England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
IRWIN J - dated 4th July 2008

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/02/2009

Lord Justice Wall:

Introduction

1. This is a renewed application for permission to appeal. I heard oral argument from the applicant in person on 27 January 2009 and reserved judgment. I did so both because of the importance of the issue to the applicant and because of the volume of documentation which he had produced.
2. The applicant seeks permission to appeal from the decision of Irwin J given on 4 July 2008. The judge had dismissed the applicant's appeal against the decision of the Fitness to Practise Panel (FPP) of the General Medical Council dated 12 December 2006 which had directed that his name be erased from the medical register. Permission to appeal from Irwin J's decision was refused on paper by Arden LJ on 10 November 2008.
3. This is, accordingly, a second appeal. So the test the applicant faces is a stringent one. Section 55(1) of the Access to Justice Act 1999 provides that the court will only entertain a second appeal if it raises an important point of principle or practice or if there is some other compelling reason to hear it. There is a similar provision in the Civil Procedure Rules. The applicant thus has a heavy burden to discharge.

Overview

4. The essence of the applicant's case is that it was wrong of the FPP to find him guilty of serious profession misconduct when he had, on the directions of a Crown Court judge been acquitted in a criminal trial of the self-same acts which formed the basis of the FPP's determination. Furthermore, the applicant points to the nature of his acquittal in the criminal proceedings. The judge had held that he could not receive a fair trial.
5. It is often very difficult for highly intelligent people who are not lawyers to understand the difference between a verdict in a criminal trial and a decision on the same subject matter in civil or disciplinary proceedings. This question arises frequently in family cases involving children. A man is prosecuted for – let us say – indecent assault on a child. He is acquitted, sometimes by the jury, sometimes on the direction of the judge.. A different circuit judge then finds in care proceedings that, despite the verdict of the jury, the man has nonetheless committed the very act or acts of which he has been acquitted in the criminal court.
6. The confusion in the lay person's mind is perfectly understandable. In most family cases, the explanation is the difference in the standard of proof. To convict in the criminal court, the jury has to be satisfied "beyond reasonable doubt". They have to be "sure" that the accused is guilty. A judge hearing care proceedings, however, has only to be satisfied on "the balance of probabilities" - that is to say whether it is more likely than not that the person in question has committed the act concerned. Furthermore, of course, the evidential rules in a criminal trial are much stricter. For example, hearsay is normally not admissible.
7. Such considerations do not apply in the instant case, however, as the FPP had to be satisfied to the criminal standard that the applicant had been guilty of the behaviour alleged against him, something of which the FPP was fully aware, and about which it directed itself correctly – see pager I of its decision letter date 13 December 2006. "Sure" is the legal equivalent of "beyond reasonable doubt". However, the same underlying principle applies. Criminal proceedings are designed to establish guilt or innocence by a member of the public with a view to punishment by society if the verdict is guilty, and acquittal if the verdict is not guilty. Proceedings before a professional body are designed to establish whether or not professional men and women have fallen below the standards expected of their profession; whether or not the professionals concerned should remain members of the profession concerned, and if so, on what terms.
8. A moment's thought will suffice to demonstrate that the mere fact of an acquittal in criminal proceedings cannot be the be all and end all of the matter for other purposes. Supposing, for example, that a professional man is acquitted of murder or grievous bodily harm by a jury on the direction of the judge on a purely technical and unmeritorious point. He is not guilty in the eyes of the criminal law. But that would not stop – nor should it stop – his professional body re-investigating the matter and deciding both that he had been guilty of serious professional misconduct, and that he should be disciplined according to the rule of the profession concerned. A professional body is, after all, charged with the duty to protect the public from members of the profession who fall below its standards.
9. In the present application, as I have already indicated, a judge in the crown court has found that, because of the manner in which the investigation into the applicant's conduct was handled by the police, a fair trial in the criminal court was not possible. After an extensive voir dire in the absence of the jury, the prosecution offered no evidence and the judge directed the jury to bring in a verdict of not guilty. So the applicant asks: "if the Crown Court judge thought I could not have a fair trial, how can my professional body conduct such a trial and find me guilty?
10. The answer, of course, as I have already stated, is that the functions of the Crown Court and the GMC are different. The hearing before the FPP was not a second criminal trial. It was an investigation by the FPP into the applicant's professional conduct. The fact that the applicant had been acquitted in the criminal proceedings was plainly a factor in the matters they had to consider. But it was not conclusive in the applicant's favour.
11. What Irwin J had to look at what was the FPP's procedure. Was it fair? Did it give the applicant an opportunity fully to present his case? Was it, in short, ECHR Article 6 compliant? What I have to look at is whether or not Irwin J made any error of law, or whether his decision was, arguably, wrong. In other words, the question which has to be asked is whether or not the FPP committed any error of law, which the judge hearing the applicant's appeal to the High Court has failed to correct. Inevitably, this means that my judgment must focus primarily on the judgment in the court below.
12. I understand, of course, that from the applicant's point of view, nothing could be more important. His career and his livelihood are at stake. It follows, therefore, that although this is a second appeal which, in my judgment, does not raise any point of principle not already covered by authority, and although Arden LJ has refused permission to appeal on grounds which seem to me irrefutable, I will, nonetheless re-examine the case to see if there is any basis upon which an appeal to this court could stand any reasonable prospect of success.

