England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th December 2005

Mr Justice Calvert-Smith:

1. This case concerns an Alert Letter (AL) issued by a Regional Director of Public Health, acting on behalf of the defendant, in respect of the claimant who was working at a hospital in the region concerned. The claimant seeks an order quashing the AL, a declaration that the AL was unlawfully issued and that there was no evidence or complaint which justified its issue, and a further declaration that the defendant may not lawfully issue an AL in respect of Dr D without a relevant change of circumstance.

The background

2. In February 1991 Dr D came to this country to work. He was initially granted limited registration as a doctor. In the same month he started work as a Senior House Officer.
3. On 1^st and 4^th March 1991 two women patients (W & H) alleged that Dr D had indecently assaulted them in the course of treatment. Dr D denied the allegations. In April a disciplinary hearing resulted in a final warning for Dr D and a recommendation that he have a chaperone present when examining women patients. Later the same month one of the two patients (W) who had made the original complaints went to the police. Dr D was interviewed and bailed in respect of both complaints. In September 1991 another patient (P) alleged that Dr D had indecently assaulted her, on two different occasions. Dr D was charged with 4 offences of indecent assault in respect of patients W, H & P. In November 1991 following the publicity surrounding the charges a fourth woman patient (B) made an allegation of indecent assault. This assault was also said to have taken place in September 1991. Dr D was interviewed and charged in respect of that allegation.
4. At some time between charge and trial Dr D surrendered his registration as a doctor.
5. In October 1992 Dr D was tried at the Crown Court and acquitted on all five counts of indecent assault by a jury.
6. In December 1992 Dr D applied to be registered with the General Medical Council (GMC). An investigation was carried out by the GMC. In July 1994 Dr D was granted limited registration for 6 months under the sponsorship of a consultant and admonished for having failed to accede to the advice of the disciplinary hearing of April 1991 to have a chaperone present when examining women patients. Dr D resumed work within the National Health Service (NHS).
7. In 1997 he obtained full registration from the GMC. In 1999 he was working in a hospital within the North West Region of the NHS.
8. In July 1999 two further allegations of indecent assault were made by two women patients on different occasions. Dr D was suspended and his contract was not renewed when it expired. An AL was issued about which no complaint was made. In December 1999 the Crown Prosecution Service (CPS) advised the police that there was insufficient evidence to afford a realistic prospect of conviction and Dr D was informed that he would not be prosecuted in respect of the latest allegations. The hospital trust had referred the case to the GMC who then proceeded to consider it in July 2002. At the close of the prosecution case the Professional Conduct Committee ruled that there was no case to answer in respect of one of the complaints and recused itself from continuing to hear the second complaint. In March 2003 solicitors acting for the GMC advised that they did not wish to proceed with the second complaint and the Notice of Inquiry was cancelled. The AL was not cancelled and remained in force. Dr D did not know this.
9. In October 2004 Dr D became aware of the existence of the AL and took steps to have it cancelled. The Medical Director of the relevant NHS Trust was not happy and on 1^st November 2004 he wrote to the North West Regional Director for Public Heath (RDPH), Professor Ashton as follows:

"Following two serious complaints of assault against the above doctor, I requested you to issue an alert notice in 1999. Dr D was employed here as a locum SHO in Accident & Emergency. Both incidents, separated by four weeks, involved psychologically vulnerable young women. We terminated our contract, informed the GMC and handed investigations to the police, who later informed me that similar accusations had been brought against Dr D in a previous employment but had been dropped for lack of reliable evidence.

It has only recently come to my attention that although the police pursued their investigations, the Crown Prosecution Service subsequently decided they had insufficient evidence to secure a conviction and the GMC likewise dropped the case in 2003. Neither the CPS nor the GMC informed this Trust of their decisions.

As an employer with responsibility for the safety of patients, and in particular for those who are especially vulnerable, I feel aggrieved I was not informed of the first case by the GMC. I realise that he had not been found guilty, but a plain statement of the facts that there had been an investigation would have helped to prevent the third accusation. As there still is no accepted proof of guilt, I now find myself in the position of having to ask you to withdraw the alert notice, which I do with reluctance.

The withdrawal of the alert notice will remove the only warning to future employers that this doctor has had (at least) three accusations of the same nature made against him: statistically useful information. I hope you will be able to use my dilemma for further discussions within the Department of Health and that some solution might be found."

10. (In fact the Director was in error. He had himself informed Professor Ashton by letter on 17^th December 1999 that the CPS had decided to not to prosecute Dr D. At that date however the GMC proceedings were of course still live.)
11. On 5^th November 2004 the Trust wrote to solicitors for the claimant as follows:

"With reference to your letter dated 15 October 2004, I can confirm that I have today written to Professor Ashton, Director of Public Health at the North West office of the Department of Health, to ask him to withdraw the alert notice issued in 1999. I can also confirm that neither the GMC nor the Crown Prosecution Service had informed this Trust that charges against Dr D had been dropped."

Dr D was informed, as were all relevant potential future employers of Dr D.

12. However, the matter did not end there. On 9^th December 2004 the Medical Director wrote to Professor Ashton:

"Further to my letter to you dated 1^st November 2004, concerning the above doctor, I still have serious misgiving about the withdrawal of the alert letter, I realise that the Crown Prosecution Service and the General Medical Council have decided not to proceed with any action against him for the lack of reliable evidence.

I acknowledge that paragraph 7 of HSC2002/011 and paragraph 1 of annex 1 to that circular suggest that an alert letter should normally be withdrawn when the regulatory body/police have determined to take no further action. However, paragraphs 7 and 32 within the annex appear to allow for alert letters to be retained in appropriate cases following such determination. I now believe this is one such case.

If a man who wishes to perpetrate sexual assaults on young women is put into a position where he can select those whose clinical condition automatically makes them unreliable witnesses, he will never be successfully prosecuted. Potential future employers checking with the GMC will see no indication of the previous history, I understand that the issuing of an alert letter is a neutral act and it could give a potential employer the opportunity of knowing that concerns have been raised as well as the fact that evidence was considered weak. They would then be in a position to make up their own minds whether he might be suitable for a particular post. On these grounds I would ask you to reinstate the alert notice at the earliest opportunity."

13. On 20^th December Professor Ashton issued an AL to the same recipients of the earlier letter cancelling the previous AL. It reads in part:

"The above named person was employed as a locum SHO in A&E medicine at …Trust.

Should the above named person apply to you for a permanent position or locum work or work in any capacity you are advised to contact (the medical director at the trust)."

14. A telephone number was supplied for potential enquirers.
15. On 22^nd December Professor Ashton wrote to the medical director:

"I would like to thank you for your letter detailing your continued concerns about Dr D following the cancellation of the Alert Letter on 5 November 2004.

Due to the unusual circumstances of this case I have sought legal advice prior to making my decision. As a result of this advice I have decided to again issue the Alert Letter for this Doctor.

I would like to take this opportunity to remind you of the obligations which the issuing of the Alert Letter places upon you. You should:

1. Inform Dr D of the decision to issue the Alert Letter.

2. Ensure that Dr D gets a copy of the Alert Letter. In the absence of a known current address for the person concerned, you should write under confidential cover to the person's address as registered with their regulatory body.

3. Discuss the significance of the Alert Letter with Dr D and provide a summary of the reasons for this action.

4. Advise Dr D that he now has the right to appeal against the decision to issue this alert letter. Please explain this process to him and the timescales involved. I would advise you to state an actual date for the deadline to avoid any misunderstandings (rather than '21 days').

5. Forward any appeal received to this office unaltered as soon as possible, together with any comments you wish to make.

6. Contact my office immediately in writing if you form the view that the Alert Letter needs to be cancelled.

16. On 12^th January 2005 Dr D was informed of the decision by letter from the Medical Director.

"I write to notify you that the Regional Director of Public Health, North West Public Health Group, had decided to again issue an Alert Letter with regard to yourself (copy attached). If you wish to discuss the significance of the Alert Letter or the reasons for this action, please contact me at the above address.

You have the right to appeal against the decision to issue this alert letter. If you wish to do so, you should provide written representation setting out why you are challenging the decision to me before 4^th February 2005. I will then forward your correspondence to the Regional Director of Public Health, Professor John Ashton."

17. On 13^th January Dr D's solicitors wrote to Professor Ashton and to the Medical Director, their client having only been notified that day of the new AL. They asked, reasonably enough, for reasons in writing for the new decision before submitting their representations.
18. On 14^th January 2005 the Trust sent a document entitled "Summary of Concerns" and asked for representations by 14^th February 2005. This read as follows:

The Crown Prosecution Service and the General Medical Council have made decisions not to proceed with any action against Dr D.

Paragraph 7 of HSC2002/0111 and paragraph 1 of annex 1 to the circular suggest that an alert letter should normally be withdrawn when the regulatory body/police have determined to take no further action.

However, paragraph 7 within the annex appears to allow for alert letters to be retained in appropriate cases following such determination. This may be one such case.

It is understood that the allegations against this doctor were of a criminal nature and related to sexual offences against female patients. The allegations appear to have related to vulnerable patients who where mentally ill or incapacitated. It is understood that, subsequently, a view was taken that such patients were not fit to give evidence within the context of any criminal law prosecution. However, in view of the predatory nature of the allegations against the doctor this may be one of the exceptional cases falling within paragraph 7 to the annex where the Regional Director for Public Health might conclude that the doctor may be a potential danger to other patients to the extent that an alert letter should remain in force notwithstanding that the doctor had been convicted of no offence.

Potential future employees checking the GMC status will have no indication of these concerns which exist as a result of previous history.

The issuing of an alert letter is a neutral act and it gives a potential employer the opportunity of understanding that concerns have been raised even though there has been no formal action taken by the GMC or CPS.

Employers would then be in a position to determine whether Dr D might be suitable for the particular post for which he is being considered.

On the basis of the above, Professor J Ashton was requested to issue an alert letter by the Medical Director.

19. On 3^rd February Dr D's solicitors put in detailed reasons, with enclosures principally concerned with the 1999 allegations, in an attempt to persuade the Regional Director to cancel the AL. On 15^th February 2005, the agreed date between the parties for time to run for the purposes of issuing proceedings for Judicial Review, Professor Ashton replied as follows:

"Thank you for forwarding the appeal submitted by Hempsons on behalf of Dr D. In line with the guidance HSC 2002/001, I have considered the appeal submitted by yourselves on behalf of Dr D and have decided to maintain the Alert Letter. This decision was given to the Trust yesterday with a further letter sent today clarifying in more detail, the reasons for this decision. In line with aforementioned guidance, the NHS Trust, as the initiating organisation, should also formally notify you of this decision.

