England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(COLLINS J & LEVESON J)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 October 2004

Lord Phillips, MR :

This is the judgment of the court.

Introduction

1. These two appeals, which have been heard together, raise issues in relation to a novel jurisdiction of the High Court. That jurisdiction is conferred by section 29 of the National Health Service Reform and Health Care Professions Act 2002 ("the Act").
2. Section 29 falls within Part 2 of the Act. Part 2 is concerned with the regulation of health care professionals. Each group of health care professionals operates under its individual statutory regime. Each has its own self-regulatory body. Part 2 of the Act has created a new council to supervise the manner in which self-regulation operates in the field of health care. It is called the Council for the Regulation of Health Care Professionals ("the Council"). Section 29 gives the Council the right, in prescribed circumstances, to appeal to the High Court against the decision, in disciplinary proceedings, of a self-regulatory body.
3. The Ruscillo appeal arises out of disciplinary proceedings brought against Dr Ruscillo, a general practitioner, by the General Medical Council ("GMC"). The charge against him was of serious professional misconduct. The Professional Conduct Committee ("PCC") of the GMC acquitted him of that charge. The Council has appealed to the High Court against that decision. Dr Ruscillo contends that section 29 of the Act gives no right to the Council to appeal against an acquittal. He contends that the right of appeal only arises in relation to a decision as to the appropriate sanction, if any, after conviction. Leveson J, the judge seised of the appeal, dealt with the question of the ambit of section 29 as a preliminary issue going to his jurisdiction. On 29 March 2004 he ruled that section 29 gives the Council the right to appeal against an acquittal. Dr Ruscillo appeals against that decision. The GMC took a neutral stance before the judge but now supports Leveson J's decision.
4. Mr Truscott is a nurse. Disciplinary proceedings were brought against him by the Nursing and Midwifery Council ("the NMC"). He admitted that he had committed professional misconduct. The NMC decided that the appropriate sanction was a caution. The Council considered that this sanction was unduly lenient and appealed to Collins J against the NMC's decision. Collins J dismissed that appeal on 31 March 2004. The Council appeals against his decision, with permission given by Laws LJ. Both Mr Truscott and the NMC support Collins J's decision.

Part 2 of the Act

5. Before turning in more detail to the facts of each appeal it will be helpful to draw attention to the relevant features of part 2 of the Act.
6. The origin of the Council can be traced to the report of Professor Ian Kennedy following a public inquiry into heart surgery carried out on children at the Bristol Royal Infirmary. Professor Kennedy referred to a public perception that a system of regulation of health care professionals which involves the determination of disciplinary allegations by a panel or committee largely comprising members of the profession in question was not necessarily in the best interests of patients. He recommended an overreaching body for the regulation of health care professionals. The Secretary of State announced that he would act on this recommendation. The result, after consultation, was Part 2 of the Act.
7. Section 25 of the Act created the Council, which commenced its duties on 1 April 2003. It provides:

"(1) There shall be a body corporate known as the Council for the Regulation of Health Care Professionals

(2) The general functions of the Council are-

(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), and 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."

8. A series of specific powers are conferred upon the Council by the sections which follow, for example:

(i) Section 26(2) empowers the Council to investigate and report on the performance of the regulatory bodies and to recommend changes as to the manner in which the body concerned carries out its various functions.

(ii) Section 27 empowers the Council to give directions requiring a regulatory body to make rules governing the manner in which it carries out its functions (subject to the approval of the Privy Council).

(iii) Section 28 empowers the Secretary of State to make regulations concerning the manner in which the Council may respond to a complaint made to it concerning the manner in which a regulatory body has exercised any of its functions. Specifically, those regulations may provide for the Council to make a recommendation or a report arising from the complaint. No such regulations have yet been made.

9. Section 29 of the Act, insofar as material, provides as follows:

"29   Reference of disciplinary cases by Council to court

(1) This section applies to-

(a) a direction of the Statutory Committee of the Royal Pharmaceutical Society of Great Britain under section 8 of the Pharmacy Act 1954 (c. 61) (control of registrations by Statutory Committee) or section 80 of the Medicines Act 1968 (c. 67) (power to disqualify and direct removal from register),

(b) a direction of the Statutory Committee of the Pharmaceutical Society of Northern Ireland under Article 20 of the Pharmacy (Northern Ireland) Order 1976 (S.I. 1976/1213 (N.I. 22)) (control of registrations by Statutory Committee) or section 80 of the Medicines Act 1968,

(c) a direction by the Professional Conduct Committee of the General Medical Council under section 36 of the Medical Act 1983 (c. 54) (professional misconduct and related offences),

(d) a direction by the Committee on Professional Performance of the General Medical Council under section 36A of that Act (professional performance),

[(c) a direction by a fitness to Practise panel of the General Medical Council under section 35D of the Medical Act 1983 (c54) that the fitness to practise of a Medical Practitioner was impaired otherwise than by reason of his physical or mental health,]

(e) a determination by the Professional Conduct Committee of the General Dental Council under section 27 of the Dentists Act 1984 (c. 24) (erasure or suspension of registration for crime or misconduct),

(f) a disciplinary order made by the Disciplinary Committee of the General Optical Council under section 17 of the Opticians Act 1989 (c. 44) (powers of Disciplinary Committee),

(g) any step taken by the Professional Conduct Committee of the General Osteopathic Council under section 22 of the Osteopaths Act 1993 (c. 21) (which relates to action to be taken in cases of allegations referred to the Professional Conduct Committee),

(h) any step taken by the Professional Conduct Committee of the General Chiropractic Council under section 22 of the Chiropractors Act 1994 (c. 17) (which relates to corresponding matters),

(i) any corresponding measure taken in relation to a nurse, midwife or health visitor,

(j) any corresponding measure taken in relation to a member of a profession regulated by the Professions Supplementary to Medicine Act 1960 (c. 66) or, after the repeal of that Act by virtue of section 60(3) of the 1999 Act, by any such Order in Council under section 60 of the 1999 Act as is mentioned in section 25(3)(i).

(2) This section also applies to-


 (a) a final decision of the relevant committee not to take any disciplinary measure under the provision referred to in whichever of paragraphs (a) to (h) of subsection (1) applies,

(b) any corresponding decision taken in relation to a nurse, midwife or health visitor, or to any such person as is mentioned in subsection (1)(j) and

(c) a decision of the relevant regulatory body, or one of its committees or officers, to restore a person to the register following his removal from it in accordance with any of the measures referred to in paragraphs (a) to (j) of subsection (1).

(3) The things to which this section applies are referred to below as "relevant decisions".

 (4) 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

(b) a relevant decision falling within subsection (2) should not have been made,

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.

…

(7) If the Council does so refer a case-


 (a) the case is to be treated by the court to which it has been referred as an appeal by the Council against the relevant decision (even though the Council was not a party to the proceedings resulting in the relevant decision), and

(b) the body which made the relevant decision is to be a respondent.    

(8) The court may-

(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.

Facts and issues

10. We shall now set out the facts and refer to the judgment in each case in order to identify the issues of principle that are raised. We shall defer to the final part of our judgment the detailed consideration of the facts of the Truscott appeal which is necessary in order to deal with the challenge made by the Council to the merits of that decision.

The Ruscillo appeal: facts

11. We shall set out the facts, as found by Leveson J. They are not in dispute.
12. Dr Giuseppe Antonio Ruscillo appeared before the PCC charged with serious professional misconduct. The particulars of the charge were as follows:

"That, being registered under the Medical Act.

1. At the material times you were working as a General Practitioner at the King Street and University Medical Service in Lancaster;

2. Between February and April 2002 you were involved in

(a) an emotional relationship,

(b) a sexual relationship,

with a patient of the practice who you had treated, namely Mrs A;

3. Mrs A had a history of significant psychiatric problems and was therefore particularly vulnerable and you were aware of that history;

4. Your actions as described above were:

(a) inappropriate

(b) an abuse of the doctor-patient relationship

(c) not in the best interests of your patient

(d) likely to bring the medical profession into disrepute;

5. At a meeting with your partners, Dr Robin Burr and Dr David Coltman on 29 April 2002 and 1 May 2002 you admitted the relationship as particularised in paragraphs 1 and 2 above;

and that in relation to the facts alleged you have been guilty of serious professional misconduct."

