COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(COLLINS J & LEVESON J)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE HOOPER
| DR GIUSEPPE RUSCILLO
|- and -
|(1) THE COUNCIL FOR THE REGULATION OF HEALTH CARE PROFESIONALS
(2) THE GENERAL MEDICAL COUNCIL & ANR
|COUNCIL FOR THE REGULATION OF HEALTH CARE PROFESSIONALS
|(1) THE NURSING AND MIDWIFERY COUNCIL
(2) STEVEN TRUSCOTT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
John Howell QC & Kate Gallafent (instructed by Baker & MacKenzie, Solicitors) for the "Council"
Roger Henderson QC & Jemima Stratford (instructed by Field Fisher Waterhouse, Solicitors) for the GMC
Dr Karen Johnson (instructed by The Director of Legal Services for the Royal College of Nursing) for Mr Truscott
Alison Foster QC & Robert Lawson (instructed by Penningtons, Solicitors) for NMC
Crown Copyright ©
Lord Phillips, MR :
This is the judgment of the court.
Part 2 of the Act
"(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."
(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.
"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
The Ruscillo appeal: facts
"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:
(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."
"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."
The Ruscillo appeal: issues
(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?
"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
The Truscott appeal issues
"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  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."
(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'.
"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."
The Ruscillo appeal: permission to appeal to the Court of Appeal
"(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."
"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. "
The Ruscillo appeal: can the Council appeal against an acquittal?
(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."
"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."
(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.
Other issues of principle raised by the two appeals
"(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."
The criteria to be considered on appeal
The scheme of 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."
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.
The approach of the High Court to a reference
" 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."
"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."
Procedural shortcomings and fresh evidence
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.
"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) 7th/8th March 2002
(ii) 8th/9th March 2002 excluding 1(a)(i) above
(iii) 9th/10th March 2002 excluding 1(a)(ii) above
(iv) 10th/11th March 2002 excluding 1(a)(iii) above
(v) 11th/12th March 2002 excluding 1(a)(iv) above
(vi) 14th/15th March 2002; and
(b) That, having so accessed explicit and/or offensive websites on the Internet, you are guilty of misconduct."
"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.
"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."
"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."
"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."
"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."
"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."
"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".
"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
"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."
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.