European Court of Human Rights



 

                      AS TO THE ADMISSIBILITY OF

 

                      Application No. 31503/96

                      by Kenneth Conrad WICKRAMSINGHE

                      against the United Kingdom

 

     The European Commission of Human Rights (First Chamber) sitting

in private on 9 December 1997, the following members being present:

 

           Mrs   J. LIDDY, President

           MM    M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

 

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

 

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

 

     Having regard to the application introduced on 22 December 1995

by Kenneth Conrad WICKRAMSINGHE against the United Kingdom and

registered on 16 May 1996 under file No. 31503/96;

 

     Having regard to:

 

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

 

-    the observations submitted by the respondent Government on

     4 May 1997 and the observations in reply submitted by the

     applicant on 30 June 1997;

 

     Having deliberated;

 

     Decides as follows:

 

THE FACTS

 

     The applicant is a citizen of Sri Lanka, permanently resident in

the United Kingdom.  Before the Commission he is represented by

Messrs. Pillai & Jones, solicitors, of London.  The facts of the

application, as submitted by the parties, may be summarised as follows.

 

     The applicant is a medical doctor.  A complaint against him was

brought by the General Medical Council ("the GMC").  It was alleged

that:

 

     On 18 June 1992 the applicant behaved indecently towards a

     patient, whilst purporting to offer her medical advice and

     treatment;

 

     On two further occasions, in December 1992 and November 1993, the

     applicant behaved indecently towards female patients.

 

     The applicant was interviewed with regard to the November 1993

incident prior to the end of that month (in the event no evidence was

submitted before the Conduct Committee in relation to this charge).

With regard to the June 1992 incident, the applicant was interviewed

on 7 January 1994.  On 26 January 1994 the applicant was interviewed

in respect of the December 1992 incident.

 

     On 8 December 1994 the Professional Conduct Committee of the GMC

("the Conduct Committee") held that the facts alleged against the

applicant in connection with the incident on 18 June 1992 had been

proved to the Committee's satisfaction.   The Conduct Committee ordered

the erasure of the applicant's name from the register.

 

     The Conduct Committee found the facts relating to the alleged

incident in December 1992 not proven, and no evidence was submitted as

to the allegations relating to November 1993.

 

     The applicant appealed to the Privy Council.  His appeal was

heard on 26 June 1995.  The applicant alleged:

 

(1)  that he did not receive a fair hearing because of a delay of

     18 months in notifying him of the complaint against him;

 

(2)  that he did not receive a fair hearing as he was denied access

     to the medical records related to the alleged incident;

 

(3)  that he did not receive a fair hearing due to various failures

     by his legal representatives;

 

(4)  that the penalty imposed was excessive.

 

     The Privy Council dismissed the applicant's appeal on 25 July

1995.  It noted that the case concerned a health care assistant

employed at a hospital which the applicant visited one day a week: in

examining her for pain in her neck, he touched parts of her body in

ways which, it was accepted by the applicant, would have been seriously

improper if true.  It further noted that the Committee had accepted the

evidence of the health care assistant and rejected that of the

applicant.

 

 

     The bulk of the Privy Council's decision, which runs to six

pages, deals with the applicant's complaints concerning the fairness

of the proceedings.  The Privy Council noted first that the delay

between the incident and the date on which the applicant was accused

was regrettable, but had to be considered in the light of what actually

happened in the course of the investigations by the Committee, and was

coupled with the complaints about his representatives, who had

allegedly not requested sufficient information at an appropriate

moment.

 

Relevant domestic law and practice

 

     The jurisdiction of the Conduct Committee to hear allegations of

serious professional misconduct is founded upon Section 36 of the

Medical Act 1983:

 

     "(1) Where a fully registered person - ...

 

     (b)   is judged by the Professional Conduct Committee to

           have been guilty of serious professional misconduct,

           whether while so registered or not;

 

     the Committee may, if they think fit, direct -

 

     (i) that his name shall be erased from the register ..."

