England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENF 98/0648

IN THE COURT OF APPEAL (CIVIL DIVISION )

(MR JUSTICE PENRY-DAVEY )

Royal Courts of Justice

Strand

London W2A 2LL

Wednesday 10th June 1998

B e f o r e

LORD JUSTICE STUART-SMITH

LORD JUSTICE ALDOUS

LORD JUSTICE ROBERT WALKER

GENERAL MEDICAL COUNCIL Appellant

v.

BRITISH BROADCASTING CORPORATION Respondent

(Handed down transcript of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD Tel: 0171 421 4040

Official Shorthand Writers to the Court)

MR ROGER HENDERSON QC and MISS ROSALIND FOSTER (instructed by Messrs Field Fisher Waterhouse, London EC3N 2AA) appeared on behalf of the Appellant (Plaintiff).

MR MANUEL BARCA (instructed by The Legal Department, British Broadcasting Corporation) appeared on behalf of the Respondent (Defendant).

J U D G M E N T

(As approved by the court)

©Crown Copyright

This is the judgment of the court prepared by Robert Walker LJ on an appeal by the General Medical Council (the GMC) from an order of Penry-Davey J. dismissing the GMC’s application for an injunction against the British Broadcasting Corporation (the BBC) and also dismissing the GMC’s application for a declaration that its Professional Conduct Committee (the PCC) is a court within the meaning of the Contempt of Court Act 1981 (the 1981 Act). The Judge began to hear these applications on Friday 22 May and in view of their urgency he gave judgment on Saturday 23 May. Although he dismissed both applications he gave leave to appeal.

The GMC sought an injunction to postpone (not, it must be noted, to prohibit indefinitely) the transmission on BBC television’s current affairs programme, Panorama, of film expected to contain controversial interviews and comment. The film relates to disciplinary proceedings in which the PCC is hearing complaints against three doctors. One is the former chief executive of the United Bristol Healthcare NHS Trust (the UBHT) and the other two were surgeons working at the Bristol Royal Infirmary in the field of paediatric cardiac surgery. The complaints against the doctors are based on what are said to be exceptionally poor rates of mortality and morbidity (including brain damage) among babies and young children undergoing cardiac surgery at the Bristol Royal Infirmary.

In an affidavit in support of the GMC’s applications Mr Tom Rider, a partner in the solicitors acting for the GMC, has deposed in relation to the disciplinary inquiry that it

“has already been, by a very long way, the most lengthy, complex and taxing ever conducted by the PCC. It has also inflamed passions like no other inquiry. Tension has been running high outside and inside the inquiry”.

Mr Rider then referred to various incidents which appear to bear out his general comments.

Mr Rider also referred to the proposed Panorama transmission and deposed to his belief

“that the programme will focus at least on the allegation that the scope of the inquiry has been too narrowly drawn. It will, therefore, be critical of the inquiry and will go beyond a factual report of what has happened in the inquiry so far. It is reasonable to assume that it will deal with matters which have been deliberately excluded from the inquiry. This runs a real risk of prejudicing the integrity of the inquiry”.

The BBC has not sought to put in any affidavit evidence disputing this prediction as to the programme’s content. The BBC has in recent correspondence been chary of giving any definite indication of when the programme is scheduled for transmission, but in the course of the hearing in this court its counsel, Mr Manuel Barca, invited the court to assume that it would probably be transmitted on Monday 1 June.

It will be convenient, before any more detailed description of the course of the hearing before the PCC, to outline the statutory framework of primary and secondary legislation within which the GMC, and in particular its PCC, operate. The body now known as the General Medical Council was first established (under a longer name) by the Medical Act 1858. It is now established as a body corporate by s.1 of the Medical Act 1983 (the 1983 Act). S.1(3) of the 1983 Act provides for the establishment of various statutory committees including the Preliminary Proceedings Committee (the PPC) and the PCC. The PPC acts (under s.42 of the 1983 Act) as a screen or filter deciding what complaints should go forward to a full hearing before the PCC, and how charges should be framed; it also has powers of interim suspension from registration, and of interim directions for conditional registration.

