England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		26th November 2002

1. MR JUSTICE GOLDRING:

The issue in outline

In this case the claimant seeks judicial review of the decision of the Disciplinary Committee of the Chiropodists Board, which on 7th March 2002 dismissed six charges of serious professional misconduct against Mr Green, a chiropodist who had been registered in the United Kingdom since 1981. Some of the conduct complained of occurred in New Zealand. The Committee decided that it did not have jurisdiction to hear the New Zealand charges. The issue is, was the Committee right.

2. The law

The relevant statutory provision at the time of the hearing was the Professions Supplementary to Medicine Act 1960. As from 1st April 2002 there have been new provisions set out in the Health Professions Order 2001, a statutory instrument made under section 62(9) of the Health Act 1999. This application is therefore somewhat academic.

3. Section 1 of the 1960 Act provides, in subsection (2):

"For each of the following professions, that is to say, chiropodists...there shall a body, to be called the Chiropodists Board...which shall have the general function of promoting high standards of professional education and professional conduct among members of the relevant profession, and the additional functions assigned to it by this Act."

Section 2 of the Act, among other things, places a duty on the Board to prepare and maintain a register of members. Sections 8 and 9 deal with disciplinary provisions. Section 8(1) provides that:

"Each board shall set up two committees, to be known as the investigating committee and the disciplinary committee respectively, of which -

...

(b) the disciplinary committee shall be charged with the duty of considering and determining any case referred to it by the investigating committee and any other case of which the disciplinary committee has cognisance..."

4. Section 9 provides:

"(1) Where -

(a) a person who is registered by a board is convicted by any court in the United Kingdom of a criminal offence which, in the opinion of the disciplinary committee set up by the board, renders him unfit to be registered; or

(b) such a person is judged by the disciplinary committee to be guilty of infamous conduct in any professional respect...

the committee may, if it thinks fit, direct that the person's name shall be removed from the register."

5. Mr Caplan QC, on behalf of the claimant, emphasises the absence in subsection (b) of any geographical limitation regarding the alleged infamous conduct. There is such a limitation in subsection (a).
6. The procedure of the disciplinary committee 

That is provided for under the Second Schedule of Part II of the Act. Among other things, it requires that the case be proved against the defendant. It also provides that evidence may be given on oath and that subpoenas may be issued within the jurisdiction.

7. The Disciplinary Committees Procedure Rules 1964 govern the procedure which applies. It is not necessary to refer to them in any detail.
8. The proceedings against Mr Green
9. The events before the hearing

On 31st January 2002 Mr Harding, the solicitor to the Committee, sent a letter to Mr Green informing him that an inquiry would be held in respect of a series of charges. The charges were set out in the letter. Although there were some subsequent amendments, they are not, for present purposes, material. The charges were:

"That you being a State Registered Chiropodist are guilty of infamous conduct in a professional respect in that you did either individually, or cumulatively:-

(a) in June 1997, borrow NZ$4,500.00 from your patient...to assist you in the acquisition of the...clinic;

(b) in 1995, at Central Institute of Technology...borrowed NZ$600.00 from a student...whilst you were a lecturer at that institution;

(c) fail to repay in its entirety the money borrowed [in respect of charge (a)];

(d) fail to repay the money borrowed [in respect of charge (b)];

(e) in or around June 1998, you abandoned your podiatry practise known as the Cornwall Podiatry Clinic without notice to

(i) Your professional colleagues; and

(ii) Your patients;

(f) on or before August 1996, whilst in the employ of CIT you removed a nail drill belonging to CIT without permission.

(g) in an application form dated 6th July 1999, [you misled] the Rotherham Primary Health NHS Trust as to your employment history in that you failed to mention your employment with CIT."

