England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		3rd May 2007

1. MR JUSTICE HOLMAN:

Introduction and background

2. This is a statutory appeal to the High Court "in point of law" pursuant to section 11 of the Tribunals and Inquiries Act 1992 from a decision of a panel of the Family Health Service Appeal Authority (FHSAA) dated 28 April 2006.

I will, for convenience, refer to the panel as the tribunal, the term they themselves used.

3. The appellant, Dr Harish Doshi, says that this decision of the tribunal was wrong in law in that: (i) they adopted an unfair procedure in the timing and manner in which they dealt with, decided, and announced their decision as to an issue as to the appropriate standard of proof; and (ii) they adopted and applied the wrong standard of proof. A completely separate ground of appeal, under ground 2 of the Notice of Appeal, was expressly abandoned.
4. There is also an appeal from the later decision of the FHSAA to make the appellant's disqualification national, but that stands or falls with the outcome on the primary appeal, and I need not make separate reference to it.
5. The appellant is a registered medical practitioner, who practised as a GP in the area of the Southend-on-Sea Primary Care Trust (the PCT). In order to do so under the NHS he had to be, and was, registered on their "Perfomers List". In April 2005 the PCT removed him from that list on the grounds that he is unsuitable and inefficient. He exercised a statutory right of appeal to the FHSAA. As the tribunal later said at paragraph 7 of their written decision:

"It is the function of this tribunal to consider and make findings upon the evidence which it hears; it is a rehearing."

6. The heart of the case against Dr Doshi, and the reason why he was removed, was that it was alleged that on a number of occasions over many years, from about 1985 until 2003, Dr Doshi had "exhibited sexualised behaviour towards", or otherwise behaved improperly (in an essentially sexual manner) towards, a number of adult female patients and some staff. The precise allegations varied considerably, but included such matters as touching a patient's breasts or vaginal area sexually rather than medically; placing a patient's hands upon his erect penis (through clothing); and rubbing himself clothed, but with his penis erect, against a patient's body.
7. It was not, and is not, seriously in issue that if the allegations, or a number of them, were true, his name should remain removed from the Perfomers List. As the FHSAA said in paragraph 8 of their written decision:

"It was implicitly accepted by both counsel that in the present case the issues were factual ones and if the respondent's allegations were accepted there was no submission that such would not amount to unsuitability and/or inefficiency ... neither party would disagree that inappropriate sexual behaviour by Dr Doshi towards either patients or to staff could in principle be properly held to make him unsuitable and to amount to prejudice to the efficiency of services provided."

So the issues for the tribunal were pure questions of fact. To what extent, if at all, did the alleged behaviour happen?

8. I make plain that there was no allegation of lack of consent on the part of any patient or staff member. Accordingly it was not alleged that any act was actually criminal, and although prosecution was considered the prosecuting authorities have made it express that there will not be any prosecution. However, all the acts alleged amounted to reprehensible behaviour by a doctor (in contrast to incompetence or mere lack of efficiency) and for the purpose of the issues in this appeal, which are entirely to do with the standard of proof, the behaviour alleged was clearly "akin to" criminal behaviour and/or was "quasi-criminal" in character.
9. The Panel consisted of a legally qualified chairman, Mr Christopher Limb, who is a barrister; a professional member (a doctor); and a lay member. Both sides were, as I understand, represented by the same counsel throughout. Both of them were experienced in this field. Mr Richard Booth represented the PCT. Mr Charles Foster represented Dr Doshi. (On this appeal, however, Mr Foster has been replaced by Mr Angus Moon QC).
10. The tribunal conducted several directions or interlocutory hearings. They heard the substantive hearing over about 12 days in December 2005 and January and March 2006. The first day was 12 December 2005. The last hearing date was 21 March 2006, upon which day all submissions were concluded. The tribunal then formally retired to consider the evidence and submissions and announced their decision orally on 22 March 2006. They gave their written reasons, which extend to 20 fairly closely-typed pages, on 28 April 2006.
11. There were altogether 19 allegations, which related to 11 different patients, lettered A to K (the allegations in relation to L were not pursued). The tribunal found proved seven allegations in relation to five patients. They were not satisfied that other allegations were proved, and their reasons and reasoning demonstrate careful discrimination.

The procedural history in relation to the standard of proof

12. In preparation for the substantive hearing Mr Booth produced a skeleton argument, dated 11 December 2005, now at bundle pages 23 to 44. This effectively summarised the PCT's case and the evidence in support of each allegation. At paragraph 5, now bundle section 2(ii), pages 25 and 26, Mr Booth wrote:

"The respondent understands that this hearing will proceed with the respondent first calling all the witnesses upon whose evidence it wishes to rely. Witness statements have previously been served in respect of each of those witnesses ... The appellant, who will be represented by experienced Counsel, will have the opportunity to cross-examine each witness. The appellant will then call such witnesses upon whose evidence he wishes to rely, with the respondent having the opportunity to cross-examine those witnesses. The appellant has chosen not to give evidence himself. The hearing will conclude with closing submissions on behalf of, first, the respondent and, finally, the appellant."