The facts

13. On 12 December 2006, the GMC, pursuant to section 35(E) of the Medical Act 1983 gave the applicant notice that at a meeting of the FPP on the same day, the latter had directed that he name be erased from the medical register. In common parlance, the applicant was "struck off". The full reasons of the FPP followed on 13 December 2006.
14. Section 35(E) of the Medical Act 1983 was added by the Medical Act 1983 (Amendment) Order 2002. I do not propose to set out the amendments to sections 35(A) to (E) of the Medical Act 1983, since they are not, in my judgment, relevant to the issues in the application before me.
15. The background facts are shortly and uncontentiously summarised by the judge in paragraphs 1 to 5 of his judgment:-

1. The finding of the (FPP) was that (the applicant's fitness to practise was impaired by reason of misconduct and that his name should be erased from the medical register.

2. They found that his misconduct consisted of consistently inappropriate sexual behaviour towards female patients, including young and vulnerable patients, under the guise of medical examinations. As part of the formulation of charges before the FPP the GMC also alleged such ancillary matters as failure to offer or to introduce chaperones into the examination room, saying inappropriate sexual or personal things to patients, stroking the back of the hand of a patient, failing to provide privacy for a patient to dress or undress, and so forth. However, it is clear that the heart of the allegations against was sexual misconduct towards patients.

3. The (applicant) qualified in India in 1969 and migrated to the United Kingdom in 1977. After holding various training posts in NHS hospitals and training as a general practitioner, he joined the Peatwood Medical Centre in Southdene, Liverpool as a general medical practitioner. He practised as a sole practitioner there from 2001. In 2002 allegations against him surfaced and the police were involved in initiating investigations. Those investigations culminated in allegations of indecent assault against female patients and was charged and prosecuted. The criminal proceedings culminated in an extensive voire dire held in a private hearing at the Crown Court at Liverpool before his Honour Judge George. was represented at the criminal proceedings by Mr William Coker QC. This voire dire focused on the conduct of the investigation by the police, and in particular on the conduct of the detective most active in the investigation, Detective Constable Carver.

4. It seems to be common ground that in the course of this investigation DC Carver was given responsibility which was beyond him and for which he had not been properly trained and was not properly supported. Whilst nominally under the supervision of more senior officers, DC Carver appears in practice to have operated with considerable independence.

5. In the course of his submissions and cross-examination of DC Carver, which took, in total, 8 days of hearing in the Crown Court, leading counsel for (the applicant) concentrated with some effect on exposing deficiencies in investigational methods, note-taking and disclosure of material by DC Carver. At the heart of all this was the suggestion that the complainants may have been contaminated or may have colluded, meaning that their evidence against (the applicant) was unreliable. At the end of this hearing, in circumstances which I will detail a little later in this judgment, the prosecution was dropped.