In making this decision I have considered all the evidence available to me which includes five allegations made against Dr D by four patients ………….. in 1991. These allegations appear to be of a similar nature to those made by the two patients at the Trust some years later.

If it is the case that Dr D has faced 7 allegations from 6 wholly unrelated patients there would be a significant risk of liability on the part of the Health Service if no Alert were in place. I also fully appreciate the seriousness of Dr D of having an Alert Letter in place. I therefore concluded that the Alert Letter should remain in place but that further investigations will now take place to ensure that all the facts are fully established.

There is to be a fixed time frame for these investigations to take place of approximately three months, with a view to producing a final decision for Dr D on the 23^rd May 2005. In any case, every effort will be made to ensure that the matter is dealt with in good time and if it becomes apparent from the information submitted that the Alert Letter should be withdrawn before this date I will do so immediately.

Please accept this letter as a formal invitation for Dr D to fully participate in the investigation and as such I invite Dr D to submit any comments he wishes to make at this time in relation to the allegations made whilst working at ………. or at the Trust. I would be grateful if this information could be forwarded to this office by Monday 14^th March.

In the meantime I have stressed the importance to the Trust (as the contact point stipulated in the current Alert Letter), that it is to be made clear to any potential employer who contacts them that Dr D had not been found guilty of any misconduct whether by criminal courts or the GMC.

If you feel there is any further information that would be pertinent to this investigation I would ask that you include this in your submission.

Should you wish to discuss anything mentioned in this letter, please contact Dr Gary Cook, Deputy Regional Director of Public Health in the first instance. His contact details are at the top of this letter."

20. There followed further correspondence in which Dr D's solicitors put in further representations concerning the 1991 matters. The opportunity to take part in a further investigation was not accepted. The representations were unsuccessful. The Claim in these proceedings was issued on 19^th March 2005.

The Alert Letter regime

21. Section 1 of the National Health Service Act 1977 provides:

(1) It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement -

a) in the physical and mental health of the people of those countries, and

b) in the prevention, diagnosis and treatment of illness,

and for that purpose to provide or secure the effective provision of services

in accordance with this Act.

Section 17 (as amended) provides:

(1) The Secretary of State may give directions to any of the bodies mentioned in subsection (2) below about their exercise of any functions.

(2) The bodies are-

[(za) Strategic Health Authorities;]

(a) Health Authorities;

(b) Special Health Authorities;

(c) Primary Care Trusts;

(d) NHS trusts.

[(3) Nothing in any provision made by or under this or any other Act shall be read as affecting the generality of subsection (1) above.]

22. One such direction is the Health Service Circular of 1st November 2002 issued to the Chief Executives of Strategic Health Authorities, Primary Care Trusts, NHS Trusts and others, entitled "The Issue of Alert Letters for Health Professionals in England".

"Summary

1. An alert letter is the way in which all NHS bodies are made aware of a doctor or other registered health professional whose performance or conduct could place patients or staff at serious risk. They cover situations where doctors or any other health professionals who pose a hazard to patients or staff may move from their present NHS employer to work elsewhere in a health or social care setting in any capacity, whether or not requiring registration, before their regulatory body has had the chance to consider interim suspension or other measures. Even where such measures are in place, alert letters are intended to reduce the risk of inappropriate employment in any capacity.

2. It is also a way in which all NHS bodies are made aware of a doctor or other health professional who may reasonably be considered to pose a serious potential or actual risk to patient care or staff safety because their performance or conduct seriously compromises the effective functioning of a clinical team or local primary care services (see paragraph 8).

3. Alert letters are not intended to be issued in circumstances where an individual practitioner's performance or conduct is being considered by their NHS employer. For doctors, the policy is that the advice and support of the National Clinical Assessment Authority (NCAA) should be sought by employing bodies in cases where the performance or conduct of a hospital doctor or general practitioner is giving serious cause for concern. A doctor undergoing assessment by the NCAA must give a binding undertaking not to practise in the NHS employment until the NCAA assessment is complete. An alert letter is intended to cover situations where a doctor moves on, or could move on before the assessment process is completed.

NOTE: Alert letters are solely for use in cases where an individual is considered to be a serious potential or actual risk to patients or staff. They should not be used for any other reason.

4. When an employer considers that their employee* or former employee* who is a health professional could place patients or staff at serious risk, they should make a request to the Regional Director of Public Health (RPDH) for the issue of an alert letter. In the case of health professionals other than doctors, the RDPH will seek advice from senior professional colleagues with responsibility for that profession (eg for nurses, the Head of Nursing at the relevant Directorate of Health and Social Care (DHSC), or for midwives, the local Supervisor of Midwives).

* see paragraphs 11, 43-45 of Supporting Document (Appendix 1) for primary care practitioners

5. However, it will be for the RDPH to decide whether the criteria for issuing an alert letter have been met.

6. In all cases where an alert letter is issued, referral should be made to the individual's regulatory body (e.g. The General Medical Council) as a matter of urgency, by the initiating organisation. However, there might be very rare occasions when an alert letter may need to be issued as a matter of urgency but immediate referral may not be appropriate. This may be, for example, when investigations are ongoing to gather sufficient evidence to substantiate a referral to the regulatory body. In such cases, referral must be made at the earliest appropriate opportunity, or the alert letter withdrawn immediately it becomes clear that referral is not warranted. Consideration should also be given to the power of some regulatory bodies to place interim suspension or conditions on an individual's registration in circumstances when urgent action is required. The National Clinical Assessment Authority (NCAA) should also be notified in the case of doctors.

7. In summary, the alert letter is a measure to reduce the risk of an unsafe poorly performing health professional practising whether in that or any other care capacity until the appropriate regulatory body has had the chance to consider what action is appropriate. In the case of doctors, an alert letter is intended to cover situations where the individual moves on before the NCAA assessment process is completed. It can also reduce the risk of individuals becoming inappropriately employed in posts not requiring registration, whether or not the regulatory body had taken action. There may be exceptional cases where the RDPH may decide that the individual remains a potential danger to patients and/or staff and therefore considers that the alert letter should remain in force. In this type of case, the RDPH may wish to consider consulting the Department's Solicitors branch."

23. The phrase, already in para 2 and the Note to para 3 is repeated at para 8 and later both in the schedule and in the supporting document at Annex 1.
24. Under the heading "Action" the Circular continues:

"Action

11. This HSC directs NHS bodies to put systems in place to implement and manage the new system for alert letters from 1^st January 2003. These requirements are mandatory for NHS organisations. Independent contractors, eg, general practitioners providing GMS or PMS, general dental practitioners, pharmacists and opticians, are strongly recommended to incorporate this circular into their procedures.

13. This circular should be read in conjunction with the Supporting Document, attached at Appendix 1.

14. The supporting documents sets out procedures for operating the alert letter for all health professionals working within the healthcare sector. For the purposes of this document all these people are referred to as "individuals".

17. Of particular importance is the need to ensure that cases in which alert letters have been issued are monitored and that letters are rescinded as soon as appropriate (see the Supporting Document at Appendix 1)."

25. The Schedule to the Circular states:

"NHS bodies must ensure that systems are put in place, in accordance with the attached document ("The Supporting Document – Procedures for Operating the Alert Letter System for Health Professionals in England"), to:

consider whether action should be taken to alert other healthcare employers about a health professional who is believed to pose a serious potential or actual risk to patients or staff, and who is believed likely to be working or seeking work elsewhere in a health or social care setting;

notify the appropriate regulatory body immediately about the health professional in question unless there are exceptional circumstances when immediate referral may not be appropriate (see paragraph 20 of The Supporting Document – Procedures for Operating the Alert Letter System for Health Professionals);

inform the Regional Director of Public Health (RDPH) of all the data and material necessary for that person to make a decision whether or not to issue an alert letter;

inform the individual concerned (in writing to their last known home address and, where appropriate, their registered address) that the RDPH has issued an alert letter. The letter should give a summary of the reasons the alert letter was issued and, give 21 days from the date of notification for the individual to challenge the decision if they wish by sending representations in writing to the initiating organisation who will then pass them unaltered to the RDPH for consideration.

retain current alert letters so that recruiting managers and human resources staff are aware of all live warnings;

notify the RDPH circumstances which lead to the issue of the alert letter have changed, such that the risk to people/staff is removed (eg through improved health or retraining);

notify the RDPH of the outcomes of any investigation undertaken by the regulatory body;

appropriately monitor progress;

notify the RDPH if the individual appears to have conducted himself or herself in a manner which could lead the RDPH to consider rescinding the alert letter or if the risk to patients and/or staff is removed (e.g. through improved health or retraining);

request that the RDPH consider whether the alert letter should be formally cancelled; and see that the fact of this cancellation is appropriately circulated;

ensure that appropriate confidentiality is strictly maintained throughout the process."

26. The Annex repeats the terms of the first 7 paragraphs of the Circular. Its relevant provisions thereafter are:

"12. Alert letters are purely factual and ensure that prospective employers are put in contact with previous employers and NHS organisations whose names might not be included on application forms. They can be issued in cases where an individual had left a job and a disciplinary issue has not been resolved. After issuing an alert letter in these circumstances, employers are expected to complete all investigations, consider the evidence and reach a judgment as to whether or not the concerns are valid.

18. Only RDsPH may issue alert letters. This is to reduce the number of people that can issue alert letter in order to ensure consistency of approach throughout the country.

21. NHS Trusts will ask the RDPH to consider issuing an alert letter in the case of any of their employees. The request should be made by a Director of the NHS Trust.

26. The RDPH considers the representations from the organisation and decides whether or not to issue an alert letter after consultation with senior professional colleagues with responsibility for that profession (eg for nurses, the Head of Nursing in the relevant DHSC or for midwives, the local Supervisor of Midwives).

27. The RDPH advises the requesting organisation whether or not the alert letter will be issued and the reasons for this. If an alert letter is issued the requesting organisation must also refer the case to the regulatory body as a matter of urgency. It is recognised that there may be exceptional circumstances when immediate referral might not be appropriate, for example when investigations are ongoing to gather sufficient evidence to substantiate a referral to the regulatory body. In such cases referral must be made at the earliest appropriate opportunity or the alert letter withdrawn immediately it becomes clear that referral is not warranted.

28. The alert letter will be issued by the RDPH to all NHS bodies in the region. It will ask them to contact a named officer at the originating organisation for a reference if the subject of the alert letter contacts them with a view to obtaining employment and in addition will ask Health Authorities to distribute the letter to independent health care providers in their locality. The RDPH will also send the alert letter to other RDsPH, national independent health care providers and those organisations set out in paragraphs 43-45. A model alert letter is detailed in the Annex 2. Alert letters are strictly confidential and should only be shared in an NHS body on a 'need to know' basis.

