact with children".
He then summarised the absence of any identifiable particular factors which would indicate such a risk and concluded as follows:
"In the absence of any such pointers I conclude, tentatively, that Mr Fleischmann probably poses a low risk of direct harm to children. Given the difficulties with risk assessment in general, I would see this as being the most sympathetic view which could be given in a case such as this".
The judge's sentencing remarks
"All of these are factors [being a reference to the circumstances of the offence] which are of some considerable seriousness and gravity and there is no doubt in my mind that this is a case which, on those grounds, would ordinarily justify a custodial sentence and the guideline case suggests that for this sort of matter, it is something in the order of anything between twelve months and three years' imprisonment".
The judge went on to consider the "other side of the coin". He referred to the mitigation, namely the evidence that the defendant was suffering from depression at the material time, and the serious financial losses which he had sustained. He concluded:
"I accept what I have been told; that that is the case and that is, I emphasise, stress which occurred and which had a cause and effect in making you commit this offence, not stress which has arisen because of the fact that you have been detected and are now facing the consequences. It is important perhaps to make that particular distinction".
"All of this would have given me serious pause for consideration. I think, however, that what I am going to find to be decisive, the deciding factor, which I treat as being most important is the fact that both your mother and your mother in law are in a very poor state of health. They are, I am told, very substantially personally dependent upon you and by that I mean that you are the person who is actually looking after them and I am told and I am prepared to accept, and I have heard evidence from your wife in this respect, that she is also suffering from ill health. There is nobody else but you who can fill the role".
The judge declined to pass a sentence of imprisonment (immediate or suspended) and concluded, so far as the risk to children or the public:
"I do not believe although I bear in mind what Dr McClintock says about the limits of psychiatry being predictive, but I do not believe that there is any reason to suppose that you are likely to pose a danger to children. And to that extent I do not think that the public is at risk".
However, in relation to the risk of offences of the same nature being repeated, he concluded:
"I think there is a risk and the probation officer who wrote the pre-sentence report has said that there is a risk, in her opinion, of your committing further offences of the type for which you are in front of the court at the moment".
The judge acknowledged that since the depression might have been a factor which caused him to offend, if it had passed, the position may be different, but went on to conclude:
"… but I think that the public is better served, in these circumstances, by my accepting the recommendation in the pre-sentence report, of making a community rehabilitation order with a requirement that you undergo the course which is suggested and just so that there should be no misunderstandings about it, the requirement is that you are to participate in a programme of therapeutic work in order to address your offending behaviour, in compliance with instructions given by your supervising officer as required by the London Probation Area Community Sex Offender Group Programme for the duration of the Order".
The hearing before the Professional Conduct Committee ("the Committee") of the General Dental Council ("the GDC")
"It is a five year order, as I understand it, and the purpose essentially, and there may be others who are better equipped than me to explain, is so that there is a public record of the fact that a dentist has been convicted of a particular type of offence".
She went on to add that it enables records to be kept and a track to be kept of offenders. So far as it went, this was an accurate reply to the question, but the purpose of the requirement is to secure public protection from those who have committed serious offences. (See 14 Hansard March 10, 1997 and Attorney General's Reference No. 50 1997  2 Cr App R (S) 155, 157).
(1) That there was no realistic risk of further offending, either by repeat offences or by Mr Fleischmann becoming involved in any contact with children in an inappropriate way. So far as the high standards and reputation of the profession were concerned and the importance that they be maintained, he submitted that those could be safeguarded by a suspension, if need be, for the maximum period of twelve months. He emphasised that:
"Mr Fleischmann embarked upon this behaviour which resulted in his criminal conviction as a result of depression…. I suggest that he is of low risk with regard to re-offending".
Mr Fisher submitted that Mr Fleischmann was as "of low risk ….." as low as anybody is ever likely to present and that "every single person in this Committee room is at some risk of embarking upon this type of behaviour….".