Subsequent events

16. The judge then goes on to acquit the GMC of any active part in examining the allegations before the criminal proceedings were dropped, but states that once they were abandoned, the GMC "undertook its own investigation".
17. On 8 August 2005, the solicitors then acting for the applicant wrote to the GMC taking the point that, given the approach of the police to the investigation, a fair trial of the issue of fitness to practice was impossible. The judge cites a passage from the solicitors' letter in the following terms:-

No subsequent investigation by the GMC could remedy the failures of, retrieve the material which has been lost by, or undo the damage done by this flawed and incompetent police investigation."

18. Notwithstanding the solicitors' protest, the FPP heard the allegations over some 19 days between 9 November and 12 December 2006. The judge records that oral evidence was taken from at least eight of the patients, and the applicant himself gave evidence for something in excess of three days. The outcome, as the judge records, is that the majority of the allegations were found to be proved.
19. The single ground of appeal before Irwin J was as follows: -

The (FPP) failed to take into consideration the possibility of collusion of the witnesses, despite the fact that (the applicant's) case was dismissed at Liverpool Crown Court on 28th May 2004 due to the nature of the investigation of the allegations and that could not rule out the potential collusion and contamination of evidence.

20. The judge then goes on to record how the case was argued before him:-

11. Firstly, the (FPP) should have ordered a stay of proceedings. This should have arisen because Mr Myers, acting for (the applicant) at that stage, should have made a clear and properly argued application to stay the proceedings.

12. Secondly, even in the absence of such an application, Mr Donne QC, prosecuting before the (FPP), who was aware of the contents of the transcripts of the Crown Court hearing, should have exercised his prosecutorial responsibility to ensure fairness by dropping the proceedings.

13. Thirdly, it is said in the alternative, although with less emphasis, that Mr Donne should have placed the whole transcript of the Crown Court proceedings before the (FPP).

14. Fourthly, it is also said, but with a good deal less emphasis, that the (FPP) should have declined to proceed in the face of what had happened in the Crown Court. For these purposes the (FPP) means the legal advisor, Mr Robin Grey QC.

15. Generally it is said that where proceedings have been "dismissed" because the defendant could not receive a fair trial, that must be as true of the disciplinary proceedings as it was of the criminal proceedings. For these purposes, it is said there should be no distinction being made between them. For those reasons, Mr Clayton says that the outcome of the (FPP) hearing is "wrong", which is agreed to be the test pursuant to the Civil Procedure Rules, Part 52.11.2(3)(a).

21. The judge then goes on to examine in some detail what occurred in the Crown Court. He finds, in the applicant's favour, that the Crown Court judge had himself formed the view that a fair trial was not possible, and had so indicated. He also records the terms in which counsel for the Crown, Mr. Kileen, announced its intention to discontinue:-

in terms of what that will mean and really look once again at the impact of any evidence, if we were to become witnesses, that we would have to give in relation to the nature and quality of this investigation in relation to what we knew or did not know of steps that were taken within it by the officer in charge/investigating officer. We have had to make an assessment, having regard to everything we have heard, not merely the nature and quality of the investigation, but more particularly [the] impact of the evidence of that officer yesterday, the impact upon the case as a whole.

22. The conclusions which the judge draws from the Crown Court proceedings are summarised in paragraphs 24 to 28 of his judgment:

24. As both counsel agreed in the course of argument before me, it is not possible to infer all of the considerations that entered into this decision. However, what is perfectly clear is that the credibility of DC Carver was important, the position of counsel was important, and it is evident, in particular from the passage last quoted, that counsel were considering the impact on a jury in a trial in which the whole team of prosecuting lawyers would have to be called to be cross-examined about how the police investigation had been mounted. In my judgment, it is clear that any competent counsel would be likely to regard that necessity as making it very difficult to present the case to a jury. That conclusion is far from being a concession by counsel that a conviction following such a trial would be a miscarriage of justice. It is clear that Mr Killeen never made such a concession. In argument before this court, Mr Clayton QC accepted that the upshot of this could fairly be summarised in the following points:

25. Firstly, DC Carver could not be used to exclude the possibility of contact or collusion between complainants. His credibility was too damaged and his note-taking and methodology too poor.

26. Secondly, there was at least some limited evidence to suggest that there had been contact between CB and JT (one of the complainants), perhaps casually or perhaps at the instigation of DC Carver. There was no direct evidence in favour of such contact or collusion in respect of any other complainant.