 

     The Conduct Committee is elected annually by the GMC and

consisted in December 1994 of 34 members comprising: the President of

the GMC (or some other member of the GMC appointed by him); a member

of the GMC appointed by the President; 22 elected members, two

appointed members and eight lay members (who are nominated for

appointment to the GMC by Her Majesty on advice of her Privy Council

and who do not hold a qualification registrable under the Medical Act

1983).  Members of the Conduct Committee normally serve for a term of

one year.  The quorum for the Conduct Committee is five, although eight

members of the Conduct Committee are invited for any one hearing,

comprising six medical members and two lay members. No member may sit

on a case if that person has previously considered the same case,

either as a member of another committee or in preliminary stages of the

proceedings before the Conduct Committee.  The Conduct Committee is

advised on questions of law by a legal assessor, who must be a

barrister or solicitor of not less than ten years' standing.  An oral

hearing is held in public during which the practitioner may be legally

represented.  At the hearing, the rules of evidence in criminal cases

are applied, and evidence is given on oath.  The practitioner may cross

examine witnesses and call his own witnesses at the hearing.  The

Committee does not give reasons for its decision.

 

     An appeal against the decision of the Conduct Committee to the

Privy Council lies of right by Section 40 of the Medical Act 1983.  The

Privy Council may on any such appeal recommend in its report to Her

Majesty in Council: (1) that the appeal be dismissed; (2) that the

appeal be allowed and the direction or variation questioned by the

appeal quashed; (3) that such other direction or variation as the

Conduct Committee could have given or made be substituted; or (4) that

the case be remitted to the Conduct Committee to dispose of the case

in accordance with the directions of the Privy Council.

 

     In Libman v. GMC ([1972] AC 217) Lord Hailsham of St. Marylebone,

the Lord Chancellor, reviewed the authorities and summarised them as

follows:

 

     "(1)  The appeal lies of right by the statute and the terms of

     the statute do not limit or qualify the appeal in any way, so

     that the appellant is entitled to claim that it is in a general

     sense nothing less than a rehearing of his case and a review of

     the decision: ...

 

     (2)   Notwithstanding the generality of the above language, the

     actual exercise of the jurisdiction is severely limited by the

     circumstances in which it can be invoked. The appeal is not by

     way of rehearing in the sense that the witnesses are heard afresh

     or the evidence gone over again .... .  This amongst other

     things, means that there is a heavy burden upon an appellant who

     wishes to displace a verdict on the grounds that the evidence

     alone makes the decision unsatisfactory.

 

     (3)   Beyond a bare statement of its findings of fact, the

     [Conduct Committee] does not in general give reasons for its

     decision as in the case of a trial in the High Court by judge

     alone from which an appeal by way of rehearing lies to the Court

     of Appeal ... .  It follows from this that the only circumstances

     in which an appellate court can reverse a view of facts taken by

     the [Conduct Committee] would be a case, where, on examination,

     it would appear that the committee had misread the evidence to

     such an extent that they were not entitled to make a finding in

     the state of the evidence presented before them.

 

     (4)   The legal assessor who assists the committee at its hearing

     is not a judge, and his advice to the committee is not a summing

     up, and no analogy with a criminal appeal against a conviction

     before a judge and jury can properly be drawn.  The legal

     assessor simply advises the committee in camera on points of law

     and reports his advice in open court after he has given it.  The

     committee under its president are masters both of law and of the

     facts and what might amount to misdirection in law by a judge to

     a jury at a criminal trial does not necessarily invalidate the

     decision ..."

 

     For the purposes of English administrative law, an appeal to a

court on a "point of law" or a "question of law" includes a review as

to whether a decision or inference based on a finding of fact is

perverse or irrational.  The court will also grant a remedy if the

impugned decision was such that there was no evidence to support a

particular finding of fact, or the decision was made by reference to

irrelevant factors or without regard to relevant factors; or made for

an improper purpose, in a procedurally unfair manner or in a manner

which breached any governing legislation or statutory instrument.  The

court of review cannot substitute its own decision on the merits of the

case for that of the decision-making authority.