The letter went on to say:

"Notice is further given to you that on Monday, 7th March 2002, at 11.00 in the morning...a meeting of the Disciplinary Committee of the Board will be held at the offices of the Council for Professions Supplementary to Medicine, Park House, 184 Kennington Park Road, London...to consider the above-mentioned charges against you and to determine whether or not they should direct the Registrar to remove your name from the Register pursuant to Section 9 of the Professions Supplementary to Medicine Act 1960, or give any other direction provided for in that section."

The letter then invites him to answer the charges in writing and also appear before the Committee at the time and place specified for the purpose of answering:

"The Committee have power, if you do not appear, to hear and decide upon the said charges in your absence."

10. The letter also indicated that he could apply for the hearing to be postponed. It also drew his attention to his right to be represented by counsel, solicitor or other persons.
11. In other words, Mr Green was under no misapprehension as to the nature of the charges, where and when the hearing would be, the possibility of obtaining an adjournment and his right to be represented.
12. At the same time, Mr Green was sent a series of witness statements "pursuant to section 9 of the Criminal Justice Act 1967", and in the accompanying letter it stated:

"It is our intention to read these statements...at the hearing...unless you object to this course of action within the next seven days."

There was no response from Mr Green.

13. The hearing on 7th March 2002

Mr Harding represented the Board. Mr Green did not attend. Mr Williams was the Legal Assessor to the Committee. Mr Williams raised the issue of jurisdiction as far as the New Zealand charges were concerned. Mr Harding submitted that jurisdiction arose from the fact that Mr Green was registered by the Board in the United Kingdom. It was not known, he said, whether he was registered in New Zealand.

14. The Committee received a limited amount of help. Mr Williams said this:

"I have looked in a textbook, which is called Law & Practice of Disciplinary & Regulatory Proceedings by Brian Harris, the 2nd Edition, and at page 4 of that textbook it raises the question of jurisdiction in place, and if I can read that out to you. It says:

'Many professional bodies impose no limit to the geographical area over which they claim jurisdiction, although misconduct is often confined, for practical reasons, to acts or omissions committed in this country. In the case of many bodies the issue of extra territoriality has never arisen and thus has never been confronted.'"

He also said:

"It is my experience, during the time I have been acting as Legal Assessor for this and other Boards within the Council for Professions Supplementary to Medicine, that no Board has ever had to determine the issue. You are the arbiters of fact and law and for the purposes of these proceedings and at the end of the day it is a matter for you as to whether or not you regard acts or omissions committed outside of the jurisdiction as being capable of being dealt with by you."

And a little later on he said:

"I cannot assist you a great deal further than that other than to say that, as Mr Harris has said in his book, many professional bodies impose no limit to the geographical area over which they claim jurisdiction and in my view the date of registration for the respondent in this case is a relevant consideration for you to take into account."

15. Mr Ariori, who was the Chairman of the Committee, and who has appeared today in circumstances that I shall refer to at the end of this judgment, said:

"It is unfortunate that Mr Green is not represented here or is present to give a view on this particular issue. For me there are certain significant problems with hearing matters that have taken place outside of the United Kingdom, problems of issuing subpoenas, things of this nature. I am trying to imagine defending counsel putting forward a counter-argument to what you have said, Mr Harding."

Mr Harding then dealt with issues concerning the issue of subpoenas and enforcing attendance. He said, as is the case, that in this case the witnesses who had made statements had indicated their willingness to attend, assuming their costs were reimbursed.

16. Having adjourned for a short time the Committee returned and said this:

"In this case, the Disciplinary Committee is not prepared to hear charges (a), (b), (c), (d), (e) and (f) because they refer to matters outside the United Kingdom and do not directly relate to Mr Green's registration in this country.

We accept, however, that there are circumstances where charges of infamous conduct might be heard relating to matters which occurred outside the United Kingdom."