29. Once an alert letter is issued the individual concerned should be notified by the initiating organisation within 7 days (in writing to their last known home address and, where appropriate, their registered address) that the RDPH has issued an alert letter. They should be given a summary of the reasons for this action and given 21 days from the date of notification in which, if they wish to challenge the decision, to send representations in writing to the initiating organisation, who will then pass them unaltered to the RDPH for consideration.

30. Following receipt of any representations, if the RDPH decides that that the individual does not in fact pose a serious potential or actual risk to patients or staff, then the alert letter must be formally cancelled. The RDPHs decision to cancel or not must be notified to the initiating organisation within 7 working days of receipt of the representations by the RDPH. The individual must be notified of the RDPHs decision by the initiating organisation.

NOTE: Alert letters are solely for use in cases where an individual is considered to be a serious potential or actual risk to patients or staff. They should not be used for any other reason.

Monitoring the situation and withdrawal of alert letters

31. So far as is reasonably practicable, the organisation that triggers the alert letter system must ensure that it monitors the progress of any proceedings by the police, regulatory body, NCAA or Occupational Health Service and of any disciplinary proceedings, so that, should the individual be shown not to pose a risk to patients or staff, the RDPH can be notified and can consider if the alert letter should be withdrawn. Where practicable, the initiating organisation will also wish to keep track of any civil case (eg, where a patient sues a practitioner through the courts). While such a process is underway, the initiating organisation should keep the RDPH informed on a monthly basis. Once the process is completed and a decision reached, there should be no need to continue to monitor or review the existence of the alert letter. The RDPH will need to satisfy him/herself on an annual basis that existing alert letters are still relevant.

32. As part of the monitoring process, The RDPH (where appropriate as a result of representations from the initiating organisation) must ensure that the alert letter is rescinded should the concern for the safety of patients and/or staff be removed. Each case must be considered on its merits and alert letters should not remain in force any longer than necessary in terms of protecting patients or staff. The individual concerned must also be advised by the initiating organisation when the letter had been withdrawn. It must be made clear on the face of the informing letter that the decision was made by the RDPH.

33. The RDPH should maintain and keep up to date a list of all alert letters he or she has issued and where applicable the date on which they were rescinded.

34. The RDPH should retain all details relating to the alert letter for five years after it has been rescinded. The existence of a rescinded letter would form an important piece of evidence should the same individual again be considered to pose a serious potential or actual risk to patients or staff at a later date.

35. There may be occasions where an NHS employer wishes to appoint an individual who is the subject of an alert letter (after making contact with the named contact on the alert letter) or a Primary Care Trust wishes to employ or include the individual on the Medical or Supplementary list. If an NHS employer proposes to employ or include on its list an individual who is subject to an alert letter, careful thought must be given to appropriate safeguards. Any decision, one way or the other, by the prospective employer must be justified, and if in doubt, legal advice should be sought from the prospective employer' solicitors. Where the RDsPH are made aware of such a decision or proposed decision, they should consider consulting the Department's Solicitors.

Statutory regulatory bodies

36. Where an alert letter is issued, the case must be referred to the regulatory body as a matter of urgency, unless there are exceptional circumstances (see para 19).

37. If the regulatory body concludes its consideration of the case in terms that allow the individual to continue in practice, either with or without conditions, the RDPH and initiating organisation should review the need to continue the alert letter. It does not automatically follow that the alert letter should be withdrawn – there may be other reasons for continuing it. If it is decided to continue with the alert letter, both the RDPH and the initiating organisation must be prepared and able to defend this decision against legal challenge."

The complaints/grounds

27. These may be summarised as follows:

i) Professor Ashton wrongly failed to follow the Circular at para 17 (above para 20), the Schedule (above para 21) and paras 31-32 and 37 of the Annex (above para 22) in not cancelling the 1^st AL soon after March 2003. The delay itself is sufficient to call for a remedy.

ii) Having correctly if belatedly cancelled the AL he wrongly issued the second AL in that

a) No new evidence had come to light since the cancellation of the first AL

b) The second AL was issued -

i) in breach of the procedural requirements of the

Circular and its Annex, and

ii) with serious errors in its factual background.

iii) The 2^nd letter did not amount to the "retaining in appropriate circumstances" of an AL but the issue of a new AL.

iv) The claimant should, applying public law principles and in compliance with Article 6(1) of the European Convention on Human Rights (ECHR), have afforded the claimant an opportunity to make representations before the 2^nd AL was issued.

v) The Summary of Concerns issued following the issue of the AL contained serious material errors.

vi) The matters raised following the Summary of Concerns were new matters and Dr D should have had the opportunity to make formal representations and to have them considered. The failure to do so infringed his fair hearing rights under Article 6(1) of the ECHR.

vii) An AL should never be issued when the matters which give rise to it have either not been proceeded with or have been the subject of acquittals either in a criminal court or at the hands of the GMC. In effectively "convicting" the claimant of the matters of which he had been acquitted the defendant infringed the claimant's Article 6(2) ECHR right to be presumed innocent until proved guilty. In so far as the law sanctions such infringements and they are proportionate they are, and should continue to be, confined to processes explicitly designed for the protection of the young or statutorily vulnerable.

viii) In acting as he did the defendant breached the Article 8 ECHR rights of the claimant to respect for his private and family life, his home and his correspondence. In this connexion it was submitted that the right to practise his profession engages Article 8(1).

ix) To allow an AL to stand in these circumstances would amount to an indefinite or even permanent obstacle in the way of the claimant's ability to practise as a doctor.

The defendant's case

28. In summary the defendant submitted:

i) While criticism may be properly be made of the period allowed to elapse between March 2003 and November 2004 when the first AL (issued solely on the grounds of the 1999 investigations) was cancelled, the continuance of an AL throughout the period was in fact justified by the circumstances of the case as a whole and retrospectively justifies what was an unjustifiable delay.

ii) Although the issue of the 2^nd AL was not carried out within the timescale set out in the Annex the decision to issue it was justified by the circumstances of the case in the round – including the 1991 acquittals. As to the factual background see v) below.

iii) The decision was effectively a decision to retain the 1^st AL and even if it was not it was justified by the circumstances of the case in the round – including the 1991 acquittals.

iv) There is no specific or general public law duty to consult the practitioner before the issue of an AL. Article 6 ECHR is not engaged because the process in question is not a determination of a civil right or of a criminal charge.

v) Although the Summary of Concerns contained errors they were not fundamental or material errors in that they do not change the key fact that over the last 14 years 6 women have independently made complaints of the same type of behaviour.

vi) The defendant has considered all relevant matters including both the representations made on Dr D's behalf and the serious potential consequences for him of an AL and there is therefore no breach of Article 6(1) or of common law procedural unfairness.

vii) Matters giving rise to suspicion that a person poses a "serious potential or actual risk" may justify an AL or the continuance of an AL even if no formal finding of guilt has been recorded. The AL procedure is not a trial procedure and does not engage Article 6(2). The circumstances in which such interference is justified include but are not confined to the vulnerable. In any event four of the persons by whom the original allegations were made were vulnerable by reason of their mental and/or emotional conditions and the issue of the AL clearly had the interests of such people in mind.

viii) The claimant's practice as a doctor does not engage Article 8(1). Even if it does the interference with it does not infringe Article 8(2).

ix) The AL should, and will from now on, be kept under proper review.

29. As to complaint/ground i) it is undoubtedly the case that the Circular, the Schedule and the Annex were not properly complied with. The continuance of the AL should have been considered long before the beginning of November 2004. Even then it was only reconsidered as the result of the defendant's being made aware of its continued existence. As has already been pointed out (above, para 10) the reason given for the failure to do so earlier was in part at least erroneous. There is however no evidence to contradict the Medical Director's claim that the Trust was not informed by the GMC of the discontinuance of the proceedings in March 2003. The claimant relied on H v UK 10 EHRR 9. In that case the applicants were able to show prejudicial delay caused by the local authority in care proceedings.
30. It was common ground between the parties that, as was pointed out by Moses J in R v Regional Director of Public Health(Trent) and Another ex parte Dr X Transcript CO/3584/1999, an AL can be "gravely prejudicial to a practitioner seeking employment". It is therefore essential that the end of active proceedings before the GMC is communicated to the body responsible for the issue of the existing AL so that a proper decision can be taken on whether it should be cancelled or be maintained. In either event the practitioner is entitled to know where he stands and if, assuming it to be legally possible in any circumstances, the LA is to remain in existence, what the reasons are for its continuance.
31. In this case the failure only has, in my judgment, a limited relevance to the application in respect of the second AL. If in fact it is now a reasonable use of the AL process to inform potential employers of the claimant's past history it would have been reasonable in March 2003. If not, the claim will likely succeed in principle and the failure to take proper steps in proper time may have other consequences. In addition there were no "proceedings" current during the period in question and the claimant did not claim that he had suffered actual prejudice as the result of the delay.
32. As to complaint/ground ii).

i) It is correct that in reality no new evidence had come to light. The Medical Director was aware of the 1991 matters at least to some limited extent before the 1^st AL was cancelled (Letter of 1^st November 2004 para 8 above). It is clear that following the cancellation letter he gained more information as to the number of complaints there had been in 1991.

ii) It is also correct to say that the requirements both as to process and timescales set out in the Annex at para 29 (above) were not complied with both as to letter and spirit. The Trust did not notify the claimant of the issue of the letter within 7 days. The notification was not accompanied by the reasons. It is reasonable to infer that the Summary of Reasons did not exist as a document before the 14^th January 2005.

iii) It is also reasonable to infer that there must have been some factual errors in the mind of the initiator (the Medical Director) and the issuer (Professor Ashton) of the AL. This inference is to be drawn in particular from the terms of the Summary of Reasons the subject of complaint/ground v).

33. The failures in the process were avoidable and should not have occurred. Of course the events took place around the Christmas period when timetables are notoriously difficult to maintain. Alert Letters have serious potential consequences. In a case of this kind in which a letter is being issued – or continued – in circumstances in which it is almost certain that the practitioner will wish to make representations, it is very important that both initiator and issuer have – in writing and ready to accompany the notification – the reasons, properly researched and based, for the issue of the letter.
34. In the result I find that the "procedural" faults did not in the end produce such unfairness as to justify the intervention of the court, although at the time they must have aroused a justified feeling of unfairness. Dr D did receive reasons for the decision and had his opportunity to make representations and those representations were considered.
35. The question of the existence or otherwise of new evidence as an important factor is relevant to consideration of the next complaint iii). I shall deal with the alleged factual errors and their significance in dealing with complaint v).
36. Complaint/Ground iii). A new letter or the continuance of the old one? In my judgment this was clearly a new letter. There was a period in November and December 2004 when the claimant could have applied for jobs without the prospect of his prospective employer contacting the relevant trust to follow up an AL. Of course in the minds of the Trust and of Professor Ashton they were simply re-establishing the status quo. It is unfortunate that the considerations which led to the issue of the 2^nd letter were not fully considered and acted upon before the cancellation of the first one. It has led if nothing else to a further feeling of unfairness in the mind of the claimant.
37. It is equally clear however, in my judgment, that if, as of the 20^th December 2004 and to date there remains a genuine and not unreasonable fear in the mind of the initiator and the issuer that the claimant poses a "serious potential or actual risk" then an AL may properly be issued.
38. Although, understandably, the Circular and its Schedule and Annex are principally concerned with situations in which an investigation and or proceedings are under way and envisage the cancellation of an AL after such proceedings have finished, there are references to the use of the procedure in other situations. E.g. at para 7 of both Circular and Annex –

"There may be exceptional cases where the RDPH may decide that the individual remains a potential danger to patients… and therefore considers that the alert letter should remain in force."