The main disciplinary tribunal is the PCC, which has power (under s.36 of the 1983 Act) to erase the registration of a fully-registered medical practitioner, or to suspend a practitioner’s registration, or to make registration subject to conditions. These powers may be exercised only if the practitioner has been convicted in the British Isles of a criminal offence, or is judged by the PCC to have been guilty of serious professional misconduct. The three doctors concerned in this case are charged with serious professional misconduct.

A decision of the PCC under s.36 adverse to the practitioner may by s.40 be made the subject of an appeal to the Privy Council. This appeal is not limited to questions of law and is by s.40(6) to be the subject to the Judicial Committee Act 1833 as it applies in relation to any court from which an appeal lies to Her Majesty in Council. Schedule 1 to the 1983 Act provides for the constitution of the GMC and its statutory committees. Schedule 4 provides for the procedure to be followed by the committees, supplemented by the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 (the 1988 Rules) and the General Medical Council (Legal Assessors) Rules 1980. Mr Roger Henderson Q.C. (appearing with Miss Rosalind Foster for the GMC) took the court through these procedural requirements in some detail and made good his general submission that they mirror many of the procedural requirements of the High Court and other courts. The PCC (consisting of a president who is a doctor, four other doctors and two laypersons appointed by the Privy Council) have the assistance of a legally qualified assessor to advise them on questions of law. The PCC normally sits in public (Mr Henderson emphasised that exceptions to its sitting in public are in practice very rare). The parties are entitled to be heard and to be represented by solicitors and counsel. Evidence is given on oath. Witnesses can be summoned and documents called for. The PCC cannot award costs and is not under a duty to give reasons.

Mr Henderson called particular attention to Rules 27 and 28 of the 1988 Rules and explained how the procedure which they prescribe has been followed in this case. Rule 27(1) lays down in some detail the procedure to be followed down to the stage at which the PCC goes into private session in order to consider and determine (in the words of Rule 27(2)),

“(i) which, if any, of the remaining facts alleged in the charge and not admitted by the practitioner have been proved to their satisfaction, and

(ii) whether such facts as have been so found proved or admitted would be insufficient to support a finding of serious professional conduct, and shall record their findings”.

The procedure detailed in Rule 27(1) is comparable to that in a criminal trial in that it provides for the practitioner to be asked whether he admits any of the facts alleged in the charges; the case against the practitioner is opened and evidence is called in support of it; the practitioner may submit that there is no case to answer; subject to any submission the proceedings continue with the practitioner’s evidence, evidence in rebuttal (if permitted), and closing speeches.

In the present proceedings the procedure under Rule 27(1) has occupied 64 days, with 38 witnesses called by the GMC. The defence evidence has occupied 27 days. The closing speeches were concluded on Friday 22 May and on the same day the legal assessor advised the PCC on points of law which had arisen. The PCC then went into private session to deliberate as required by Rule 27(2). Unless all three doctors are at that stage acquitted on all charges, the procedure prescribed by Rule 28 will then have to be followed. Rule 28 provides as follows,

“(1) Where, in proceedings under Rule 27, the [PCC] have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the chairman shall invite the solicitor or the complainant, as the case may be, to address the [PCC] as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.

(2) The chairman shall then invite the practitioner to address the [PCC] by way of mitigation and to adduce evidence as aforesaid.”

After the completion of that stage the PCC may then record and announce a finding of serious professional misconduct (Rule 30) and in that event the PCC may either postpone or proceed at once to a determination (Rules 31 to 33). These rules refer expressly both to the protection of members of the public and to what is in the interests of the practitioner. Even without those express references, it would be clear that the protection of the public is of central importance to the functions of the PCC.

The legal representatives acting for the three doctors have indicated that all of them may wish to call further evidence if the matter proceeds to the Rule 28 stage. One at least of them would wish to call a witness or witnesses employed by the UBHT to give evidence about his future employment prospects with that body.