 

COMPLAINTS

 

     The applicant complains that the procedure laid down by the

Medical Act 1983 for the hearings of complaints of serious professional

misconduct, as applied in his case, did not constitute a fair trial

by an independent and impartial tribunal as required by  Article 6

para. 1 of the Convention.

 

     The applicant claims that the seriousness of the charges against

him, the seriousness of the consequences for his reputation, livelihood

and finances are such that he should be treated as having faced a

criminal charge.  He alleges a series of violations of his procedural

rights, including that he was denied a fair hearing because of the

delay in informing him of the allegations against him.

 

     The applicant invokes Article 6 paras. 1, 2 and 3 (a), (b) and

(d).

 

PROCEEDINGS BEFORE THE COMMISSION

 

     The application was introduced on 22 December 1995 and registered

on 16 May 1996.

 

     On 17 January 1997 the Commission decided to communicate the

application to the respondent Government.

 

     The Government's written observations were submitted on 4 May

1997, after an extension of the time-limit fixed for that purpose.  The

applicant replied on 30 June 1997.

 

     On 28 May 1997 the Commission granted the applicant legal aid.

 

THE LAW

 

1.   Article 6 para. 1 (Art. 6-1) of the Convention provides, in so

far as relevant, as follows:

 

     "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..."

 

     The applicant claims that the disciplinary proceedings determined

charges which were so serious (and could have been brought before the

criminal courts), and which had such serious consequences for his

reputation, livelihood and finances, that they should be treated as

criminal charges for the purposes of Article 6 para. 1 (Art. 6-1) of

the Convention.  He underlines that in Le Compte (Eur. Court HR, Le

Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981,

Series A no. 43) the Court left open the question of whether the

professional disciplinary proceedings in that case determined criminal

charges, as in any event the same guarantees applied to both civil and

criminal matters.

 

     The applicant alleges violations of  6 para. 3 (Art. 6-3) of the

Convention.  Article 6 para. 3 (Art. 6-3) of the Convention applies to

criminal cases but not to civil cases.  The Commission therefore

considers that it should first ascertain whether in fact a criminal

charge was determined by the proceedings against the applicant.

 

     The Commission recalls that in order to determine whether an

offence qualifies as "criminal", "it is first necessary to ascertain

whether or not the provision defining the offence belongs, in the legal

system of the respondent State, to criminal law; next the 'very nature

of the offence' and the degree of severity of the penalty risked must

be considered" (see, as a recent example with further references, Eur.

Court HR, Schmautzer v. Austria judgment of 23 October 1995, Series A

no. 328, p. 13, para. 27).

 

     As to the first of these criteria, the classification of the

offence in domestic law, the Commission notes that the applicant was

accused of professional misconduct.  Findings of professional

misconduct are made, in England and Wales as in many other Convention

States, by the peers of the professional concerned, at least in the

first instance.  The "offence" is thus classified as disciplinary

within the domestic system.

 

     As to the nature of the offence, the Commission observes that

professional disciplinary matters are essentially matters which concern

the relationship between the individual and the professional

association to which he or she belongs, and whose rules he or she has

agreed to accept.  They do not involve the State setting up a rule of

general applicability by which it expresses disapproval of, and imposes

sanctions for, particular behaviour, as is generally the case with

"criminal" charges.  The Commission recalls that in the case of

Campbell and Fell (Eur. Court HR, Campbell and Fell v. the United

Kingdom judgment of 28 June 1984, Series A no. 80, p. 36, para. 71) the

Court accepted that the possibility of proceedings being brought before

the prison disciplinary authorities and the criminal courts could give

the proceedings a "certain colouring which [did] not entirely coincide

with that of a purely disciplinary matter".  It is true, as the

applicant points out, that the facts underlying the proceedings against

the applicant, namely  allegations of sexual indecency, could also have

been the subject of criminal charges before the criminal jurisdictions.