13. Pausing there, I asked Mr Booth how he had been able to state at that early stage: "The appellant has chosen not to give evidence himself". He told me that there had been amicable liaison between himself and Mr Foster, and that from first to last Mr Foster had indicated to him that Dr Doshi himself would not be giving evidence. Further, at no stage did Dr Doshi make any witness statement dealing with any of the matters alleged.
14. Mr Booth's document continued at paragraph 6, now at bundle page 26, as follows:

"Notwithstanding the fact that this is the appellant's appeal, the respondent proceeds on the basis that it has the burden of proof. Further, it is accepted that the allegations are serious and that, accordingly, the respondent must prove the allegations to a high standard, effectively beyond reasonable doubt."

In the preliminary stages of the hearing itself, on 12 December 2005, the following exchanges took place. I read from the official transcript at page 23, line 12 to page 24, line 25, now at bundle pages 341 and 342:

"MR FOSTER: That has been somewhat foreshadowed I know by what Mr Booth said to you on Friday. These are serious allegations. The rules are silent as to the standard of proof which you are to apply. As a general principle, the standard of proof varies according to the magnitude of the allegations. I would invite you to follow the advice given by Mr Booth in his skeleton argument, which is to apply the standard of criminal proof in these proceedings.

It is interesting that the draftsman of the rules was coy about that crucial matter. Given such silence, the only principle which can properly be applied is the general one, the sliding scale, which is the rule applied in comparable proceedings.

THE CHAIRMAN: Is there anything you want to say on that?

MR BOOTH: Sir, you heard me on Friday on the point. I am in accordance with Mr Foster.

THE CHAIRMAN: We will retire and consider the first matter, [viz an unconnected point] and that [viz the standard of proof] though on that [viz standard of proof] I suspect it is not something we will be announcing a decision on. It is not a preliminary decision it appears to me. It will appear in our overall decision.

MR FOSTER: And of course it is something we would ask for a determination on before we make final submissions. It would determine the way we put things.

THE CHAIRMAN: Because my initial response is that a sliding scale is not quite the same as a straightforward criminal burden. But in any event, I am not at all convinced it is the sort of thing that is a preliminary matter. It is part and parcel of the final decision.

MR FOSTER: Sir, I cannot properly make submissions to you at the end of this case unless I know what burden [sic, but the correct reference is clearly to standard] of proof you will be applying.

As to the sliding scale, if this is a sliding scale, then I do not think anybody would seek to contend that allegations of this nature are allegations to which the criminal standard would not apply. Yes, it is a sliding scale, but here we are clearly right at the top of it.

THE CHAIRMAN: We will retire briefly. Thank you."

15. After their retirement the chairman said (now at transcript page 25, line 23 to page 26, line 2, at bundle pages 344 and 345):

"So far as the standard of proof is concerned, that is not something we are obliged to deal with at this stage. It is commonplace that final submissions have to cover both matters of law and fact and I am afraid you will have to do that in this case."

16. The detailed opening of the facts then got under way. In March the last witness gave evidence on 21 March 2006. By then each counsel had prepared written "closing skeleton argument" or "outline closing submissions". That of Mr Foster said at paragraph 2 (now at bundle section 2(iii), page 45):

"2 BURDEN AND STANDARD OF PROOF

2.1 The respondent acknowledges:

(a) that the burden is on the respondent; and

(b) that in order for any allegation properly to count against the appellant that allegation must be proved so that the tribunal is sure of it. Nothing less than that will do. Any allegation "proved" to any lesser standard can form no part of the tribunal's final consideration as to whether the appellant should be on the PCT's list."

2.2 The same result (by a slightly different analytical route) is obtained by applying the general principles in civil litigation. The relevant general principle is that the standard of proof should be commensurate with the seriousness of the allegation: see Hornal v Neuberger... and all the cases which have followed it since ..."

Mr Foster then quoted some passages from the well-known, but now somewhat ageing, authorities of Hornal v Neuberger Products Ltd, in Re Dellow's Will Trusts and Bater v Bater.

17. At paragraph 2 of his outline closing submissions (now at bundle page 60) Mr Booth simply repeated what he had said at the outset:

"The respondent acknowledges that it has the burden of proof and that the gravity of these allegations requires a high standard of proof, effectively beyond reasonable doubt in this case."