On 29 April 1998 Mr R.M.Law, a solicitor in the BBC’s Programme Legal Advice Department, faxed a letter to the GMC’s solicitors stating that he understood that the last of the three doctors was about to complete his evidence and that the BBC considered that it would be appropriate to finalise the Panorama programme and transmit it as soon as possible after the conclusion of his evidence. This letter referred back to earlier correspondence in November 1997. On the same day the GMC’s solicitors faxed a reply pointing out that further witnesses were to be called at the Rule 27(1) stage. The letter also gave a detailed account of the PCC’s procedure and explained that further oral evidence might be given at the Rule 28 stage. But the BBC (in letters faxed on 1 and 6 May 1998) took and maintained the position that the programme would be transmitted after the conclusion of the Rule 27(1) stage (which, as already mentioned, occurred on Friday 22 May). That led to the application to the Judge in chambers on the same day and his refusal of relief on Saturday 23 May. Meanwhile the PCC has diligently continued its deliberations in camera (including, the court was told, throughout the bank holiday weekend of 23-25 May). It was hoped that a conclusion might have been reached by Tuesday 26 May, or on the following day. But in the event the PCC’s deliberations were still continuing during the hearing in this court.

At the hearing before the Judge, and on the appeal to this court, there have been two main issues -

(1) Are the proceedings before the PCC legal proceedings before a court for the purposes of the law as to criminal contempt of court?

(2) If so, would transmission of the Panorama programme at the present time create “a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced” (see s.2(2) of the 1981 Act) so as to make injunctive relief appropriate?

The Judge held that the PCC was not a court within the meaning of the 1981 Act, and that in any event the evidence fell well short of establishing any substantial risk of serious prejudice to the course of justice.

In this court Mr Henderson raised a third issue, which (as he told us and we accept) was also raised before the Judge, although it does not seem to be dealt with in his judgment (of which this court has seen only an unapproved transcript). That issue is whether the High Court has an inherent jurisdiction, apart from its jurisdiction to prevent or punish contempt of court, to restrain activities which threaten to impede or prejudice the proper functioning of a tribunal, (a “non-curial tribunal”) which is not a court of law, but which performs functions of a judicial character and the proper functioning of which is a matter of public interest.

At the close of Mr Henderson’s submissions we indicated that the appeal would be dismissed for reasons to be given in writing, and we now set out our reasons, taking the three issues in the order mentioned above.

The first issue turns partly on the common law as to criminal contempt of court and partly on s.19 of the 1981 Act, which defines “court”, for the purposes of that Act, as including

“any tribunal or body exercising the judicial power of the state”.

Although that definition applies, at first sight, only for statutory purposes, it was recognised by Lord Donaldson MR in Pickering v Liverpool Daily Post [1991] 2 A.C. 370, 380 as having a wider significance and being

“intended to reflect the common law concept of what is a court for the purposes of the common law jurisdiction of the courts in relation to contempt of court”.

The expression “the judicial power of the state” is in fact a clear reflection of language used in the House of Lords in Attorney-General v BBC [1981] A.C. 303, in which their Lordships held that a local valuation court established for rating purposes was not a court in law (or a court of law) and so was not an inferior court for the purposes of RSC 0.52 r.1. Lord Scarman said at pp 359 - 60, after referring to the decision of the Privy Council in an appeal from Australia, Shell Co of Australia v Federal Commissioner of Taxation [1931] AC 275,

“Though the United Kingdom has no written constitution comparable with that of Australia, both are common law countries, and in both judicial power is an exercise of sovereign power. I would identify a court in (or “of”) law, i.e. a court of judicature, as a body established by law to exercise, either generally or subject to defined limits, the judicial power of the state. In this context judicial power is to be contrasted with legislative and executive (i.e. administrative) power. If the body under review is established for a purely legislative or administrative purpose, it is part of the legislative or administrative system of the state, even though it has to perform duties which are judicial in character. Though the ubiquitous presence of the state makes itself felt in all sorts of situations never envisaged when our law was in its formative stage, the judicial power of the state exercised through judges appointed by the state remains an independent, and recognisably separate, function of government. Unless a body exercising judicial functions can be demonstrated to be part of this judicial system, it is not, in my judgment, a court of law.”

