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
		2 July 2004

1. MR JUSTICE NEWMAN: On 18th April 2002 the claimant, Dr Brian Phillips, was acquitted on all eight counts of indecent assault at the Crown Court in Wales. The eight counts represented allegations by eight different patients of his, all involving allegations that he had indecently assaulted the women in the course of intimate medical examinations.
2. The claimant was first arrested in connection with matters such as this on three allegations in March 2000. By January 2001 the Crown Prosecution Service had compiled, from evidence it had received, complaints from 34 patients, all alleging indecent assault by the claimant and as a result he was committed to the Crown Court on 35 counts of indecent assault, relating to 34 patients. The indictment as it was originally drawn up altered a little. It was 34 counts relating to 32 patients.
3. But then in July 2001 a significant event occurred. The prosecution were in effect ordered to select ten cases which would proceed before the jury for trial. As has been said, they were told to select their ten best cases. The seeds of the gravamen of this application for judicial review were in my judgment at that date sown. It seems tolerably plain, from what I shall recite shortly, that so far as the prosecution were concerned they were in some doubt as to what this order to select their best ten meant so far as the balance of some 24 counts or patients whose cases were not then going to proceed before the Crown Court.
4. At best, on the material before me, it seems that the prosecution, because they ultimately sought to proceed with the prosecution in connection with those other counts, had not seen or appreciated, despite what had been described as the robust words of the judge by way of warning, that this was going to be the end of the trial, come what may. By "come what may" I mean whether the trial of the ten resulted in acquittal or conviction. As it happened, by the time the matter came for trial, it was eight, and in respect of all of the eight counts the claimant was acquitted.
5. But it was inherent in the order, as I see it, that was originally made, that there was always an attendant risk that there could never be a trial in connection with the balance, because of the foreseeable arguments which would be advanced by the claimant's defence, at any attempt of a further trial, that the attendant publicity which would normally occur in respect of a trial such as this, of a doctor involved in indecency, would mean that the publicity would make it difficult for any second trial to be fairly held.
6. As again I shall have occasion to note, there were other circumstances which, by the end of the trial on the eight, led the judge to conclude that any trial on any of the balance which was then desired by the prosecution could not take place because it would amount to a abuse of process for such a trial to take place. So it was that he came to impose a stay upon the prosecution in the Crown Court of the outstanding 24 allegations which had originally formed part of the prosecution, and which had been charges on an indictment which, after severance, were put upon a separate indictment, and which were never heard.
7. In consequence the position is that 24 patients, each of whom had made allegations of indecent assault at the hands of this claimant, stand in a position at the moment where there has never been an investigation in public, or in any way, of their allegations.
8. At the conclusion of the hearing, when he stayed the prosecution of these charges, the learned judge made certain comments which are now relied upon by Ms O'Rourke, and have been relied upon by Ms O'Rourke in this court, as a basis for preventing these allegations being considered by the Professional Conduct Committee of the General Medical Council.
9. Since I am not going to grant the relief which Ms O'Rourke originally requested -- namely an order quashing the decision of the Preliminary Proceedings Committee, the PPC, to refer for inquiry by the Professional Conduct Committee complaints against the claimant pursuant to a letter to him of 15th January 2003 -- and I am not going to grant a declaration that so far as those allegations, which can be described as the non-acquittal allegations, the defendant GMC should not proceed with an inquiry, I propose to limit my comments to those which are essential to explain my reasons for the decision to which I have come in relation to a discrete collection of five cases. They include acquittal cases, namely five of the eight acquittals in the Crown Court. Following the agreement as to the future course so far as the non-acquittal cases are concerned, which emerged in the course of argument yesterday -- namely that there will be by consideration in the first part of the disciplinary hearing argument reflecting many of the arguments I have heard, as part of an application to the PCC to stay on the grounds of abuse, I feel bound to be restrained in the observations I make. It is essential that the PCC should consider the issues in the light of the detailed argument and the matters which are put before them.
10. But all that said, having regard to some of the arguments which have been advanced, which straddle not only the non-acquittal but overlap with the specific arguments upon which I have to rule in connection with the acquittal cases, I feel it necessary to make some preliminary observations.
11. 1. An allegation of fact, which if true amounts to the commission of an offence of an indecent assault, if made by a patient against a doctor will not involve an investigation of all the relevant facts which may be material to the professional standard which the doctor in question may have breached. In a trial before a jury, in connection with indecency, the defendant doctor is not on trial for the breach of professional standards. The judge made that very clear to the jury. He said, page 234 in the bundle, at B:

"Dr Phillips is not on trial for being an old fashioned doctor or for being a brusque doctor or an insensitive and rough doctor, for being an incommunicative doctor, for being an unsubtle doctor or even for being an incompetent doctor. He is on trial for being a deliberate and intentionally indecent doctor. Therefore you have to eliminate those other descriptive possibilities that I just chronicled to you as being alternative explanations for the manner of the examinations that he carried out before you can possibly convict him."

12. In my judgment the question that arises on this application, and will arise in connection with other cases when professional standards are in issue, is the real difference between the issues before a jury and the issues which fall to be determined by the PCC. Of course, that is not to suggest that what has gone on in the Crown Court, if there has been a determination by a jury, will not have a bearing upon the consideration which the PCC will have to give to any evidence it hears in connection with its investigation into the professional standards which the doctor has applied.
13. 2. The judge in this case, and for reasons which one cannot and would not question, undoubtedly felt very concerned about the circumstances in which the complaints had originally been made, namely the allegations to the police and the manner in which the police had recorded the complaints. Indeed, his concern was such that he directed the jury in these terms, page 222:

"If you consider that there is a real possibility that the complainants may have told police officers in their initial unrecorded and missing complaint something significantly at variance with their evidence before you, then you should reject their evidence in its entirety. If that is a real possibility, then Dr Phillips has been placed at a real disadvantage in putting forward his case, and it would follow that on the particular count concerned, you could not yourselves rely upon that complainant's evidence and you should acquit upon it."