However, it is frequently the case that the factual allegations in

professional disciplinary proceedings could also be pursued in ordinary

criminal proceedings: in the present context, the possibility of

parallel criminal proceedings does not make the nature of the offence

inherently criminal.

 

     Finally, the Commission must have regard to the degree of

severity of the penalty risked.  In this connection, the Commission

notes that the most severe sentence that the applicant risked was that

which was in fact imposed: erasure of his name from the register.

Alternative sanctions would have been directing registration to

continue subject to conditions, or suspension for a period of up to

12 months.  Each of these sanctions is essentially disciplinary and

directed to protecting the public and the reputation of the medical

profession.  The fact that erasure is likely to have far-reaching

consequences for the individual concerned does not render the penalty

"criminal".

 

     It follows that the proceedings against the applicant did not

determine a "criminal charge".

 

      The applicant also alleges violation of the civil "limb" of

Article 6 para. 1 (Art. 6-1) of the Convention.  He contends that the

proceedings against him determined his civil rights, and that they did

not comply with the requirements of Article 6 para. 1 (Art. 6-1)

because the proceedings before the Conduct Committee were not before

a court with the requisite guarantees of independence, and because the

Privy Council, although independent, does not have an adequate scope

of review.

 

     The Government submit that the Conduct Committee constituted an

independent and impartial tribunal and that the hearing before it was

conducted with all due expedition and with proper regard to the need

for the applicant to have time to prepare his defence.  The Government

also note that the applicant was provided with a full transcript of the

hearing before the Conduct Committee prior to his appeal.

 

     The Government further submit that the applicant enjoyed a right

of appeal to the Judicial Committee of the Privy Council which was

unrestricted by statute as to its scope of review and had the power to

quash or vary the direction of the Conduct Committee or remit the case

for reconsideration by the Committee.  The Government contend that,

having regard to the proceedings as a whole, the applicant received a

hearing that was in conformity with  6 para. 1 (Art. 6-1) of the

Convention.

 

     The applicant contends that the hearing before the Conduct

Committee was not a hearing before an independent and impartial

tribunal.  In particular, he notes that the members of the Conduct

Committee were all members of the GMC - the majority directly elected

members - and that the GMC was also charged with the investigation and

"prosecution" of the applicant.  He adds that the role of the legal

assessor is purely advisory.  The applicant claims that the GMC not

only provides all members of the tribunal, but is also charged with

functions central to the doctor's professional future and reputation

and to the conduct and progress of the proceedings before the Conduct

Committee.  He points out expressly that the GMC maintains the register

of medical practitioners, that it is responsible for the receipt of

complaints and their investigation and initial assessment, and that in

the proceedings before the Conduct Committee, the GMC's barrister acted

just as a prosecutor would in a criminal trial, namely to present the

"prosecution" evidence to the tribunal.

 

     In particular the applicant submits that the present case should

be distinguished from the case of Bryan (Eur. Court HR, Bryan v. the

United Kingdom judgment of 22 November 1995, Series A no. 335-A), a

case concerning the refusal of planning permission after a review by

a government planning inspector whose decision was then reviewed by the

High Court.  In the case of Bryan, the Court, although agreeing with

the applicant that the determination by the inspector did not satisfy

the requirements of Article 6 para. 1 (Art. 6-1) of the Convention,

found that there was no violation of Article 6 para. 1 (Art. 6-1) due

to the sufficiency of the scope of review by the High Court.  The

applicant contends that the present case should be distinguished from

Bryan as, unlike Bryan, there was no carefully reasoned decision by the

Conduct Committee which could be considered on appeal, and the issue

of the professional conduct of the applicant did not involve a

"specialised area of law".  Rather, the substance of the hearing turned

on a simple conflict of factual evidence relating to the behaviour of

the applicant on a certain occasion.