13. At the hearing, the GMC, represented by Counsel, applied to amend the charge by altering the details of the meetings in paragraph 5 but, more significantly, by changing paragraph 3 so that it read only that "Mrs A had a history of psychiatric problems"; thus, the allegation omitted the references to the doctor's knowledge of the history and to the fact that the problems were significant and caused particular vulnerability. Counsel for Dr Ruscillo did not object to this course and he then admitted paragraphs 1,2,3 and 5. In order that the PCC could determine what was called "charge 4", the case was opened in very brief form. The only facts advanced additional to those admitted were that both the doctor and Mrs A were married; that the doctor had been treating the patient since November 2001; that the relationship was ended by him when he told his wife and partners; and that the partners then suspended the doctor and made a statutory declaration to the GMC.
14. Counsel for Dr Ruscillo then made it clear that he did not intend to call Dr Ruscillo to give evidence. He made lengthy submissions to the effect that the admitted or proved facts were insufficient to support a finding of serious professional misconduct. The PCC then decided that what they called "head 4" was "not proved in its entirety" that is, that none of those allegations were made out; it then went on to consider the question of serious professional misconduct. The Chairman announced the decision in these terms:

"The only information provided to us is that contained within the charge itself. We have received no evidence as to the circumstances or context of any relationship with Mrs A, nor of any treatment you provided to her. The Committee are entitled to draw logical conclusions from such facts as are admitted. However, the Committee are acutely aware of the dangers of making unsupported assumptions to fill the void resulting from a lack of evidence and we have therefore not done so. Having in mind that the standard of proof required is that we should be sure, the Committee have determined that such facts as have been found proved are insufficient to support a finding of serious professional misconduct. We have accordingly recorded a finding that you are not guilty of serious professional misconduct. That concludes the case."

15. On 20 October 2003 the GMC sent the Council a copy of the minute of the decision of the PCC. It subsequently obtained a full transcript. Meanwhile, on 28 October 2003, the doctor's Primary Care NHS Trust wrote to the Council bringing this case to its attention. It alleged that medical records were available to establish those elements of the charge which had not been pursued or found not proved (and which may well have "filled the void") and that the partners of the doctor had been willing and available to give evidence before the PCC but had not been called.
16. Whether these allegations are well founded has yet to be established. Their relevance is in issue.
17. In addition to writing to the Council, on 5 November 2003, the Chief Executive of the Primary Care Trust also wrote to the GMC enclosing a note which purported to be a record of a meeting that he had conducted with Mrs A. The GMC took the view that this disclosed material could result in further proceedings against Dr Ruscillo and commenced a further investigation.

The Ruscillo appeal: issues

18. Before Leveson J there was an issue as to whether it was open to the Council to appeal to the High Court in relation to the PCC's decision while the GMC was pursuing a further disciplinary investigation into Dr Ruscillo's conduct. It is now accepted that, as the first proceedings had been concluded, these could, in principle, be subject to an appeal, notwithstanding that a further investigation had been commenced.
19. The only other issue directly raised before Leveson J was whether the Council could bring an appeal against the finding of the PCC that Dr Ruscillo had not been guilty of serious professional misconduct. Leveson J held that it was open to the Council to bring an appeal against this finding. Whether he was correct is the substantive issue of principle raised by this appeal.
20. There is, however, a seminal procedural issue that we shall have to address. Leveson J gave permission to appeal to this court. The question arises whether CPR 52.13 applies so as to require Dr Ruscillo to obtain permission to appeal from the Court of Appeal rather than from the trial judge.
21. Before Leveson J it became apparent that there were two further linked issues that were likely to arise between the parties, although the stage had not been reached at which it was necessary to resolve them. These issues overlap with issues raised in the Truscott appeal. They are as follows:

(i) Can mistakes in the way that a case has been prosecuted before a disciplinary body constitute a valid basis for an appeal by the Council?

(ii) In what circumstances can the Council support an appeal by reference to evidence that was not placed before the disciplinary body?

22. These questions bear both on the matters to which the Council can properly have regard when deciding whether to appeal to the High Court and the matters to which the High Court can properly have regard when deciding how to dispose of an appeal. The parties are not agreed as to the extent to which the High Court has to have regard to the same criteria as the Council.
23. Some indication of the judge's views on these issues appear from the following passages of his judgment:

"Assume (for the purposes solely of argument) that, whether because the facts were opened at a slightly higher level or because some evidence was called or for some other reason, the PCC had concluded that the doctor's conduct did represent serious professional misconduct (perhaps only because it was likely to bring the medical profession into disrepute) and that, in the circumstances, a suspension of 6 months was an appropriate penalty. It then transpired (as is alleged here) that the true picture was never put before the PCC. There can be no doubt that the Council could argue that the finding of serious professional misconduct had been unduly lenient and that the failure to find other heads of serious professional misconduct had been unduly lenient. This would be quite apart from any submission as to penalty and would require the Court to unpick and analyse issues going to the extent of the finding of guilt. To use the language of the criminal law, the Court would have to examine whether the conviction should have been on a totally different basis."

" … if Parliament had not been concerned about the way in which the PCC carried out its duty, there would never have been a power to refer in any circumstances: in any event, it may not be the fault of the PCC but rather in the process so that the relevant panel was not acquainted with all the facts. Take the facts of this case; I repeat that I have not examined the merits in any way but assume hypothetically that, because of some failure within the prosecution process, evidence that should have been put before the PCC was not. The decision of the PCC, on the information before it, might be perfectly justifiable but, in the light of the true facts, not merely inappropriate but clearly wrong. If desirable for the protection of the public, there would be every reason to justify re-opening it without in any way impugning the actual decision of the PCC."

The Truscott appeal: facts

24. At this stage we set out the facts only insofar as necessary to identify the issues of principle that arise.
25. Mr Truscott was a nurse specialising in paediatric care at the Middlesex Adolescent Unit at University College Hospital in London. Mr Truscott was charged with, and admitted to, having used a computer located in the Unit on six nights in March 2002 to access sexually explicit and/or offensive websites on the internet. Some of the sites contained images of girls who were, or appeared to be, underage. On the last of these nights, Mr Truscott was caught while accessing the sites. He had in his possession a list of site addresses in his handwriting. Mr Truscott was interviewed by the matron who caught him, and subsequently dismissed. Mr Truscott admitted that his actions amounted to misconduct, and the Professional Conduct Committee of the NMC imposed a caution which would remain on his record for 5 years. In its decision, the committee stated that it had considered whether to remove Mr Truscott from the register, but said that it had decided against this because there was no evidence of direct harm to patients, Mr Truscott's testimonials were favourable, and the police had not found reason to prosecute Mr Truscott.

The Truscott appeal issues

26. The issues of principle in this appeal arise out of the following passages in the judgment of Collins J:

"9. It is important that the grounds of appeal specify clearly which of the provisions in s.29(4) are being relied on. If it is intended to argue that any finding was unduly lenient, whether or not in addition to the contention that the penalty was unduly lenient, the particular finding must be identified and the matters relied on in support of the argument specified. In cases where, because of under prosecution, relevant aggravating material was not put before the Committee, a finding made in the absence of such material is capable of being unduly lenient. In those circumstances, the material must be identified. If the appeal is based solely on a claim that the penalty was unduly lenient, the appellant can only rely on what was put before the Committee.

10. Before going to the facts, I should deal with an argument put forward by Mr de la Mare as to the approach I should adopt in viewing this appeal. He submits that the unduly lenient and desirable for the protection of members of the public tests set out in s.29(4) are purely internal and that the appeal is to be determined as if it were an appeal under CPR 52.11(3). If it is to be said that the CRHP should not have decided that there was undue leniency, an application for judicial review will have to be made. That submission was to my surprise not resisted by Mr Lawson. In my judgment it is clearly wrong. Since an appeal comes before a judge of the Administrative Court, it would be somewhat absurd and an unnecessary incurring of costs if judicial review to the same tribunal were needed. But more importantly, the general rule is that an appeal in aggravation of penalty will only be allowed if it is shown that the original penalty was unduly lenient: see Lomas v Parle [2004] 1 All ER 1173. I see no reason to doubt that the true construction of s.29 requires that the Court will only allow the appeal if satisfied that undue leniency and desirability for the protection of the public is made out. If undue leniency is established, it will only be in the rarest of cases that a different view to that of the CRHP is likely to be appropriate in respect of desirability.