Similarly Viscount Dilhorne referred at pp 339 - 40 to the distinction to be drawn

“between courts which discharge judicial functions and those which discharge administrative ones, between courts of law which form part of the judicial system of the country on the one hand and courts which are constituted to resolve problems which arise in the courts of administration of the government of this country”.

Lord Salmon said at page 342,

“There is today a plethora of such tribunals which may well resemble the old “inferior courts”. In my view, it does not by any means follow that the modern inferior courts need the umbrella of contempt of court nor that they come under it. Indeed, in my opinion, public policy requires the most of the principles relating to contempt of court which have for ages necessarily applied to the long-established inferior courts such as county courts, magistrates courts, courts-martial, coroners’ courts and consistory courts shall not apply to valuation courts and the host of other modern tribunals which may be regarded as inferior courts; otherwise the scope of contempt of court would be unnecessarily extended and accordingly freedom of speech and freedom of the press would be unnecessarily contracted”.

Lord Edmund-Davis referred at pp 351 - 2 to occasions on which Parliament had expressly brought tribunals within the ambit of the law of contempt (for instance the Tribunals of Inquiry (Evidence) Act 1921) and thought that further widening of its ambit should be left to Parliament. Lord Fraser (at page 353) considered that the ambit should be limited to inferior courts “which are truly courts of law, exercising the judicial power of the state”.

Several of their Lordships referred with approval to the judgment of Fry LJ in a well-known 19th - century authority on privilege in defamation cases, Royal Aquarium & Summer & Winter Garden Society v Parkinson [1892] 1 QB 431. That judgment is of some interest, not least because it refers expressly to the GMC (which at that time already had disciplinary powers over doctors, although it did not have procedural rules embodied in secondary legislation). Fry LJ said at page 447,

“It seems to me that the sense in which the word ‘judicial’ is used in that argument is this: it is used as meaning that the proceedings are such as ought to be conducted with the fairness and impartiality which characterise proceedings in courts of justice, and are proper to the functions of a judge, not that the members of the supposed body are members of a court. Consider to what lengths the doctrine would extend, if this immunity were applied to every body which is bound to decide judicially in the sense of deciding fairly and impartially. It would apply to assessment committees, boards of guardians, to the Inns of Court when considering the conduct of one of their members, to the General Medical Council when considering questions affecting the position of a medical man, and to all arbitrators. Is it necessary, on grounds of public policy, that the doctrine of immunity should be carried as far as this ? I say not.”

Lord Scarman quoted that passage in Attorney-General v BBC [1981] A.C. 303, 356 and said at pp 356 - 7,

“It is an argument based on public policy. Different considerations apply to contempt of court, of course. Nevertheless, the warning of Fry LJ is one to which I will return when considering the great number of tribunals (some of them described as courts) which Parliament has found necessary to establish in its attempt to secure public acceptability of the activities of modern central and local government.. But essentially the Court of Appeal in the Royal Aquarium case [1892] 1 QB 431 was approaching the categorisation of a body entrusted with a judicial function in the same way as it had done in the St.Mary Abbotts case [1891] 1 QB 378. It considered that the existence of a judicial function did not necessarily make the body to which it was entrusted “a court of law”; nor did it necessarily attract “the privileges” enjoyed by a court in law. In each case the judges stressed the importance of the purpose which the judicial function was intended to serve. If it be administrative, the body would not be a court of law.”