In his oral closing submissions, on 21 March itself, Mr Booth said (now at bundle page 447):

"Moving to my outline submissions, first the burden of proof. The PCT has the burden of proof and the standard of proof, sir, which we discussed several times during this case. These are serious allegations. In my submission, they require a high standard of proof which is effectively beyond reasonable doubt in this case."

18. In his final oral submissions Mr Foster said (now at bundle page 462):

"Sir, you have a detailed skeleton argument from me ... .

As to the burden and standard of proof, I have set out what I perceive to be the law in paragraph 2. I was not proposing to add anything to what I say there. Can I highlight in particular what Morris LJ said in Hornal V Neuberger Products. It is set out at paragraph 2.3 of my skeleton argument and it relates to questions of reputation which can transcend in importance even questions of personal liberty. Should you have any doubt about whether the effective criminal standard should apply in this case, that passage in Hornal should lay those legal fears to rest."

19. As I have said, the tribunal retired to consider their decision on 21 March. Immediately before they did so the chairman indicated that they would announce their conclusion, but not their "reasoning terms" the following day. There was then a brief interchange as follows (now at bundle page 469):

"MR FOSTER: Are you able to give us any indication as to when reasons will be available?

THE CHAIRMAN: Not a precise time. The reality is that I as a chairman will initially draft it in the light of the discussions we have had. It will then be circulated and discussed between us. Because of what I know I am doing in the immediate aftermath of this hearing I suspect I won't start that detailed task until the end of next week and then there will have to be circulation with the other two panel members."

I quote that short passage because it indicates that the sequence of events would then be as follows: first, the panel would orally discuss the case and reach their conclusions. Secondly, they would (as they did) orally announce the conclusions the next day, 22 March. Then the chairman would "initially draft" the written reasons on his own and to his own timetable and other commitments. Then he would circulate them to the other two panel members and no doubt take account of any comments. Finally, they would be promulgated, as they were, on or about 28 April 2006.

The written decision or reasons

20. Within paragraph 21 of the decision on internal page 7 (now bundle page A18) there is a passage upon which Mr Angus Moon QC, on behalf of the appellant, places some reliance. They said there:

"The nature of the allegations is such that the tribunal has to decide who is believed: in effect the various patients will either be found to be essentially truthful or to be lying. There seems upon the submissions made to be little if any suggestion that there could be "innocent" explanations."

Mr Moon suggests that that passage betrays a mistaken approach to the burden or standard of proof. It occurs, however, as part of a lengthy passage in which the tribunal are recording their reasons for rejecting, at the outset of the hearing, an abuse of process argument based on delay. The quoted passage itself uses the future tense:

"... the various patients will either be found to be ..."

In my view it is not directed at all to the issue of standard of proof as such.

21. The tribunal expressly dealt with that in the following passage at paragraphs 26 to 29, pages 8 and 9 of the transcript (now at bundle page A19 and A20):

"BURDEN AND STANDARD OF PROOF.

"26. It is accepted by both parties that the burden of proof is on the respondent.

27. Some but not all of the allegations - for example the allegations in relation to sexularized behaviour - are akin to allegations of a criminal nature. In such a context the initial position of both parties was that the standard of proof is the criminal standard that the tribunal must be sure that an allegation is proved or must dismiss it. In response to questions from the tribunal the issue of the civil standard of proof was discussed. In their closing submissions it was stated on behalf of the respondent that 'The gravity of these allegations requires a high standard of proof, effectively beyond reasonable doubt in this case' and by the appellant (in the alternative to the 'pure' criminal standard) that 'The relevant general principle is that the standard of proof should be commensurate with the seriousness of the allegation.'

28. This tribunal is a civil and not a criminal tribunal. We recognise that the allegations in this case are serious allegations and that cogent and compelling evidence is required if they are to be found proved. When considering whether we are satisfied on the balance of probabilities that an allegation is established we bear in mind that the more serious the allegation the less likely it is that it occurred and the stronger should be the evidence before we conclude that the allegation is established.

29 We make our findings as hereafter set out having directed ourselves as in the previous paragraph. Such is in our opinion the correct direction as to the standard of proof. In the particular circumstances of this case we would have made exactly the same findings applying the criminal standard of proof."

22. From time to time in the remainder of their decision the tribunal used phrases like: "... whether it satisfies us as to the allegations or not." (paragraph 33); "... our task is to determine whether we are or are not satisfied that the acts took place." (paragraph 46); "If we were satisfied that there had been an entirely unwarranted rectal examination we would be satisfied that such was sexualized behaviour ..." (paragraph 78); "... we concluded that we could not be satisfied to the necessary standard that the actions took place ... "(paragraph 79).
23. In my view the use of the word "satisfies" or "satisfied" in these passages is entirely consistent with applying either the criminal or the civil standard of proof, and neither adds to nor detracts from the terms in which the tribunal expressed and directed themselves in paragraphs 26 to 29 quoted above.