27. Thirdly, the proceedings before the Crown Court demonstrated that there was an absence of records, notes or other documentation which should have existed, because they should have been created by DC Carver, and which, if they had existed, could have been used or an attempt could have been made to use them to test the risk of contact or collusion between other complainants. In other words, the suspicion of such contact or collusion could not be allayed by reference to such notes or records.

28. In my judgment, those points represent a summary of all that can fairly be said to be derived from the proceedings of the Crown Court.

(Emphasis supplied)

23. After examining the statutory basis of the FPP's jurisdiction, the judge addresses the dilemma which I have identified at paragraphs 5 to 10 above. In paragraph 33, he asserts, correctly, that the principle that different considerations apply to the two forms of proceedings (i.e. criminal and disciplinary) is well established. However he acknowledges, again in my judgment correctly, that:-

none of the authorities deal(s) directly with the position where criminal proceedings had been stopped because a fair trial had been impossible, and yet subsequent disciplinary proceedings proceeded on the same evidence, or even substantially the same evidence. Thus, this case falls to be decided on its facts and on the application of first principles.

24. The judge then turns to a detailed examination of the FPP proceedings. He cites extensively from the transcript He notes that there was no formal application for the FPP proceedings to be stayed. Counsel for the applicant before Irwin J said there should have been. In my judgment, the following four paragraphs of the judge's judgment are significant:-

44. Those quotations from a fairly extensive transcript of the argument give a clear understanding of the flavour of what took place before the (FPP). This was not, in my judgment, a clear application by counsel for a stay of the proceedings. The passage I have quoted most recently is the clearest it gets. The (FPP), after further discussion, treated this application as an application for an adjournment so that further disclosure could be obtained. In my judgment, that was a fair response or characterisation of what counsel was really putting to them. There was no clear application by Mr Myers, (counsel for the applicant before the FPP) to say directly, "There cannot be a fair hearing before you. The risks of an unfair hearing are too great and here are the reasons". However, the (FPP) clearly did have by then a good grasp of the complex reasons why it was said the criminal proceedings had ended, at least insofar as it was possible to discern them. They were aware, and fully aware, of the concern about contamination or collusion between witnesses, were aware of the concern raised about further documents, and were in a position to consider the impact of all of that on the fairness of the proceedings.

45. The (FPP) refused the application for a further adjournment and the matter proceeded. However, it is important to note that they did admit any portions of the Crown Court transcript specifically asked for by Mr Myers. Part of the transcript was admitted on day 2 and another portion on a later date. It was also clear that had Mr Myers requested that further extracts, even extensive extracts, should be placed before the (FPP), Mr Donne (counsel for the GMC before the FPP) would have agreed. He made that explicitly clear.

46. I have already referred in general terms to the outcome of the (FPP) hearing. The majority, but not all of the allegations, were proved against (the applicant). It is relevant to note, however, that where a complainant did not give live evidence, such as patient I, the (FPP) largely acquitted (the applicant) of the allegations concerning that complainant, save in respect of matters effectively or indeed wholly admitted by (the applicant) himself. It is perfectly clear that (the FPP) closely assessed the witnesses who gave evidence before them, and that their assessment of those witnesses was crucial to their conclusions.

47. I return to the complaints made by Mr Clayton on behalf of (the applicant). Mr Clayton says there should have been a stay of these proceedings, firstly because Mr Myers should have made a coherent and determined application for a stay. Mr Clayton intends to be kind, but it is clear that he is critical of the way that this was handled by counsel. All I will say is that no coherent and determined application for a stay was made.

25. The judge then proceeds to dismiss an argument advanced on the applicant's behalf that the conduct of the applicant's lawyers at the FPP hearing prevented his case being properly heard and thus constituted a breach of his rights under ECHR Article 6. The judge thus concludes:-

59. Collusion and contamination are the stuff of life in the criminal courts, where sexual allegations are concerned. It cannot be an objection to proceeding in a case that such questions are raised, even where there may be imperfect documentary evidence against which to test the validity of the allegations. Hence, in my judgment, had Mr Myers made a coherent and determined application for a stay, it would properly have failed. It follows that, however high may be the obligation on a prosecutor or on the legal assessor to the Panel not to proceed with a disciplinary hearing, such an obligation could not arise on these facts. For all these reasons, (the applicant's) appeal fails and the Panel's determination stands.