 

     The applicant further considers that the review carried out by

the Privy Council did not remedy the defects of the hearing before the

Conduct Committee such as to justify a finding that the proceedings as

a whole were in conformity with Article 6 para. 1 (Art. 6-1).

 

     The Commission notes that the proceedings against the applicant

were conclusive for his ability to continue practising as a doctor, and

the contested nature of the proceedings leaves no doubt as to the

existence of a "contestation" as to whether the applicant had or had

not behaved in an unprofessional manner.  The Commission considers that

the proceedings determined the applicant's "civil rights and

obligations" (see Eur. Court HR, Le Compte, Van Leuven and De Meyere

v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 20-22,

paras. 44-50).

 

     The Commission will first consider the question of the

independence and impartiality of the Conduct Committee.

 

     The Commission recalls that in order to establish whether a body

can be considered "independent", regard must be had, inter alia, to the

manner of appointment of its members and to their term of office, to

the existence of guarantees against outside pressures and to the

question whether the body presents an appearance of independence (see

above mentioned Bryan judgment at p. 15 para. 37 referring to Eur.

Court HR, Langborger v. Sweden judgment of 22 June 1989, Series A

no. 155, p. 16, para. 32).  There is no indication in the case-law of

the European Court of Human Rights that the mere fact that disciplinary

proceedings against professional persons are determined by members of

the profession amounts to a lack of "independence", even when the

professional body concerned regulates a number of functions of the

profession (as was the case in Eur. Court HR, H. v. Belgium judgment

of 30 November 1987, Series A no. 127-B, p. 35, paras. 50, 51).

 

     It is true that problems of impartiality may arise if the members

of the determining body have personally been involved in prosecuting

the disciplinary proceedings at an earlier stage (see Gautrin and

others v. France,  Nos. 21257/93 to 21260/93, Comm. Report 26.11.96,

pending before the European Court of Human Rights, where the Commission

found a violation of Article 6 (Art. 6), and Eur. Court HR, Diennet v.

France judgment of 26 September 1995, Series A no. 325-A, pp. 16-17,

paras. 36-39 where, on the facts of the case, the Court found no

violation of Article 6 (Art. 6)), but those problems do not necessarily

impinge on the independence of the determining body.  There has been

no allegation of personal bias or lack of impartiality on the part of

the members of the Conduct Committee in the present case.

 

     As to the proceedings before the Conduct Committee in the present

case, the Commission notes the presence of a number of procedural

guarantees of a type frequently met before tribunals: no individual

members of the GMC who had previously been involved with the case could

sit on the Conduct Committee; legal representation was available;

extensive disclosure of the documents took place: the applicant could

call his own witnesses and cross-examine GMC witnesses; and evidence

would only be admitted if it would be admissible in a criminal case.

 

     There remain, however, areas in which the independence of the

Conduct Committee may be seen to be open to doubt.  In particular,

there is no indication that any attempt is made to ensure that the

members of the Conduct Committee determine cases independently of the

GMC's general policies, and members of the Conduct Committee generally

serve for the limited term of one year.  Moreover, the President of the

GMC plays an extensive, though not necessarily direct and personal,

role in the investigation of complaints at the earlier stages of

proceedings.  Further, the sole legal advisor in the case - the legal

assessor - is given no role whatever in the deliberations of the

Committee.  Given these factors, the Commission does not consider that

the guarantees of independence which do exist - principally the

limitation on individual members sitting where they have had personal

previous contact with the case - suffice to ensure the required

appearance of independence.

 

     However, "even where an adjudicatory body determining disputes

over 'civil rights and obligations' does not comply with Article 6

para. 1 (Art. 6-1) in some respect, no violation of the Convention can

be found if the proceedings before that body are 'subject to subsequent

control by a judicial body that has full jurisdiction and does provide

the guarantees of Article 6 para. 1 (Art. 6-1)'" (Eur. Court HR, Bryan

v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A,

p. 16, para. 40).