11. I see no reason not to apply mutatis mutandis the same test as the Court of Appeal applies in deciding whether a sentence in a criminal case is unduly lenient. That is whether the penalty falls outside the range of penalties which the Committee, applying their minds to all the relevant factors, could reasonably consider appropriate: see AG's Reference No.4 of 1989 (1990) 90 CAR 366 at p.371.

…

29. The burden rests on the CRHP to establish that the action in question was unduly lenient. There is an element of double jeopardy of which account must be taken. It is of less importance in the context of s.29 of the 2002 Act because the emphasis is on the protection of the public rather than punishment of the individual concerned."

27. In paragraph 9 of his judgment Collins J clearly envisages that an appeal may be brought where there has been "under prosecution" and relevant material has not been put before the disciplinary tribunal. This bears on the subsidiary issues already identified in the Ruscillo appeal. In the Truscott appeal the debate has focused on paragraphs 10,11 and 29 of Collins J's judgment.
28. Both Mr Truscott and the NMC support the approach of Collins J in these passages. The Council submits that the judge has erred in principle in a number of respects:

(i) He should not have applied the criteria that, under section 29 of the Act, govern the right of the Council to appeal to the High Court. Instead he should simply have considered whether the decision of the NMC was 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings' in accordance with the provisions of CPR 52.11.

(ii) The decision in Lomas v Parle does not lay down a general rule which is applicable to an appeal under s.29 of the Act.

(iii) It is not appropriate to have regard to considerations of 'double jeopardy'.

Subsequent decisions

29. Subsequent to the two cases with which we are concerned, two further appeals have been made by the Council to the High Court pursuant to section 29 of the Act. In Council for the Regulation of Health Care Professionals v General Medical Council and Dr Solanke [2004] EWHC 944 (Admin) Leveson J followed, in large measure, the observations of Collins J in Truscott. He held that an appeal to the High Court under section 29 of the Act was governed by CPR 52.11(3). He went on to hold, however, that in considering whether a decision of a disciplinary tribunal was 'wrong' the High Court had to apply the criteria laid down by section 29. The decision would only be 'wrong' if (i) it was unduly lenient and (ii) it was desirable for the protection of the public that it should be changed.
30. In Council for the Regulation of Health Care Professionals v General Medical Council and Dr Anthony Leeper [2004] EWHC 1850 (Admin) Collins J revisited the construction of section 29. A copy of his judgment, in draft, was provided to the parties and to us. His conclusions appear in the following paragraph of the judgment:

"10. Since s.29(4)(a) distinguishes between findings and penalties, it must in my view cover acquittals as well as the imposition of inadequate penalties. This means that 'direction' in s.29(1) (or step or corresponding measure) must be construed to include a direction not to impose a penalty or to make a finding which might lead to a penalty. While I do not doubt that this is a purposive construction, it avoids the anomalies to which I have referred and does not in my view amount to an unacceptable construction of the language used in a section which, because of the attempt to deal with the disparate provisions relating to the various health care bodies, is not easy to construe sensibly. What this means is that where the relevant body or person has taken disciplinary proceedings which have resulted in an unduly lenient decision, whether an acquittal or an inadequate penalty, s.29(4)(a) will apply. S.29(2)(a) and (b) will apply where there has been a failure to take proceedings at all. The relevant committee is whichever committee has the responsibility to make a final decision as to whether proceedings should be brought and the provision referred to is the enactment in question, not the specific section or provision of that enactment. This means that a sensible distinction is drawn between s.29(4)(a) and s.29(4)(b), the latter dealing with two discrete matters and the former with all possible outcomes of a disciplinary hearing."

31. No party before us sought to support this interpretation of section 29 of the Act. As will become apparent we consider that it is erroneous.

Discussion

The Ruscillo appeal: permission to appeal to the Court of Appeal

32. It has been common ground between all parties to these two appeals that they are subject to the relevant procedural provisions of CPR Part 52. For reasons that we set out later in this judgment, we endorse the conclusion that the provisions of CPR 52 apply to appeals under section 29 of the Act. CPR 52.13 provides, so far as material:

"(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of … the High Court which was itself made on appeal.

(2) The Court of Appeal will not give permission unless it considers that –

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

33. These provisions echo those of section 55 of the Access to Justice Act 1999 to the following effect:

"Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that-

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it. "

34. The issue as to the ambit of section 29 of the Act which is the subject matter of the Ruscillo appeal arose for the first time, before Leveson J. Thus the appeal to us is only a first appeal in relation to that issue. We none the less consider that the appeal to us is one to which CPR 52.13 applies. These proceedings were originated by an Appellant's Notice issued in the Administrative Court by the Council on 14 November 2003. The preliminary issues as to the Court's jurisdiction were then brought before the Court by a Part 23 Notice issued by the Council in the extant proceedings on 5 February 2004. In these circumstances, it seems to us that Leveson J's decision was made, by way of resolution of preliminary issues, 'on appeal' for purposes of CPR 52.13 (1). Equally the decision was made 'in relation to that matter', ie the appeal, for the purposes of section 55(1) of the 1999 Act. Issues often arise, for the first time, in the course of an appeal. Before a decision in relation to such an issue can be brought before the Court of Appeal, permission must be obtained from the Court of Appeal under CPR 52.13.
35. In the present case we are satisfied that the appeal raises an important point of principle and, for that reason, we grant permission to appeal.

The Ruscillo appeal: can the Council appeal against an acquittal?

36. The Council founds its right to appeal to the High Court in the case of Dr Ruscillo on the following provision of section 29 of the Act:

(1) This section applies to-

…

(c) a direction by the Professional Conduct Committee of the General Medical Council under section 36 of the Medical Act 1983 (c54) (professional misconduct & related offences)

(2) This section also applies to-

(a) a final decision of the relevant committee not to take any disciplinary measure under the provisions referred to in whichever of paragraphs (a) to (h) of subsection (1) applies.

…

(4) If the Council considers that

…

(b) a relevant decision falling within subsection (2) should not have been made

…, the Council may refer the case to the relevant court."

37. Section 36 of the Medical Act 1983 provides that:

"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

(ii) that his registration in the register shall be suspended (that is to say shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or

(iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests."