And, more relevantly to this case, para 37 of the Circular (quoted above at para

26).

39. Accordingly, and save as to the possible consequences of the issue of the 2^nd AL for complaint/ground iv), assuming that the conditions at para 31 above apply and that there is no public law or ECHR bar on the issue of an AL in the particular type of circumstances of this case, I do not see how events between the 4^th October and 20^th December 2004, unfortunate though they were, of themselves give rise to a successful claim for Judicial Review.
40. Complaint iv). Should Dr D have been afforded an opportunity to make representations before the issue of the second letter? In this context I was asked to consider the general right of those to be subject to a penalty to make representations and the possible Article 6 implications of a failure to give such a right.
41. There is no provision in the Circular or the Annex for representations to be made before the issue of an AL. Since it is primarily concerned with the period while an investigation is pending that is perhaps not surprising. It will often be important for potential employers to be warned of a possible serious pending charge before the practitioner has even been interviewed by the police or other investigator. The procedure envisages representations being made after the issue of the AL. In this case had the original reaction to the claimant's solicitor's letter of 4^th October 2004 been to keep the AL in place there would have been no duty within the Circular regime other than to keep it under review and no doubt to consider any representations made at any time that the letter should now be cancelled. Because of the highly unusual way in which the 2^nd letter came to be issued there would have been an opportunity for representations to have been made and considered. In fact representations were made in due course – and had been made in the letter of October 2004. It is however the fact that the core reason for the issue of the 2^nd AL, as appears from the correspondence between Professor Ashton and the Medical Director, was hardly amenable to consultation. No alternative course of action, apart from doing nothing at all, short of an AL was suggested then or at trial as available to deal with the genuine concerns of the RDPH. This complaint/ground raises for the first time the nature of the procedure for the issue of an AL but since it is raised more clearly in a later complaint it suffices for the purpose of this complaint to find that whether there was or was not a duty to consult or to hear representations the failure to do so cannot, in the light of subsequent events give rise to a successful application for Judicial Review.
42. At this stage, and before dealing with the other matters raised it may be helpful to examine the only case cited by the parties at the hearing which deals directly with the topic of ALs Dr X (above).
43. Dr X was suspended in 1998 by her employer hospital while certain disciplinary matters were investigated. Before the investigations had been completed she left the country. Her employers, after her departure, sought and obtained an AL from the RDPH pending the resolution of the disciplinary matters which it had referred to the GMC. In early 1999 the Preliminary Proceedings Committee of the GMC decided not to refer her case to the Professional Conduct Committee but noted her acceptance of certain failings and gave advice as to her future conduct. In a letter to her former employer they stated that they would, had she remained in the country, have wished to follow up some matters through their "performance procedures" but considered it impractical in view of her departure. Her solicitors sought to have the AL withdrawn. The RDPH refused to do so. The Guidelines current at the time were not of course the November 2002 guidelines. (The 2002 Circular was issued, so the court was told, in part as the result of the judgment in Dr X.) Before the Court the claimant alleged that she had been exonerated and that the court should order the withdrawal of the AL. Moses J refused on the bases that the claimant had not in fact been exonerated and that proper consideration was given to whether to continue the AL. In the passage already cited he criticised the RDPH's description of an AL as "neutral". Later in the judgment (at para 44) he said this:

"But the criterion of the need to protect patients is the overriding criterion and the fundamental ground for the need to maintain the alert letter. It is open to the practitioner, in my view, to submit material to establish that there is no need for maintaining the alert letter…..."

44. Following the hearing counsel sent in a second case in which a decision to maintain an AL had been successfully challenged. This was R (on the application of Ahmet) v Secretary of State for Health [2005] EWHC 1358 (Admin). The facts and issues were very different from those in this case. Although the question of the legality of issuing an AL without notice was raised it was not pursued. In the event the issue of the original AL was held to be a proper one but its maintenance without apparent consideration of an important change of circumstances was successfully challenged and the RDPH was ordered to reconsider his decision.
45. Complaint/ground v). The Summary of Concerns. These were set out in 8 bullet points. The first stated

"The CPS and the GMC have made decisions not to proceed with any action against Dr D".

In fact the CPS had proceeded against him in 1991/2 but had decided not to in 1999, whereas the GMC had proceeded against him in 1994 and admonished him, and had also proceeded against him in 1999 and only decided to discontinue proceedings after dismissing one of the two charges he faced.

46. The second bullet described what had happened as the retention of an AL when it was in fact the issue of a new one. The fourth contained the following;

"The allegations appear to have related to vulnerable patients who were mentally ill or incapacitated".

In fact, although four (including both complainants from 1999) were undoubtedly suffering from some form of psychiatric disturbance the position was not clear as to the other two.

47. The sixth bullet repeated the phrase dealt with by Moses J when it described the AL as "a neutral act."
48. The reference to "previous history" in the 7^th bullet point was unclear. It was possible that it only referred to the 1999 matters and did not include the 1991 matters. The same could be said of the Summary taken as a whole.
49. The Summary was therefore defective to that extent and bears all the signs of having been composed in a hurry. In a case of this kind in which there was no immediate urgency the Summary of Concerns should have been the first document to be prepared. It could be then sent out with the letter. It should have been rigorously checked for factual accuracy and it should have been made clear whether it was expressing concerns based on the 1999 allegations alone or on a combination of the 1991 allegations, the 1994 admonishment and the 1999 allegations.
50. However, it is now clear, and became so during the correspondence and appeal process which followed its issue, that the real concern was the concern of the Medical Director, the RDPH, and his Deputy Mr Cook that six women, strangers to Dr D and to each other, had made seven allegations against Dr D, two of them at a time when he had ignored advice to have a chaperone with him. In the result, while the lack of considered action has led to yet further feelings of unfairness on the part of the claimant and some unnecessary correspondence the errors in the Summary of Concerns are not such as to successfully impugn the eventual decision of 15^th February.
51. Complaint/ground vi). This concerns the correspondence which led to the letter of 15^th February. In argument this ground was not pursued with the same enthusiasm as the others. In reality the correspondence consisted of a series of representations and responses to them which continued until the issue of these proceedings in March. The representations were clearly considered and gave rise to the suggestion that a three month deadline be set for a further investigation of the case in which the practitioner was invited to take part. This complaint/ground, in so far as it was persisted in, was not a strong one.
52. Complaint/grounds vii) and viii). This, together with the ground which follows was the principal ground upon which the claim was brought. In support of her submissions Ms Foster QC who appeared for the claimant relied on a number of authorities. As she said in opening her case the question in this case is; Is it lawful for the Secretary of State to "alert" employers to mere allegations which have been investigated and considered without adverse findings? The questions of the role if any of Article 6 ECHR, the question of whether any such disclosure must be limited to what is necessary for the protection of particular classes of vulnerable individuals and the possible infringement of the Article 8 ECHR rights of the practitioner fall to be considered together.
53. In R(Mullen) v Secretary of State for the Home Department [2005] 1 AC.1 the claimant had sought compensation following the quashing of his conviction on the basis that the proceedings had involved a gross abuse of executive power. In allowing the Secretary of State's appeal, Lord Bingham, with whom Lord Walker agreed, set out a wider ambit for the effect of section 133 of the Criminal Justice Act 1988 than Lords Steyn, Scott and Rodger. At para 10 he said:

"Although it is, again, unnecessary for me to express a concluded opinion on the point, I am not at present inclined to accept Mr Plemings's submission that denial of compensation to a defendant acquitted in circumstances meeting the conditions of section 133 necessarily infringes the presumption on innocence protected by article 14(2) of the ICCPR and article 6(2) of the European Convention. In WJH V The Netherlands (Communication No 408/1990) (unreported) 31 July 1992 the Human Rights Committee said, para 6.2:

"With respect to the author's allegation of a violation of the principle of presumption of innocence enshrined in article 14, paragraph 2, of the Covenant, the Committee observes that this provision applies only to criminal proceedings and not to proceedings for compensation; it accordingly finds that this provision does not apply to the facts as submitted."

This was the view taken by the Irish Supreme Court, without reference to either the Convention or the ICCPR, in People (Director of Public Prosecutions) v Pringle (No2) [1997] 2 IR 225, 237. But it does not appear to be the approach of the European Court. In Sekanina v Austria (1993) 17 EHRR 221, 235, para 30, the court, finding a violation of article 6(2) of the European Convention, said:

"The voicing of suspicions regarding an accused's innocence is conceivable as long as the conclusion of criminal proceedings has not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final."

Later authorities distinguish between cases in which there had been no acquittal on the merits of the accusation (as in Luetscher v The Netherlands (1996) 24 EHRR 181), when the state is permitted to continue to give effect to its suspicions of the defendant's guilt, and cases (such as Rushiti v Austria (2000) 33 EHRR 1331, Lamanna v Austria (2001) 36 EHRR 799, Hammern v Norway (Application No 30287/96) unreported) 11 February 2003, and O v Norway (Application No 29327/95) (unreported) 11 February 2003, where there has been an acquittal on the merits of the accusation and the state is not permitted to give effect to its suspicions of the defendant's guilt. This latter rule applies even though the defendant has been acquitted because of doubt about his guilt (Rushiti v Austria, para 31, pp 1338-1339) and article 6(2) is not confined in its application to criminal proceedings (Hammern v Norway, para 44). If, as I think, this is the correct analysis of the European jurisprudence, it gives no assistance to Mr Mullen, since his acquittal was based on matters entirely unrelated to the merits of the accusation against him."