17. In his helpful submissions to me, Mr Ariori has indicated the thinking that went on behind that decision. He and his colleagues would have expected the proceedings to be brought in New Zealand. They were aware, he said, that Mr Green was registered in New Zealand. There was a regulatory body in New Zealand which had greater powers than they did. There were more important charges than the New Zealand charges. As he put it to me in his submissions, "We brought common sense to bear."
18. Subsequent to the decision, the Committee have provided expanded reasons for their decision in two parts. The first part is effectively an explanation as to how they reached the decision they did; the second part, which it is not necessary to set out, contains various legal submissions plainly following advice they had been given. The first part, and I simplify greatly, comes to this:

(1) They were not provided with any legal precedents;

(2) The 1960 Act was designed to regulate the profession in the United Kingdom;

(3) The standard of proof was criminal; jurisdiction would not lie in criminal proceedings;

(4) They were concerned about fairness and the difficulty of witnesses giving evidence from outside the jurisdiction; they were concerned about the absence of Mr Green;

(5) The extract from Harris quoted to them was less than helpful;

(6) If there was doubt about jurisdiction, it should be exercised in Mr Green's favour.

19. Those were the reasons repeated in the acknowledgment of service.
20. One authority drawn to my attention was the case of Ong Bak Hin v GMC [1956] 2 All ER 257. The appellant before the Privy Council was a doctor registered in the United Kingdom. He was convicted of unlawfully performing an operation in Malaya. The witnesses could not be compelled to attend from Malaya. The record of the finding in Malaya was relied upon before the General Medical Council. The Privy Council decided that no injustice had occurred and dismissed the appeal. Although there was no consideration of the issue, it is of course implicit in the Privy Council's decision that serious professional misconduct in Malaya was sufficient to justify erasure from the Register in the United Kingdom.
21. My conclusion

I have come to the view that the Committee did have jurisdiction to hear the New Zealand complaints.