(2) When developing his case on assessment of risk, he submitted to the Committee that the particular test adopted by the probation service was 'notoriously unreliable'. Dr McClintock did not think great reliance could be placed upon it and nor would Dr Vince say anything to the contrary.
(3) Mr Fisher drew the attention of the Committee to the case of Oliver, but said that he was not going to go into the detail of it because he did not think it was something which was going to help the Committee a great deal. First of all, it was a guideline case. Secondly, the guidelines related to appropriate sentences after a contested hearing and guidelines were not straitjackets.
"There is insufficient data really to suggest, as seems to be suggested by some people, that it must inevitably mean that if you look at this type of material, there can only be one reason and one reason only, namely some form of sexual gratification. Dr Vince suggests that in the instance of Mr Fleischmann, having actually seen him, there may well be another reason, and he believes that there is, and that it is not of a sexual nature".
Mr Fisher then added that if that was so then it was a matter for the Committee to consider because, "… the risk to the public and to the maintenance of the standards of the profession, are greatly affected by that view expressed by Dr Vince". In my judgment, according to whether the view was accepted, if accepted, it was capable of affecting risk, but was incapable of having any significant effect on the judgment to be made of the nature and gravity of the offences and their likelihood of bringing the profession into disrepute.
(1) That there had been error in the assessment made according to the Matrix Risk 2000 assessment. His own view, formed after the application of dynamic risk factors, namely psychological personality factors, was that only one dynamic risk factor was present in Mr Fleischmann's case, namely a sense of inadequacy.
(2) He emphasised that the facility and ease with which individuals can access child pornography on the internet had given rise to a number of offenders who could not be assessed for risk, according to the standard tenets which had applied to those, for example, who, prior to the availability on the internet, would have, perhaps, had to travel abroad and take other very much more positive steps to obtain the information. He therefore concluded that in these cases it could not automatically be taken that there is a sexual interest in children and that the chances of going on to escalate into contact abuse were much higher.
(3) In his view cases of denial did not necessarily give rise to an increased risk of offending, but:
"Denial does elicit rather negative responses in those dealing with an individual".
He emphasised that what was important was that people should be able to admit to themselves whether there was sexual intention or not. Therefore:
"We do not attempt to extract an admission or confession from individuals. It does not mean anything in terms of future risks".
(4) In his view the risk of re-offending had to be considered in the context of the opportunity for re-offending. He could not exclude the risk of contact abuse but asked: "How is this actually going to happen in real life?"
(5) He said that he, initially, did not expect this to be a case in which the intent behind the offending behaviour was not or certainly was not principally that of deriving sexual stimulation or arousal from the material. But he went on to add:
"There were a number of factors that really led me away from the commonsense inference, or assumption, that this necessarily involves, primarily a sexual interest in children and the other material".
(6) The factors or details, including the onset of depression and Mr Fleischmann's denials that he gained sexual pleasure led him to conclude, although a lot more work would have to be done, that for Mr Fleischmann "… it is not necessarily about having a sexual interest in children". He added that Mr Fleischmann was, at the material time, suffering from a major depressive episode which was moderate, if not moderate to severe, and, in answer to the question "How you conclude that there may well be a motive other than sexual interest?", he stated:
"Yes. I think that that is a very real possibility in this case, and that partly arises again from the range of unpleasantness and repulsive material that was viewed, and which Mr Fleischmann says repulses him, and if one believes that, I think it certainly does suggest an alternative motive".
"As stated above denial does not indicate that the individual is an increased risk although I agree that it does greatly impede the process by which the individual can be worked with to manage their own risks."
When pressed as to why this had been included, he emphasised that, as a psychiatrist, he did not wish Mr Fleischmann to read it and to conclude "Okay, it is not sexual deviance, just that I was depressed….". His attention was then drawn to another passage in his report which was:
"I accept that it is inevitably the case that Mr Fleischmann must have gained some kind of sexual gratification or arousal from some of the images of children."