The argument

24. Mr Moon QC submits, first, that whether the content of their ultimate direction at paragraphs 26 to 29 is right or wrong, the tribunal were unfair, to the point of being unlawful, in postponing making, or at any rate announcing, their decision as to the standard of proof until after the end of the evidence and argument. He submits, second, that the direction is, in any event, wrong in law.

(i) Unfairness

25. Mr Moon's submission as to unfairness has the virtue of being short and succinct. At page 24 (bundle page 342) of the proceedings on 12 December, quoted above, the chairman had said that the question of standard of proof:

"is not a preliminary decision ... It will appear in our overall decision".

Mr Foster had objected that:

"... it is something we would ask for a determination on before we make final submissions. It would determine the way we put things."

and a little later that:

"... I cannot properly make submissions to you at the end of the case unless I know what [standard] of proof you will be applying."

26. Mr Moon argues that Mr Foster and/or his client could not properly make a final decision whether or not he should, or would, give evidence until they knew what standard of proof the tribunal would apply; and that, in any event, the standard to be applied would, or might, have affected how Mr Foster formulated his final submissions ("... the way we put things ..."). Mr Moon submits generally that the issue of standard of proof before a tribunal, such as the FHSAA Panel, is not clearly established or axiomatic. In a criminal trial all parties know, without it needing to be stated at the outset, what the criminal standard is. Similarly in an ordinary civil trial. Before some tribunals the standard is clearly established either by the rules of the respective tribunal, or by clear precedent or stated policy (eg the GMC). In the case of the FHSAA, however, the position is less clear and therefore fairness requires that the tribunal, as it were, sets the ground rules early in the hearing so all parties know where they stand.
27. I have some sympathy with this submission. I cannot see any reason, on the facts of this case, why the tribunal could not have made their minds up at the outset what standard they would apply and rule upon it at that stage. They knew very well the nature of the allegations and the broad outline of the case they were dealing with. Even if, as the chairman said at page 25, bundle page 344, they were not "obliged" to deal with it at that stage there was no reason for putting it off. As Mr Foster expressly, and reasonably, asked for a ruling, it would surely have been wiser and preferable to give one at that stage. However, I am not at all persuaded that there was any actual unfairness in this case, and certainly there was no unfairness such as to be unlawful and the appeal to me is "in point of law".
28. In this regard it is not entirely irrelevant that the pleaded grounds of appeal were settled by Mr Foster and there is no complaint or hint of a complaint of procedural unfairness within them. There has been no statement in support of this ground by either Mr Foster or Dr Doshi himself. The submission that the failure to make an earlier ruling may have affected the decision that Dr Doshi would not give evidence is purely speculative and not supported by any evidence. Although Mr Foster said that he wanted a determination on the standard of proof before he made final submissions, there is not the slightest hint in the transcript that it might affect whether or not Dr Doshi gave evidence himself. Rather, Mr Booth had stated in his written document, at the outset, that Dr Doshi would not be giving evidence. There was never any demur at that by Mr Foster and I accept from Mr Booth (who has been involved throughout) that from first to last Mr Foster was making freely known to him that Dr Doshi would not be giving evidence.
29. Insofar as Mr Moon's argument is based on the question of Dr Doshi giving evidence, the argument simply is not borne out by, or consistent with, the facts of the case. Nor, in my view, would an early ruling have realistically and actually had any effect on the course, style or content of either cross-examination or final submissions. I have not seen a transcript of the bulk of the oral evidence, but I accept from Mr Booth that the cross-examination was rigorous.
30. Mr Foster himself had not said, on 12 December, that the ruling might affect the way he would cross-examine and he has not since complained that the absence of a ruling did do so. In any event, precisely because the tribunal had not ruled, he must have known that there was a possibility that they might apply a lower standard than the criminal standard. Mr Foster made submissions again as to the actual standard at the outset of both his written and oral final submissions, as already quoted. But he did not, at that point, suggest that it would then go on to affect the content of his written or oral submissions on the evidence, and there is nothing to suggest that it did do so.
31. Despite the attraction and ingenuity of Mr Moon's argument, there is, in my view, nothing to suggest that the course and content of the hearing would have been any different whether or not the tribunal had ruled at the outset. I agree with Mr Moon that in certain circumstances the fact of unfairness, or appearance of unfairness, may alone, and automatically, render a procedure or decision unlawful and require it to be set aside without proof of any actual prejudice. But in the present case the question whether there was unfairness is not abstract. It is only if the procedure actually adopted might have affected, or did affect, the subsequent course of the hearing that there is even apparent unfairness, and, in my view, there is none.