54. Ms Foster relied upon this paragraph and on some of the European authorities decided on this point. All are concerned with the question of the payment of compensation or costs following an acquittal by a court. The passage quoted above from Sekanina v Austria(1993) 17 EHRR 221 speaks for itself. In Leutscher v Netherlands(1996)24 EHRR 181 the claimant's conviction had been quashed on appeal because the prosecution had been time-barred. The claimant sought the reimbursements of his legal costs. The Commission upheld the decision of the domestic court. The Court agreed with the Commission and found no violation of the presumption of innocence. In the course of the judgment the Court said (at para 29):

"The Court notes that it was common ground that Article 6(2) does not confer on a person "charged with a criminal offence" a right to reimbursement of his legal costs where proceedings taken against him are discontinued. The Court, like the Commission, would also recall its established case law to the effect that in itself the refusal to order the reimbursement to the former accused of his necessary costs and expenses following the discontinuation of criminal proceedings against him does not amount to a penalty or a measure that can be equated with a penalty.

Nevertheless, such a decision may raise an issue under Article 6(2) if supporting reasoning, which cannot be dissociated from the operative provisions, amounts in substance to a determination of the guilt of the former accused without his having previously been proved guilty according to law and, particular, without his having had an opportunity to exercise the rights of the defence."

55. In Hammern v Norway (unreported) Application no 30287/96 (Judgment 11 February 2003) the claimant had been acquitted of offences and claimed compensation under the Criminal Code. He was awarded compensation but not "supplementary compensation" on the basis that he had not shown that it was "probable" that he had not committed the crimes with which he had been charged. The Court held that although the Norwegian High Court had expressly stated that it was not making a finding of guilt and had the provisions of Article 6(2) well in mind,

"... the High court's reasoning clearly amounted to the voicing of suspicion against the applicant with respect to the charges…for which he had been acquitted."

56. As a result it held that the Court's "affirmations" under the particular Article of the Criminal Code were incompatible with the presumption of innocence. This decision marks the high water mark of the claimant's case on this issue. There are however significant differences between the cases. Hammern concerned an Article of the Norwegian Criminal Code which was specifically linked to criminal proceedings and their immediate consequences and which shifted the burden of proof onto the former accused. It had nothing directly to do with employment matters. The court has no knowledge of whether the claimant in this case received his costs, whether from central funds or the prosecution, or compensation from the Secretary of State in respect of the criminal proceedings he faced in 1991, or in respect of the proceedings before the GMC.
57. There is no question in the case of an AL of a decision or determination of guilt although clearly the recipient of the information from the Trust may nurture suspicions that Dr D may have been guilty of one or other of the offences or at the least of inappropriate behaviour. Closer to the present case are those decided on similar provisions in the UK.
58. Mr Lynch QC for the defendants reminded the court that even within the criminal process there is scope for casting doubt upon the correctness of acquittal. That is the effect of R v Z [2000] 2 AC 483 in which the House of Lords allowed the prosecution to adduce evidence of alleged rapes by the accused of which he had been tried and acquitted as "similar fact" evidence to support a new allegation. With the coming into force of Part VI of the Criminal Justice Act 2003 the prosecution are now able in certain circumstances to apply for orders quashing acquittals and to ask for a retrial of the acquitted offenders.
59. R(X) v Chief Constable of West Midlands [2005] 1 WLR 65 concerned Extended Criminal Record Certificates (ECRC) under the Police Act 1997. The claimant had been charged with two offences of indecent exposure. The charges were dropped following an unsuccessful identification procedure. The claimant applied to an agency for a job as a social worker. The agency sought information about him from the Criminal Records Bureau. Section 115(7) of the Police Act 1997 places a mandatory duty upon chief officers of police to provide "any information which in the chief officer's opinion-(a) might be relevant for the purpose described in the statement under sub-section (2), and (b) ought to be included in the certificate." The Chief Constable issued an ECRC. It contained details of the allegations of indecent exposure. It was to be seen only by the subject and his prospective employer. In that case too the question of the ability to make representations was raised. In giving the judgment of the Court Lord Woolf CJ said (at para 36-38):

"While the statements of Lord Bingham LCJ, Dyson J and myself do indicate a general approach, in my judgement, to apply them to the present case, except with the utmost of caution, can be misleading. I am conscious that as a result Wall J may have been led astray by my judgment. First of all, as already indicated and as Wall J accepted, here there is no presumption against disclosure. On the contrary, the position is more positive in favour of disclosure than was indicated by Wall J. Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.

This was obviously required by Parliament because it was important (for me protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In my judgement it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure.

Furthermore, whatever the shortcomings in the interview by the police, the interview was extensive and the claimant had had during that interview ample opportunity to set out his account. More importantly, under section 117, the claimant is given an opportunity to correct the certificate. An opportunity which he has not taken advantage of. In addition, as already indicated, the claimant was in a position to give his account of what happened to the person who it was most important should hear that account, namely his proposed employer."

60. Earlier in his judgment Lord Woolf had considered R v Chief Constable of the North Wales Police ex p AB [1999] 2 QB 396. In that case the chief constable had disclosed, at that time without statutory authority to do so, the addresses of convicted paedophiles not simply to other interested agencies but to the owner of a caravan site on which the applicants were living. It was accepted that in that case there was a strong presumption against disclosure to members of the public and that the possible consequences of such disclosure went a long way beyond prospects of employment and included physical violence and – as occurred in that case – eviction from a temporary home with no guarantee of ever finding a new one.
61. In In re L (Sexual Abuse: Disclosure), In re V (Minors) (Sexual Abuse: Disclosure) 1999 1 WLR 304 the Court of Appeal allowed an appeal by appellants seeking to prevent non-statutory disclosures of findings made in care proceedings in one case to a local authority and the other to a local football league. The Court held that the discretion to order such disclosure, while available, had been wrongly exercised. Once again the consequences of disclosure and the need for confidentiality in care proceedings were paramount considerations.
62. In Re C (Disclosure; Sexual Abuse Findings) [2002] 2 FLR 375 a judge had found in care proceedings that C had sexually abused children. He allowed the local authority to disclose his judgment to the Department of Health and to any social services department or police force within whose area he might be residing. The relevant police and social services authorities then applied for permission to disclose the judgment to his current and any future landlords. Bodey J ordered disclosure to the current landlord but not to future landlords. The case is of limited assistance in that it involved many countervailing considerations – such as the need for confidentiality in children's cases - which do not apply here. And this case is concerned only with disclosure to persons who may employ the claimant as a doctor who are used and may be expected to treat confidential information properly. There was in Re C an Article 8 claim as well. The disclosure allowed clearly affected the claimants' Article 8 rights but the Judge held that there was a pressing social need and that the disclosure was proportionate to it.
63. In R (Ellis) v Chief Constable of Essex Police [2003] FLR 566 the Court of Appeal, again presided over by Lord Woolf CJ, had to consider a police initiative of publishing on posters the photographs of convicted offenders together with their names, the offences of which they had been convicted and the sentences they were serving. The Court refused to declare that the initiative could not be operated legally but advised extreme caution in the selection of offenders so as not to put at risk the Article 8 rights of others such as children or members of the offender's family. Once again the territory covered by the case is very different from the present.
64. A case which touches on the questions of procedural fairness at common law and under Article 6(1) and (2) ECHR and which also bears similarities on its facts to this case is R(A) v Chief Constable of C [2001] 1 WLR 461. In this case police authorities had disclosed information concerning the claimant to each other and in one case to a local authority. The information related to allegations of criminal conduct by the applicant towards children. These had been investigated but never prosecuted. The information was divulged to a prospective employer following the application by the claimant for a job as a primary school teacher. Turner J ruled that there was no "decision" such as to attract an obligation requiring to be judged according to the rules of procedural fairness (and therefore by implication no Article 6(1) claim). At para 41 he said this:

"What then of the position of the D constabulary when the information was passed by them to the local education authority? There cannot be the slightest doubt that the local education authority had a lawful interest and a "pressing" need to receive the information which was in the possession of the county police since it was or could be important as affecting the decision which it was required to make. In one sense, the local education authority was the body best qualified to decide what, if anything, it would make of the information with which it was being provided. If it was uncertain about the strength of the complaints and needed to know more in order that it could make an informed decision, it was always at liberty to ask for assistance from the communicating police force for its opinion about that matter. It would thereafter be for it to decide whether, or to what extent, the non-conviction material should inform its decision. Before it did, it would, of course, have to provide the applicant with at least the gist of that information and offer him the opportunity to make representations about it.

65. It was accepted that Article 6(2) (presumption of innocence) and Article 8 (2) did not affect the case, there being a pressing social need for the disclosure even of the unproven allegations.
66. In R (Wilkinson) v Broadmoor Special Hospital Authority and others [2002] 1 WLR 419 doctors decided that the claimant should receive anti-psychotic medication without his consent. Among other claims the claimant submitted that under Article 6 ECHR he should have the right to cross-examine the doctors who had made that decision. The Court found – as a matter of fairness and as a consequence of the possible breaches of Articles 2 and 3 of the ECHR and consequential breach of Article 8(2) - that the court must be able to intervene and substitute if necessary a different decision to that taken by the professionals. In view of that finding Simon Brown LJ found no actual or potential breach of Article 6 para 34:

"34. I come finally to the contended-for violation of article 6 which can now be dealt with very briefly. As stated, it is the appellant's case in this regard that a number of his civil rights are affected by the respondent's decisions to subject him to forcible treatment and that he is accordingly entitled to a determination by an independent and impartial tribunal of the lawfulness of the interference with those rights. If I am correct in having concluded that the appellant on this challenge is entitled to have the legality of his future treatment plan determined by the court according to its own assessment of the relevant facts, then plainly the requirements of article 6 are satisfied: the Administrative Court will conduct a merits review on the evidence. The article 6 challenge seems to me similarly unsustainable in respect of past treatment: as already noted, it was always open to the appellant to bring a tortious claim for assault in respect of these. Article 6 does not in my judgment entitle a mental patient in every case to challenge a treatment plan before being subjected to it any more than it entitles a criminal suspect to pre-empt arrest by challenging in advance the constable's right to arrest him. Where, therefore, as here, given that forcible treatment was to be administered it was clearly necessary to administer it without increasing the risks by forewarning the appellant of the plan, I for my part would not regard that decision as involving any violation of article 6.
35. I should perhaps add this. Were I to have concluded that the Administrative Court's role on this challenge was as narrowly confined as contended for by the respondents (and by the intervening Secretary of State), the article 6 challenge would I think have proved irresistible. The respondents' contention that article 6 is simply not engaged here because "when the sentencing court ordered the appellant's detention it authorised his treatment in accordance with the 1983 Act" appears to me an impossible one: treatment still needs to comply with Part IV of the Act and any decision to treat the patient forcibly will inevitably determine his civil rights. Nor do I find convincing the respondents' fall back argument that the requirements of article 6 (assuming it to be engaged) are met here either by the SOAD's independent review and certification process or, at the very least, by a combination of that and the exercise of the court's review jurisdiction. The difficulties of this argument are surely plain. The SOAD's certification process, even it were not unduly deferential to the RMO's decision, could hardly be said to involve "a fair and public hearing". Take the facts of this very case: no doubt for very good reason the SOAD's participation was rushed through. It was hardly consistent, however, with any sort of adjudicative process. As for the court's review jurisdiction (assuming it was to be exercised narrowly in accordance with Brady as the respondents contend it should be), I cannot think that this either would meet the requirements of article 6. If, as the ECtHR held in Smith and Grady, judicial review applying the super-Wednesbury test did not in that case constitute "an effective remedy before a national authority" for article 13 purposes, it is difficult to see how it could meet the requirements of article 6 in the present case.
36. That, however, is essentially by the way. For the reasons earlier given I have concluded that what would be required on a substantive challenge here would be a full merits review of the propriety of the treatment proposed and, for that purpose, cross-examination of the specialists.