Mr Henderson emphasised the importance which Lord Scarman attached to purpose, and he also emphasised the distinction drawn by all their Lordships between judicial and administrative functions. He submitted, correctly, that the PCC of the GMC has to adjudicate in a formal and judicial manner on very serious issues which are of public importance and may also have the gravest effect on the reputation and career of an accused medical practitioner. Mr Henderson was correct in submitting that the PCC is exercising a sort of judicial power but in our judgment it is not the judicial power of the state which is being exercised. In Attorney-General v BBC the valuation court was part of the state’s machinery of government, but an administrative part, and that explains the emphasis which the House of Lords placed on the distinction between judicial and administrative functions or purposes. In this case, by contrast, the PCC is a statutory committee of a professional body specially incorporated by statute. It exercises a function which is recognisably a judicial function, and does so in the public interest. It acts in accordance with detailed procedural rules which have close similarities to those followed in courts of law. Nevertheless it is not part of the judicial system of the state. Instead it is exercising (albeit with statutory sanction) the self-regulatory power and duty of the medical profession to monitor and maintain standards of professional conduct. We note that the same view seems to have been taken by this court of the GMC’s predecessor in another 19th - century libel case, Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400, 408 - 10; but that case was not cited to us and as we have not heard submissions on it we attach no weight to it.

We can refer more briefly to the other more recent authorities cited to us. They all appear to be in line with our conclusion except for Gee v BBC (8 June 1984, unreported) in which Sir John Donaldson MR said that the GMC was “probably” within the definition in s.19 of the 1981 Act. But he expressly did not decide the point, and his brief judgment (which refers to “the lateness of the hour”) does not refer to any authorities as having been cited.

In Badry v D.P.P . [1983] 2 AC 297, 307, Lord Hailsham said that Attorney-General v BBC

“plainly established ... that, in the absence of statutory provision to the contrary, the law of contempt applies by definition only to courts of justice properly so called and to judges of such courts of justice”.

In Attorney-General v Associated Newspapers [1989] 1 W.L.R. 322 the Divisional Court held that a mental health tribunal established under the Mental Health Act 1983 was not a court for the purposes of the 1981 Act. That decision was overruled by this court in Pickering v Liverpool Daily Post [1991] 2 A.C. 370 and this court’s decision was upheld by the House of Lords. Lord Bridge (with whom the others of their Lordships agreed) based his conclusion (see at page 417) partly on a special context in s.12 of the Administration of Justice Act 1960 (which has no parallel in this case) and partly on the reasoning of Lord Donaldson that a mental health tribunal does exercise the judicial power of the state. That reasoning depended heavily (see at pp 380 - 1) on such a tribunal’s power to take decisions affecting the personal liberty of mental patients (for the human rights background see X v United Kingdom (1981) 4 E.H.R.R. 188).

In Leary v BBC (29 September 1989, unreported) Lord Donaldson MR said,

“I express no view about whether a police disciplinary tribunal is a court within that definition. There is an obvious distinction between such a tribunal and a mental health tribunal in that mental patients do not voluntarily submit to the jurisdiction of a mental health tribunal, whereas police officers do voluntarily submit to the jurisdiction of a police disciplinary tribunal in the sense that nobody is compelled to become a police officer, and it is a part of the incidents of police service”.

In Peach Grey & Co v Sommers [1995] 1 CLR 549 the Divisional Court held that an industrial tribunal satisfies the tests of exercising judicial functions as part of the judicial system. The Divisional Court expressed no view (see at page 557) on another issue which might have arisen, that is in the issue of contempt in relation to a solicitor’s disciplinary tribunal.

Mr Henderson also cited to us and relied on the decision of the House of Lords in Attorney-General v Times Newspapers [1974] A.C.273, the well-known case arising out of the thalidomide tragedy. That case led to a successful action against the United Kingdom in the European Court of Human Rights ( Sunday Times v UK (1979) 2 EHRR 245) and so, eventually, to the enactment of the 1981 Act. The law has therefore moved significantly in favour of press and broadcasting freedom since Attorney-General v Times Newspapers was decided a quarter of a century ago, and the House of Lords in Attorney-General v BBC showed a marked disinclination to extend the ambit of the law of contempt.