14. A little later, at page 224, he said, between A and B:

"If there is a real possibility that Dr Phillips has been placed at a real disadvantage by the loss of such evidence in respect of any one or more of these complainants, then you should acquit on the count to which that disadvantage relates, and it follows that if you consider it arises in all counts, then you should acquit on all counts."

15. As I hope I have made plain, there were no doubt good reasons in the circumstances of this particular case -- one has to emphasise, in a criminal trial, where the doctor's liberty was at stake -- for the judge to so direct the jury. This court is not reviewing the judge's summing up, but one can observe, so that there is no misunderstanding, that in criminal trials where inconsistent accounts and uncertainties regularly arise from conflicting statements made by witnesses there will invariably be a need for the jury to be told that they must approach the evidence with caution, or be told that they must consider closely the discrepancies and see the extent to which they affect the credibility which they can accord to the witness's evidence and so forth. That is stock in trade, one might say, for fairness in connection with a witness's evidence. It is not normally the case that juries are directed in effect to acquit in the sort of terms which I have recited from the summing up.
16. Again, it is material, it seems to me, to draw attention to the fact that in the course of the summing up, the judge directed the jury in very broad terms, undoubtedly in accordance with the evidence that was before the jury, about accepted medical practice. At page 234 E to F he said this:

"You also know that it is accepted medical practice that when investigating a neurological complaint, a full physical examination of the patient is appropriate."

17. At page 236 he said, D to E:

"There is no issue here that it was entirely appropriate for such physical examinations to take place, and I will go through in detail what the medical evidence is about such examinations and how they should be performed later."

18. Suffice it to say that, in connection with accepted medical practice, one can think of no better possible body of gentlemen and ladies who are in a position to consider the full effect of the proposition which was laid before the jury on this occasion. It is not for me to express a view -- I am not qualified to do so -- as to whether according to accepted medical practice the proposition is correct but, as Mr Clarke has suggested, it may well be at least an open question to be resolved.
19. The 25 cases which have become subject to the agreed form of order did not include, as I have emphasised, any of the acquittal cases. These case, the non-acquittal cases were considered, in accordance with the GMC rules, by a screener and then by the Preliminary Proceedings Committee.
20. By letter dated 15th January 2003, the Rule 63 letter was dispatched, to which the claimant responded as he was entitled. Suffice it to say that the allegations in the non-acquittal cases were specifically detailed under every one of them. For example, I take Sara Reid first of all, who had experienced headaches and occasional blackouts:

"During the consultation you conducted a physical examination of Mrs Reid."

21. And then the gravamen of the misconduct:

"c. You did not adequately explain the purpose of the examination.

d. The manner of the examination was inappropriate and/or indecent."

22. And then under other examples:

"You did not offer a chaperone ... The manner of the examination was inappropriate ... You did not adequately explain the purpose of the examination ... [and so forth]."

23. The formulation in that way obviously reflects that which I have endeavoured to express at the outset, namely that there are different issues which fall to be determined, or at least issues which are capable of being separate and discrete from an allegation of an indecent assault.
24. The Rule 63 letter enclosed the witness statements in respect of each of the complainants, but obviously not the witness statements of the acquittal complainants, if I can call them that. That is not because the General Medical Council did not have them. They had been given to the GMC by the police on 4th December 2000 and at an earlier date in March 2000 the police had actually informed the GMC of the build-up of these complaints.
25. The letter in response from Dr Phillips needs to be briefly summarised because it is material to a complaint made, that he has been denied a chance of responding to the acquittal cases and the manner of their inclusion.
26. The letter draws attention firstly to Dr Phillips' contention in connection with what I have earlier described as the accepted medical practice. At page 427 in the bundle, in the last paragraph on that page, it is said, on the doctor's behalf, what his approach in carrying out physical examinations had been:

"As part of that general physical examination, Dr Phillips carried out breast and groin examinations. This was an entirely standard approach on his part arising from his training in general medicine, and from the fact that his medical training at [sic] been at a time when such an approach in terms of a thorough and detailed general examination was considered entirely proper and indeed good practice. May I reiterate that at all times Dr Phillips has conducted himself properly in relation to examinations of the complainants. The breast and groin examinations he has conducted have been entirely proper and consistent with his normal practice."

27. It seems to me that that is essentially something which should be considered by the General Medical Council.
28. The history of the proceedings is referred to in detail quite properly, and reference is in fact made to what I quoted earlier, namely the judge's robust line that he took so far as the severance is concerned, where the judge observed:

"There must be some finality to this. I take the view that this is the trial and I am putting my head on the chopping block by saying so. This is the trial."

29. The terms of his ruling are referred to, as indeed they have been referred to here by Ms O'Rourke. The particular parts of his ruling upon which reliance has been placed are these. I will not recite that part which relates to the judge's understanding of what would take place once he severed in the way he did, but I draw attention to some observations which, in my judgment, must be seen in the context of the abuse application which he was hearing and then must be read, as I have indicated earlier, in the context of the issues which were before the jury in that trial. These observations were made by the judge in connection with the prosecution's desire to continue with further criminal proceedings in relation to charges of indecent assault. He said:

"The jury acquitted on all counts within an hour. That was a decisive verdict, and a resounding rejection of the Crown's case. Whilst it can properly be said that it only concerned 8 counts out of a total of 34, it should be noted that these were the most serious allegations. And a cameo of the overall picture had all counts be [sic] tried together, the same issues would have been raised. Indeed, the Crown would have relied heavily upon the evidence in respect of these serious 8 counts to support the allegations on the more ambiguous ones. They were in reality the core of its case against Dr Phillips. The verdicts therefore constituted a fatal blow to the entire Prosecution case."

30. Then he also referred to the contamination issue. He said:

"The real and live contamination issues, which were so fundamental to the first trial ..."

31. The jury, after the trial had commenced had to be discharged but the discharge was not in any way connected with the contamination issue. The jury gave their verdicts after what amounted to a second trial, and the judge plainly had that very much in mind. It will be for the PCC to hear these and other arguments, and to consider them in their context, and give them such force as they considered appropriate.
32. The letter which came from solicitors for the claimant in response to the Rule 63 letter specifically referred to the absence of the acquittal cases from the reference to the PCC. It said this:

"The absence of those matters which were determined by the Court at the criminal trial in [the] letter of 15th February 2003 [I think that must be the letter of 15th January] makes it clear the GMC has accepted that where the complaints resulted in acquittals they should not be pursued as allegations of misconduct. Had the Crown Prosecution Service offered no evidence on the other counts as they should have done, this would [have] resulted in acquittals on those counts too, and presumably they would not have been pursued either. The Judge ruled in effect that the Crown Prosecution Service, in seeking a trial on the other counts, as opposed to offering no evidence, was abusing the process of the Court -- such that he was then obliged to exercise his power to stay the matter. It is only because of that abuse that there were not acquittals on all counts. It follows that to pursue this matter, the GMC would be exploiting an abuse of process by the Crown Prosecution Service."

33. Therein one sees the beginnings of some of the argument with which I must deal, which has been raised in connection with the five acquittal complaints.
34. I should like now, before turning to deal with the arguments, to make some general observations which in my judgment are material to applications such as this, being applications for judicial review designed to operate as a pre-emptive strike against proceedings continuing in a court or tribunal. It has been said many times on higher authority that the jurisdiction in this court to pre-emptively restrain process elsewhere on grounds of abuse will be sparingly exercised. That the jurisdiction exists is undoubtedly correct.
35. For an analysis of the position as between this court and the Magistrates' Court in connection with abuse applications, one can do no better than go to the case of R v Belmarsh Magistrates' Court ex parte Watts [1999] 1 Cr.App.R. 188, and in particular page 195. Buxton LJ's judgment, by reference to the cases, concludes that the Divisional Court and the Magistrates' Court have concurrent jurisdiction in connection with the proceedings for a stay of criminal proceedings on the grounds of an abuse of process. But the jurisdiction will be sparingly exercised for the reasons given by the House of Lords in the case of R v Director of Public Prosecutions ex parte Kebilene and Ors [2000] 2 AC 326, and the Court of Appeal in the case of Hoar-Stevens v Richmond Magistrates' Court [2003] EWHC 2660 Admin
36. In my judgment where the application relates to an independent tribunal as here, established by rules, governed by its own procedures, and having a specialised expertise to bring to play within its jurisdiction, the responsibility for deciding whether its procedures have been abused should, unless weighty circumstances point to another conclusion, be decided by it. That is but to give proper recognition to the integrity and independence of the tribunal exercising its jurisdiction over its own affairs.
37. There is no rule of law which prevents a disciplinary tribunal, such as the PCC of the General Medical Council, from investigating conduct which has been the subject matter of a trial and which has resulted in the acquittal at trial of, for example, a doctor of a criminal offence. There is no dispute as to that. Ms O'Rourke loyally accepts that to flow from the case of R (Redgrave) v Commissioner of the Metropolis [2003] 1 WLR 1136. There is general guidance given by Simon Brown LJ in paragraph 46 of his judgment, all of which of course is in point, and there are earlier observations disclosing his reasons for concluding that what is sometimes called the double jeopardy rule has no application as such a strict rule.
38. In my judgment it is essential to remember in this case, so that the eye is kept on the mark, that what is at issue in these matters is the professional standards of conduct of a medical practitioner. It is obvious that it is pre-eminently for the professional body to determine whether the evidence relevant to the discharge of professional standards reaches its required standard of proof in a case where there has been criminal prosecution which has failed, for it to consider whether the allegations of professional misconduct are, for example, capable of being freestanding from any determination in the court, and for the professional standards committee to pay regard to the direction given by Simon Brown LJ in paragraph 46 of the judgment in Redgrave.
39. In my judgment there is, in a case such as this, particularly where there are 24 people whose complaints have not yet been publicly ventilated, a public interest which requires that the matters should be ventilated and considered, unless there is something which exists which makes that impossible.
40. On this application Ms O'Rourke initially endeavoured to persuade me that this court could take a view on the alleged abuse to which she submitted the continuation of these disciplinary proceedings gave rise. For a number of reasons, but the principal one I have already stated, it is now accepted, in my judgment rightly, by Dr Phillips and on the advice of Ms O'Rourke, that it is for the General Medical Council through their committee to consider the question which she has canvassed before me.
41. But the question remains: what about the five acquittal cases? Ms O'Rourke's argument in that regard raises a specific number of specific procedural arguments with, as I have indicated, some overlap with the arguments on the non-acquittal cases. She had frankly admitted at the outset of her argument that had it not been for the disclosure of legal advice which had been given to the GMC, by in turns its legal assessor, one Rachel Birks, and junior counsel, in practice at the bar, Mr Tom Kark, she would probably not have been before the court.
42. In order to deal with her position on the five cases, it is necessary for me therefore to refer back to a little bit of the chronology. Once seised of the matter, the PPC received, in July 2003, advice number 1 from Mr Kark. It is not apparent what gave rise to that, other than that the PPC have the power to seek advice under the rules. It is in issue as to which subparagraph of rule 17 was applied, but nothing turns on that. But it is chronologically sensible for me to refer, first of all, to the internal advice which had been received from Rachel Birks.
43. On 28th March 2003 she gave a written advice, called a memorandum, dealing with the various point which had been raised, which I have summarised already, by Dr Phillips' solicitor in response to the Rule 63 notice. Paragraph 3 of the memorandum commences as follows, and I emphasise it since Ms O'Rourke has based a particular argument upon the terms of this paragraph:

"The main issues raised by Dr Phillips's solicitors are:

a. Double jeopardy. As the GMC have not included any of the matters which have already been determined by the court at the criminal trial within the Rule 6 letter this makes it clear that the GMC has accepted that where the complaints resulted in acquittals they should not be pursued as allegations of misconduct."

44. Ms O'Rourke submitted to the court that that supported her argument that there had been some sort of screening decision, or something had gone on, which had led to the five acquittal cases not being included in the Rule 63 letter.
45. In my judgment the memorandum does not support the conclusion that the GMC had made a decision, nor was that the view being expressed by Rachel Birks. She was articulating and recording the submission made by Dr Phillips' solicitor. I do not see it as supporting anything having been done by the GMC.
46. The balance of the memorandum leads to a summary of conclusions which in my judgment do not call for any particular comment at this stage. Broadly speaking in terms of advice, she can be said to have provided no particularly strong impediment by way of advice to the PPC taking the course they did in connection with the non-acquittal cases. But in July the PPC went to Mr Kark for advice. Unusually, but nevertheless it might be said helpfully, the GMC has disclosed copies of both of his written advices in this case. In the first, Mr Kark says:

"I have been asked to advise the Preliminary Proceedings Committee as to whether they should refer to the Professional Conduct Committee allegations which have previously been the subject of criminal charges and in relation to which an order had been made by a Crown Court Judge that they should be stayed."

47. He then deals with the history, and in paragraph 4 he says this:

"Given that the General Medical Council have not indicated any intention to prosecute the doctor for those offences in respect of which he was acquitted in the Crown Court, it is unnecessary for me to advise in relation to those. Suffice to say that the General Medical Council have obviously made the right decision in that respect."

48. In paragraph 6 he says:

"It is right to say that the purpose of the PCC is different to that of the Crown Court but the factual issues that they would have to grapple with in this case would very much the same."

49. In paragraph 11 he says:

"The gravamen in respect of each charge is the allegation of indecency, without which the committee are unlikely, in my view, to find Serious Professional Misconduct."

50. Again in paragraph 12 he says:

"In order for the Committee to find the allegation of inappropriateness or indecency proved, they would have to find that Dr Phillips had no clinical purpose in touching these patients in the way they said he did and that he was doing so for self gratification. Thus the factual issue before the PCC and that which was before the Crown Court is in fact very much the same. The word 'inappropriate' in these circumstances does not add very much to the word 'indecent' given that the Committee would need to find that there was no clinical justification for the touching before they could find his conduct to have been either indecent or inappropriate."

51. He then goes into consideration of the stay position as it was, and his analysis of it, and he concludes in paragraph 26:

"In all the circumstances therefore, although it would be a matter for the PCC to exercise their judgment independent of the finding of the Crown Court, I would advise that the very likely outcome would be that this case would be stayed for abuse of process in respect of those counts already stayed by the Judge."

52. As I indicated earlier, I propose to act in accordance with a self-imposed ordinance of restraint so far as the merits of these matters are concerned, because it is not right for me to say anything other than that which is essential for this judgment. Suffice it to say that for some of the reasons I have already canvassed, and for others which I will not, I simply record that there may be room for more than one view in respect of some of the conclusions which Mr Kark has put forward.
53. The first advice is dated 3rd July. He was asked very shortly afterwards, and he gave advice on 14th July, to deal specifically with the acquittal cases. His advice was:

"... in these particular circumstances it would be difficult to try the doctor on those eight charges before the PCC."

54. He says he has already indicated that:

"... the factual issues they would have to grapple with in this case would be very much the same."

55. He then refers to the clinical purpose in touching patients in the way that the claimant did, and to the question being whether he was doing it for self-gratification. It is not necessary for me to go over that again. He rightly refers to the case of Redgrave to which I have already drawn attention to. He concludes:

"The reality in this case is that the General Medical Council would [subject to there being material he has not seen] be relying on the same material which was presented to the jury and upon which the jury acquitted the doctor."

56. I need say no more than the observation I have already made. There may be more than one view about that. It is for the GMC to decide.
57. He then refers to a conversation he had with leading counsel for the prosecution in the Crown Court to shed some light on the position so far as the stay is concerned. He concludes that it would not be right to try Dr Phillips in respect of those counts upon which he was acquitted if the substance of the allegation and the facts relied upon to prove it were the same as was heard by the jury. In truth he is honestly reflecting a critical part of paragraph 46 of Simon Brown LJ's judgment. Sight must not be lost of that in any directions which the GMC have to make.
58. Insofar as Ms O'Rourke raised in this connection a broad challenge to the rationality of the PPC or the GMC attempting to submit the five allegations by way of acquittal to the PCC, I reject the argument for the reasons that sufficiently appear from what I have already said.
59. I come back to the detailed argument. The submission is put in this way; that a screening process took place which led to the non-acquittal cases going to the PPC without the acquittal cases going to the PPC. Therefore, it follows, the acquittal cases must have been screened out. Between July 3rd or 14th, when Mr Kark's advice was available, no action was taken until a letter was sent to the claimant dated 13th November 2003, which in effect named the five acquittal complainants. It was there stated that there is no legal prohibition on the GMC of Professional Conduct Committee hearing the cases that have resulted in criminal acquittal (see reference to Redgrave) and further that the GMC considers the facts of these five additional cases are sufficiently similar to the facts of the 25 cases already referred by the PPC to the PCC to be added pursuant to Rule 11(2) of the General Medical Council's rules.
60. She submits that there is nothing to indicate any cause for a change in position taking place between July and November, other than a letter dated 7th November. As she points out -- and she has obviously looked at the calendar and tells me there was even a weekend intervening -- it must have been over just a few days in November that Mr Hylton, who was the conduct case presentation officer who dealt with it, decided, having received the letter dated 7th November from Messrs Harman & Harman to add the five cases. The letter from the solicitors for the five acquittal complainants stated as follows:

"I have been obviously been confused by previous correspondence which suggested to me that even in case where former patients of Dr Phillips had appeared in the Criminal Court and he had been acquitted, this would be no bar to the General Medical Council considering their complaint. I had thought that all the complaints from the former patients had been referred to the GMC PCC, but I understand that this is not the case.

"In the circumstances, the following of my clients, who gave evidence at the criminal proceedings, would like their complaints to be considered, first of all by the screener, and thereafter, if appropriate, by the Preliminary Proceedings Committee and therefore, if appropriate, by the Professional Conduct Committee.

"I therefore would be grateful if you would provide me with the appropriate authority for my clients to sign. This may not be necessary in the circumstances, and if you confirm how we should proceed, I can let you have copy police statements and details of the individual cases."

61. Then the writer refers to some of the detail. The letter concludes:

"I think that these cases show a pattern, which the PCC may well consider unprofessional behaviour constituting serious professional misconduct."

62. As it happened, and this is getting to the next step in her argument, she submits it is significant that Mr Hylton did not leave this matter to be dealt with by the screening process but, according to the evidence, as confirmed in the letter I have already read, it was dealt with under Rule 11(2). Rule 11(2) provides:

"When referring a case to the Professional Conduct Committee the Committee shall indicate the convictions, or the matters which in their opinion appear to raise a question whether the practitioner has committed serious professional misconduct, to be so referred and to form the basis of the charge or charges:

"Provided that, where the Committee refer any case relating to the Professional Conduct Committee and the Solicitor (or the complainant) later adduces grounds for further allegations of serious professional misconduct of a similar kind, such further allegations may be included in the charge or charges in the case, or the evidence of such grounds for further allegations may be introduced at the inquiry in support of that charge or those charges, notwithstanding that such allegations have not been referred to the Committee or formed part of the subject of a determination by the Committee."

63. She submits as follows: firstly, that there was no power for Mr Hylton to apply 11(2) because it had already been screened out; secondly, that the five cases which were considered under 11(2) were not within the meaning of the proviso "later", because the GMC had been in possession of the statements which contained the allegations since as long ago as December 2000; thirdly, she submits, that in accordance with that rule -- I will not take time reciting the detail -- there is a right for the doctor affected to respond, and she says no opportunity was accorded to the doctor to respond. She has also highlighted what she submits is the inappropriate and unfair application of this rule because, having regard to the age of these complaints, many of the protections which might otherwise exist were bypassed, or effectively bypassed, in particular the limitation period which was imposed in 2002 by amendment of the Rules, and so forth.
64. The argument which she developed on there having been some form of earlier decision by way of screening out was not foreshadowed in the grounds, although it was foreshadowed to a certain extent in the skeleton argument. I only make that observation, not to criticise her at all, but to point to what seems to me to be the disadvantage that I presently operate under, namely that insofar as her submission was two-pronged, namely that if you just look at it and stand back, something must have been decided about the five cases when they were not sent to PPC after the screening process. She really in effect submits that they cannot have been sitting in a limbo somewhere, no decision having been taken about them. Therefore she says, they must have been screened out and, as I have indicated earlier, in a way which I have not found persuasive, she drew my attention to the content of the Birks memorandum.
65. Because it has emerged as an argument in greater detail at the hearing than perhaps was thought to be the case, I do not have any light on this shed by the witness statement of Mr Hylton who was the person who made the decision under 11(2). In short, I do not feel able on the material which is before me to determine precisely what did go on in the General Medical Council, either in January 2003 or what was really going on in July 2003, or why it was that between July 2003 and November 2003 nothing happened in relation to the acquittal cases, why it is that a change of position which undoubtedly took place, did take place. It seems to me all this could well turn out to be material. For my part I propose to say no more about this aspect of it, but I must deal with the other argument under 11(2).
66. As to the second argument, namely what is meant by "later", in my judgment Rule 11(2), or the proviso to Rule 11(2), properly interpreted are referring to circumstances where further allegations are adduced "later" than the reference to the Professional Conduct Committee. The event which can trigger it is the solicitor -- that is the solicitor appointed by the GMC -- or a complainant, being in possession of further allegations. In this instance the letter from Harman & Harman was sufficient to provide the solicitor with the relevant allegations.
67. The next question, it seems to me, which falls for consideration under the proviso, is whether the letter adduced grounds containing further allegations of serious misconduct -- they were plainly of a similar kind. The letter informed the General Medical Council of much it already knew but also, it seems to me, one thing that they might not have known. I am bound to say I would have thought they could have inquired into the position but the letter did state that the complainants in respect of the acquittal cases were still maintaining their complaints or allegations.
68. What the letter from Harman & Harman must have done is to have confirmed that, notwithstanding that each of these ladies had given evidence in the Crown Court which had been rejected, they were nevertheless still maintaining their complaints and wished them to be heard by the GMC. Within the breadth of the words in the proviso, I am bound to conclude that, on this analysis, the letter adduced something which I assume the GMC did not know before the letter was received. Again I say much of this may call for consideration when more information is available than is available to the court. What weight it has is going to be a matter for the PCC.
69. I turn next to consider the no hearing point. In my view any failure to accord someone an opportunity to be heard on something where procedure requires that opportunity to be given must be seen as a regrettable procedural failure. Whilst it may be open to the court to conclude, when complaint is made about it, that in the long run perhaps no serious prejudice has occurred as a result, it does not lie in the way of the decision-maker to proceed upon that assumption.
70. However, in the context of this case had I been persuaded that what had happened was sufficiently serious for this court to intervene by way of relief, that would have resulted in the matter simply being considered afresh or further representations being considered.
71. As a result I have concluded that so far as the five acquittal cases are concerned there should be no restraint upon them going before the Professional Conduct Committee; but there may well be discrete arguments in connection with the abuse application, not only from, obviously, the fact that they are the acquittal cases, but also from the procedural process which has been adopted which, to say the least, has some gaps, and maybe the view will be taken the circumstances call for some explanation in greater detail than has been provided to this court.
72. Thus I remain confident that Dr Phillips' procedural rights in fairness can all be regarded as adequately protected by the representation that he has from solicitors and Ms O'Rourke, and a hearing which can take place in connection with these five on the lines I have suggested.
73. Thus I propose to make no order save that the application for judicial review in connection with the five cases is dismissed. The only order which in effect has been agreed by consent is that the issue of abuse will be heard first and will be determined before the hearing continues on any of the allegations as may survive the abuse hearing; the notice of inquiry should be drafted and served, it has been suggested, some 56 days in advance if possible of the hearing of the abuse argument so that proper preparation can be made.
74. I record that this course of events having what can be regarded as a two-part hearing -- namely a hearing first on abuse and then later, as a continuation of that hearing, the substantive matter -- is not something which can be relied upon as a precedent for future cases. It is a method of proceeding which appears tailor-made for the particular circumstances arising from this case and so far as the five acquittal cases are concerned they join, by direction from the court, the other 25 for the purposes of the abuse hearing, when it takes place.
75. MR CLARKE: May I seek one point of clarification? My Lord mentions the possibility of serving the notice of inquiry 56 days before the hearing to consider the abuse application. Is my Lord directing that that should be so, or simply indicating it might be helpful? I think I indicated in an argument that we would try to serve it as early as possible but we thought that being committed to serve it 56 days in advance was a little bit steep. I do not know whether my Lord had in mind actually to give a direction.
76. MR JUSTICE NEWMAN: I do not even know that I have a power to give such a direction.
77. MR CLARKE: Even if my Lord did, I would discourage my Lord from giving such a direction.
78. MR JUSTICE NEWMAN: At the moment I would not be satisfied that I have a power to do it. I was merely attempting to put on the record what I understood to be the terms of what you had agreed.
79. MR CLARKE: Yes. Well, we did not agree to do anything specifically.
80. MR JUSTICE NEWMAN: Did you not? You agreed to use your best endeavours to do so.
81. MR CLARKE: My Lord, I would not put it that far.
82. MR JUSTICE NEWMAN: I will also put on record that if you do not, and it means that Ms O'Rourke and her team are then placed in difficulty and the hearing cannot start because you have not done so, they are going to have 56 days probably in any event.
83. MR CLARKE: My Lord, I appreciate that.
84. MR JUSTICE NEWMAN: So I really do not see that such a legalistic attitude should be adopted. It really should be regarded as a prerequisite of the fair hearing of the abuse arguments that you have done it, and if you had not done it, it seems to me it is likely that it is not going to be possible for a fair hearing.
85. MR CLARKE: My Lord, we take all that on board and we will certainly do our very best to see that it is done, and the preparation for the inquiry will be ongoing. We will be liaising with Ms O'Rourke's team to fix a date for the hearing, and we will try to get the inquiry out sooner rather than later.
86. My Lord, it then only remains for me to apply for the costs of the application, because the application for judicial review has failed. My learned friend embarked of course initially on a challenge to the PPC's decision, seeking to stop the whole process in its tracks, and that has failed. My learned friend did not push that application when it became apparent that the court were not very attracted to it.
87. Then what remained live was the issue of the remaining five, and on that the application has not succeeded, so accordingly I am entitled to my costs. My learned friend, Ms O'Rourke, I understand, would prefer the costs to be assessed on detailed assessment. We are happy to have that done. We do have a cost schedule that has to be lodged. My learned friend would prefer to have it done --
88. MR JUSTICE NEWMAN: Let me hear Ms O'Rourke on costs.
89. MS O'ROURKE: Firstly, can I confirm that we think this is more appropriate to a detailed assessment. Apart from anything else because --
90. MR JUSTICE NEWMAN: Do not worry about that.
91. MS O'ROURKE: My Lord, can I mention, because it is going to be another issue, I think. Mr Clarke includes, among his costs, costs relating to dealing with issues concerning the interested party, and we say those costs should not fall at our door because we did not invite the interested party in. We and the GMC both took the same position that we could not see the --
92. MR JUSTICE NEWMAN: So you want a ruling on the interested party?
93. MS O'ROURKE: Yes.
94. MR JUSTICE NEWMAN: All right. I will deal with that. Can I have your submissions?
95. MS O'ROURKE: Can I just indicate that what I am talking about now is not the interested party's costs. I am talking about Mr Clarke's costs relating to the interested party.
96. MR JUSTICE NEWMAN: I know.
97. MS O'ROURKE: My Lord, In respect of the costs of the issues, I do not think there is any argument in respect of Mr Clarke's client recovering costs in respect of the second decision, because of course I sought judicial review of two distinct decisions; one, the decision of Mr Hylton under 11(2), the other one the PPC, and insofar as argument was heard on that one and I have lost, I cannot contest an application for costs in respect of that. In respect of the --
98. MR JUSTICE NEWMAN: If what you are about to suggest is that it should be something less than all the costs, you might be on favourable ground.
99. MS O'ROURKE: My Lord, that is what I am about to suggest.
100. MR JUSTICE NEWMAN: What do you say?
101. MS O'ROURKE: My Lord, the reason being I indicate to your Lordship --
102. MR JUSTICE NEWMAN: What is the amount? What are you suggesting? What is the proportion you are suggesting?
103. MS O'ROURKE: I did not have a proportion because the difficulty is I do not know what way the costs will fall in any event in terms of how much time was spent on the issue, i.e. decision number 2 as opposed to --
104. MR JUSTICE NEWMAN: No, but if I can tell you it might be something you were not going to advance, but something which would be helpful to your submission, I take the view that this hearing has actually served a useful purpose. It has almost been, in some respects, a form of procedural management hearing for the purposes of the PCC hearing, and a lot of matters have been ventilated which it seems to me may well be of assistance to the PCC hearing. I hesitate to say the judgment might shed some light on the way in which some of the issues have to be dealt with, so it seems to me it has served a general purpose, and in that regard I think weight should be given to that in the question of costs.
105. MS O'ROURKE: My Lord, I think there are two points that I would make. The first is that I indicated at the outset of the hearing that we were there for two reasons. One, the various materials we had had disclosed to us which put a different complexion on it, and although your Lordship has said in his judgment that my submissions were effectively that the PCC should be prevented from dealing with it, the crux of my submissions were that the PPC, in the face of all the advice it had, could not rationally have made that decision, and so an emphasis was put on that material.
106. The second point I made at the outset was because we were told there was no means of a preliminary issue. Indeed, Mr Clarke opened his submissions to your Lordship yesterday, telling your Lordship what was in his grounds on that basis, and your Lordship will have seen both his grounds make a big play of it, but so too does the skeleton argument which is only six pages, three of which are devoted to why we cannot have a preliminary issue.
107. Further, my instructing solicitor had a telephone conversation with his instructing solicitor way back in October 2003, before we even commenced challenge, saying that it might be that we had to commence for judicial review in order to try and get the preliminary issue on abuse.
108. Even yesterday, as your Lordship will recall, they were taking the position they could not give us that, even at lunchtime, and even when they took instructions, so it is having to come to this court in order to achieve what we would always have accepted was a reasonable compromise in respect of that issue.
109. My Lord, the difficulty about putting a percentage on it is I do not know whether I am putting a percentage on the total costs, or I am saying, "Right, well, take out of it in any event the 11(2) argument, which costs they get, and then a percentage of the balance". But then we get into very complicated questions as far as assessment is concerned.
110. MR JUSTICE NEWMAN: I am afraid it has to be a broad justice approach. I will do the best I can. It should reflect the degree to which it could be said you have failed and they have succeeded, but nevertheless a degree to which other purposes have been served.
111. MS O'ROURKE: Indeed.
112. MR JUSTICE NEWMAN: That is about the only thing I can do. Thank you very much. Do you want to say anything on that, Mr Clarke?
113. MR CLARKE: Noting what my Lord says, nonetheless it remains the case that the challenge was put on the basis that the PPC have it so wrong that the matter should never go near the Professional Conduct Committee, and that is the basis of the challenge that was advanced, and that challenge has not succeeded.
114. I was surprised to hear my learned friend suggest that the large body of the argument was taken up with the question of whether or not there could be a preliminary hearing. We have not made great play of that, in my submission. We have indicated what appears to be a difficulty on the rules about organising a hearing. That has been dealt with very sensibly, if I may say, by the proposal to have a split hearing before the Professional Conduct Committee rather than a preliminary hearing properly so called.
115. My Lord, might I say something about the interested party's costs?
116. MR JUSTICE NEWMAN: Yes, do.
117. MR CLARKE: A party that is an interested party ought to be joined as such from the start. A claimant ought to identify interested parties and serve them from the outset, and Mr Cragg's clients were joined on the basis that they really ought to have been in the case all along. Inevitably, where a defendant in a judicial review application finds there are interested parties involved, some costs may be incurred in dealing with the representatives of the interested parties. In my submission, ordinarily they ought to be part and parcel of the defendant's costs. There is an additional point in this case. In correspondence, the claimant's position initially was that Mr Cragg's clients were not properly to be regarded as interested parties, and that was the position that was maintained.
118. MR JUSTICE NEWMAN: I thought Sullivan J took that view, did he not?
119. MR CLARKE: As I understood it, what he was saying was that it was not clear who Harman & Harman actually represented and who really wanted to be involved in the case. Harman & Harman obviously act for a number of individuals. For example, the two persons joined as interested parties are amongst the non-acquittal cases; they are not the stayed cases. They also act for the five who are acquittal cases, and Sullivan J, I think, indicated that they did ought to make it clear what their position was; who it was specifically that wanted to be joined.
120. That was a fair point, but the point that was taken by the claimant was that none of these people, once Harman & Harman had indicated their application for those two individuals to be interested parties, the claimant's position was: they are not interested parties. That position then changed very shortly before the hearing when the claimant elected not to take part in the hearing, to leave it to the court to decide. We had already arranged to come along. We were again adopting a neutral stance on the matter, that it would be appropriate in a case like this, and being neutral as to whether or not additional parties should be joined. That explains why --
121. MR JUSTICE NEWMAN: Yes, but the costs have not really been incurred because of a dispute between you such as there might have been as to whether or not they are interested parties. The costs have been incurred by the presence of the counsel and by their participation, and valuing as I do -- I found it very interesting and helpful -- the skeleton from Mr Cragg, the real issue is: to what extent should you recover costs which you have incurred, as I understand it, which you are attempting to recover in considering the position of the interested parties --
122. MR CLARKE: My Lord, those are costs which have been specifically run up particularly because the claimant did not name as interested parties parties which -- the court has taken the view very clearly on 30th March -- should have been joined as interested parties.
123. MS O'ROURKE: Not should.
124. MR CLARKE: My learned friend was not at the hearing; I was.
125. MR JUSTICE NEWMAN: How much are these costs?
126. MR CLARKE: I think they are fairly small in the overall context of the case. I am not sure if I could do the sums on my feet of the exact breakdown, but they are going to be a relatively small part of the case. What I am saying, ordinarily, my Lord, if you take an ordinary judicial review case where interested parties remain from the outset, the defendant's costs are not normally split. So that part of the costs of the interested parties are not attributable to the claimant if the claimant were successful, because it would not have incurred any of these costs were it not for the fact that an unsuccessful application for judicial review has been made against us which happens to have included third parties, and we have had to devote some attention to them, albeit in the overall scheme of costs not very much. That is my position on that.
127. MS O'ROURKE: Can I respond very briefly on that? The first point is this: we actually, at the time that we issued proceedings, sought advice from the administrative court office, not surprisingly, because there were 30 patients, the 25 and the 5, and the idea that we should serve all 30 of them with copies of the proceedings seemed to us a nonsense, and indeed the administrative court advised us accordingly.
128. We therefore took the view that as we had had no indications that any of them were complainants to the GMC, other than the Harman & Harman letter in respect of the five and even then in terms of the GMC's own rules as to whether that amounts to complainants given it was dealt with under Rule 11(2), we took the view it probably was not but we would wait and see what happened.
129. The GMC agreed with us because, indeed, when Ms Harman first started asking for papers and saying she wanted to become involved, GMC actually wrote to the courts saying: these people are not complainants; this case was dealt with on the basis of information from the South Wales Police, who provided the information, and not the complainants. No indication was ever made in respect of the five who might arguably have some sort of complainant status. The case was only ever put forward, firstly, on the basis of four named individuals who were in the 25, and ultimately the two who were in the 25 and, indeed, as Mr Cragg sits here today, there is only, in fact, one.
130. So, my Lord, as far as we were concerned, we rightly took the position that these people are not complainants before the GMC. They are people whose cases may be considered, but we do not even know because the notice of inquiry has not been served, and it was appropriate not to serve them. The GMC agreed with us.
131. After Sullivan J's order, where he indicated the same in that if they said they were interested parties they would have to come forward and say why, we were served information and within 24 hours of receiving the information as to why they said they might be interested parties in various witness statements, we immediately wrote and said we take a neutral stance, it is a matter for the court.
132. So Mr Clarke says it was a few days before the hearing. It was actually a week before the hearing, and it was within a day of receiving the information from the potential interested parties, and we said we would take a neutral stance, it is for the court. We made it quite clear to the GMC that we did not attend, a letter was good enough. They chose to send counsel, for what purpose we do not really understand. They could, like us, have sent a letter, and we do not see why, in the circumstances, we should pay the GMC's costs of that.
133. We indicated to the court then that we thought the interested party had nothing to add. The GMC was well capable of dealing with the issue of the 25, and that the court would be looking at those 25 standing and falling together. No one was going to be looked at individually, and we could not therefore see what representation from Mrs Crosswell and Mrs Hawkins added, because it was going to be looked at for one of them.
134. MR JUSTICE NEWMAN: Thank you. Mr Cragg, do you want to say anything?
135. MR CRAGG: Not in relation to that. On costs the only application I have is that there be detailed assessment of Mrs Hawkins' publicly funded costs. That is as far as we go. I do not seek any costs against any of the others.
136. MR JUSTICE NEWMAN: Thank you very much. So far as the question of costs are concerned, I am satisfied that in this case, although the defendant General Medical Council can be identified as the successful party, there are nevertheless circumstances which I do not intend to relate in great detail to which reference has been made which include the fact that I believe this hearing has served some wider general purposes, which will enure to the benefit of both sides for the purposes of the PCC hearing.
137. The position which was of some difficulty in connection with the position so far as any split hearing was concerned, the fact that is evident to me that in order to achieve a split hearing, there was some measure of, one might say, institutional reluctance to go down that route, but nevertheless we are there.
138. That said, the claimant has not succeeded. It is inevitably a question of broad judgment. In my judgment the appropriate order is that, so far as the GMC's costs are concerned, the claimant should pay 60 per cent of those costs.
139. As to the discrete issue as to whether any costs the GMC have incurred in connection with the interested party should be recoverable as to the 60 per cent I have indicated, in my judgment they should not. I believe that the GMC really adequately were here to represent the interested parties. They were indeed, on any basis of technical view of the rules, interested parties but, as Ms O'Rourke points out, the prospect of actually serving them all was something which was simply not practical. Their introduction into the case in my judgment, helpful as it has been -- Mr Cragg has been here for two of them, or at least one of them, I think, as it turned out -- any reading in this area has been helpful but nevertheless in my judgment the fair position is that the claimant should not have to pay any aspect of the GMC's costs which have been incurred in connection with the role or introduction of the interested parties into this application for judicial review.
140. That simply leaves me to say that so far as Mr Cragg is concerned, he can have his detailed assessment in accordance with the rules. Any other applications?
141. MS O'ROURKE: Yes, my Lord; sadly, yes. Your Lordship has obviously ruled on Rule 11(2). The position is that that is obviously a matter of concern to the Medical Defence Union, not so much necessarily in this case, but perhaps in this case and indeed in other cases, because it might be said that one impact of your Lordship's ruling is that the GMC could sit on something they have had earlier, put some of it forward to the screener or the PPC and then join the rest on later. It may or may not be that, on consideration of your Lordship's judgment, that route is left open, but it would be very much of concern to doctors.
142. The position is that I must formally ask for permission to appeal on it because if I do not ask your Lordship now I may go away and talk about it, and it is going to cause more administrative trouble coming back. I am not indicating for a moment that it is a matter we will appeal but because of the importance of the use of Rule 11(2). I indicated to your Lordship there has never previously, as far as we are aware, been a decision upon it, and it is something that obviously has to be discussed with Dr Phillips and the Medical Defence Union, and so I must formally ask for permission to appeal.
143. MR JUSTICE NEWMAN: Do you want to say anything?
144. MS O'ROURKE: My Lord, I would say that applying the ordinary tests, my learned friend does not really indicate a prospect of success on appeal. My Lord has made a decision on how 11(2) would apply on the particular circumstances of this case, and with particular regard on the letter. Nor has my learned friend, in my submission, made a sufficient case for saying there is some general additional reason why in the public interest, or the wider interest, there ought to be an appeal on the decision. I would invite my Lord to say no to that.
145. MR JUSTICE NEWMAN: I refuse you permission. In my judgment the prospects of success are not sufficiently great but, more than that, it seems to me that the suggested mischief that could arise from any dilatory behaviour by way of holding back, I would emphasise, is something which I believe can be adequately protected by an abuse of process procedure which could be applied. So if that is of any help those are the reasons why. Thank you, Ms O'Rourke.