67. A case which concerned the extent to which Article 6 applies beyond the ordinary court process was W v UK 10 EHRR 29. The case principally concerned Article 8 and the rights of parents of children in care to make representations about their children. In that case, in which the parents sought access to their children in the care of the local authority, the Court held unanimously that there was no proper means by which substantial disputes could be heard and determined. And since Judicial Review was not concerned primarily with the merits of such decisions its existence as a remedy did not bridge the gap in such cases. In so finding the court stressed that access to children clearly engaged Article 8 and that the decisions made in such cases could be long-lasting or even permanent in their effects.
68. The Court was also asked to consider R v Secretary of State for Health ex p C 2000 HLLR 400 a case concerning the non-statutory child abuse register in which the Court of Appeal held that inclusion on the register was not a procedure which involved Article 6(1) since "inclusion on the list is not determinative of the appellant's civil rights and obligations" at p408. The case also considered the question of the interference with the right to work that such inclusion involved. This argument also failed to find favour with the court. At page 406 Hale LJ said:

"Mr Levy suggests that the Index is an interference with the right to work in one's chosen profession. He cites, as the "high point" in the recognition of such a right the case of Nagle v. Fielden [1966] 2 QB 633: the Court of Appeal held that it was arguable that the jockey club's policy or refusing a trainer's licence to a woman was contrary to public policy. Lord Denning M.R. made some observations about the remedies which might be available to those denied entry to a "closed shop" operated by a trade or profession. Mr Levy has drawn out attention to numerous statutory provisions dealing with such situations.

There is a clear distinction between being denied or deprived of a qualification or licence which is essential for the lawful conduct of the occupation in question and what occurred in this case. The appellant is an unqualified social worker. He was not being deprive of any qualification. No one has a right to be provided with a job. Employers are free to pick and choose whomever they wish to employ. They may do so for good or bad reasons, subject only to the laws prohibiting discrimination on grounds of race, sex or disability. What anyone has is the right to apply for a job. He may also have certain other rights connected with that right, for example in relation to the giving of references. Subject to complying with those rights, it seems to me that private citizens are free to maintain services such as this. I conclude, therefore, that maintaining the list is not, in itself, unlawful."

69. Ex p C was followed the same year by R v Worcester Crown Court ex parte SW 2000 HRLR 702 in which the non-statutory Consultancy Service Index, kept for the purposes of checking the suitability of candidates for employment, was the subject of an application for judicial review. The Head Note reads:

"Held: dismissing the application for judicial review:

…6) The only information stored on the Index was the name of the individual and particulars of his employer but there was evidence that inclusion on the Index might be enough to deter a potential employer. Therefore inclusion on the Index was an implied statement about an individual with the potential to affect his opportunities for employment but it did not follow that Article 8 was engaged.

7) The notion of private life was broad enough to include to a certain degree, activities which could be seen to be an aspect of the development and fulfilment of an individual's personality, e.g. in establishing relationships, even though the activities occurred in a professional or business context. Niemetz v Germany (1993) 16 EHRR 97 considered.

8) The effect of including activities occurring in a business and professional context within Article 8 was limited and selective. It recognised the the conduct as being within provate life. Amann v Switzerland (unreported) (February 16, 200) considered.

9) Activities occurring within an individual's business and professional life would be encompassed within Article 8 where the dividing line between them and private life was not clearly distinguishable, e.g. where it could be seen that it had occurred at a place to where access to the public was excluded and some domestic authority was exercised. Leander v Sweden (1987) 9 EHRR 433 referred to.

10) The division between the sphere of activity in question and the applicant's private life was clear. The alleged conduct occurred in the course of his employment, Had the allegations related to conduct which had occurred within his home, but had reached the knowledge of his employer, different considerations might arise but the would not affect the character of the Index which only made an implied statement about suitability for employment. If a person chose to assert a right to be employed as a teacher or social worker, he put himself forward into public life and by that choice information was released about his public life."

70. Of course as the Head Note makes clear the Human Rights Act 1998 had not come into force at the date of the judgment. But the principles there set out in short must apply to this case as to others in this field. In particular the findings on the operation of Article 8(1). At page 717-9 Newman J deals with the issue.

"Does the maintenance of the Index engage Article 8

The only information which is stored on the Index is the name of the individual and particulars of his employers(s), but on the material before me (Sir William Utting's Report) and in accordance with what I would infer was likely to happen with some frequency, I accept that inclusion on the Index may be enough to deter a potential employer. It is information in connection with his public life, in this instance as a teacher. It does not fall within the bracket for inclusion envisaged in Niemietz in connection with the forming of relationships in the course of business or professional life. If a person chooses to assert a right to be employed as a teacher or social worker, he puts himself forward into public life and by that choice information is released about his public life.

That decision deals, in my judgment, with the Article 8 point in this case. Almost any decision which affects employment prospects has a knock-on effect at home but the decision to issue an AL falls well outside the type of situation that applied in Niemietz cited in the passage quoted above.

71. The last point made by the claimant concerned the limitation of such disclosures of unproven material to cases in which the class of person to be protected belongs to a class of person who is vulnerable by statute and therefore in respect of whom it can be said that there is a pressing social need for disclosure. The cases cited thus far have all concerned such people. The AL procedure viewed generally clearly extends way beyond the protection of the statutorily vulnerable.
72. However no case was cited which purported to limit the categories of those in respect of whom "non-conviction" information could be disclosed. In this case it is clear that four of the six patients concerned in the allegations had psychiatric problems of some kind and were therefore "vulnerable" in the ordinary sense of the word. Any woman patient who may be intimately examined by a male doctor is similarly "vulnerable" in the ordinary sense of the word.
73. In addition the court was greatly assisted by counsel for the claimant who at trial revealed the existence of the National Health Service (Performers Lists) Regulations 2004. These came into force on 1^st April 2004. By Reg 2 (1) a "medical performers list" means a list of medical practitioners and "performer" means a health care professional. Primary Care Trusts are, by Reg 3, required to prepare and publish medical performers lists. Reg 9(4) requires performers to supply an ECRC to the Primary Care Trust on whose list he or she appears if required to do so for reasonable cause. Regulation 11 provides for the removal of a performer from a list under Regulation 10(3) and (4)(c). These are described as "unsuitability cases".

"(1) Where a Primary Care Trust is considering whether to remove a performer from its performers list under regulation 10(3) and (4)(c) ("an unsuitability case"), it shall-

(a) consider any information relating to him which it has received in accordance with any provision of regulation 9;

(b) consider any information held by the Secretary of State as to any record about past or current investigations or proceedings involving or related to that performer, which information he shall supply if the Trust so requests; and

(c) in reaching its decision, take into consideration the matters set out in paragraph (2).

(2) The matters referred to in paragraph (1) are-

(a) the nature of any offence, investigation or incident;

(b) the length of time since any such offence, incident, conviction or investigation;

(c) whether there are other offences, incidents or investigations to be considered;

(d) any action taken or penalty imposed by any licensing or regulatory body, the police or the courts as a result of any such offence, incident or investigation;

(e) the relevance of any offence, incident or investigation to his performing relevant primary services and any likely risk to any patients or to public finances;

(f) whether any offence was a sexual offence [for the purposes of Part 2 of the Sexual Offences Act 2003, or if it had been committed in England and Wales, would have been such and offence];

…"

74. These regulations make clear that the gradual progress of statutory ways in which non-conviction information may be disclosed and used shows no sign of slowing down. It is likely that information of the kind considered by the defendant in connexion with the AL in this case is now being made available to Primary Care Trusts in respect of General Practitioners rather than those particularly concerned with the treatment of the statutorily vulnerable.
75. I have looked, as the authorities on judicial review and ECHR challenges suggest, at the underlying merits of the decision. Were the decision a purely medical one or concerned with hospital procedures the court would hesitate before enquiring too closely into it. Here the matters of concern are within the knowledge of a judge concerned from time to time with matters of evidence in the criminal courts. It is, in spite of attempts to show the contrary on behalf of the claimant, extraordinary that 6 different women, apparently without collusion, have made similar allegations against the claimant. It may not be unique, but it is most unusual. If there were to be another allegation in the future it is not hard to imagine the feelings of the patient were he or she to discover that the doctor who was treating her had been "exonerated" on 7 similar allegations in the past.

Conclusions

76. I have come to the following conclusions:

i) There is nothing in the procedures before and after the issue of the AL sufficient to justify judicial review.

ii) There is no general bar within the Circular, at common law or under Articles 6 and 8 of the ECHR, upon the issue of an AL in respect of matters which might have been but were not the subject of guilty verdicts or adverse findings.

iii) The information proposed to be supplied on request to a recipient of the AL is sufficiently important to be relevant to the question of whether an employer would wish to employ the claimant.

iv) An AL, concerned as it is exclusively with possible future employment, does not amount to a finding of guilt.

v) This AL did not affect the claimant's private life so as to engage Article 8(1) ECHR, or, if it did, under Article 8(2) the infringement of the right was legal and proportionate both as to the nature of the information and the ambit and purpose of disclosure.

vi) There was no breach, either before or after the issue of the AL, of the claimant's Article 6(1) or public law procedural rights, since there was no "determination" of the claimant's civil rights, and if there were, the process of representations both as to fact and conclusions and regular review under the Circular and the availability of proceedings for judicial review or under the Human Rights Act 1998 are sufficient to fulfil the Article 6(1) and/or procedural duties.

vii) There is no breach of the claimant's Article 6(2) right to the presumption of innocence, since there was no finding of guilt, or, to the extent that there was, that like those for the issue of ECRCs, it was legal and proportionate.

viii) There remains the possibility of review of the AL throughout its existence. If for instance it became clear that there was or may have been collusion between the victims or some of them either in 1991 or 1999 no doubt the defendant would reconsider the position. The passage of time – now 6 years since the last allegation will be relevant.