38. The Council contends that the finding of the PCC that Dr Ruscillo had not been guilty of serious professional misconduct constituted a 'final decision … not to take any disciplinary measure [under section 36 of the Medical Act 1983]', so that section 29 applied to it by virtue of section 29(2)(a). It is Dr Ruscillo's case that the finding in question could not properly be described as 'a decision not to take any disciplinary measure'. Such a decision could only be taken once the PCC had made a finding of serious professional misconduct. The finding that Dr Ruscillo had not been guilty of serious professional misconduct precluded any possibility of the PCC making a decision to which section 29 of the Act could apply.
39. As a matter of the natural use of language we consider that there is force in Dr Ruscillo's contention. A decision to do or not to do something naturally suggests the exercise of an option. It is not, however, an abuse of language to say that a disciplinary tribunal 'decided not to take any disciplinary measure' because it concluded that no case was made out on the facts which would permit it to do so. Thus, the natural meaning of the language cannot be determinative of the point. It is appropriate to adopt a purposive approach to resolving the issue as to the true construction of section 29 and that, indeed, was the course taken by Leveson J.
40. On behalf of Dr Ruscillo, Mr Philip Havers QC argued a number of matters in support of the construction of section 29 for which he contended. The first was that to permit the Council to re-open a case where a practitioner had been acquitted of alleged misconduct would be to allow the practitioner to be tried twice for the same offence. This was a practice which in the interests of justice and finality the law would not usually permit.
41. This point did not impress Leveson J. He observed that the rule against double jeopardy was not applied in all circumstances. Thus Part 10 of the Criminal Justice Act 2003 permits the re-trial of a defendant who has been acquitted in criminal proceedings, albeit in very limited circumstances. He concluded that the principle of double jeopardy was no bar to an appeal under section 29 of the Act, although it was one reason why the power to refer under section 29 should be used sparingly.
42. Before us Mr Howell QC for the Council argued that no question of double jeopardy arose under section 29. That section did not provide for a retrial in fresh proceedings. It simply provided for an appeal in the existing proceedings. We were not impressed by this sophistry. The intervention of the Council under section 29, whether to put in issue an acquittal or the adequacy of a sentence, clearly places a practitioner under the stress of having his case reopened when it would otherwise be closed. This element of double jeopardy is, however, necessarily inherent in the scheme of review under section 29. The object of that scheme is the protection of the public and the Council can only refer a decision to the High Court when it considers that this is necessary for the protection of the public. We do not find it surprising that where this requirement is satisfied considerations of double jeopardy should take second place.
43. This reasoning applies equally to Mr Havers' next point. He contended that it is a well-established principle of legal policy that a person should not be penalised except under clear law. So it is, but it is not an absolute principle. Leveson J preferred the approach of Sir Nicholas Browne Wilkinson VC in Re Lo Line Electric Motors Ltd [1998] Ch 477 at 489. In the context of the disqualification of directors he rejected a strict construction of the word 'director' because the paramount purpose of disqualification was the protection of the public. We agree with Leveson J that the principle relied upon by Mr Havers carries little weight in the context of legislation whose object is the protection of the public.
44. We have concluded that the answer to the point in issue lies in consideration of the overall scheme of section 29. Mr Havers submitted that the scheme was one which permitted an appeal against the sentencing exercise involved in disciplinary proceedings but not against a finding of whether professional misconduct had been established. He drew an analogy with the jurisdiction conferred on the Attorney General by section 36 of the Criminal Justice Act 1988.
45. There are a number of problems with this submission. In the first place, the mischief against which section 29 is aimed occurs just as much where a disciplinary tribunal wrongly concludes that conduct does not amount to professional misconduct as where the tribunal imposes too lenient a penalty.
46. In the second place, section 29(4)(a) of the Act makes express provision for the Council to have regard to the lack of a finding of professional misconduct when considering whether a decision falling within sub-section (1) has been unduly lenient. Section 29(4)(a) raises problems of construction, which we shall consider in due course. What is quite clear, however, is that in some circumstances a failure to find professional misconduct where professional misconduct should have been found is a relevant consideration in deciding whether a reference should be made to the High Court. It would be anomalous if, under section 29(4)(b), no regard could be had to an erroneous failure to find professional misconduct.
47. This is not, however, the most glaring anomaly produced by the construction for which Mr Havers contends. Under that construction section 29(2)(a) and (b) only apply where, after a finding that professional misconduct has occurred, the disciplinary tribunal in question exercises a discretion not to take any disciplinary measure. Such a scenario is, in any event, extremely unlikely, but in a number of instances it will be simply impossible. While section 36 of the Medical Act 1983 permits, but does not require, the PCC to impose a penalty where it has made a finding of serious professional misconduct, this is not true of some of the statutory provisions referred to in paragraphs (a) to (h) of subsection (1).
48. Section 29(1) itemises a number of different decisions to impose some form of disciplinary measure, which we shall describe generically as a penalty, on a health care professional. The language used in each case reflects the relevant provision of the particular statute applicable to the group of health care professionals to which it applies. The statutes in question have some common features. An allegation or charge of professional misconduct has to be made against the health care professional. The disciplinary body has to consider whether the allegation or charge is made out. If it is not the disciplinary body can impose no penalty. If it is made out the disciplinary body either may or must (depending upon the approach of the particular statute) impose a penalty. In the case of s.29(1)(c) of the Act the PCC has an option whether or not to impose a penalty. In contrast:

(i) Section 29(1)(d) of the Act applies to "a direction of the Committee on Professional Performance of the General Medical Council under section 36A of the Medical Act 1983". Under that section the Committee on Professional Performance is required to direct suspension of registration or provisional registration "where the standard of professional performance … is found to have been severely deficient."

(ii) Section 29(1)(g) of the Act applies to "any step taken by the Professional Conduct Committee of the General Osteopathic Council under section 22 of the Osteopaths Act 1993". Under that section it is the duty of the Professional Conduct Committee to consider an allegation referred to it and, if satisfied that it is well founded and that it is relevant to the fitness of the osteopath concerned to practice osteopathy, it is required to take one of a number of specified "steps" in the nature of disciplinary penalties.

(iii) Section 29(1)(h) applies to "any steps taken by the Professional Conduct Committee of the General Chiropractic Council under section 22 of the Chiropractors Act 1994". That section makes identical provisions to those of section 22 of the Osteopaths Act 1993.

49. Section 29(2) purports to apply section 29 to "a final decision of the relevant committee not to take any disciplinary measure under the provision referred to in whichever of paragraphs (a) to (h) of subsection (1) applies". Yet, if Mr Havers' construction is correct, under paragraphs (d), (g) and (h) no such decision can ever be taken.
50. In summary, the construction for which Mr Havers contends makes something of a nonsense of section 29 and produces a result which is at odds with the purpose of giving the Council the power to refer decisions of disciplinary bodies to the High Court. For these reasons we conclude that Leveson J was correct to hold that section 29 confers on the Council power to refer to the High Court a decision of a disciplinary tribunal that a health care professional has not been guilty of alleged professional misconduct, provided always that the criteria in section 29(4) are satisfied.
51. It follows that Dr Ruscillo's appeal must be dismissed.

Other issues of principle raised by the two appeals

52. The two appeals with which we are concerned and the two subsequent decisions which have been delivered under section 29 of the Act have identified issues of principle as to how section 29 should operate. Although it is not necessary to resolve all these issues in order to decide the appeals before us, they have been explored at length in the three days that were allocated to the hearing of these appeals and we have decided that it is appropriate that we should, as invited by the Council, the GMC and the NMC, express our views on how section 29 should operate.
53. The first general issue is whether the matters to which the High Court should have regard when deciding whether or not to allow an appeal are the same as those to which the Council is required, by section 29, to have regard when deciding whether to refer a decision to the High Court. The second general issue is the extent to which the Council and the High Court can properly have regard to allegations and evidence of misconduct that were not considered by the disciplinary tribunal whose decision is under review. In general the NMC have aligned themselves with Mr Truscott on these issues.
54. Section 29(7)(a) of the Act requires any case referred by the Council to be treated by the High Court as an appeal by the Council against the relevant decision. CPR Part 52 applies to appeals to the High Court subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal – see CPR 52.1(1)(b) and 52.1(4). In particular CPR Part 52 applies to statutory appeals – see CPR 52 PD 17.1. Thus a reference to the High Court under section 29 of the Act is subject to the following provisions of CPR 52.11:

"(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 rehearing.

(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.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence."

55. The powers of the High Court on an appeal, as set out in section 29(7) of the Act, are in no way incompatible with CPR 52.11. The two have to be read together.

The criteria to be considered on appeal

56. It is the contention of Dr Ruscillo and Mr Truscott, and of the GMC and the NMC, that the High Court must, when considering an appeal under section 29, apply the same criteria that govern the right of the Council to refer a decision to the High Court. Thus, so they submit, the High Court must dismiss an appeal unless persuaded (i) that the decision under review was 'unduly lenient' and (ii) that it is desirable to interfere with the decision for the protection of members of the public. Both Collins J and Leveson J have accepted that this is the correct approach to the exercise of jurisdiction of the High Court on a reference under section 29 of the Act.
57. The Council contends that the approach of the High Court to a section 29 appeal is not restricted in this way. It is open to the High Court to make whatever order that it considers appropriate. Where the disciplinary body has imposed a penalty, the High Court can substitute a penalty that it considers more appropriate, whether or not the original penalty can be said to be 'unduly lenient'. Furthermore, the High Court is not restricted to considering the appropriate penalty. If the findings of fact made by the disciplinary tribunal do not adequately portray the gravity of the professional misconduct the High Court can correct these findings, even if it leaves the penalty unchanged.
58. This last submission of the Council is founded on the premise that section 29(4)(a) permits the Council to refer a decision to the High Court in circumstances where, while it is not dissatisfied with the penalty imposed, it considers that the findings of the disciplinary tribunal that led to the imposition of that penalty were unduly lenient. For reasons that we shall now explain we consider that this is a false premise.