"It was difficult to get Mr Fleischmann to articulate why he had been viewing this type of material".
Question : "It is a mixed picture at best".
Answer: "I do not know if there is a mixed picture there. It is very likely that there is something sexual involved here, but whether it is about children and sex, or more about repulsive images, is a question. It is a very important question and the information available to me at the moment does not impress me with the fact that a sexual interest in children is likely to be, certainly not the primary motive, if it is there at all".
"Looking at it from the converse, if you are wrong, but he continues to believe that it is all depression and does not gain insight into sexual motive, that does not bode very well for this treatment either, does it?"
"If I am wrong, then I would expect probation to eventually be able to make some headway, because they normally do. I would stick by my statement that this is still a relatively early in the whole process into the probation order. It is still very young".
(1) That the offences were totally out of character with the exemplary life Mr Fleischmann had lived up until then.
(2) That the conduct was borne from clinical depression.
(3) That there was not a substantial quantity of material when compared with the experience in other cases, for example in Oliver where there were 20,000 images.
(4) That a significant point was that one can download an enormous number of images with ease.
(5) That downloading images can be totally at random and will not of itself indicate that the particular level of material has been sought.
(6) That Mr Fleischmann commenced viewing "normal" pornographic material.
(7) That a great number, referred to by Mr Fisher as "the vast majority of the material" which had been received, had been deleted.
(8) Very little was saved.
(9) That there was one and only one aggravating feature when one looked at the case of Oliver and that is the age of some of the children in the material.
(10) That there had been no direct effect on his ability to practise as a dentist or to get on with patients.
(11) That arguably one of the most important points was that it all began, not with a search for pornography, but with the use of his computer in a legitimate manner.
(1) That no direct harm had been caused to the public.
(2) That Mr Fleischmann had not viewed any of this material or type of material since his arrest.
(3) The core reason for his offending was depression. The potential for re-offending had therefore gone.
(4) There was no history of actual abuse.
(5) That under the heading of future risk, Dr Vince had established a case, which was not undermined, that physical abuse and the risk of that was negligible, absolutely negligible, and the risk of repeat offences by viewing more material, was low.
By way of general conclusion, he submitted: "the public are protected".
(1) That this was an offence which was totally out of character.
(2) Mr Fleischmann was of positive good character.
(3) There had been no direct harm caused to the public as a "dentist" or "in any other capacity".
(4) No direct effect on his ability as a dentist.
(5) No direct effect on his patients.
(6) "Very importantly" he is an able, likeable dentist who has "represented your profession in an extremely able and satisfactory way".
(7) That he was "able and likeable as far as his patients are concerned".
(8) That twelve months' suspension is going to mark the gravity of these matters and ensure that the high standard and reputation of the profession was maintained. That will be a sufficient indication to Mr Fleischmann that he was going to be punished and punished firmly and it would be for the public to know that in the circumstances of this offence this body will take appropriate firm action.
"Mr Fleischmann, the Committee has taken account of the conviction found proved against you, as well as the medical evidence, further explanations and the oral and written testimonials which have been produced on your behalf. It has listened very carefully to all the representations made by your counsel.
The Committee recognises that directions imposed under Rule 11 do not have any punitive purposes. That is the responsibility of a court of law. The purpose of our directions is to protect the public, maintain public confidence in the profession, and maintain proper standards of behaviour by dental practitioners. It is on this basis that the Committee has made its determination.
The Committee has considered each of the options available to it in turn. It has borne in mind the need for proportionality in its decision, and has balanced your interests against the need to protect the public, maintain public confidence in the dental profession, and to maintain high standards of behaviour by dental practitioners.
In this respect you should be in no doubt of the gravity of the offence of which you have been convicted, and the fact that your actions could not fail to cause grave concern to members of the public and seriously harm the reputation of the profession. This behaviour is unacceptable and cannot be tolerated.