For these reasons - which are essentially those given by the Judge - we are against the appellant on the first issue. We also consider that the Judge was correct in his view on the second issue, that there would not in any case have been a substantial risk that the course of justice would be seriously impeded or prejudiced.

In his submissions on this part of the appeal Mr Henderson emphasised that the GMC was not trying to prevent fair and objective reporting of the proceedings during their currency. Nor was the GMC trying to prevent the transmission of a controversial or polemical programme once the proceedings in front of the PCC had been fully concluded. Mr Henderson’s application was for a temporary prohibition in order that the integrity of the proceedings should not be prejudiced.

In seeking this temporary prohibition Mr Henderson did not suggest that the members of the PCC, whether or not medically qualified, would actually be influenced by the programme in arriving at their determination. They would have been advised by their legal assessor not to watch the programme and they could be expected to follow that advice. In any case they have, in the course of this exceptionally long and difficult hearing, already been subjected to quite severe external stresses (including the demonstration with small children’s coffins referred to in Mr Rider’s affidavit) which it will be their duty to disregard, and which there is no reason to suppose they will not disregard.

Mr Henderson placed most emphasis on the prospect of the programme deterring, or influencing the evidence of, a witness or witnesses from the UBHT who may be called at the Rule 28 stage. The UBHT is, we were told, already facing several civil actions arising out of unsuccessful paediatric cardiac surgery performed at the Bristol Royal Infirmary, and it needs little imagination to suppose that the UBHT will deliberate anxiously about the future employment of any of these doctors, whatever the outcome of the hearings. Public perceptions of the matter will no doubt have some influence on the UBHT’s deliberations. But that is a very different matter from there being a substantial risk of serious prejudice to the proceedings before the PCC. In our judgment the Judge was right in his conclusion on the second issue.

On the third issue Mr Henderson submitted that it would be a serious blot on the law if there were no redress against even the most blatant interference with a non-curial tribunal which had serious functions of a judicial nature to perform, but was not a court for the purposes of the law of contempt. He submitted that the High Court did have jurisdiction to prevent interference with a non-curial tribunal, relying on what Lord Salmon said in Attorney-General v BBC [1981] A.C. 303, 344,

“For the reasons I have indicated, the host of modern inferior courts and tribunals do not, in my view, require and do not have any protection against comments which may be made by the press and the like in respect of matters which those courts or tribunals have to decide. On the other hand, it may be that if these courts or tribunals, whilst they were sitting, were prevented by obstruction from performing their duties, they could be protected by the Divisional Court. This point does not however arise in the present case, and I express no concluded view about it.”

However this court was not referred to any authority in which such a jurisdiction has ever been exercised, either at the suit of the Attorney-General or at the suit of a private litigant.

Lord Salmon did not expand on what he meant by obstruction, but it seems likely that he had in mind the sort of activity which would, in relation to a court of law, constitute contempt of the gravest and most obvious character, such as interference with witnesses (see the remarks of Rose LJ in Peach Grey & Co v Sommers [1995] 1 CR 548, 558; that is the only passage drawn to our attention in which Lord Salmon’s remarks have been considered). It may well be that grave and obvious interference with proceedings before a non-curial tribunal could and would be restrained at the suit of the Attorney-General, who has a special historic role, not wholly dependent on statute, as guardian of the public interest (see Attorney-General v Blake [1998] 1 All ER 833, 847 ff, and the earlier authorities there referred to). It seems much more doubtful whether a private litigant could obtain such relief.

However it is not necessary to consider this third issue, since the jurisdiction, if it exists, would become exercisable only in a clear case of grave interference, which this is not. Nor is it appropriate to add unnecessary comment on a difficult point on which we heard only brief submissions from Mr Henderson, and none from Mr Barca, as we did not call on him to make any oral submissions.

LORD JUSTICE STUART-SMITH: This appeal has already been dismissed. The

judgment of the court now gives the reasons why it was dismissed. I think we have dealt with the question of costs.

MR BARCA: My Lord, we have. There are no outstanding matters.

LORD JUSTICE STUART-SMITH: Thank you very much.