The scheme of section 29

59. Were it not for the puzzling wording of section 29(4)(a) we consider that it would be quite clear that section 29 was concerned only with an erroneous decision not to impose a penalty or to impose a penalty that was unduly lenient. Thus section 29(1) applies to a decision to impose a penalty and 29(2) to a decision not to impose a penalty. Furthermore section 29(8) only permits the High Court to vary the decision as to the penalty.
60. A scheme that focuses on the result produced by the final decision of the disciplinary body makes good sense. 'Penalty' is not really an appropriate word to describe the disciplinary measures that are imposed under the various regulatory schemes. The primary object of those measures is not to penalise for misconduct. It is to protect the public and the reputation of the profession in question – see the recent judgment of the Privy Council in Gupta v General Medical Council [2001] UKPC 61; [2002] 1WLR 1691 at paragraph 21. The primary object of the creation of the Council was also the protection of the public. Section 29 is only one of a number of provisions under which the Council is empowered to achieve this object. The Department of Health published explanatory notes (2002 c.17) to assist readers to understand the Act. These comment in relation to section 29:

"163. Section 29 gives the Council the power to refer a fitness to practise decision by a regulatory body to the High Court where this seems to it to be desirable for the protection of the public. It is envisaged that the Council would do this in extreme cases where the public interest in having a clearly perverse decision reviewed by a Court outweighs the public interest in the independent operation of self-regulation."

61. This comment, of course, cannot be treated as a guide to the construction of section 29. It does, however, demonstrate an application of the section that makes perfectly sound sense. That application is achieved if the right of appeal is restricted to an attack on the final decision as to penalty. Intervention will be justified where, because no penalty has been imposed, or the penalty is inadequate, the public remains at risk.
62. The problem of construction only arises because of the wording of section 29(4)(a) and, in particular, the words '…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'. Had these words been absent, section 29(4) would have made perfect sense: it (a) would have given the Council a right of appeal where a decision to impose a penalty that it considered to be unduly lenient had been taken; (b) would have given the Council a right of appeal where a decision not to impose a penalty had been taken which the Council considered was wrong.
63. The additional words of section 29(4)(a) raise two problems: (i) How can there be a relevant decision falling within subsection (1) where there has been a lack of a finding of professional misconduct? (ii) How can a relevant decision falling within subsection (1) be unduly lenient if it is not unduly lenient as to penalty?
64. The first problem has a solution. A relevant decision under subsection (1) may relate to a charge that has alleged more than one incident of professional misconduct and the relevant decision, that is the imposition of the penalty, may be unduly lenient because one incident of professional misconduct has been found and another has not. Thus section 29(4)(a) permits an appeal where a penalty is unduly lenient because the Council considers that it does not fully reflect all the incidents of professional conduct that should have been found.
65. The second problem is more intractable. The relevant decision under subsection (1) is, by definition, the imposition of a penalty. How can the relevant decision be unduly lenient if the 'penalty imposed' is not? Yet this is a situation that the additional words in section 29(4)(a) appear to contemplate. The draftsman of this sub-section certainly deserves no prizes.
66. Collins J appears to have reached the conclusion that the additional words permit an appeal against a relevant decision under subsection (1) simply to attack the underlying findings of the disciplinary tribunal in circumstances where the Council has no quarrel with the actual penalty imposed. That is certainly the effect of the sub-section for which the Council contends. We do not consider that it is correct. In the first place it does not solve the problem that the right to appeal is dependent on a conclusion that the relevant decision, which is by definition the imposition of the penalty itself, is unduly lenient. In the second place we find it hard to see how, under section 29(8), the High Court can react to an appeal which attacks the findings of a disciplinary body but not the penalty imposed by it. None of the four options offered by section 29(8) appears appropriate. Each of those options envisages that it will be the relevant decision, that is the decision as to penalty, which will be in issue on an appeal.
67. Our solution to the problem gives to section 29(4)(a) the following meaning:

If the Council considers that-

(a) a relevant decision falling within subsection 1 has been unduly lenient, whether because the findings of professional misconduct are inadequate, or because the penalty does not adequately reflect the findings of professional misconduct that have been made, or both…

this reading of the subsection accords with the scheme of section 29 and is not in conflict with the language used.

68. Although section 29(4)(b) says nothing about undue leniency, it seems to us implicit that the Council will not refer a case to the High Court unless it considers that the failure of the disciplinary tribunal to impose any penalty is unduly lenient to the practitioner.

The approach of the High Court to a reference

69. We have concluded that the concerns of the Council which can entitle it to refer a case to the High Court are (i) that the decision in relation to the imposition of a penalty is unduly lenient and (ii) that it is desirable in the interests of the public to take action under the section. Where a reference is made, what is the task of the Court when considering the reference? The Act does not deal with this, save for the important provision that the reference is to be treated as an appeal by the Council against the relevant decision. Thus the Court is concerned with the decision as to the penalty.
70. If the Court decides that the decision as to the penalty was correct it must dismiss the appeal, even if it concludes that some of the findings that led to the imposition of the penalty were inadequate. No doubt any comments made by the Court about those findings will receive due consideration by the disciplinary tribunal if, at a later stage, it has occasion to review the standing of the practitioner.
71. If the Court decides that the decision as to penalty was 'wrong', it must allow the appeal and quash the relevant decision, in accordance with CPR 52.11(3)(a) and section 29(8)(b) of the Act. It can then substitute its own decision under section 29(8)(c) or remit the case under section 29(8)(d).
72. It may be that the Court will find that there has been a serious procedural or other irregularity in the proceedings before the disciplinary tribunal. In those circumstances it may be unable to decide whether the decision as to penalty was appropriate or not. In such circumstances the Court can allow the appeal and remit the case to the disciplinary tribunal with directions as to how to proceed, pursuant to CPR 52.11(3)(b) and section 29(8)(d) of the Act.
73. What are the criteria to be applied by the Court when deciding whether a relevant decision was 'wrong'? The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession. The role of the Court when a case is referred is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. Is that any different from the role of the Council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession.
74. Collins J in Truscott held that the approach to 'undue leniency' should be that applied in Lomas v Parle [2003] EWCA Civ 1804. That was a case concerned with the power of the court to increase, on appeal, a sentence of imprisonment for contempt of Court. In that case Thorpe LJ, giving the judgment of the Court of Appeal held that it was appropriate to adopt the same approach as that applied by the Criminal Division of this Court to the reference of a sentence by the Attorney General under the Criminal Justice Act 1988. As to that approach, Thorpe LJ cited this passage from the judgment of Judge LJ in Neil v Ryan [1998] 2 FLR 1068, 1069:

"… but a sentence should not be increased under that Act unless the court is satisfied that it is not merely lenient, but 'unduly' lenient. And, what is more, if the court reaches that conclusion, when deciding the appropriate level of sentence the court must also reflect the element of what is sometimes described as double jeopardy."

75. The reference to having regard to double jeopardy when considering whether a sentence is unduly lenient is not, as we have already indicated, really apposite where the primary concern is for the protection of the public. More pertinent is this passage in the judgment of the Lord Chief Justice in Attorney General's Reference (No 4 of 1989)(1990) 90 Cr App 266:

"The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased – with all the anxiety that this naturally gives rise to – merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in so-called guidelines cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well-placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature."