We have listened carefully to the evidence which has been adduced regarding your state of mind and accept that you have suffered from a depressive illness. Nevertheless, we remain concerned that you should accept and face up to your personal responsibility and culpability in this matter.
Bearing in mind the purpose set out above, the Committee has determined that it will be sufficient in this case to suspend your registration for a period of 12 months.
The Committee has therefore directed the Registrar to suspend the registration in the Dentists Register of Alexander Emmanuel Mark Fleischmann for a period of 12 months.
The effect of the foregoing direction is that, unless you exercise your right of appeal, your registration will be suspended from the Dentists Register 28 days from this date, for a period of 12 months.
It is the view of this Committee that the gravity and nature of these offences, together with the public interest and the need to maintain public confidence in the profession, require no lesser sanction than suspension for the maximum period permitted under the Rules".
The statutory framework
The Dentists Act and the Rules
"Where the Professional Conduct Committee are satisfied that a registered dentist (whether before or after registration)—
(a) has been convicted in the United Kingdom of a criminal offence or has been convicted elsewhere of an offence which, if committed in England and Wales, would constitute a criminal offence, or
(b) has been guilty of serious professional misconduct
they may, if they think fit, determine that his name shall be erased from the register or that his registration in it shall be suspended for such period not exceeding twelve months as may be specified in their determination".
"(1) Where a person's name has been erased from the register in consequence of a determination under section 27 above, the name of that person shall not again be entered in the register except by direction of the Council; and the Council may, subject to subsections (2) and (4) below, direct that the name of that person shall be restored to the register.
(2) An application for the restoration of a name to the register shall not be made to the Council—
(a) within ten months from the date of erasure, or
(b) within ten months from a previous application.
(3) The Council shall refer any application under this section to the Professional Conduct Committee for determination by them.
(4) A person whose name has been erased from the register under section 27 above shall not be entitled to have his name restored to the register until he has satisfied the Professional Conduct Committee as to the matters specified in paragraphs (a) to (c) of section 15(3) above and as to his meeting the requirements specified in rules made under section 34B(1) below in relation to his case or circumstances".
"(3) A person shall not be entitled to be registered in the Dentists Register under paragraph (a) or (b) of subsection (1) above unless he satisfies the Registrar as to the following matters, namely –
(a) his identity;
(b) that he is of good character; and
(c) that he is in good health, both physically and mentally."
"(1) Where the Committee have found that a conviction has been proved the chairman shall invite the complainant or the solicitor, as the case may be, to address the Committee, and to adduce evidence as to the circumstances leading up to the conviction and as to the character and previous history of the respondent. The chairman shall then invite the respondent to address the Committee by way of mitigation and to adduce evidence as aforesaid….
(3) Except where (in a case relating to conduct) the respondent has been found not guilty on all charges the Committee shall next consider and determine whether it shall be sufficient to conclude the case. If the Committee determine not to conclude the case, they shall next consider and determine whether to postpone judgment.
(4) If the Committee determine to postpone judgment, the judgment of the Committee shall stand postponed until such future meeting of the Committee as they may determine.
(5) If the Committee determine not to postpone judgment, they shall consider and determine whether by reason of the convictions proved against the respondent … it shall be sufficient to direct the Registrar in accordance with section 27(1) of the Act to suspend the respondent's registration for a specified period not exceeding twelve months.
(6) If the Committee do not determine to direct suspension in accordance with the foregoing paragraph the Committee shall thereupon direct the Registrar to erase the name of the respondent from the Register".
The National Health Service Reform and Health Care Professions Act 2002 ("the 2002 Act")
"(a) to promote the interests of patients and other members of the public in relation to the performance of their functions by the bodies mentioned in subsection (3) (in this group of sections referred to as "regulatory bodies"), and by their committees and officers,
(b) to promote best practice in the performance of those functions,
(c) to formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to them, and
(d) to promote co-operation between regulatory bodies; and between them, or any of them, and other bodies performing corresponding functions".