(ii) Misdirection

32. Separately, Mr Moon submits that the actual direction finally given at paragraphs 26 to 29 is a misdirection and wrong. He accepts that proceedings before a panel of the FHSAA are civil proceedings and that the criminal standard of proof may not be required to be applied in every case, for example if the allegations related to competence or to "mere" inefficiency. But he submits that when a panel of the FHSAA are considering allegations of serious misbehaviour, as in this case, which are "quasi-criminal", then they must apply the criminal standard; at any rate, on the facts of this case they should have done so, not least because that had been the constant submission of Mr Booth himself on the point.
33. The relevant legislation and the Family Health Services Appeal Authority (Procedure) Rules 2001, SI 2001 No 3750 are entirely silent on the standard of proof to be applied and do not give any steer, and there is no decided authority on the point with reference to this particular tribunal. However, Mr Moon submits that there is high authority binding on both the Panel and on me that requires the criminal standard to have been applied.
34. As the judgment of the Court of Appeal in R (N) and MHRT (Northern Region) and others [2005] EWCA Civ 1605 [2006]2 WLR 850 makes plain at paragraph 60, there are, in English law, only two standards of proof: the criminal standard beyond reasonable doubt and the civil standard of the balance of probability:

"There is no intermediate standard, nor is the civil standard to be broken down into sub-categories designed to produce one or more intermediate standards."

There is only one civil standard, although, as explained at paragraph 62, it is "flexible in its application." In this case, the tribunal directed themselves within paragraph 28 that:

"... the more serious the allegation the less likely it is that it occurred and the stronger should be the evidence before we conclude that the allegation is established,"

but nevertheless made plain within that paragraph that they were considering whether they were:

"... satisfied on the balance of probabilities that an allegation is established..."

At paragraph 29 they said:

"We make our findings ... having directed ourselves as in the previous paragraph."

They accordingly expressly applied the civil standard, namely the balance of probability, and, submits Mr Moon, that will not do.

35. He submits that the last sentence of paragraph 29,

"In the particular circumstances of this case we would have made exactly the same findings applying the criminal standard of proof"

is a mere "catch-all". If the tribunal first reached their findings on some lower standard, it was unrealistic and intellectually difficult, if not impossible, for the tribunal then fairly to revisit those findings and apply some other and higher standard of proof. Mr Moon suggested that the last sentence is little more than "sophistry."

36. Mr Booth, in contrast, submits, first, that the tribunal had a discretion as to the standard of proof and were entitled to direct themselves in the terms that they did. Although they might alternatively have applied the criminal standard (as he had encouraged them to do) it was permissible and not unlawful, and not now open to review, for them to have directed themselves as they did.
37. Secondly, he submits that the last sentence is not a mere catch-all or sophistry. Rather, it reports and records that the tribunal were in fact satisfied, to the criminal standard, as to each allegation or matter which they found proved. Accordingly he submits that it "provides a complete answer to this appeal."

The standard of proof

38. The earliest authority in date upon which Mr Moon relied is Bhandari v Advocates Committee [1956] 1 WLR 1442. This was an appeal to the Privy Council from the Court of Appeal of Eastern Africa in relation to an allegation of serious professional misconduct by an advocate. (The allegation was of misleading the court.) However, in light of the observation of the Privy Council at paragraph 16 of their judgment in the much more recent case of Campbell v Hamlet, to which I refer below, I do not consider that reliance should still be placed on Bhandari. In Campbell v Hamlet the judicial committee of the Privy Council said:

"If and insofar as the Privy Council in Bhandari ... may be thought to have approved some lesser standard [than the criminal standard], then that decision ought no longer, nearly fifty years on, to be followed."

So I pass over Bhandari, observing that Campbell v Hamlet is, in any event, more strongly supportive of Mr Moon's submission and case.

39. Next, in date, Mr Moon referred to a brief passage in Lanford v General Medical Council [1990] 1 AC 13. The issue in that case related to corroboration and the appeal was dismissed. In a brief passage at page 19H their Lordships said:

"Mr Cox (rightly, as their Lordships consider) submitted that the onus and standard of proof in these disciplinary proceedings and the relevant legal principles were those applicable to a criminal trial. And his main contention must be viewed in the light of the rules which govern the use of similar fact evidence as corroboration."

40. That passage was referred to in Mc Allister and General Medical Council [1993] AC 388. A doctor had been found guilty of financial dishonesty. Again, the central issue in the appeal was corroboration, not the standard of proof. In a passage at page 398H to 399E their Lordships referred to the above passage, which they described as a dictum, in Lanford. They said at 399A:

"Their Lordships do not consider that the above dictum can be treated as having universal application in all cases arising before the committee. In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial. However there will be many cases, where the charges which a doctor has to face before the committee could not be the subject of serious or any criminal charges at all. The committee is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships' view, neither necessary nor desirable. What is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question in all respects. It is not without significance: ... that the rules nowhere provide that criminal standards of proof and corroboration must at all times apply.

... if Parliament had intended that rules of evidence appropriate to criminal proceedings should apply in all proceedings before the committee, it is surprising that the council were not directed to make such rules in ... the Act..."

41. Insofar as they relate to the standard of proof, those comments, too, are dicta. In any event, the highest it is put is that:

"... where the events ... would also found serious criminal charges it may [my emphasis] be appropriate that ... the standards of proof should be those applicable to a criminal trial ..."

This is certainly not laying down a rule of law, and may be indicative of no more than that in a particular case it may be appropriate to select and adopt the criminal standard. I note that the Privy Council stress that what is of prime importance is that the conduct of the proceedings should be fair, and they note the absence of any statutory requirement that the criminal rules of evidence should apply.

42. Finally, with specific reference to the General Medical Council, Mr Moon kindly supplied to me, after the hearing, another authority: Sadler v General Medical Council [2003] UKPC 95 [2004] Lloyd's Law Reports Medical 44. This was an appeal to the Privy Council from a decision of the Committee of Professional Performance relating to a surgeon's fitness to practise. The issues in the case related to competence in the framework of relatively new provisions designed to:

"increase the protection of the public in respect of practitioners who, while not guilty of serious professional misconduct, have fallen seriously short of proper standards of professional performance." (paragraph 2)

In that particular case the CPP appears to have applied the criminal standard (see paragraphs 69 and 71) and leading counsel for the GMC had not sought, for the purposes of disposing of the appeal, to put forward any less stringent standard, but had asked for guidance for future cases (see paragraph 70). At paragraphs 72 to 74 the Privy Council said:

"Their Lordships have nevertheless felt some doubt about expressing views, which will necessarily have no binding force, as to the appropriate standard of proof in performance cases. But having heard argument, and recognising that the point is of considerable practical importance, their Lordships think it is right to say something on the point.

73. The function of the CPP is not penal. It is to protect the public and to rehabilitate (if possible) practitioners whose professional standards have fallen too low. In the first of its tasks (that is deciding whether a practitioner's performance has been seriously deficient) the CPP has to ascertain the primary facts (which in many cases may not be seriously in doubt) and then to exercise their judgment (in the case of some but not all the members of the CPP, their professional judgment as experienced doctors). In this exercise the standard of proof of the primary facts ought not, in the generality of cases, to be an issue which gives rise to much difficulty. So far as it is a material issue the standard should in their Lordships' view, in the generality of cases, be the ordinary civil standard of proof. There may be exceptional cases (probably cases in which the practitioner is fortunate to be facing the CPP rather than the Professional Conduct Committee) in which a heightened civil standard might be appropriate, as explained by the House of Lords in Re H (minors) (sexual abuse: standard of proof)...

74. Their Lordships do not think it prudent to try to go further in giving guidance, except to echo what was said by the Board in McAllister v General Medical Council ..."

Their Lordships then quoted a passage, which I have already quoted above, and continued:

"That passage is not wholly apposite to a committee which must now have at least one lay member. But subject to that qualification, the passage applies still more strongly to a hearing before the CPP than to a hearing before the Professional Conduct Committee."

43. Again, these observations are of limited bearing on the present case. They are, as the Privy Council said, dicta and of no binding force. They relate specifically to a CPP. Insofar as their Lordships contemplated that any higher standard than "the ordinary civil standard" may be required in exceptional cases, they refer to applying "a heightened civil standard"; not to the criminal standard as such.
44. It does not seem to me that any of these authorities support that there is any rule of law which required the tribunal, in the present case, to adopt and apply the criminal standard. At their highest, they support that it might have been an appropriate exercise of discretion to do so.
45. Within the field of medical professional disciplinary proceedings, Mr Booth placed some reliance on the decision of Jackson J in Gage v General Chiropractic Council [2004] EWHC 2762 (Admin). A chiropractor had been suspended for "unacceptable conduct". The conduct in question related to the content of a booklet which he had published. At paragraphs 26 and 27 of his judgment on appeal Jackson J said that a tribunal, such as the PCC of the General Council of Chiropractors, must apply the civil standard of proof subject to the qualification that the more serious the allegation the stronger must be the evidence before the allegation is proved. He then expressly approved as "entirely correct" the terms in which the tribunal had ruled. However, an ingredient of those terms, quoted by Jackson J at paragraph 27 of his judgment, was that: "This case has no criminal elements in it." The authority of Jackson J is thus obiter and at best persuasive in relation to any case which does have "criminal elements in it".
46. Mr Moon relied finally on R (McCann and Others) v Crown Court at Manchester and another [2003] 1 AC 787. This case had nothing at all to do with professional disciplinary proceedings, but with the making of antisocial behaviour orders. However, one question directly in point was the appropriate standard of proof. The House of Lords made plain that proceedings for an ASBO are civil in character. In a passage at paragraph 37 Lord Steyn said:

"... in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply"

although, given the seriousness of matters involved,

"at least some reference to the heightened civil standard would usually be necessary".

47. Insofar as the speech of Lord Steyn contains a statement of principle of general law on the point, it is that if the relevant proceedings are civil then "in principle" the civil standard should apply. He went on to consider, however, that as a matter of "pragmatism" and to make the task of magistrates straightforward, the criminal standard should apply to making findings of fact on applications for ASBOs.
48. Lord Hope at paragraph 82 said that:

"... it is not an invariable rule that the lower standard of proof must [my emphasis] by applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made."

So Lord Hope concluded that:

"I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard."

49. It seems to me that the speech of Lord Hope, like that of Lord Steyn, does not amount to stating a rule of law that where an allegation is made in civil proceedings, as to criminal conduct, the criminal standard must be applied. Rather, his view, although based less on pragmatism and more on the gravity of the matter, is essentially one of policy in the specific area of ASBOs. If there is any distinction between the reasoning of Lord Steyn and of Lord Hope, it does not seem to have been apparent to the remainder of their Lordships, who expressed agreement with the reasons of both of them, either generally or, in the case of Lord Hutton, specifically on the issue of the standard of proof (see paragraph 114).
50. What is of some importance to the present case is that both Lord Steyn at paragraph 37 and Lord Hope at paragraph 83 repeat, with apparent agreement, the comment of Lord Bingham of Cornhill in B v Chief Constable of Avon and Somerset Constabulary to the effect that for practical purposes the "heightened civil standard" and the criminal standard are indistinguishable or virtually so.
51. I have already referred to the judgment of the Court of Appeal in R (N) and Mental Health Review Tribunal and now return to it. After a very comprehensive review of authority the court said at paragraph 69 :

"Although there remains a distinction in principle between the civil standard and the criminal standard, the practical application of the flexible approach demonstrated in the authorities means that they are likely in certain contexts to produce the same or similar results. Indeed, there are exceptional situations in which, for reasons of policy or pragmatism, the actual criminal standard is used in civil proceedings, as in contempt of court (In re Bramblevale Ltd…), the making of anti-social behaviour orders (R (McCann) v Crown Court at Manchester…) or certain disciplinary contexts (Cambell v Hamlet…) These are exceptions to the general rule."

52. In that passage the Court of Appeal referred to the recent decision of the Privy Council in Campbell v Hamlet on appeal from the Court of Appeal of Trinidad and Tobago [2005] UKPC 19. The allegation was that the appellant, an attorney at law, had (in the words of Lord Brown of Eaton-under-Heywood) "bilked" his client of the sum paid for the purchase of some land. The first ground of appeal was that the disciplinary committee had not applied the criminal standard of proof, but some lesser standard. The Privy Council said at paragraphs 16:

"That the criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal professional, their Lordships entertain no doubt."

They then commented on Bhandari, as I have already described, and continued at paragraph 17:

"It has, of course, long been established that there is a flexibility in the civil standard of proof which allows it to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters. Lord Bingham of Cornhill CJ pointed this out in the Divisional Court in B v Chief Constable of Avon and Somerset Constabulary ..."

53. The Privy Council then referred to McCann and the judgments of Lord Steyn and Lord Hope, and then to the judgment of Lord Lane CJ in Re A Solicitor [1993] QB 69 where Lord Lane had said:

"... it is not altogether helpful if the burden of proof is left somewhere undefined between the criminal and civil standard. We conclude that at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, to put it another way, proof beyond reasonable doubt."

54. In Campbell v Hamlet the Privy Council added that:

"…even had they concluded that the criminal standard should apply only in disciplinary cases where what is alleged is tantamount to a criminal offence, that, at least arguably, would include the present case. This was certainly no mere contractual dispute. The appellant accordingly makes good this first stage of his argument."