76. This passage was cited with approval by Leveson J in Solanke. As he observed, not all of it is appropriate in a case where the primary object of imposing a penalty is the protection of the public. We consider that 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 the disciplinary proceedings, could reasonably have imposed.
77. Leveson J in Solanke referred to 'the range of sanctions which the tribunal could reasonably consider appropriate' and accepted that an unduly lenient sentence was one which 'departed by a substantial extent from the norms of sentencing generally applied'. We have reservations as to whether this language is helpful in relation to the types of disciplinary sanction that are available in relation to the regulation of health care professionals. These range from a reprimand to sanctions that prevent the practitioner from continuing to practise. In any particular case under section 29 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.
78. The question was raised in argument as to the extent to which the Council and the Court should defer to the expertise of the disciplinary tribunal. That expertise is one of the most cogent arguments for self-regulation. At the same time Part 2 of the Act has been introduced because of concern as to the reliability of self-regulation. Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the Council and the Court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where, however, there has been a failure of process, or evidence is taken into account on appeal that was not placed before the disciplinary tribunal, the decision reached by that tribunal will inevitably need to be reassessed.

Procedural shortcomings and fresh evidence

79. Where a defendant is prosecuted for a crime the precise charge or charges and the evidence relied upon to support them are matters for the prosecution. The defence can make admissions. Prosecution and defence can agree facts. The procedure is adversarial and the judge plays a passive role in the factual inquiry. If the defendant is convicted the judge sentences him for the offences of which he has been convicted in the light of the evidence that has been given at the trial.
80. The procedures for disciplinary proceedings under the various statutes referred to in section 29(1) of the Act are not identical. In general they involve a preliminary investigation of conduct of the practitioner of which complaint has been made. If it is decided to bring disciplinary proceedings, a charge will be proffered which alleges the facts relied upon as demonstrating professional misconduct. Admissions may be made by the practitioner, facts may be agreed and evidence may be called. The disciplinary tribunal will be faced with an act or omission, or more typically a course of conduct, which it is alleged constitutes professional misconduct. The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it.
81. If, as in the case of Dr Ruscillo, the Council is led to believe that a case has been 'under prosecuted' or that relevant evidence has not been put before the tribunal with the consequence that the tribunal's decision is flawed, the Council should, in the first instance, make inquiries of the relevant health care regulatory body as to what occurred. The GMC accepts that where such inquiries are made in such circumstances it is right that the body in question should co-operate with the Council and make available any material that was not before the disciplinary tribunal. The GMC expresses concern, however, that such material should not be placed in the public domain without careful consideration being given to all the consequences of this course. We share this concern. Complainants are often reluctant to undergo the publicity attendant on providing evidence in disciplinary proceedings. In such circumstances, careful arrangements are often reached between those acting for the parties designed to avoid witnesses being exposed to publicity or having to undergo the stress of giving evidence. Such arrangements should not be disturbed without good reason.
82. At the same time there will be cases where it is in the public interest that additional evidence should be placed before the court on a reference under section 29. This may be necessary to ensure that a practitioner does not escape the sanctions that his conduct has made essential if patients are not to be exposed to risk.
83. Where an application is made to the Court to adduce additional evidence pursuant to CPR 52.11(2) the Court should not apply the principle in Ladd v Marshall [1954] 1 WLR 1489. The principles in that case have no application to a reference under section 29. The fact that the evidence could have been, but was not, placed before the disciplinary tribunal can have no bearing on whether it should be admitted by the Court. The Court will, however, be concerned, just as the Council should be, to be sure that the introduction of such evidence is truly in the public interest.

This concludes such guidance as we feel able to give as to the manner in which the Council and the Court should approach a reference under section 29 of the Act. We now turn to consider on its merits the appeal brought by the Council against the decision of the NMC in the case of Truscott.

The facts

84. Steven Truscott faced the following charges before the Professional Conduct Committee:

"That you, whilst employed by University College London Hospitals NHS Trust as a paediatric nurse on the Middlesex Adolescent Unit:

1(a) Used a computer located in the Middlesex Adolescent Unit of University College London Hospital NHS Trust to access sexually explicit and/or offensive websites on the internet on or about:

(i) 7^th/8^th March 2002

(ii) 8^th/9^th March 2002 excluding 1(a)(i) above

(iii) 9^th/10^th March 2002 excluding 1(a)(ii) above

(iv) 10^th/11^th March 2002 excluding 1(a)(iii) above

(v) 11^th/12^th March 2002 excluding 1(a)(iv) above

(vi) 14^th/15^th March 2002; and

(b) That, having so accessed explicit and/or offensive websites on the Internet, you are guilty of misconduct."

85. The charges related to the use by Truscott of the computer to access the sites in the early hours of the days specified in the charge at a time when Steven Truscott was on night duty. He shared that duty with another nurse.
86. At the outset of the hearing Truscott admitted the facts outlined in the charge. Later during the hearing, at the appropriate stage, he admitted that he had been guilty of misconduct.
87. Truscott had been employed as a staff nurse in the Middlesex Adolescent Unit of the University College London Hospital NHS Trust from the 6 March 2002. At the time of the matters set out in the charge, he had been a qualified nurse for a little over three years, having previously been employed as a staff nurse on the Teenage Unit, Frimley Park Hospital, Surrey.
88. The Middlesex Adolescent Unit had 14 beds catering for adolescent girls and boys aged between 13 and 19 years of age often with long-term complex life threatening illnesses.
89. The computer terminal referred to in the charge was on a mobile trolley in a staff room, access to which could only be gained through the nurses' station located centrally in the ward. There was a rule on the ward that the patients were not to go through the nurses' station into this room. It was accepted in evidence that there was no possibility of any of the adolescents entering the room without Truscott being aware of it.
90. The computer was one of a number provided by way of a charitable donation for the use of the adolescent patients. During the course of the hearing before the Committee it became clear that the computer being used by Stephen Truscott could be wheeled out of that room and made available for use by the patients. It was not alleged that Truscott realised this.
91. In order to prevent access to inappropriate pornographic sites, a central programme known as Squidguard blocked access to a pre-programmed list of websites. A user accessing a banned site received a screen message telling him that the access to the site had been blocked because it contained pornography. The user was also informed that if he believed that he had received the message in error then he should email the helpdesk. Truscott had sent no such email. A record was kept of attempted access to the banned pornographic sites.
92. Furthermore images accessed by Truscott on the internet had been automatically saved within the memory of the computer and were thus available to others who used the computer if they knew how to access visited sites or stumbled across them accidentally.
93. It appears from the opening of the NMC's case against Truscott before the Committee by Mr Girling to have been accepted that Truscott was not aware that the images were automatically being saved in this way.
94. The records showed that Squidguard prevented Truscott from accessing a significant number of pornographic sites: 8 March, 110; 9 March, 407; 10 March, 33; 11 March, 43 and 12 March, 128 sites.
95. It having been discovered that Truscott was accessing the blocked sites, during the night shift of 14/15 March the Matron entered the room where the computer was being used by Stephen Truscott. She found next to him a list of website addresses which he later was to admit was written by him. Mr Girling mentioned some of the sites which were on that list and referred, in particular, to the front page of a site and the warning thereon:

"Some people may find this website extremely offensive due to the content. We have sick pictures of death, raw gore, smashed up heads, disgusting diseases, mutilation, general sick pictures and some other whacky shit! If you don't agree with the crap on this site do not enter."

Mr Girling also referred to a website with a picture of a young woman with a shotgun in her mouth and to another site which contained sexually explicit adult oriented material.

96. Following his detection, Truscott was asked to comment on what he had been doing and he gave a reply which was, as Collins J described, hardly frank.
97. The memory of the computer was analysed and the Committee was given a detailed analysis of what that examination showed.
98. Mr Girling told the Committee that Scotland Yard's Vice Squad had investigated the matter. One of its officers had viewed the images recorded on the computer and it was decided that no further action would be taken as the police considered all the material to be of an adult pornographic nature. It follows that the police found no images which would have justified the bringing of criminal proceedings, and in particular found no "indecent photographs of a child", the making of which constitutes an offence under the Protection of Children Act, 1978.
99. During the course of his opening Mr Girling pointed out that one web page can generate anything up to 30 to 40 "thumbnail" images. It was accepted that many of the sites had only been looked at for a very short period of time. Mr Girling made reference to one site which showed two young females together, one lifting up the other's top. Apart from that he made no reference to any images showing what appeared to be children or young persons.
100. The Committee had a substantial volume of material showing what sites Truscott had accessed, for how long and containing a sample of the images which he had accessed. The Chairman said during the hearing that it was not necessary to examine other sites or images. Probably for this reason, Mr Girling did not specifically draw the Committee's attention to the fact that included in the material available to the Committee were the names of websites accessed such as "Lolita". Nor did he specifically draw the Committee's attention to an accessed site called "Nymphets", which referred to other sites with such names as "129 photos of youngest teens", "Schoolgirls free fuck gallery" and "Very little girls".
101. Mr Girling accepted that there was an element of cascading namely accessing one site with the consequence that other sites would automatically be accessed. Mr Girling told the Committee that Truscott had repeatedly and deliberately visited these sites continuing to go back again and again night after night. In the words of Mr Girling, Truscott was:

"deliberately setting himself adrift on a sea of internet porn that is out there and that he did deliberately and repeatedly put himself into a position where he knew he was going to be accessing sexually explicit and offensive material."