77. Accordingly I refuse the applications for judicial review.
78. By way of postscript to the case I make three observations. First, although this matter was not the subject either of complaint or argument I was troubled by a particular aspect of the case. Dr D has no idea what, exactly, may be said by the trust in response to a request for information by a prospective employer who discovers the existence of the AL. He has been assured that such enquirers will be told that the fact that he has been acquitted will be part of the information but little if anything else. If, for instance, some or all the inaccurate statements contained in the Summary of Concerns were to be repeated it would be very unfair. For my part I cannot see why, in this particular case, a form of words should not be composed after representations from Dr D and used without addition or alteration except on due notice to him. Second, as I have had cause to point out during this judgment, Dr D is entitled to feel that his case has not been well handled. This may in part be due to the matter which is the third point I make. This use of the AL procedure, following acquittals or their equivalent, is possibly unique thus far. It stretches the AL procedure close to the limit of what it can do within the terms of the Circular. The injunction to seek legal advice before embarking upon it should always be followed in view of the serious issues at stake.
--------------------------------

MR JUSTICE CALVERT-SMITH: Both of you have the judgment which I handed down?

MR LYNCH: We are very grateful for the judgment that has been received. The only application that the respondent would make, certainly at this stage, is we would ask for our costs to be assessed in the usual way.

MR JUSTICE CALVERT-SMITH: Yes.

MISS FOSTER: My Lord, I am grateful.

I have an application this morning for leave to appeal against your Lordship's judgment. This is an appeal, permission application, to which the general rules apply. I have taken the liberty of providing your Lordship with a copy of what is set out in the civil practice in case your Lordship did not have it here. It is CPR/52(3) and permission will be given, you will see under subparagraph 6, where the court considers the appeal to have a real prospect of success or disjunctively some other compelling reason why the appeal should be heard.

I make essentially three points, my Lord. We say that there are at least three very compelling reasons why the Court of Appeal should consider this matter. Two them relate to Article 8. Your Lordship will be aware that the Court of Appeal has never been seized of the issue as to whether Article 8 is relevant and --

MR JUSTICE CALVERT-SMITH: Extends this far, as it were?

MISS FOSTER: Indeed, so far as the business or professional relationship of a person with others. The second element also relates to Article 8, which I argued and appears in my skeleton, which has not attracted your Lordship, so far as I read the judgment --

MR JUSTICE CALVERT-SMITH: No.

MISS FOSTER: -- which is to deal with that element of confidentiality that under the old law was dealt with under the law of (inaudible). It is my submission that there is indeed Court of Appeal authority that clearly involves another consideration of Article 8(2) and engages it.

I have also taken the liberty of presenting a photocopy of part of Lord Leicester's book about Mr Panic(?) in which, on the second page headed "private life" paragraph 4.8.18, the concept of private life is explained. I draw it to your Lordship's attention only to remind him what is said just over the page at page 20 where one of the very issues your Lordship was called on to decide is described as "the key question" and your Lordship will see there how my submission reflected the learning that the European cases --

MR JUSTICE CALVERT-SMITH: I am sorry.

MISS FOSTER: Does your Lordship have 4.8.20 on page 271 in the corner?

MR JUSTICE CALVERT-SMITH: I am sorry, I have 269 and then I jump to 271.

MISS FOSTER: Then I apologise. May I take you on to page 271.

MR JUSTICE CALVERT-SMITH: I could not find the bit you were just referring to which must be on page 270 I think.

MISS FOSTER: I am so sorry. May I present you with another copy. If your Lordship looks at 4.8.20.

MR JUSTICE CALVERT-SMITH: Yes, I have that.

MISS FOSTER: It is the sentence that begins at the beginning, "One key question is the extent to which ...".

MR JUSTICE CALVERT-SMITH: Yes, I have that.

MISS FOSTER: I am most grateful. It is that part on which I rely. Your Lordship will see there the reflection of the submission that I made concerning the European authorities where they tend to lead the law but also the reference to the case which your Lordship has felt compelled to follow in R v Worcester Crown Court ex parte SW [2000] HRLR 702. So it is, we would say, inescapably a very real and arguable point with considerable importance both for the profession to which my client belongs and others.

The third, we say, very compelling point is a matter which your Lordship has not felt necessary to deal with in his judgment, which was a matter of argument, I think, on the second day when your Lordship was putting to me propositions concerning when the whole, that is to say the fact that there are six, seven or eight allegations, is greater than each of them taken separately, what then. In your Lordship's judgment you say effectively there was nothing else the RDPH could do. I would wish to persuade the Court of Appeal that in fact the answer is Parliament has determined that the GMC and/or the criminal court, as your Lordship may remember I answered him in submissions, is a complete answer. In other words, that when the seventh allegation arrives what Parliament intends is not that an Alert Letter goes out but that the matter does go to the GMC who are perfectly competent, certainly given the law in R v Z [2000] 2 AC 483, on which my friend relied, where appropriate and just, to deal with past acquittals and to reopen them where necessary. Thus, there is a protection for the doctor, the protection that is given by the procedures of the GMC, alternatively the procedures of the Crown Court.

It is not necessary, save in that R v Regional Director of Public Health (Trent) and Another ex parte Dr X situation, where, for example, a practitioner leaves the country, for the RDPH itself to issue a letter of the sort that we saw. This is, we would respectfully submit, at the centre of the submission that says Parliament has intended not that a letter is issued in this case but that the statutory procedures are apt to deal with all of the matters that might arise, including this one. That was a matter that arose in the course of argument and we submitted was an answer to the obvious difficult question: what does he do in a case like this. Our answer to that rhetorical question is: he does not issue an Alert Letter but he starts, if you like, at the top of the Alert Letter process and he sends the matter to the GMC. It may be if he has any doubts that they will act immediately he could then issue a letter.

MR JUSTICE CALVERT-SMITH: Quite. That seems to be --

MISS FOSTER: What he does not do is say, "I am not sending this to the GMC", because, as we know, he did not in this case, he did not go, but if he is in the position that he is faced with a number of acquittals very like the Z case, which may be, under the law as it now is, evidence where yet another allegation is made, what he must do is put it back into, if you like, due process, because it is the due process of either the criminal system or the GMC which properly protects both the public and the practitioner. That is the point that I would respectfully say is the rightful decision beyond first instance. Not a point that arose in X.

MR JUSTICE CALVERT-SMITH: Not really, no. What about your principal submission which I thought was probably what you were going to mention?

MISS FOSTER: And Article 6(2).

MR JUSTICE CALVERT-SMITH: That is: if someone has been acquitted how can it ever be proper for an Alert Letter to go, and apparently this case seems to have extended the boundaries of Alert Letters significantly, is this appropriate and has the Court of Appeal ever had the chance to look at it.

MISS FOSTER: It is your Lordship's last few lines of his judgment.

MR JUSTICE CALVERT-SMITH: Yes.

MISS FOSTER: If I may say, that was to be my last but not my least important point for exactly that reason. If the fence is being pushed by this particular animal it really is a matter that the Court of Appeal ought to --

MR JUSTICE CALVERT-SMITH: I am certainly with you on that.

MISS FOSTER: I detected from your Lordship's last paragraph you might be.

MR JUSTICE CALVERT-SMITH: Yes. I am bound to say I am not particularly attracted by your third point. It does not seem to me what you have just said answers the matter that arose in argument. Clearly you have some ground for thinking that Article 8 may --

MISS FOSTER: May attract, yes.

MR JUSTICE CALVERT-SMITH: -- may attract or may be attracted by this form of procedure, the Alert Letter procedure, although, as you rightly say, it seemed to me that Newman J had the domestic law pretty well encapsulated and therefore that rather bound me.

MISS FOSTER: I may, if I am allowed to be less formal than I might otherwise be, say it is easier for me to make the submission in the Court of Appeal that Newman J's decision sits alone, isolated, and never, as it were, other than somewhat put to one side by the practitioner in terms of Article 8, learning. It is not a decision that has attracted favourable attention and that is a submission that is easier to make, of course, to the Court of Appeal.

MR JUSTICE CALVERT-SMITH: What do you say, Mr Lynch?

MR LYNCH: My Lord, the respondent respectfully opposes the application for permission to appeal. Naturally my learned friend can renew her application before the Court of Appeal if Dr D wishes that course to be taken but we respectfully submit it would not be appropriate for your Lordship to decide that the Court of Appeal should be allowed to take this case. The reasons why we so submit are in essence that we respectfully suggest that there are not sufficient prospects of success for any appeal to make it appropriate to grant permission and certainly there are no other reasons, once that is clear, why permission to appeal should be given by your Lordship.

In making good that submission the respondent respectfully would emphasise the following: first, that as to Article 6(2), very briefly mentioned by my learned friend just now, we respectfully submit it is clearly not arguable, this is not an Article 6(2) criminal burden case, there was no criminal finding, no criminal process involved in the Alert Letter process. It is clear from the case law that in a number of circumstances employers are perfectly entitled, and indeed can legitimately expect, to learn of information including information about previous acquittals and that does not give rise to any burden under Article 6(2). Likewise it is clear, once again we would respectfully submit, beyond argument that Article 6(1) is not engaged because there was no determination of any civil right or obligation in this case and that indeed was, of course, emphasised by the Court of Appeal itself in Ex Parte C in particular in the judgment of Hale LJ.

Those, of course, are submissions which I have just (inaudible) borrowed and taken from your Lordship's judgment, most particularly paragraphs 75 and 76 of that judgment.

Turning now to Article 8. Once again we submit that fact on the basis of Ex Parte XW, the decision of Newman J. We say it is clear that Article 8(1) was not engaged and there is no sufficiently arguable error in my Lord's decision to allow my Lord to think it appropriate to require the Court of Appeal to examine that issue.

However, the real killer point with regard to leave to appeal on the basis of Article 8 is that your Lordship found at paragraph 76 subparagraph 5 that in any event even if Article 8(1) were engaged the actions were justified. That, of course, is, in a sense, a finding of fact. It is a finding a fact which we respectfully submit is plainly right. It certainly does not give rise to a sufficiently arguable point for the matter to go to the Court of Appeal. Of course, the reality is if the matter were to go to the Court of Appeal any point about Article 8(1) would be academic and otiose because, we say, it (inaudible) so clear that there was no possible ground for disturbing the finding of justification under Article 8(2) that it need not trouble itself in regard to the Article 8(1) point, quite apart from what we would then submit would be the compelling logic of Newman J in Ex Parte XW. Leaving that aside, that is academic, so on that basis the Court of Appeal should certainly not be seized of this matter on the basis of articles under Article 8(1), they simply would not arise.