55. Campbell v Hamlet does, in my view, represent a clear statement of a rule of law that in all disciplinary proceedings concerning the legal profession (whether in Trinidad and Tobago or here) the required standard is the criminal standard. However, in their consideration of the approach actually applied by the disciplinary committee in that case, the Privy Council concluded by saying at paragraph 25:

"In any event, as the recent English cases show, the apparent difference between the two standards 'is, in truth, largely illusory' (Lord Bingham in B); 'the heightened civil standard and the criminal standard are virtually indistinguishable' (Lord Steyn in McCann)".

56. Apart from authority, Mr Booth placed some reliance upon the fifth report of Dame Janet Smith DBE in the Shipman Inquiry (Cm 6394-111) at paragraph 25.297. After a considerable review of the matter Dame Janet recommended in relation to proceedings before the GMC that the civil standard should be adopted for all cases:

"except, perhaps, those allegations of misconduct which also amount to a serious criminal offence, for which cases the criminal standard of proof would arguably be appropriate."

This, however, is no more than a recommendation and there seems no doubt that currently the GMC do apply the criminal standard.

57. From this review of the authorities I conclude as follows:

(1) The proceedings before the tribunal were civil in character and the starting point is "in principle" (Lord Steyn in McCann) the civil standard. However,

(2) There is no rule that in civil proceedings the standard must be the civil standard (Lord Hope in McCann) and there is clear authority that in certain circumstances (described by the Court of Appeal in N as "exceptions to the general rule") the criminal standard should, or in some cases must, be applied.

(3) In disciplinary proceedings concerning the legal profession it is the law that the criminal standard must be applied: Campbell v Hamlet. However, this is not necessarily a rule of wider and more general application.

(4) In cases against doctors the approach is more discretionary (McAllister at page 399B "…where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the ... standards of proof should be those applicable to a criminal trial ...") It is relevant that the rules are silent (McAllister at page 399D and E) and what is of prime importance is that the proceedings should be fair (McAllister at 399C).

(5) Although there are only two standards (viz the civil and the criminal standard), the practical application of the "flexible approach" to the civil standard means that they are likely, in certain contexts, to produce the same or similar results: N at 699H echoing Lord Bingham of Cornhill in B v Chief Constable of Avon and Somerset Constabulary; Lord Steyn in McCann at 812F; Lord Hope in McCann at 826E; and the Privy Council in Campbell v Hamlet at paragraph 25.

58. In my view it was unwise of the tribunal in the present case not simply to adopt the criminal standard, as advocated by Mr Booth, but they did have a discretion and were not bound to do so. It is not entirely irrelevant that the alternative of adopting what was described as some "sliding scale" originated in the submissions of Mr Foster, on behalf of Mr Doshi, on 12 December at page 23 (bundle 341) quoted above. And it was Mr Foster who put in his closing skeleton argument "the same result [his italics] (by a slightly different analytical route) is obtained by applying the general principles in civil litigation ..." (see quote above).
59. The approach actually described and adopted by the tribunal in paragraphs 27 and 28 of their written decision mirrors that first described by Lord Nicholls of Birkenhead in Re H and Others and is an approach which in practice will have produced the same or a similar outcome on the basis of the observations of Lords Bingham, Steyn, Hope and others.
60. Overall I am quite satisfied that it was permissible and not unlawful for the tribunal to direct themselves as they did. There was a very thorough hearing and analysis of the evidence (with careful discrimination in the outcome) and the conduct of the proceedings and approach to the evidence and proof was fair. Further, I do not consider that the last sentence of paragraph 29 was, on the chronology of the decision-making, a catch-all or mere sophistry. As already described, the chronology or order of events was that the tribunal considered, and then orally announced, their conclusions; and only then did the chairman draft and circulate the detailed written reasons. I must assume the integrity of those reasons. The chairman could not have drafted and included that sentence unless, during their discussions, the tribunal (or if sufficient, a majority of them) had indeed considered, and agreed, that they would have made exactly the same findings applying the criminal standard. Having regard to the chronology, the sentence must mean that the tribunal were, when they concluded their deliberations, actually satisfied to the criminal standard. There is thus no injustice to the appellant and the factual basis of the decision under appeal is reliable and safe. I accordingly dismiss both appeals.
61. MR JUSTICE HOLMAN: It follows that of the two draft orders that were handed in I make the dismissal one which I will hand to the associate. The other one I will tear up so as not to be confused. That order is comprehensive as to costs and every other aspect, I think, of this case; is it not? So is there anything else with which I need deal?
62. MISS ROGERSON: No, my Lord.
63. MR JUSTICE HOLMAN: I am grateful to you for your attendance. I am very sorry, Dr Doshi, that it is a disappointing outcome for you. I have tried to explain my reasons very fully. The primary fact-finding body was, of course, the tribunal and not me. All right. Thank you all very much indeed.