 

     The Commission must therefore examine whether the Privy Council

had adequate jurisdiction in the present case.  The Commission first

notes that although the jurisdiction of the Privy Council is not

limited by statute in any way, it is clear from the case of Libman

v. GMC ([1972] AC 217) that in practice the jurisdiction is limited as

if the appeal were on a point of law.

 

     In the case of Bryan, the Court gave examples of the types of

matters which were relevant to assessing the adequacy of the review on

a point of law in that case: "the subject-matter of the decision

appealed against, the manner in which that decision was arrived at, and

the content of the dispute, including the desired and actual grounds

of appeal" (above-mentioned Bryan judgment, p. 17, para. 45).

 

     As to the subject matter of the decision appealed against, the

Commission again notes that the determining of professional misconduct

by the peers of the professional concerned does not, on its own, give

rise to doubts as to the independence of the professional body

concerned.  It is, indeed, of the nature of a self-regulating

profession that questions concerning the internal discipline of the

profession should be determined, in the first instance, by the

profession itself, even where the Convention requires subsequent

judicial control because the disciplinary proceedings also determine

civil rights.

 

     In connection with the manner in which the decision in question

was arrived at, the Commission observes, as it noted above, that a

number of procedural guarantees were available to the applicant in the

proceedings before the Conduct Committee, such as the safeguards

against personal bias, the availability of legal representation, the

public nature of the hearings, the timetable to ensure adequate notice

of the inquiry, and the way in which evidence is taken (on oath, and

generally only if it would be admissible in criminal cases).  Moreover,

the legal assessor must be a barrister or solicitor of at least ten

years' standing.

 

     It is true that the Conduct Committee did not give reasons for

its decision, and that the Privy Council in the case of Libman v. GMC

considered that there was a difference between the advice given to the

Conduct Committee by its legal assessor and the summing up in a

criminal trial.  However, the applicant was furnished with a full

transcript of the three day hearing before the Conduct Committee, and

it must have been apparent that, as the Privy Council later held, the

Committee had accepted the evidence of the health care assistant and

rejected that of the applicant.

 

     With regard to the content of the dispute, the Commission notes

that in his case to the Privy Council, the applicant summarised the

issues as being:

 

(1)  that he did not receive a fair hearing because of the delay of

     18 months in notifying him of the complaint against him;

 

(2)  that he did not receive a fair hearing as he was denied access

     to the medical records related to the alleged incident;

 

(3)  that he did not receive a fair hearing due to the various

     failures by his legal representatives;

 

(4)  that the penalty imposed was excessive.

 

     The Privy Council, in the words of the European Court of Human

Rights, "considered these submissions on their merits, point by point,

without ever having to decline jurisdiction in replying to them or in

ascertaining various facts" (Eur. Court HR, Zumtobel v. Austria

judgment of 21 September 1993, Series A no. 268-A, p. 14, para. 32).

It was thus able to, and did, deal with each of the applicant's

complaints.

 

     The Commission considers that, given the procedural guarantees

before the Conduct Committee and the complaints the applicant was

making, the scope of review of the Privy Council was sufficient to

comply with Article 6 para. 1 (Art. 6-1) of the Convention.

 

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

 

 

3.   The applicant further contends that the proceedings were not fair

because he was not informed promptly of the allegations made against

him, and that by the time the matter had come before the Conduct

Committee, it was no longer possible to recall his movements during the

day in question, and the person(s) he had been with on the particular

occasion.

 

     The Commission observes that these complaints, which relate to

the proceedings before the Conduct Committee, were examined and

rejected by the Privy Council under a procedure which in this instance

was in conformity with Article 6 para. 1 (Art. 6-1) (see the above-

mentioned Zumtobel judgment, p. 14, para. 35, with further references).

 

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

 

     For these reasons, the Commission, by a majority,

 

 

     DECLARES THE APPLICATION INADMISSIBLE.

 

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber