QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
DR MICHAEL HEATH
|- and -
|THE HOME OFFICE POLICY AND ADVISORY BOARD FOR FORENSIC PATHOLOGY
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Charles Miskin QC and Paul Ozin (instructed by Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice NEWMAN :
"I have now carefully considered the report of the working party which had been examining the provision of forensic pathology services to police forces and coroners in England and Wales together with the comments which I have received on it from 23 interested individuals and representative bodies. Without exception, those consulted have endorsed the report's principal findings and recommendations, particularly in relation to funding, accreditation, training and research, and have urged me to implement these urgently in order to reverse the recent decline of the service and ensure an adequate supply of forensic specialists in the future.
The main proposal of the report is that the supply of forensic pathology services should be regulated through the market – that is, the main users of these services, police forces, should contract with the suppliers, the pathologists, for the services they need at prices and on conditions to be agreed between them. The role of the Home Office would be to maintain the high quality of the service through new arrangements for accreditation, training and research. I have decided to accept the working party's proposals and to introduce the new arrangements straightaway, including the establishment of a policy advisory board to oversee the development of this vital part of our criminal justice system".
(1) that part of the Constitution of the Board which purports to make provision for disciplinary procedures; and/or
(2) a decision made on the 8th September 2004 by the QASSC, pursuant to the disciplinary procedures and referring certain matters concerning him to a disciplinary tribunal.
(i) quashing the relevant scheme or a declaration that the scheme is unlawful, invalid, defective or of no effect; and
(ii) quashing the decision made on 8th September 2004 to refer certain complaints against him to the disciplinary tribunal and the quashing of any incidental decisions made in connection with it.
(1) the complaints and disciplinary scheme set out in the Constitution is unlawful, invalid or otherwise defective because there is no lawful authority for it to be promulgated or revised and, in any event, is lacking in essential detail and/or clarity such as to make it unworkable and/or unfair in operation.
(2) the decision to refer the complaints to a disciplinary tribunal made on 8th September 2004 was made without jurisdiction because a requirement to give notice to the claimant had not been complied with.
(3) there was no power to grant an extension to the 28 day period of notice to which the claimant was entitled, alternatively, if there was, Dr Rothwell purported to exercise the power and he had no lawful authority to do so.
(4) the decisions made on 8th September 2004 by the QASSC were fatally flawed by failure to consider or take into account letters dated 12th July 2004 and 8th September 2004 from the claimant's solicitors. This proposed ground of challenge was not proceeded with at the hearing.
(5) the relevant decision made on 8th September 2004 was fatally flawed by reason of a perceived or apparent bias on the part of Dr Purdue, one of the Committee members, and/or by a failure to address the concept of perceived or apparent bias.
(6) the decision of 8th September 2004 by the QASSC was fatally flawed by the failure to consider a reasoned request to postpone consideration of the matter to give more time to the claimant to make representations and to consider other matters. And a failure to consider the representations which were made to the Committee.
(1) An introduction to the Constitution;
(2) The accreditation and review procedures; and
(3) The complaints and disciplinary procedures.
Although the challenge appears to be to the Constitution, the application relates to the complaints and disciplinary procedures.
"1.1 Any complaints about the work of a forensic pathologist will be investigated by the Quality Assurance and Scientific Standards Committee (QASSC) on behalf of the Home Office Policy Advisory Board for Forensic Pathology (the 'Board').
1.2 The QASSC shall within 28 days of receiving a complaint give written particulars to the pathologist concerned. This will normally include copies of any documents submitted by the complainant, but it will be the responsibility of the QASSC to decide whether the complainant shall be identified to the pathologist.
1.3 The pathologist shall then be invited to give written comments on the complaint within 28 days or such other period as may be granted by the Board.
1.4 The QASSC may then consider all representations and it shall be empowered:
a) to rule that no further action be taken in respect of such complaint
b) to issue guidance to the relevant pathologist
c) to direct the Accreditation and Training Committee (ATC) to register a caution against the relevant pathologist
d) to refer the matter to the disciplinary tribunal of the Board.
1.5 A pathologist shall have the right of appeal to the disciplinary tribunal against the registration of a caution in accordance with rule 1.4(c).
1.6 Any appeal under rule 1.5 shall be in writing and made within fourteen days of notification of the caution by the ATC.
The history in connection with the claimant's case
"The scheme is one promulgated under the Royal Prerogative. It is the Minister's responsibility and duty to administer the scheme and to see that the proper standards are maintained and that they are elevated. It is for the Minister, through the Board, to set the standards required … for he is responsible to parliament for the way in which the scheme is run".
In that case there had been no challenge to the lawfulness of the scheme or to the vires of the Home Secretary, but it is unnecessary for me to determine in this case whether or not the Home Secretary was acting in establishing the Board under the Royal Prerogative or whether it was "executive action" taken on his part. In either case, he had the power to act and, in either case, the matter is subject to judicial review.
The decision to refer the complaints to a disciplinary tribunal was made without jurisdiction because the scheme required 28 days' notice to have been given to the claimant and no such notice had been given.
"I attach copies of two letters received by the Policy Advisory Board for Forensic Pathology. The first is from Professors Crane, Milroy and Whitwell, and refers to your work in relation to the case of R v Fraser. The second is a letter from Professor Crane and Drs Cary and White, and refers to your work in relation to the case of R v Puaca.
The Board considers these to be complaints against the actions of a Home Office registered forensic pathologist and accordingly they will be dealt with through the Complaints and Disciplinary procedures, a copy of which is attached. Under para 1.3 of these Procedures, you have 28 days in which to respond, in writing, to this complaint. Your response, together with the letters from Professor Crane and the other pathologists, will then be considered by the Board's Scientific Standards Committee which is empowered to take action as outlined in para 1.4.
The attached Heads of Charge provide details of the complaints, and makes reference to relevant reports and statements, copies of which will be provided to you under separate cover.
You are invited to respond to these complaints, and your response should be provided within 28 days of the receipt of this letter.
I should also tell you that the Crown Prosecution Service will be informed that a complaint against your work has been filed with the Board."
"The Board remains entirely convinced that the case against Dr Heath cannot simply be dropped".
Inquiry was raised as to who was being referred to by the word "the Board" and it was suggested that the matter had been pre-determined. Next, complaint was made about the fact that letters had been written to HM Coroners and Chief Officers of Police in England and Wales in the terms of the letter dated 9th June 2004 and it should have been made plain that the claimant denied the allegations. It was suggested that the claimant could not get a fair and objective hearing from the Board.
"We take the view that, bearing in mind the fact that your client was already aware of the nature of the complaints, the delay resulting from the abandonment is not substantive and cannot have significantly prejudiced your client."
It rejected the suggestion that the QASSC had already considered the complaints emphasising that the two complaints had been issued afresh and thus opportunity was being given to the claimant to respond to them both so that they could be considered. The letter concluded:
"Any concerns that your client has in relation to the referral process may, of course, be raised by him in his response to the complaints, and will be considered by the SSC. Should your client elect not to make representations, then that is a matter for him. We confirm however that the complaints against your client will be considered by the SSC at its meeting on 8 September 2004. We look forward to receiving your client's response by 20 August 2004".
"We note that despite the fact that it took you approximately four weeks to respond to our letter dated 12 July 2004, you are now requesting our substantive response within 11 days. This is unreasonable. Without prejudice to our client's position, until we receive clarification from you as to precisely what documentation you propose to place before the Scientific Standards Committee ("SSC") for the purposes of their meeting on 8 September 2004, we are not in a position to respond further on Dr Heath's behalf".
"The documents that will be placed before the SSC for the purposes of their meeting on 8 September 2004 are all those referred to in the Heads of Charge. We understand that you already have copies of these documents, however we will furnish you with further copies if you wish".
The letter went on to point out:
"We confirm that the members of the SSC will not be informed by us or by the Board of the procedural history of the complaints or previous action taken in relation to your client".
As to who had taken the earlier decisions, it stated it was Dr Rothwell, acting in his capacity as Secretary to the Board, who considered that the letters were complaints pursuant to the Board's Complaints and Disciplinary Procedures.
"Upon consideration, our client, took the view that the complaints were of such a serious nature that public interest required that the two complaints be issued afresh, and put before a differently constituted SSC".
The letter pointed out that the Treasury Solicitor had stated that the client was the Board. Inquiry was therefore made as to who had authorised that decision and then the letter went on to say:
"As to the members of the SSC who it is proposed should consider the matter on 8 September 2004 (and who are identified in your letter of 9 August 2004), we have taken our client's instructions (as we indicated in our letter of 19 August 2004 that we would) and we are concerned to learn from our client that Dr Basil Purdue has been a close personal friend of Dr Heath for twenty years, each of them having stayed at the home of each other. Further, Dr Purdue has previously discussed aspects of the R v Puaca case with Dr Heath and works closely with Dr Anscombe and Dr White. The problem of finding truly independent members of a body having a disciplinary function within the small community of forensic pathologists is, as has been pointed out previously, a very serious concern."
The significance of the reference to Dr Anscombe and Dr White is that they were involved in the Puaca case.
"You will no doubt appreciate that we need to have this information in order to structure properly and appropriately any comments that may be submitted on behalf of Dr Heath".
Next it was foreshadowed that a complaint would be made on the grounds of a lack of impartiality and fairness in the preparation of the Heads of Charge prior to the receipt of comments by the pathologist.
(1) It was simplistic to suggest that non-compliance of the procedural rules necessarily results in subsequent regulatory actions being ultra vires. It pointed out that, in this instance, there was no grounds for concluding that the requirement was mandatory or, one might add, jurisdictional, as opposed to procedural and directory. It could be a matter for the tribunal to make due allowance for any lack of opportunity which had arisen from any failure to comply with the rules.
(2) The letter then responded to the continuing complaint about the question of authority on the part of Dr Rothwell in these terms:
"My client has endeavoured to ensure that no members of the SSC have associations with any of the complainants, and does not consider it appropriate to give the other assurances that you request. A determination by the SSC under rule 1.4 of the Constitution (Complaints) is not a hearing. It is an internal determination by a Committee of the Board, albeit that the rules provide that the pathologist shall be provided with particulars of the complaint and shall be invited to submit written representations. The Constitution provides for a fair hearing before an independent tribunal in the event that a Disciplinary Tribunal is convened. That stage has not yet been reached and it is not appropriate to apply such guarantees to a preliminary procedural stage, more analogous to a decision to prosecute. It is not the intention of my client to acquaint the members of the SSC with the previous history of the complaints unless the issue becomes relevant to the SSC's determination. However, as a matter of common sense, the history may become relevant…. I am grateful for the information you have provided concerning Dr Basil Purdue. This does not, in my client's view, affect his ability to sit on the SSC."
"There is a very great deal more that could and should be said by way of comment on behalf of Dr Heath and we earnestly request the SSC to defer its consideration of the matter so that such comment can be provided and so that other relevant material, including important transcripts, can also be considered, thus giving the SSC a fuller and fairer view of the relevant matters".
The reference to the transcripts is a reference to the transcripts of the criminal hearing in the two cases forming the source of complaint.
"We understand that Dr Purdue and Dr Heath have a long standing personal friendship and, further, that aspects of one of the cases that gives rise to the complaints against Dr Heath (R v Puaca) has been discussed between Dr Purdue and Dr Heath. We have therefore suggested to the Treasury Solicitor that a differently constituted SSC should consider the matter, if it is to be considered. Of course we do not suggest that Dr Purdue would consciously deal with the matter in an improper way, but the concept of "apparent bias" is well known. Further, subconscious influences are difficult to detect or appreciate and there is the risk that friendship can result in what we would describe as "over-compensation" by a decision maker who is dealing with a complaint made against a friend and who is trying to act fairly. For Dr Purdue to be involved in this matter is unfair to him and to Dr Heath."
Alleged failure to comply with paragraph 1.2 of the Constitution
The position of Dr Rothwell (Ground 3 and generally)
"… the Tribunal does have intrinsic powers, simply by virtue of being a tribunal. It has the obligation to observe the rules of natural justice and to conduct its proceedings fairly and to decide procedural matters which are not expressly dealt with in the rules".
"It may well be that a tribunal acting fairly can fill in the procedural gaps….".
In my judgment, the points raised in connection with Dr Rothwell are unmeritorious and seek to import into the commonsense of the arrangements under a scheme such as this an unduly legalistic and technical approach.
Bias and Dr Purdue
The opportunity to make representations and request for adjournment
"We understand that an appeal against conviction is currently pending before the Court of Appeal and we suggest that, in the first instance at least, it is the proper tribunal in which any complaint against Dr Heath's conduct in this case should be pursued".
"We understand that an appeal against conviction is currently pending before the Court of Appeal and we suggest that, in the first instance at least, that is the proper tribunal in which any complaint against Dr Heath's conduct in the case should be pursued."
In the way in which it is put by Mr Turner, it is said that those proceedings in the Court of Appeal Criminal Division were said to be relevant to the QASCC's consideration, because the very issues in the complaint were raised in the proceedings. His purpose in reminding the court of this aspect of the request for an adjournment was to question whether the court's judgment had addressed the issue.
"The table does not include any figures in respect of leading counsel's fees since such cases would self evidently be exceptional."
There is no guidance in the notes for guidance in the sort of case which is exceptional, and the mere fact that leading counsel is engaged, we submit.