(emphasis supplied)

The applicant's grounds of appeal

26. In his skeleton argument and grounds of appeal, the applicant relies on the alleged errors of his counsel before the FPP as "seriously undermining his case". He also argues that there was evidence to suggest / confirm that "investigation into (applicant's) case and statement(s) obtained from witnesses .as unfairly carried out leading to contamination of statements". He criticises the judge for "failure to take into account all relevant papers before him".
27. Attached to a further document dated 16 November 2008 are extracts from the voluminous documentation which, the applicant asserts demonstrate that the FPP hearing "unfortunately for one reason or other was not fairly carried out." Finally, for my purposes there are, in addition to the six arch lever files, two documents I need to mention: the first is dated 8 September 2008 and is headed Supplementary Skeleton Argument from the Claimant; the second is dated 20 January 2009, and is headed Appellant's Submission for oral hearing. I have, of course, considered these and other documents over the period during which this application has been reserved.

Arden LJ's reasons for refusing permission to appeal

28. In her reasons dated 10 November 2008, Arden LJ begins by setting out the criteria for second appeals. She states that the skeleton arguments produced by the applicant "do not disclose any prospect of showing an error of law on the pat of the judge, still less one that qualifies" (under the second part of the 1999 Access to Justice Act test). She then states that it is not enough to complain that the counsel instructed acted in error, and points to the need to identify specifically evidence which it is said was not properly considered by the judge.

Discussion and conclusion

29. It may well be that the applicant is under the impression that this court has powers which, in reality, it does not possess. This court does not conduct a re-re-hearing: it does not hear evidence. My function is extremely limited. Quite apart from the fact that this is a second appeal, I have, as I have already indicated, to ask myself two very simple questions: (1) has the judge made any error of law? and (2) is there any basis upon which it may be arguable that the judge has fallen into error in a way which would entitle or requite this court to intervene?
30. In my judgment, the simple answer to both question is "no". In the first place, this is a classic example of the proposition that criminal proceedings and disciplinary proceedings before the FPP have different purposes. This was plainly recognised by the applicant and the beginning of his cross-examination before the FPP.
31. What matters, therefore, is whether or not the proceedings before the FPP were fair, or, to put the matter in ECHR terms, whether or not they were Article 6 compliant. In my judgment they plainly were. The applicant was represented. The complainants were cross-examined, and the applicant's case put to them. Their credibility was fully tested. The applicant himself gave evidence over an extended period. The FPP thus had ample opportunity to assess the witnesses and consider the facts. Its decision runs to 22 pages of single spaced A4 typescript. It examines each case carefully and in detail. It found the allegations of 7 female patients proved. It was plainly entitled to reach its conclusions.
32. Furthermore, of course, the FPP was fully aware of the background and of the criminal proceedings: - see Bundle 1 page 199. A transcript of the criminal proceedings was available. The FPP was thus fully aware of all the issues raised by the applicant.
33. I agree with the judge that had the applicant's counsel made an application for the proceedings before the FPP to be stayed, it would have been refused. As the FPP pointed out in its reasons, none of the female complainants had given evidence in the Crown Court, and their credibility was being tested for the first time in the proceedings before the FPP.
34. I have therefore reached the clear view that the FPP was; (a) entitled to proceed; (b) conducted its proceedings fairly; and (c) reached a result which was plainly open it. I am equally satisfied that Irwin J was right to dismiss the applicant's appeal; that he committed no error of law; and that a further appeal against his decision - irrespective of section 55 of the Access to Justice Act 1999 - would stand no reasonable prospect of success.
35. I have equally no doubt that the applicant has convinced himself of his innocence, and that he is unlikely to accept this judgment. He has, however, been through the process. The process / system has acquitted him of crimes, but has struck him off the medical register. Those were both conclusions which the process / system was entitled to reach.
36. The renewed application for permission to appeal is, accusingly, refused.