102. Both Mr Girling and Dr Johnson, who appeared for Truscott, said that he had not entered the sites. This seems clearly wrong. Having been given the warning or disclaimer on the front page there was no doubt that he did in fact enter the sites. However he had not saved the accessed images into a separate file. Nor, so it appears, had he opened the thumbnails.
103. Following Truscott's admission of misconduct, the Committee retired and formally found him guilty of misconduct. The Chairman said:

"By using hospital equipment for your own purposes you put a record on the computer of unsuitable material. This was done in a workplace and on a mobile computer in circumstances where access by a vulnerable patient group was possible, as was access by other members of staff. This abuse of hospital equipment undermines the public trust and confident in the profession."

104. Following that finding the Committee was told that Truscott had been on a course designed to alert nurses about child protection issues. A witness called by Mr Girling said that there were children on the ward who were "vulnerable in a child protection sense".
105. The Committee was also told that Truscott had, following a disciplinary hearing, received a final written warning for having taken from a ward without consent painkillers for a severe toothache. That warning had been issued on 8 November 2001.
106. In evidence Truscott said that the patients would not have been able to see the images which he was accessing at the time he was accessing them because all the patients were asleep and he could see whether anyone got out of bed.
107. When cross-examined he said that with hindsight he realised that what he had done was wrong. When that was further queried by Mr Girling, Truscott said:

"Because, reflecting on it, I can see that if the computer was moved round to anywhere else for a child to work on and they saw it, it would be distressing. It would be distressing for the patients' families, for my colleagues, for anybody who saw it."

108. Mr Girling cross-examined him on the issue of cascading. When asked about a particular image he said:

"As we had established earlier, the pictures are small and maybe ten or whatever on screen and they were on there for seconds and so although I was looking, I did not look at every individual picture and see what was there."

109. Truscott was asked by Dr Johnson in re-examination whether he saw "any risks to the patients on the ward from what your actions were at the time". He said that he could in hindsight and "if anyone came in and saw these images and were disturbed then it would have been my fault, for which I am sorry".
110. In her final speech, Dr Johnson said that Truscott accepted that he accessed inappropriate, offensive sites and that it was irresponsible. He did not at the time think of the implications or consequences. She made particular reference to the fact that if anyone had approached the room he would have known. She continued:

"There is also the issue of how many sites there were on the screen over what is a relatively short period of time given the thousands of sites, or hits, that are illustrated in the bundle that you have before you and it should be clear from that bundle that over periods of seconds a large number of hits would be occurring and I ask you to accept Mr Truscott's evidence that there was an element of cascading, that he was pressing the cross button and that there were sites that were popping up and, indeed, in the time when you see a large number of pictures that he could not physically have taken on board, all of those pictures at all of those times, although it is quite apparent that he accepts that he would have seen what the nature was. But I do ask you to accept that he was not spending hours looking at specific pictures and this was more in the form of surfing for general, inappropriate but general interest or amusement, whatever the reason he was doing it, it was quiet, he was doing something inappropriate but he did not enter the sites, he did not download anything, he did not pay for anything, there is no evidence of that whatsoever."

111. The Committee was told that he had lost his employment with the hospital albeit he had later obtained work as an agency nurse in the paediatric field. In the words of Dr Johnson: "Obviously he lost his job, with that he lost his home, he lost his financial security".
112. She said that Truscott had made a very serious error of judgment from which he had learnt and said that it was very unlikely that it would be repeated.
113. The Committee retired at 1.10 pm and on returning at 3.15 said:

"The Committee has reached its decision. This was serious misconduct, there was abuse of trust and you generated completely inappropriate material on a hospital ward. You have lost your job through the disciplinary hearing and we have considered whether we should remove your name from the register in order to protect the public. The case has not been put on the basis that your conduct demonstrates a risk to patients and there is no evidence of direct harm to patients. You have been working and such testimonials as we have are favourable. Furthermore, the police did not find reason to pursue prosecution in your case. We accept that there was an element of cascading but, nevertheless, we are of the view that you deliberately accessed pornographic sites and are not completely satisfied that you have shown full insight into the seriousness of your actions.

We therefore think it necessary to issue you with a caution on your behaviour. You should appreciate that this is a very serious matter to be found guilty of misconduct by the Council's Professional Conduct Committee. You must understand that the Committee does not condone your actions in any way.

The Committee asks you to study the NMC's Code of Professional Conduct. The Code sets out the standards of conduct that the NMC requires of its registered practitioners. The Committee expects you to consider it carefully and to follow its standards in your future practise and conduct.

The NMC will keep a record of the caution for five years. During this time anyone who enquires about your registration will be told that you have a caution on your record. If you are found guilty of further misconduct by the Preliminary Proceedings Committee or the Professional Conduct Committee within this five year period the Committee will be told about that caution on your record and may take it into consideration when deciding what action to take in future".

114. It is clear from the proceedings that the case against Truscott was put and decided on the basis that he had accessed adult pornographic sites on a computer within the ward. It was not put on the basis that a person who had a predilection for the images which Truscott accessed should not be a nurse whether working in a paediatric, adolescent or adult ward. The substance of the case against him, as revealed by the finding of misconduct, was that by doing what he did there was a risk that the adolescent patients and other members of staff might see the images. Given that Truscott was able to see anyone coming into the room, it seems unlikely that the risk envisaged by the Committee was one that related to the period whilst he was looking at the images. It appears that the Committee were concerned that other members of staff or patients might be able to access the sites and images which had been stored in the computer's memory.
115. Collins J sets out in his judgment a summary of the director's report to the CHRP and its conclusions on the case:

"The director's report to the meeting held by CRHP to decide whether to make a reference under s.29 of the 2002 Act is in the bundle. After citing the passage from the Committee's reasons stating that the case had not been put on the basis that Mr. Truscott's conduct had posed a risk to patients and the reference to the failure of the police to prosecute, he says:-

'This seems to ignore the fundamental point that this was a Paediatric Nurse with professional access to adolescents in the course of his everyday work who while on duty was accessing pornography which it can be seen included what I would consider to be a significant proportion of explicit images of girls (many apparently but some obviously) under the age of puberty far less the age of consent….There are about twenty images [of naked female children] amongst those supplied to us. We and the PCC have only been provided with a sample of probably more than a thousand images that were on the computer used by Mr. Truscott. If the images of naked children have been intentionally accessed then this is obviously worrying'.

He accepts that there was an element of 'cascading' and that Mr. Truscott could not have deliberately sought out or taken account of all the images that were coming onto his screen. He concludes:-

'There is little, if any, direct evidence that Mr. Truscott deliberately sought out images of naked children. Some of the sites visited specialised in 'lolita', 'pre-teen' or 'apparently under age' naked female images – and this would have been quite apparent to Truscott from the web addresses of the sites amongst other things. However, this was not addressed at all in the PCC hearing and it is to be expected that Mr. Truscott would put down the appearance of these sites to 'cascading'. You may consider there to be at least an element of truth in this as the vast majority of the sites using 'lolita' or similar in their website addresses were visited in a single seven minute period on just one night where a total of six pages of files were downloaded within the relevant period. Mr. Truscott did, however, admit to visiting one of these sites, 'videololita', though there is no evidence of how he came to do this or whether he knew what it would contain.