In regard to my learned friend's point in connection with the correct route being the route of going to the GMC in regard to past acquittals, with great respect, the response is that would be a wholly inappropriate path. The GMC's task is to examine whether or not a doctor has been guilty of serious professional misconduct. The burden of proof is a criminal burden in a case such as that. The rules of evidence are akin to the criminal rules unless the GMC rules otherwise and that whole process of trial at the GMC is entirely different to the risk balancing process with which the Regional Directorate must grapple in cases raising Alert Letters. Certainly there is no suggestion at all in the Circular which defines the rules with regard to Alert Letters that it might be appropriate to refer previous acquittals to the GMC, and, as I say, it is very difficult to see how the GMC could possibly be the appropriate body to grapple with the risk balancing process. What is clear is that the Circular relating to Alert Letters, as to which there is no challenge, unquestionably (inaudible) in the cases where the GMC have acquitted should nevertheless, or can nevertheless, be appropriate cases for Alert Letters and that, in our respectful submission, is very powerful corroborative evidence that there can be cases, and this is just such a case, where the Directorate does indeed have to grapple with that difficult balance in line that must be left essentially to the Directorate in terms of whether or not to issue an Alert Letter where there are a string of acquittals, so to speak, in regard to very similar allegations.

That really takes me to the central point and the second point why we would submit leave to appeal should not be given at least by your Lordship to the Court of Appeal because we consider that it might not be safe to do and it also takes us back to the importance of the fact that my Lord has found as a fact, so to speak, that any invasion of private life under Article 8(1) was justified and the court (inaudible) supports this: that, as my Lord found, it really is exceptional, quite extraordinary, that someone should actually be faced with so many similar independent complaints. That is the centre of this case and that is the centre of why my Lord found that if Article 8(1) was engaged Article 8(2) showed that it was justified and is not a matter which is appropriate to send to the Court of Appeal. Once it is clear that really is what this case comes down to then it really is not a matter that should trouble the Court of Appeal, the points of principle that my learned friend has referred to simply will not arise.

So we respectfully submit that the proposition set out in paragraph 75 and 76 of my Lord's judgment are wholly clear, they do not allow for any sufficient prospect of successful challenge as to trouble the Court of Appeal and any academic points that might arise about the scope of 8(1), for example, are simply academic in the worse rather than in the best sense in this case and will so be seen by the Court of Appeal, who will simply think: this is plainly not unjustified, it plainly was not, (several inaudible words) in other areas, and the answer is no one knows.

So for those reasons, my Lord, we respectfully submit that this is not a case in which my Lord can say that leave to appeal should be given. Obviously, if the Court of Appeal look upon that question otherwise they can, of course, give leave to appeal, but we would respectfully submit that it should not fall to your Lordship to do that. So, my Lord, in essence, that is why we oppose this application.

MR JUSTICE CALVERT-SMITH: Thank you very much, Mr Lynch.

MISS FOSTER: My Lord, it is inescapable that there is no post-Human Rights Act authority.

MR JUSTICE CALVERT-SMITH: Perhaps I could just say where I am going.

MISS FOSTER: Yes, that would be helpful.

MR JUSTICE CALVERT-SMITH: It seems to me, as you rightly divined from the end of my judgment, that the whole question of the extension of Alert Letters into this area needs to be examined. I have done my best to do so. If it is ever going to be right to issue an Alert Letter this is a particularly good case, as it were, for the reasons I have set out in my judgment.

MISS FOSTER: Yes, indeed.

MR JUSTICE CALVERT-SMITH: On the other hand, these Alert Letters are clearly not going to stop -- the Court of Appeal has not, so far as the two of you are able to show me, looked at Alert Letters ever?

MISS FOSTER: Never.

MR JUSTICE CALVERT-SMITH: X never went to the Court of Appeal?

MISS FOSTER: No.

MR JUSTICE CALVERT-SMITH: Ahmet did not go the Court of Appeal?

MISS FOSTER: No.

MR JUSTICE CALVERT-SMITH: The time has to come when the extension of the Alert Letter beyond an interlocutory measure before an investigation is complete or a trial has been --

MISS FOSTER: Yes, a post-process.

MR JUSTICE CALVERT-SMITH: A post-process, as it were.

MISS FOSTER: Yes.

MR JUSTICE CALVERT-SMITH: I would be keen to grant you permission to appeal on that ground. I am bound to say, although I find your arguments very persuasive I am not persuaded on the Article 8 point for the reasons that Mr Lynch has given. It does seem to me if that stood alone that in this case it would be somewhat academic in that in my view the facts -- so what I would be minded to do would be to grant you leave on the general point and then to let you apply to the court itself for leave to go further or to reopen these other points.

MISS FOSTER: I understand that, my Lord. There might perhaps be another way of doing it which I might invite your Lordship to do.

MR JUSTICE CALVERT-SMITH: Please do.

MISS FOSTER: I have two points on Article 8. The first, on, which I do not believe your Lordship did reach a decision, I set out in my pages 11, 12 and 13 of my skeleton. Firstly, the way in which you look at it is to start with the right to keep these matters confidential before he has been acquitted. The fact of an acquittal without more is something absent rehabilitation and all of that structure.

MR JUSTICE CALVERT-SMITH: An acquittal is a public fact, it is not confidential to anyone.

MISS FOSTER: I am so sorry, "allegation" is the word I wanted to say, "untested allegations". The fact of allegations, absent some requirement to disclosure within the statute, is a matter that you are entitled to keep private and there is case law to suggest that Article 8 is therefore engaged. That was not a matter, as I say, that your Lordship felt it appropriate to deal with in his judgment.

MR JUSTICE CALVERT-SMITH: No.

MISS FOSTER: But it is a matter of importance, I respectfully submit, in the framework of how one looks at it. If I am right on my submission that it is engaged then the nature of the examination that the court has to undertake is, I would respectfully suggest, broader and deeper than that which the court felt it necessary to undertake in this case and the case of R (Wilkinson) v Broadmoor Special Hospital Authority and others [2001] 1 WLR 419, the one that your Lordship cited, makes plain that if the court believes Article 8 is engaged it will, in a proper case, go so far as to hear witnesses, at least to consider witness statements, to make the decision. So the intensity of the review of the facts is considerable. I would wish to be able to say: although this did not attract the judge when you hear me on Article 8 on the confidentiality and information point, as well as the one about the profession, which I would respectfully say is a big issue amongst public lawyers, if I can put it colloquially, as to whether particularly the liberal professions are engaged in this way with Article 8 rights, those two matters can be fairly shortly dealt with.

What I might invite your Lordship to do is to grant me leave globally but to indicate to their Lordships that you felt that the arguments were weaker and you yourself were less attracted by the Article 8 arguments but to make clear your Lordship's recognition of the points that appear at the end of the judgment. That might be a way which would be helpful to the Court of Appeal to indicate where you felt the weight of the arguments lay.

MR JUSTICE CALVERT-SMITH: Yes.

MISS FOSTER: But I do draw attention to the fact of the disjunction of the two requirements for leave; that even if you felt that I did not have anything more than a fanciful chance, which is the way "realistic" is interpreted, nonetheless the issues themselves are of some importance.

MR JUSTICE CALVERT-SMITH: Yes.

MISS FOSTER: Considerable importance, I respectfully say. So those would be the answers to my friend's submissions and perhaps a way forward for his Lordship in indicating to the court what he felt.

MR LYNCH: My Lord, may I just make some very short submissions on my Lord's suggestion.

MR JUSTICE CALVERT-SMITH: Yes.

MR LYNCH: Just to say that the respondent fully supports that approach whereby limited leave to appeal is given by my Lord. Obviously the Court of Appeal can give more extensive leave if minded so to do if any such application were made. The reason why I so submit is that, with great respect, my learned friend simply has not answered the Article 8(2) point, that there has been a finding of fact and that it was justified. That applies to questions of confidentiality as it applies to everything else, quite apart from the fact that my Lord did indeed deal with all of those cases which make it clear that allegations that have never been, in fact, the subject matter of the trial are matters that employers are entitled to know about. So the 8(2) point really is a killer point on that Article 8 issue and it is no criticism to my learned friend when I say she has not answered it because there simply is no answer and that is why she has not done so. So, with great respect, my Lord's suggestion of a limited appeal would be one that would make sure the Court of Appeal did not feel in some way saddled with what would simply be an academic issue.

MR JUSTICE CALVERT-SMITH: That is what I had in mind, I must say.

MR LYNCH: My Lord, I also say that to give indications to the Court of Appeal would be a most curious, and in my experience unique but certainly a most curious, and unsatisfactory (inaudible) of an answer to this issue. So, my Lord, I would urge my Lord, if I may, to remain with his preliminary suggestion as to the (inaudible) the anonymity.

MR JUSTICE CALVERT-SMITH: Thank you both very much indeed.

You did not want to say anything about costs, Miss Foster?

MISS FOSTER: I do not think there is much I can say, my Lord.

MR JUSTICE CALVERT-SMITH: No. You can have your order so far as costs are concerned.

MR LYNCH: Thank you very much.

MR JUSTICE CALVERT-SMITH: I am satisfied that the terms of CPR/52(3) are satisfied so far as the principal point which was made on behalf of the claimant in argument below, which is: is it ever appropriate for an Alert Letter to be used in circumstances when investigation and/or the legal process has resulted either in no finding or in an actual acquittal. I am not minded to grant leave on the other matters raised and the Article 8 matters in particular and will leave Miss Foster to raise those, if she can, by way of separate application.

MISS FOSTER: My Lord, might I say something because of the terms in which your Lordship has granted this leave?

MR JUSTICE CALVERT-SMITH: Yes.

MISS FOSTER: I do not believe I can argue it without raising Article 8.

MR JUSTICE CALVERT-SMITH: That may be right.

MR LYNCH: I am concerned as to how I am going to --

MR JUSTICE CALVERT-SMITH: I can understand that. If you can bring Article 8 in on the principal issue that is fine, but because of the way I have found on Article 8(2) --

MR LYNCH: It is the Article 8(2) that is concerning me. Whatever the position on Article 8(1) Article 8(2) would crumble is effectively the submission against me?

MR JUSTICE CALVERT-SMITH: Yes.

MISS FOSTER: I understand. I do not believe I can articulate my argument properly and competently --

MR JUSTICE CALVERT-SMITH: You may well have to refer to Article 8 but it seemed to me there was a freestanding Article 8 argument which you also addressed to me on whether the Alert Letter procedure was ever going to be appropriate, quite aside from Article 8 considerations in a case of this kind, and that seems to me (a) to be an extension of the use to which the Alert Letter procedure has been produced and (b) to be a point on which you have established more than a fanciful chance of an appeal. If you need to enlist Article 8 then so be it.

MR LYNCH: I believe I understand, your Lordship. I am most grateful.

MR JUSTICE CALVERT-SMITH: Thank you both very much indeed.