"If the Council considers that—
(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or …
and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court".
"(a) dismiss the appeal,
(b) allow the appeal and quash the relevant decision,
(c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or
(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court,
and may make such order as to costs as it thinks fit".
"(1) Every appeal will be limited to a review of the decision of the lower court unless –
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive–
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was–
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court".
Appeals under section 29 of the 2002 Act
(1) The Council properly exercised its powers to refer the case to this court under section 29(4) of the 2002 Act.
(2) The appeal, ensuing from the reference, involves a review of the merits of the decision and is not confined to a consideration of any point of law.
(3) The powers of the Court are governed by both CPR 52.11 and section 29(7) of the 2002 Act.
(4) The correctness of the decision under appeal concerns the fitness of Mr Fleischmann to practise as a dentist and the penalty imposed in connection with the finding reached by the Committee in that regard.
(5) If the decision is unduly lenient, either as to the finding of fitness to practise or penalty or both, it is "wrong" and the appeal must be allowed and the decision quashed.
(6) The test of undue leniency involves considering whether, on the material facts, the decision reached has due regard to the safety of the public and the reputation of the profession. The test of "whether a penalty is unduly lenient in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of disciplinary proceedings, could reasonably have imposed" (paragraph 76 of the case of Ruscillo). The issue "is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public" (paragraph 77 of the case of Ruscillo).
(7) The nature or gravity of the offence and its likelihood to bring the profession into disrepute or to undermine public confidence in the profession is primarily one for the Committee, but a decision deriving from a conviction is more readily reviewable than a professional misconduct-based decision (see Dad v GDC  1 WLR 1538).
(8) Inadequacy of reasons should not lead to remission if the court may confidently reach its own decision on the merits.
Why should a period of twelve months' suspension secure the protection of the public and render him fit to practise?
Erasure and registration
The Protection of Children Act 1978
"… Parliament increas[ed] the maximum permissible sentence, to mark society's abhorrence of child sexual abuse and child pornography by the use of custody".
The guidance from the Court of Appeal in Oliver
"… that the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it".
Closer attention would have shown that, contrary to Mr Fisher's submission, it was open to the Committee to conclude that there was more than one aggravating feature. The judgment in Oliver was not just a guideline case on the sentence to be imposed, but a guide to assessing the gravity of the offending.
"… custody threshold will usually be passed … in cases of possession, where there is a large amount of material at Level 2, or a small amount at Level 3 or above".
A sentence of up to six months would generally be appropriate in such a case. Mr Fleischmann's offending was clearly outside and well beyond this category of offending, which category, notably, normally merited a sentence of imprisonment and commensurately represented what the courts and the public would regard as serious offending.
The submissions of the GDC
"It is on this basis that the Committee has made its determination".
Conclusions on the Committee's decision on the protection of the reputation of the profession and standards of conduct by practitioners
"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price".
Bolton v Law Society (1994) 1 WLR 512
The Committee referred to the need for proportionality, stating, it had "… balanced your [Mr Fleischmann's] interests against the need to protect the public …". I can only conclude that it must have been drawn by Mr Fisher's submissions to give Mr Fleischmann's interests equal weight or too much weight when carrying out the balance. For the reasons I have given, it is manifest that twelve months' suspension could not protect the reputation of the profession nor maintain standards of behaviour by practitioners.
The risk to the public to which his offending gave rise
"One must remember that registration [on the sex offenders' register] is not a punishment but a measure to secure public protection from those who have committed serious offences" (Baroness Blatch, Minister of State, Home Office Hansard March 10, 1997 column 547).
(1) the risk depended on the outcome of the treatment programme;
(2) even on the most favourable view that depression played a key part in the offending, there was no adequate evidence to guide the Committee to a conclusion in this regard.
There will be judgment accordingly.