It is also not clear whether all the naked images of children (or women appearing to be children) originated from this one seven minute episode as it is not easy to associate the pictures with the web sites from which they emanated. There are a few other references at different times to web sites containing images of 'teens' though there is also no evidence as to whether these were visited intentionally.

In my view the significant aspect of this case is his apparent propensity to seek out pornographic images of girls – many of them quite clearly under the age of consent (and in my view many under the age of puberty), while carrying out a profession with very direct access to very vulnerable children. This, in my view, should have given the PCC cause for concern as to the wider child protection issues presented by the misconduct rather than the specific issue of the likelihood of children on the ward inadvertently seeing the images.

It must be accepted that we cannot be sure that Mr. Truscott engaged in criminal activity. There is the issue about whether he intentionally sought out the images but there is also the fact that none of the images of naked children involve sexual activity, so it is possible that these would not be considered to break the law. The police decided not to seek prosecution though there is no detail on the nature of the police enquiry referred to and it surprises me that in his position of trust the matter was not pursued further by the police – although there is no way of telling exactly what form the police involvement took – whether he was formally reported to them in relation to an offence or whether advice was sought.

It is apparent that when Solicitor for the Council started to lead the Committee through the process of relating the web addresses to the thumbnail images, the acceptance that this was unnecessary on the basis that Truscott had admitted the misconduct, seems to have resulted in the Committee not fully considering the exact nature of some of the images – also the explanation that the police had viewed the images and deemed them to be adult pornography from sites that were not illegal may have deflected attention from their content.

There is reference in the transcript of his actions not being that of a 'professional paedophile' in that he had not catalogued his images into some sort of file – when later Truscott admits to basic understanding of accessing the internet but not having the skills to download or file anything'.

24. At the meeting of the CRHP, legal advice was given that caution should be exercised in giving weight to allegations or arguments that had not been raised at the hearing before the PCC and on which Mr. Truscott had therefore not had the opportunity to make representations. Concern was expressed that the PCC had not considered whether the material accessed might show a proclivity for behaviour which would make it inappropriate for Mr. Truscott to work with children and adolescents. He had shown little insight into his misconduct and a lack of judgment in accessing the images when on duty in the Unit. The conclusion was expressed thus:-

'The meeting concluded that there was a risk that the images accessed by Mr. Truscott did evidence an unhealthy sexual interest in young people and that this might subsequently be reflected in Mr. Truscott's work since he remained free to work with children and adolescents. It was recalled in this regard, and separately, that Mr. Truscott had already shown himself to have poor judgment in the workplace and little insight into the wrongfulness of his own actions. The meeting could not safely reach any conclusion on whether or not Mr. Truscott had intentionally accessed the images of young people. It considered, however, that the material before it disclosed a real risk and that it would be desirable to take action to protect the public if it were agreed that the sanction imposed was unduly lenient.

The meeting considered whether the sanction imposed by the PCC was unduly lenient. It noted that a more severe sanction was available and that Mr. Truscott remained eligible to practise. Indeed, Mr. Truscott had continued to practise in the field of paediatrics and this caused the meeting considerable concern in the circumstances of this case. Mr. Truscott had not shown any or sufficient insight into his admitted misconduct.'

Attention was drawn to the fact that the web pages accessed by Mr. Truscott included a number that used the descriptions 'teens', 'pre-teens', 'lolita' or 'barely legal'. Looking at the transcript, Mr. Truscott had also apparently admitted to visiting a site called 'videololita'. There was no evidence as to whether Mr. Truscott had intentionally visited these sites and it was accepted that most of the sites with these descriptions were visited in one short period and that these visits might be explained by the concept of 'cascading' that Mr. Truscott had relied on at the PCC hearing. The meeting considered, however, that the PCC should have specifically addressed its mind to the risk implied by the presence of these web pages in the list supplied and to the existence of images of naked children or young people. In the circumstances where it was not clear precisely how and why Mr. Truscott came to access these images and where the PCC had not addressed itself to the risk that an interest in such images on the part of a paediatric nurse implied, it could not be said that the caution imposed afforded adequate protection to the public. Mr. Truscott remains free to work with children (and did so pending his disciplinary hearing before the PCC) and it could not be assumed that future employers would learn of the caution or of the facts underlying it'."

Collins J's conclusions

116. The judge's conclusions appear in the following paragraphs from his judgment:

"27. I do not doubt that the penalty was lenient. I am sure that if the PCC had decided that he should be removed from the register, an appeal against sentence would have been unlikely to succeed. But that is not the test and the adverb 'unduly' must be given its proper weight. Accessing adult pornography is not criminal and the circumstances in which Mr Truscott accessed it demonstrates poor judgment but is perhaps more material to whether he could remain in his employment. It fully justified his dismissal.

28. This is very much a borderline case and I am satisfied that the CRHP was correct to refer it. However, the lack of deliberate accessing of what can be termed child pornography persuades me that undue leniency has not been established."

117. The Council contended that Collins J erred in principle in applying a test of 'undue leniency'. For the reasons that we have given we consider that, in this case, the approach of Collins J was essentially correct.
118. The Council further contended that the NMC had failed to consider the vital question of whether a man who had a taste for the kind of pornography that interested Mr Truscott could safely be entrusted with the care of vulnerable young persons. Both the NMC and Collins J should have concluded that the answer to this question was no and that, accordingly, the interests of the public required that Mr Truscott be removed from the register.
119. The Council's written submissions (paragraph 10) were capable of suggesting that Mr Truscott had deliberately focused on child pornography when surfing the web. This was not a submission that Mr Howell developed orally. Collins J had concluded that the evidence could not support such a conclusion and we consider that he was correct.
120. Mr Howell further contended that neither the NMC nor Collins J considered whether Mr Truscott's conduct in accessing adult pornography whilst at work and in charge of vulnerable teenagers demonstrated that he was not a suitable person to nurse such individuals. So far as the NMC was concerned, this submission was largely founded on the statement in the Committee's decision that "the case has not been put on the basis that your conduct demonstrates a risk to patients". The NMC hotly challenged the suggestion that its Committee had not considered whether Mr Truscott's conduct demonstrated that he was not suitable to nurse vulnerable adolescents and drew our attention to a passage in the transcript in which the Chairman questioned Mr Truscott about his perception of the compatibility of such conduct with the protection of vulnerable children.
121. We do not accept that the Committee did not consider whether Mr Truscott's behaviour, and in particular the material that he chose to view, demonstrated that he could not safely be left in charge of vulnerable adolescents. It is correct that the Committee did not expressly address the question of whether a man with a predilection for the type of material accessed by Truscott was a proper person to act as a paediatric nurse. However it seems to us that there was an underlying theme to the disciplinary proceedings, which was the implication of the material which Truscott chose to view. The submission of Mr Girling that we have quoted at paragraph 101 and the latter part of the passage from Dr Johnson's speech that we have quoted at paragraph 110 are illustrative of this. We have concluded that the Committee must have had in mind the question of whether Truscott's predilection for pornography rendered him unfit to nurse and concluded that it did not.
122. Collins J considered that this was a borderline case. Had it been shown that Mr Truscott had deliberately accessed child pornography, the Committee's decision would have been unduly lenient. In the event, while the sanction imposed was lenient, he concluded that a case for increasing the sanction had not been made out.
123. We have concluded that this is a case where it is right to show some deference for the views of the Committee. No error of principle has been shown on the Committee's part. No procedural shortcoming or error of primary fact has been demonstrated. The Committee was as well placed, if not better placed, than a judge or a panel of judges to decide whether Mr Truscott's fascination with pornography was incompatible with his role as a nurse. We do not consider that Collins J erred in his approach to this case or in his conclusions. Accordingly the Council's appeal in the case of Truscott will be dismissed.
ORDER:

1. Appellant's appeal against the order of Leveson J of 29 March 2004 be dismissed. Appellant's appeal against the order of Collins J of 31 March 2004 be dismissed.

2. Application for permission to appeal by Dr Ruscillo refused.

3. The question of costs will be dealt with on the basis of submissions to be provided in writing.

(Order does not form part of approved Judgment)