22. First, section 9(2) does not impose any jurisdictional limit. If it had been Parliament's intention there should be one, it could have said so. It is plain that a conviction outside the United Kingdom would not count for the purposes of section 9(1) of the Act. It equally could have said that conduct outside the United Kingdom would not count for the purposes of section 9(2).
23. Second, the purpose of this legislation was the protection of the public. If a chiropodist has been guilty of serious professional misconduct, it does not matter to a member of the public whether that misconduct arose within or outside the jurisdiction. It does not seem to me that the fact that the charges relate to matters outside the United Kingdom and do not directly relate to Mr Green's registration in the United Kingdom is material. The issue is whether they amount to conduct of such a nature as to be infamous in any professional respect, wherever committed. If there is such possible conduct, it is the duty of the Committee to investigate it.
24. I add. When Mr Green sought and was given his Registration in 1981, he knew that serious professional misconduct by him would put his registration at risk. Provided the allegation of such misconduct is properly proved, the fact it may have occurred outside the jurisdiction cannot, in my view, be unfair to someone in Mr Green's position.
25. I can understand the Committee had some concern regarding witnesses. However, on proper analysis, it seems to me without substance. A defendant is sufficiently protected by the provisions of paragraph 16 of the Disciplinary Committees (Procedure) Rules 1964. Moreover, Mr Green was told what the witnesses would say. He was told their statements would be read. He chose not to contest their evidence. That could not conceivably be said to have been unfair.
26. There are two other observations I would wish to make. The Committee consisted not of lawyers but of lay people who were giving their time to help regulate the profession and protect the public. I have considerable sympathy for them when presented with what was not an entirely straightforward matter in a way which it must be said was less than helpful. It is also unfortunate, as Mr Ariori has pointed out to me today, that he has not had the benefit of legal representation because the Board would not pay for it. It seems to me that those who give their time to serve on such committees ought to know that, in the event of an appeal such as this, they will be represented and that, in any event, absent a wholly perverse decision, they would be indemnified for any costs incurred.
27. In the circumstances, I therefore quash the decision of the defendants. I will ask Mr Caplan what he would wish should happen. I have in mind Mr Ariori's observations that the most important allegation, as far as the members of the Committee were concerned, had nothing to do with events in New Zealand.
28. Mr Caplan, I want to know whether, in those circumstances, you think it necessary to remit the case, so far as those allegations are concerned, to the Committee?
29. MR CAPLAN: My Lord, thank you. Our view would be for the moment to invite your Lordship to remit the whole case back to the Committee for consideration. Of course it would be open to them, after consideration, to take what course they think appropriate, or indeed it may well be that the solicitor of the Board, who may be me on this occasion, or Mr Harding, may take a view not to proceed. I do not bind myself in relation to that. But for the moment we would invite your Lordship to direct that the matter go back to the Committee for consideration.
30. Could I, my Lord, mention one matter, and I may well have misheard, and my profuse apologies if I did.
31. MR JUSTICE GOLDRING: No, no. Please say.
32. MR CAPLAN: And it is this. If I could take your Lordship to page 4 of the bundle, where --
33. MR JUSTICE GOLDRING: Yes.
34. MR CAPLAN: -- section 9 is set out.
35. MR JUSTICE GOLDRING: Just give me one second. I have it. When you say page 4 of the bundle, which bundle?
36. MR CAPLAN: It is page 4 of the red bundle that you --
37. MR JUSTICE GOLDRING: I have two red bundles. I have the original judicial review bundle.
38. MR CAPLAN: It is the second one, the bundle which accompanies this hearing.
39. MR JUSTICE GOLDRING: I have it. Yes, it is the 1960 Act.
40. MR CAPLAN: Indeed.
41. MR JUSTICE GOLDRING: It is page 9.
42. MR CAPLAN: For some reason, I have it on page 4. But my apologies. Actually, it is section 9, and my apologies for this.
43. MR JUSTICE GOLDRING: Yes. No, no, please tell me, Mr Caplan, if I have it wrong.
44. MR CAPLAN: If I can mention this: that the reference to the two subsections for which the Committee can of course hear matters is 9(1)(a) for conviction cases which leads to unfitness and 9(1)(b) for infamous conduct cases.
45. MR JUSTICE GOLDRING: Yes.
46. MR CAPLAN: Forgive me, my Lord, but I thought I heard your Lordship refer to subsection (2) of section 9 when referring to 9(1)(b).
47. MR JUSTICE GOLDRING: Well, if I did, that plainly needs correction in the transcript, because I clearly did not mean it.
48. MR CAPLAN: I am most grateful, my Lord. Can I just mention just one other matter, although it does not bear entirely on this, but I know your Lordship was concerned about the reference made to the statements, section 9 statements, to apply shorthand, under the 1967 Act. Where that derives from is under the Disciplinary Committee Rules. They can receive such evidence as would be admissible in a magistrate's court. There is a saving, but I am sure your Lordship sees immediately why, as it were, they are served under section 9. The saving is that they can hear any other evidence if it is in the interests of justice to do so.
49. MR JUSTICE GOLDRING: Would you like to refer me to that page, please.
50. MR CAPLAN: It is page 154, my Lord, tab 21, and it is the 1964 rules. And it is rule 16, where it says "Evidence", and it is the bottom of the page, subsection (2) of that paragraph.
51. MR JUSTICE GOLDRING: Thank you very much. When I correct the transcript, I will bear that in mind.
52. MR CAPLAN: Thank you, my Lord.
53. MR JUSTICE GOLDRING: Thank you. So far as costs are concerned, Mr Caplan -- I will formally remit the case back.
54. MR CAPLAN: Yes.
55. MR JUSTICE GOLDRING: So far as costs are concerned, I assume that there is no question of costs --
56. MR CAPLAN: No question of that, my Lord.
57. MR JUSTICE GOLDRING: -- arising and any application?
58. MR CAPLAN: No question whatsoever, my Lord. Thank you.
59. MR ARIORI: Thank you, my Lord.
60. MR JUSTICE GOLDRING: Thank you very much for your help.