England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH ADMISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2007

Mr Justice Bennett:

1. D V ("the Appellant") appeals from the decision of the Fitness to Practise Panel ("the Panel") given on 14 September 2006 whereby it found charges of serious professional misconduct proved and directed that his name be erased from the Medical Register.
2. The Appellant is now 50 years old. He qualified as a registered medical practitioner in India. In 1996 he was employed by the United Lincolnshire Hospitals NHS Trust ("the Trust") at its District Hospital in Grantham as a staff grade physician. His speciality was gastro-enterology.
3. Grantham Hospital was then and still is a multi-racial hospital with a high proportion of medical staff coming from different ethnic backgrounds. It was said by Counsel, for the General Medical Council ("GMC") in opening the case before the Panel, that the Appellant did not find it easy to work in such an environment and developed an animosity to certain medical colleagues from Sri Lanka.
4. The charges adjudicated upon by the Panel were as follows. Charge 1 specified the Appellant's medical employment. Charges 2 to 4 allege that on 21 May 1999 the Appellant received a letter from Ms Woodford of the Centre for Postgraduate Education in respect of the working hours of junior doctors. The Appellant substituted for his name on that letter that of a consultant, D Wijaywardhana ("D Wijay") and forwarded the letter to D Wijay. The Panel found those facts proved and that they amounted to inappropriate and unprofessional conduct, which facts were not only misleading but also were intended to mislead.
5. Charges 5 to 8 alleged that between 18 November 1999 and 1 January 2001 the Trust had suspended the Appellant on full pay, that he was informed he should not undertake paid employment elsewhere during the suspension, but that he did so by working for the East & North Hertfordshire NHS Trust and the Hereford Hospitals NHS Trust. The Panel found that the facts were proved and that they amounted to inappropriate and unprofessional conduct.

6. Charges 9 to 16 alleged:

(i) On 2 March 2001 the Appellant and D A W ("D A"), a Senior House Officer, had a conversation during which the Appellant raised his voice and questioned the validity of Sri Lankan medical training. The Panel found the facts proved and that the Appellant's conduct was inappropriate, unprofessional, that the raising of his voice was intimidating and that the Appellant's questioning of the validity of Sri Lankan medical training was racially motivated.

(ii) On 9 March 2001 the Appellant wrote a letter headed "An incident on Friday 2 March 2001" to D B, the Acting Clinical Director of the Trust, in which the Appellant made adverse comments about D A's capabilities and stated "I had seen the quality [or lack of it] of training/practice from Sri Lanka over the past few years [but was not aware it was a national trend …]". It was alleged that the Appellant circulated copies to other doctors, nursing staff, and left copies in Admission and/or the Critical Care Unit. The Panel found the facts proved re the letter, found proved that the Appellant had circulated it to other doctors but found not proved either that he had circulated copies to nursing staff or that he had left copies in Administration and/or the Critical Care Unit. The Panel found his conduct to be inappropriate and unprofessional.

(iii) On 9 March 2001 the Appellant wrote a further letter to D B headed "Treatment of patients with Acute MI". The letter made adverse comments about D A's management of a patient and suggested that D A was "indulging in proxy trade-unionism and industrial blackmail". Copies of the letter, it was said, were circulated by the Appellant to other doctors, to nursing staff including Staff Nurse Naylor, and copies were left in Admission and the Critical Care Unit. The Panel found proved the facts about the letter, that copies had been circulated to other doctors and nurses, including Mrs Naylor, but found not proved that copies had been left in Admission and the Critical Care Unit. The panel found the Appellant's conduct to be inappropriate and unprofessional, and so far as copies were circulated to nurses to be intimidating and intended to intimidate.

(iv) On or about 29 March 2001 D K, a Senior House Officer, was one of nine junior doctors who signed a letter to D B raising concerns about the conduct of the Appellant. The Appellant told D K that if she did not withdraw his signature from the letter he would make sure that she did not get a job in his country. The Panel found the facts proved and that the Appellant's conduct was inappropriate, unprofessional, intimidating and intended to intimidate.

(v) On or about 9 May 2001 the Appellant and Ms S, the Bed Manager, had a conversation during which the Appellant raised his voice and made adverse comments about her performance. The Panel found the facts proved and that the Appellant's conduct was inappropriate, unprofessional, intimidating and intended to intimidate.

(vi) From about 10 May 2001 and 31 July 2001, and again from 19 September 2002 to 4 April 2003 the Appellant was suspended by the Trust on full pay. The Appellant was told that he should not take paid work elsewhere during his suspension but he did so with Quality Locums and Rainbow Medical Services. The Panel found the facts proved and that the Appellant's conduct was inappropriate and unprofessional.

(vii) Finally, that the Appellant had failed to disclose a criminal conviction (see paragraph 7 below) to the Trust. The Panel found that proved.

6. On 19 April 2002 the Appellant was convicted of an offence by the Worcester Magistrates' Court under s.5 of the Public Order Act, 1986. The Appellant appealed. At the Crown Court, where the Appellant was present but unrepresented, the Court and the prosecution were under the wrong impression that he had been convicted under s.4A of the 1986 Act and s.31(1b) of the Crime and Disorder Act, 1988 i.e. a racially aggravated offence. On 12 July his appeal was dismissed. On 30 July the CPS notified the GMC of the conviction. In the end the Appellant was compelled to issue proceedings in the Divisional Court for a quashing order. The conviction for the racially aggravated offence was quashed by the Divisional Court in the autumn of 2005. His appeal against the conviction under s.5 of the 1986 Act was fixed for 17 November 2006 when it was allowed with costs.
7. In April 2003 the Appellant's employment with the Trust was terminated.
8. On 4 December 2003 the Preliminary Proceedings Committee of the GMC referred the Appellant's case to the Professional Conduct Committee. On 14 June 2004 the Appellant was told that the Preliminary Proceedings Committee had decided to refer his case to the Professional Conduct Committee. On 7 July 2005 the GMC wrote to the Appellant that his case would be heard by the Panel in Manchester for 10 Days starting on 30 January 2006. The Appellant was strongly advised in the letter to obtain legal advice and representation. The Appellant notified the GMC that these dates were not suitable. The GMC then wrote to the Appellant on 12 October 2005 that his case was provisionally listed from 22 May to 5 June 2006. The Appellant did not respond. On 28 October the GMC wrote to the Appellant advising him of the new dates for hearing i.e. 5 June to 16 June 2006.
9. On 8 November the Appellant stated that the proposed dates were inconvenient and that he would not be available "during the months of next summer until September at the earliest".
10. On 6 April 2006 the Appellant was informed that the new dates would be for 5 days from 11 September 2006. It was stressed that the case needed to be heard as soon as possible.
11. On 5 May 2006 the GMC reminded the Appellant that his case would be heard for 5 days from 11 September 2006. It was pointed out that the GMC had tried to arrange the hearing on several occasions but that the Appellant had previously said he was unable to attend, that the case was outstanding since 2002, and that it was in the public interest, as well as the Appellant's, for it to be heard at the next available opportunity.
12. On 5 June, Eversheds, instructed by the GMC, reminded the Appellant of the dates of the hearing. In the last paragraph of their letter Eversheds said they would send to the Appellant by the end of June the charges and the evidence upon which the GMC would rely. A formal notice of charges would be sent 28 days before the hearing as required by the Rules.
13. On 29 June 2006 Eversheds sent the "disclosure bundle" and the Daft notice of inquiry containing the Daft charges. The disclosure bundle included the evidence upon which the GMC was proposing to rely at the hearing. The letter again reminded the Appellant of the dates of the hearing.
14. On 5 July 2006 the Appellant spoke to Eversheds. He said he had received the bundle and Daft charges and that he had instructed MacLaren Britton, solicitors, to act for him. He asked for a bundle to be sent to his solicitors. It is to be noted that the Appellant did not instruct solicitors until after, indeed well after, the hearing had been fixed for 11 September.
15. On 10 July 2006 Eversheds sent the bundle to MacLaren Britton and told them that the case was listed for hearing for 11 to 15 September 2006.
16. On 28 July the GMC sent to the Appellant the formal Notice of Inquiry setting out the charges and again reminded him of the dates of the hearing.
17. On 15 August, i.e. about 6 weeks after they had been instructed, MacLaren Britton wrote seeking, inter alia, a postponement of the hearing, as follows:-

"In any event, please also treat this letter as an application to postpone the hearing listed to commence on 11^th September on the grounds that our client's chosen representative, Mr Britton, will not be able to attend a hearing during the course of that week due to his existing commitments to attend three other hearings."

18. By letter of 1 September 2006 the GMC told the Appellant's solicitors that an application for a postponement had been refused because the hearing date was set and the Appellant informed of it in April 2006, that MacLaren Britton had been aware of the date of the hearing since 10 July 2006 and that absence of representation was not a cogent reason for postponing the case. The letter went on:-

"I can confirm that D V's hearing before [the Panel], scheduled to take place on 11 September 2006 will go ahead as planned.

Please note that it will be open to you to make a further application to the Panel at the outset of the hearing."

19. By letter of 5 September MacLaren Britton asked for the letter to be treated as an application to postpone the hearing due to "our unavailability on the above dates".
20. By letter of 7 September Eversheds wrote to MacLaren Britton that they strongly suggested that Counsel be instructed for the Appellant.
21. Neither the Appellant, nor MacLaren Britton, nor any Counsel or solicitor instructed on behalf of the Appellant, attended any part of the hearing. The Panel, having heard the submissions of Counsel for the GMC, the advice of the Legal Assessor, and having read the necessary documents, refused to postpone the hearing. Counsel for the GMC opened its case before the Panel and called the following witnesses; on Day 2:- Mr Avery, the Trust's Director of Human Resources, D B, the Head Clinician of Integrated Medicine, D Wijay, a Consultant Physician and Cardiologist, and D A, Senior House Officer; and on Day 3:- Ms S, the Trust's Bed Manager, Mrs Sirs, the Second Bed Manager, Mrs Naylor, a Staff Nurse, Mrs Holroyd, employed by Quality Locums, and D K, a Senior House Officer.
22. Mr Robert Rhodes QC, for the Appellant has submitted three grounds of appeal. First, the Appellant was not given a fair hearing, contrary to Article 6 of the European Convention on Human Rights. That in turn is split into four subheads (i) the Panel wrongly failed to grant the Appellant the adjournment he sought but conducted the hearing in his absence, (ii) the decision to proceed in the Appellant's absence led to the introduction of inadmissible and prejudicial evidence, to the wrongful acceptance of evidence and finding the charges proved, to inaccurate references to Mrs Carr as an "independent investigator" and to testimonial evidence being wrongly withheld from the Panel, (iii) it was unfair to consider charge 24 i.e. that the Appellant failed to notify the Trust of his conviction, in the light of the GMC telling the Appellant on 8 September 2006 that it would not ask the Panel to consider the question of the conviction; in any event a failure to report did not amount to serious professional misconduct, and (iv) it was unfair of the Panel to deal with sentence without giving the Appellant the opportunity to attend or to make written representations.
23. The second ground of appeal relates to charges 2 to 4, 5 to 8 and 21 to 23. The Panel, it is said, wrongly ruled that it was not an abuse of process to proceed with and find these charges proved, and that none of them could be said to amount to serious professional misconduct.
24. The third ground of appeal is that the sanction of erasure imposed by the Panel was excessive and disproportionate.
25. Ground 1 (i) – the failure to grant an adjournment. It is common ground that Article 6 of the ECHR is engaged in the instant case. It is also common ground that the notice of proceedings was duly and properly served on the Appellant. What is very much in dispute is whether the Panel was entitled, in the circumstances of the case, to exercise its admitted discretion to refuse to adjourn the hearing and/or proceed in the absence of the Appellant.
26. It is necessary at this stage to see how the Panel approached its decision not to adjourn. This can be seen from the transcript of the proceedings at Day 1 pp 1 to 9 inclusive. Counsel reminded it of Rule 23 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988, Statutory Instrument 1988 No 2255, which gives the Panel the power to proceed in the absence of the practitioner if the Panel are satisfied as to service. As I have said, about that matter there is no issue.
27. The Panel was then referred to the letter of 15 August 2006 from the Appellant's then solicitors and the subsequent correspondence, to which I have already referred. The Panel read the documentation relevant to this issue. Counsel made a number of submissions, including that there were many solicitors and counsel available for the Appellant to instruct and that since April 2006 (i.e. when the Appellant was notified of the dates of the hearing) he had ample time to secure legal representation. Counsel reminded the Panel of the history from April 2006.
28. The Legal Assessor gave his advice – see Day 1, pp 7G to 8E, in particular at p 8D to E. No criticism is made of the advice by Mr Rhodes save where the Legal Assessor advised it to consider the interests of justice and that the period between 15 August and 11 September "may well be – it is a matter for you – an ample opportunity for a further experienced solicitor to be instructed".
29. The Panel then deliberated in camera. It then gave its decision at p 9 C to E:-

"The Panel is satisfied that the service of the Notice of Inquiry has been proved.

The Panel went on to consider whether to proceed in D V's absence. In their letter to the GMC dated 15 August 2006, MacLaren Britton applied for the postponement of this hearing on the grounds that D V's chosen representative, Mr Britton, would not be able to attend due to existing commitments. However, the Panel has noted that D Viadya was informed of the date of this hearing by the GMC's Case Presentation Team in a letter dated as long ago as 6 April 2006. The Panel has also noted that MacLaren Britton were served notice of this haring on 31 July 2006.

The Panel accepts your submission that there has been sufficient time for D V to instruct an alternative representative, and has determined that the hearing should proceed in his absence."

30. Mr Rhodes Dew my attention to a letter written by MacLaren Britton to him on 13 June 2007. I summarise it. The Appellant wanted to instruct a particular Counsel and communicated that to Mr Britton when he instructed that firm. On 7 August 2006 Mr Britton returned from holiday to be informed that that Counsel was not available for the hearing. Mr Britton had pre-existing professional commitments for the week beginning 11 September 2006. Mr Britton, in my judgment, inaccurately said in his letter of 13 June 2007 that Eversheds had served the documents late, thus making it difficult to instruct another representative. The bundle, as I have said, was served at the end of June 2006. The letter ended in this way:-

"I also think that it is self evident from the correspondence generated at the time, the postponement was sought not just because of issues with regards to the availability of appropriate representation. There is no doubt that D V was seriously troubled by the process which was being followed because he felt that a number of aspects of it, such as the inclusion of his conviction were inappropriate and unjust. It would be fair to say that D V had no confidence in the procedure that was being adopted."

31. If that truly was the thinking of the Appellant at the time then it was not put at all to the Panel. Ms Rose QC for the GMC submitted that in any event it was not a legitimate reason for the Appellant not to attend.
32. Mr Rhodes submitted that a) the Panel failed to give sufficient weight to Mr Britton's pre-existing commitments which made his attendance on behalf of the Appellant impossible, and b) there was late service of the statement of Mrs Sirs on 24 August and the finalised statement of D Wijay on 31 August, and late correspondence about the bundle. In any event there should in such cases be latitude as regards granting at least one adjournment to a person such as the Appellant facing the risk of professional ruin. It was not a case of the Appellant deliberately trying to delay the proceedings indefinitely.
33. Mr Rhodes referred to R v Jones [2002] UKHL 5, [2003] 1 AC 1. The House of Lords there held that a judge had a discretion to begin a trial in a defendant's absence though that was to be exercised with great caution; that it was generally desirable that a defendant should be represented even if he had voluntarily absconded; that the commencement of a trial in the voluntary absence of the accused did not contravene Article 6; and that in the circumstances of the case the judge had been entitled to start the accused's trial in his absence.
34. Both Mr Rhodes and Ms Rose Dew my attention to different passages in their Lordship's speeches. At paragraph 1 of his speech Lord Bingham of Cornhill set out the matter for decision i.e. whether the Crown Court could conduct a trial of the accused in his absence. The Court of Appeal, Criminal Division had held that it could, but that the trial judge's discretion so to proceed "is one to be exercised with extreme care and only in the rare case where, after full consideration of all relevant matters, including particular the fairness of a trial, the judge concludes that the trial should proceed."
35. Lord Bingham emphasised that matter at paragraph 6 where he said:-

"The existence of such a discretion is well established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond."

36. Lord Bingham reviewed the European jurisprudence and at paragraph 9 said:-

"But the European Court of Human Rights has never found a breach of the Convention where a defendant, fully informed of a forthcoming trial, has voluntarily chosen not to attend and the trial has continued."

37. At paragraph 10, having referred to the common law and statute law of Scotland he said:-

"The law of England and Wales, while conferring a right and imposing an obligation on the defendant to be present at a trial on indictment, has never been held to include any comparable rule. If a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial, voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended."

38. Lord Bingham rejected the submission of counsel for the appellant of the inevitable unfairness to the defendant if his trial were to begin in his absence e.g. no cross-examination. The trial, it was submitted, would be no more than a paper exercise almost inevitably leading to conviction. Lord Bingham's answer to that contention was expressed in paragraph 11:-

"… that one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it. If a defendant rejects an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground that he was defended with less skill than a professional lawyer would have shown. If, after full professional advice, he chooses not to exercise his right to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts. If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of his trial on the ground that it followed a course different from that which it would have followed had he been present and represented."

39. Accordingly Lord Bingham was of the opinion that the appeal should be dismissed, as indeed it was. At paragraph 15 he observed that it was generally desirable that a defendant be represented even if he had voluntarily absconded. At letter H he said:-

"While there is no direct evidence to show that the appellant knew what the consequences of his absconding would be, there is nothing to suggest a belief on his part that the trial would not go ahead in his absence or that, although absent, he would continue to be represented. His decision to abscond in flagrant breach of his bail conditions could reasonably be thought to show such complete indifference to what might happen in his absence as to support the finding of waiver. I note, however, the reservations expressed by my noble and learned friends concerning the finding of waiver, and recognise the force of their reasoning. If, contrary to my opinion, the Court of Appeal were wrong to make the finding of waiver, and I am wrong to accept it, I would none the less hold that the appellant enjoyed his Convention right to a fair trial, for all the reasons given by my noble and learned friend Lord Rodger of Earlsferry."

40. Lord Nolan agreed with Lord Bingham. He made certain observations on the matter of waiver and said that he would prefer to express his conclusion in agreement with Lord Bingham on the grounds that even if there was no waiver, the appellant "none the less enjoyed the Convention right to a fair trial."
41. Lord Hoffman was "not comfortable" with the notion that the defendant had waived his rights under Article 6. However he was of the opinion that the European cases did not lay down that a trial could proceed in the absence of the accused only if there had been a waiver of the right to a fair trial. The question was whether the defendant did in fact get a fair trial, which he concluded, looking at the proceedings from the beginning to the end, he had.
42. Lord Hutton at paragraph 32 stated that there was no decision of the European Court of Human Rights relating to a case where a defendant, with full knowledge of the date on which it was to start, deliberately absconded before his trial at which, if present, he could have been able to exercise his right under Article 6(3)(c).
43. At paragraph 36 Lord Hutton said:-

"My noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry have expressed reservations about the finding of the Court of Appeal as to waiver. As I have stated I consider, with respect, that the Court of Appeal was entitled to make this finding. But I would add that it is self-evident that the right given by article 6(3)(c) of the Convention to the defendant to defend himself in person or to instruct counsel to defend him is a right to be exercised by the defendant himself - it cannot be exercised on his behalf by someone else. Therefore even if the finding could not be made in the present case that there was an unequivocal waiver by the defendant, I consider that where no defence was put forward at the trial in consequence of the defendant's deliberate decision not to be present, there was no violation of the right given to him by article 6(3)(c) – rather the defendant chose not to exercise that right."

44. Lord Rodger of Earlsferry was, like Lord Hoffman, uncomfortable with the notion of waiver – see his observations in paragraphs 53 and 54. He then went on to consider whether the proceedings taken as a whole i.e. the trial and the subsequent appeal before the Court of Appeal were fair in terms of Article 6 even though the defendant was absent from, and unrepresented at, his trial. In his opinion it was. At paragraph 59, in relation to proceedings in the accused's absence he said:-

"The first thing to notice is, therefore, that in deciding to go ahead with the trial, the judge exercised a discretion which under English law will only rarely result in proceedings being taken in the absence of a defendant. The Court of Appeal examined the judge's exercise of that discretion in the circumstances of this case and held that his decision to proceed was sound, being well within the ambit of what he could properly do, having regard to the various factors which he mentioned. The fact that a judge has to make a positive decision to allow a trial to proceed in the absence of a defendant and the fact that only in exceptional cases will it be proper to do so are fundamental elements of the scheme for ensuring that any such proceedings will be fair. The reasoned decision of the Court of Appeal that the judge was justified in proceeding with the trial in the particular circumstances of this case is therefore an initial pointer towards the fairness of these proceedings."

45. Thus Mr Rhodes submitted that the instant case was not one of those exceptional cases where it was fair to proceed in absence of the Appellant and of his chosen legal representative.
46. There are, in my judgment, a number of important matters in this case in considering the question whether the Panel failed to exercise its discretion by refusing the request for an adjournment. The GMC were anxious to fix the hearing for a date when the Appellant could attend and vacated several dates, at the request of the Appellant, prior to fixing the dates in April 2006. The date of 11 September (and for the following 4 days) was convenient for the Appellant. At no time did either he, or Mr Britton, contend that he, the Appellant, was unable to attend on these dates. The Appellant delayed seeking legal representation between 6 April and 3 July 2006, a period of 3 months in the 5 month period leading up to the hearing. Unknown to the Panel Mr Britton had tried to instruct a particular Counsel but from 7 August, when he learned of her unavailability, had apparently done nothing to find either Counsel or solicitor to represent the Appellant. When notified by letter of 1 September that the proceedings would not be adjourned Mr Britton apparently took no steps, even then or at any time thereafter, to instruct Counsel or a solicitor advocate. No Counsel or solicitor was ever instructed to attend before the Panel to make an oral application for an adjournment despite the letter of 1 September stating that it would be open for the Appellant to do just that.
47. Furthermore, the Appellant knew from as long ago as April 2006 of the dates of the hearing. At practically every opportunity thereafter he was reminded of the dates of the hearing. He could have been under absolutely no misapprehension whatever that the Panel would not proceed to hear his case, and that is so even after Mr Britton's application for an adjournment had been refused. Mr Rhodes fairly and properly accepted that there was no reason why the Appellant could not have been, and was not, present at the hearing. He suggested that it might have been that the Appellant, learning of the refusal of the Panel to accede to Mr Britton's application, did not think it was worth his while attending. There is no evidence from the Appellant that that is why he deliberately absented himself from attending the hearing. Even if there had been such evidence, as Ms Rose pointed out, that could hardly be said to be a valid reason. Thus, to adopt (with respect) the words of Lord Hutton at paragraph 36 of Jones, I consider that where no defence was put forward by the Appellant at the hearing in front of the Panel in consequence of his deliberate (for so it must have been) decision not to be present there was no violation of his right under Article 6(3)(c) – the Appellant chose not to exercise that right. In the circumstances the Panel was entitled to exercise its discretion to refuse the application for a postponement and to continue in the Appellant's absence. I cannot see that the "late" service of the statement of Mrs. Sirs, or the finalised statement of D. Wijay, or correspondence about the bundle in any way prejudiced the Appellant.
48. However that finding does not dispose of the Article 6 point overall. For, as Jones makes clear, the Court must look at the proceedings generally to see whether or not they were Article 6 compliant i.e. whether or not the Appellant did receive a fair hearing.
49. Ground 1 (ii) This subhead is divided by Mr Rhodes into:

(a) the wrongful adduction of evidence,

(b) the "animus"of Mr Avery, D B and D Wijay,

(c) the contradiction between evidence and statements,

(d) the impossibility of certain evidence being correct,

(e) the references to Mrs Carr as an "independent investigator" whereas in fact she was an outsourced prosecutor, and

(f) the wrongful withholding of testimonial evidence submitted by the Appellant.

50. Mr Rhodes made submissions orally in respect of each individual complaint and in writing in his skeleton argument between paragraphs 15 to 18 inclusive. The submissions were detailed. However, he submitted that the whole picture had to be looked at. Throughout the hearing there was a substantial amount of prejudicial material given in evidence and if the proceedings are considered as a whole the hearing was unfair.
51. Ms Rose, too, made detailed submissions on each of the points and sub-points made by Mr Rhodes in his skeleton argument. However, she submitted, additionally, there were two short points which answered Mr Rhodes' submissions. First, paragraph 11 of Lord Bingham's speech in Jones – see the passage I have quoted at paragraph 39 above. Second, none of the examples set out by Mr Rhodes vitiated the fairness of the proceedings.
52. Before looking at each sub-point at paragraphs 15 to 17 inclusive of Mr Rhodes skeleton argument, it is perhaps worth noting what factual disputes in the charges were in issue. There was no dispute about the facts set out in charges 2 and 3, 5 to 7 inclusive, 10 and 11, 13, 14, 17, 21 to 23, and 25. What was factually in dispute were charges 9, 18 and 19. Charge 9 relates to an alleged conversation on 2 March 2001 between the Appellant and D A, charge 18 to whether the Appellant threatened D K, and charge 19 to an alleged conversation with Ms S.
53. Mr Rhodes and Ms Rose took each alleged matter seriatim. I shall have to do the same, by reference to Mr Rhodes' skeleton argument.
54. Mr Avery. It is said that prejudicial evidence was given by him of an allegation of vandalism dismissed on internal hearing – see Day 2 p 4E. Indeed he did give that evidence but Counsel for the GMC stopped him. There is then a complaint about reference to the Appellant's suspension after the alleged vandalism. I agree with Ms Rose that this was evidence of what chronologically happened as a matter of background and it did not to go to any of the factual issues in the charges. The same is true in my judgment of the answers by Mr Avery at Day 2 p 10F. At Day 2 p 12B-C Mr Avery specifically said that D Khambakar was not intimidated at the time of giving his evidence at the Trust's internal enquiry. D Khambakar made the allegation of intimidation shortly after signing the letter of 29 March 2001. Mr Avery's evidence at Day 2 p 8G is complained of. But Mr Rhodes accepted in his reply that in respect of both periods of suspension the Appellant had been warned not to work elsewhere.
55. D B. At Day 2 p 17C D B said the Appellant had done clinical things when he had not. This is said to be prejudicial. However the Panel expressly said (see Day 4 p 14C) that it had well in mind that no criticism by the GMC had been made of the Appellant's clinical competence. At Day 2 p 20B Counsel specifically said that she did not intend to go into "other matters of concern". How that can be said to be introducing prejudice eludes me.
56. D Wijay. Mr Rhodes complained of the answer at Day 2 p 38F i.e. introducing clinical competence criticism. Yet Counsel interrupted the witness and brought the witness immediately back to the relationship with the Appellant in and after January 2001. I repeat that the Panel had well in mind that no criticism had been made of the Appellant's clinical competence. Complaint is made of the evidence at Day 2 p 40F to 43C, which relates to whether the letters of 9 March were (or were not) circulated by the Appellant. It is said by Mr Rhodes the evidence involves multiple hearsay. I find there is nothing in this point. The transcript makes it clear that what Counsel for the GMC was doing was asking the Panel to look at the Appellant's suggestion, which he could have made had he been present, that the distribution was outside his control. The Legal Assessor advised the Panel that it was appropriate to pursue this line of questioning because it was exactly what the Appellant would have put if present. In any event it is to be noted that the charges of distribution to persons other than the doctors were found not proved in relation to the first letter of 9 March 2001 and not proved re leaving the second letter in Admission and/or Critical Care Unit. Finally, criticism is made of the introduction of evidence at Day 2 p 47D-E. But it is apparent reading from p 47A that all of that evidence went to whether copies had been left in Admission and/or Critical Care Unit in respect of which the Panel found that allegation unproved.
57. D A. He told the Panel at Day 2 p52A that he was handed a copy of the letter of 9 March 2001 by the Appellant in the Medical Administration Unit. He said he knew about the letter before it was handed to him by the Appellant because another doctor (D Shar) had shown it to him. He went on to say he had heard that the letter had been left on the table of the Medical Admission Unit and Critical Care Unit. But, in my judgment, that was said in the context that he could not remember whether D Shar told him of the letter. Next, complaint is made of Day 2 p 58C-D re the second letter. The complaint was not upheld by the Panel. Next, complaint is made of Day 2 p 59F that "everybody was concerned" what the Appellant was doing. In my judgment that is not hearsay evidence. Finally, complaint is made that he was questioned about his earlier statements – see C 10. I see nothing unfair about this. I am sure that if this evidence was conceived to be unfair or prejudicial either Counsel of the GMC or the Legal Assessor would not have adduced it or allowed it to continue, respectively.
58. Mrs Naylor. Complaint is made of her evidence at Day 3 p 15F to 16E. I see nothing to complain about. Miss Naylor's evidence was part and parcel of her evidence that the Appellant was very irrational and knew he would dismiss anything anyone said and that he was very obstructive. He did not treat her well and did not respect others. In my judgment, far from being irrelevant, it was material to the poor interaction between the Appellant and members of staff.
59. D K. D K was questioned at Day 3 p 21 about her reaction to the Appellant's threat. It is said her evidence of her reaction, in particular what she said to her husband and he to her, was inadmissible. I disagree. She was explaining her reaction to the Appellant's threats.
60. Paragraph 16 of Mr Rhodes' skeleton argument. In my judgment D B acknowledged that the two letters of 9 March did raise issues worthy of discussion "but not in this way" – see Day 2 p23C and p 28F. The Appellant, it is said, feels victimised for whistle-blowing. The answer to that as D. B said, is that there are acceptable and unacceptable ways of whistle-blowing. What was happening here, accordingly to the Panel, was a quite unacceptable way of bringing concerns to the notice of the Trust.
61. Animus (paragraph 17 of Mr Rhodes' skeleton argument). It is said that the GMC failed to Daw to the attention of the Panel documents which showed "animus" against the Appellant of Mr Avery, D B and D Wijay.
62. Ms Rose rightly pointed out that all the documents referred to at paragraph 17 were in the possession of the Appellant before, indeed well before, the hearing in September 2006. All could have been placed before the Panel by the Appellant but were not. All the points taken by Mr Rhodes were in truth points which could have been put in cross-examination. The allegations of animus are, she submitted, irrelevant because they do not go to the issues, in particular the factual issues, in the charges.
63. Mr Avery. In a meeting on 19 September 2001 Mr Avery wrote "We would hang on to anything to suit our purpose". In reply to an e-mail from Mr Widderson about scraping the bottom of the barrel, Mr Avery replied whether he had anything else to scrape. In December 2004 the Trust paid the Appellant £3,000 in costs in legal proceedings by the Appellant against it.
64. Mr B. He was plainly displeased at the result of an internal enquiry of the Trust dismissing charges of vandalism against the Appellant – see EB/N p 7 and p 9. He referred in his evidence, Day 2 p 22A, to the letter of the Appellant of 9 March 2001 as "vindictive", which Mr Rhodes said must be prejudicial because later in the letter the Appellant described D Wijay as "talented". At Day 2 p 29E Mr Rhodes complained that Mr B had said that D Wijay had a good relationship with everyone and did his best but "such was not the case with D V." Finally, in respect of the letter of 9 March 2001 at G6 p 1 it was said that legitimate concerns were raised by the Appellant which were not investigated when he understood they were to be.
65. In my judgment none of these criticisms can suggest animus by Mr Avery or D B. Both may have been upset by the findings of the internal enquiry but that does not begin to show "animus". In any event any "animus" does not go to any disputed issue of fact in the Panel's inquiry. D B did not see the letter as vindictive and his comment was not unreasonable in the circumstances. His comment of the Appellant's lack of good relationships was relevant and not derogatory at all. Finally, it is clear from his answer at Day 2 p 30C that there was an investigation by D Campbell and D Sands.
66. D Wijay. The Panel, as Ms Rose pointed out, was aware that there was bad blood between D Wijay and the Appellant. That is quite apparent from D B's evidence at Day 2 p 17G to p 18A where he referred to the "tennis match" between them of accusation and counter-accusation. However, Mr Rhodes referred in particular to a passage in a letter of 8 August 2001 to Mr Loasby, the Trust's Chief Executive, from D Wijay referring to a meeting where "we all agreed that we have to find a way of preventing D V coming back to work in Grantham hospital, as it would lead to gross disruption of working in the Medical Directorate". Mr Rhodes submitted that that showed "animus" by D. Wijay. But in my view that comment came well after the undisputed events of the two letters written by the Appellant on 9 March 2001 about D Wijay. In any event, to what issue does this go? The answer is – to none. Similarly the letter of 14 March 2002 is irrelevant. It is said that D Wijay had admitted breaking New Deal rules. But again, in my judgment this has no relevance. It was the Appellant's, not D Wijay's, conduct that was under investigation before the Panel. Finally, the complaint about the answer at Day 2 p 27G had no relevance to the issues before the Panel.
67. Contradictions between evidence and statements.

D Wijay. I can deal with the submission at paragraph 17.2.1.1 of Mr Rhodes' skeleton argument shortly. The evidence therein impugned was evidence before the Panel but the Panel found the charges not proved in relation to distribution, as I have already set out. Paragraph 18 at C 9, i.e. part of D Wijay's statement, it is said, should never have been before the Panel because it referred to "other matters" of "harassment". I agree that it should have been redacted but there are no grounds for believing that it played any part in the Panel's deliberations.

68. Ms S and Mrs Sirs. Ms S gave evidence at Day 3 p 3G that during a conversation with the Appellant he not only shouted at her but wagged his finger at her. The finger wagging was not mentioned in her original complaint of 9 May 2001, and Ms Rose accepted it was not. However she did mention it in her statement in November 2001. Mr Rhodes submitted that had those facts been brought out it may have affected Ms S's credibility. However, as Ms Rose submitted, the Appellant had both statements in his possession and could have shown them to the Panel had he been present. I accept that there is a discrepancy but Ms S's evidence was supported by Mrs Sirs. Mrs Sirs' statement of 21 August did allege "wagging" but in her interview of 15 November 2001 she did not mention it. The answer to these submissions, in my judgment, is again provided by Lord Bingham at paragraph 11 of his speech in Jones. The Panel were, of course, deprived of the Appellant's evidence on these matters since he did not attend the hearing.
69. I see nothing in the complaint at paragraph 17.2.2.2. The letters at EB/O pp 1 to 4 did not involve Ms S. So far as there might have been any previous problems Ms S told the Panel that there may have been but she could not remember – see Day 3 p 6F-G.
70. Impossibility of evidence being correct. This relates to D K. It is said that her evidence of threats by the Appellant a few days after 29 March 2001 could not be correct because the letter to the Appellant from the Trust of 17 April was the first the Appellant knew of the existence of the letter of 29 March. Mr Rhodes pointed to her evidence that showed she was not precisely sure when the threats were made. Her evidence varied from "a few days" after the letter to "within a day or two of submitting the letter".
71. The Panel were aware of this contention by the Appellant – see Day 3 p 28B - where reference is made to C 12 i.e. a statement of the Appellant made in April 2003 where he made this very point. In any event, as Ms Rose submitted, that the Appellant must have known of the letter of 29 March 2001, because, as the Panel found, he threatened her that if she did not withDaw her name from the letter he would make sure that she did not get a job in his country. There was no evidence, because none was given by the Appellant, that he knew nothing until 17 April of any alleged threat.
72. Mrs Carr. (Paragraph 17.4 of Mr Rhodes' skeleton argument). The substance of Mr Rhodes' submission was that the role of Mrs Carr was not as described by Counsel, Mr Avery and D B as an "independent investigator" but as an outsourced prosecutor. The Panel were thus given a false picture of her role. The transcripts at Day 1 pp 16B, 42B, Day 2 p 5E-F, p 10C and P 26E are said to be examples of such misleading information where Mrs Carr is indeed referred to as an "independent investigator".
73. However, Ms Rose referred me to Day 2 p 5E-F where Mr Avery said she was independent from the Trust, that she was asked to undertake the investigation for the Trust "as if she was the line manager"; so she was not independent in a legalistic sense but she was not employed by the Trust.
74. Ms Rose explained to me that the Trust, by using her services, was seeking her to investigate and made preliminary findings. In any event, she submitted, Mrs. Carr's independence or lack of it was not relevant. The Panel did not rely upon her status in determining the validity of the charges.
75. For the reasons advanced by Ms Rose in my judgment this submission of Mr Rhodes must fail. I have to say that basically it is a complete red herring.

77. Testimonials.

On Sunday 10 September 2006 the Appellant sent by fax to the GMC and to Eversheds five testimonials – see EB/R pp 3 to 7. Due to an error of the GMC the Panel was only shown two of the five testimonials. This was a mistake. There is no question of any mala fides of the GMC or Eversheds. Indeed it was the GMC who in its letter of 12 December 2006 Dew the attention of the Appellant to its error. There is a further twist however. I am satisfied that the Appellant obtained a testimonial from D Zentler-Munro dated 21 August 2006 which, unlike the other testimonials, speaks of his good interaction with staff at the Raigmore Hospital in Inverness when the Appellant was working there between 12 June 2006 and 4 August 2006 as a locum consultant physician. The letter speaks of the Appellant as a "pleasant and productive member of the team" and "from the difficult position always facing locums has adapted well to the team". The Appellant, through Mr Rhodes, said that he sent that letter by fax on Sunday 10 September 2006. Ms Rose told me that neither the GMC nor Eversheds has any record of having received it.

76. It must be borne in mind that the Panel imposed the most extreme sanction on the Appellant of erasure. This means he cannot practise as a doctor. At the age of 50 that is likely to have a very serious impact. Even if he successfully reapplies for restoration of his name to the Register after five years, his skills as a doctor will have atrophied and he may have to undergo a period of retraining. So he may not be back fully in the saddle for several years, perhaps never.
77. An important finding of the Panel in relation to imposing the sanction of erasure was that "there is a significant risk of D V repeating his behaviour in the future" (see Day 4 p 16G). However, D Zentler-Munro's testimonial, which was not before the Panel, could be said to be at least some evidence questioning that conclusion.
78. Ms Rose submitted that the three testimonials not placed before the Panel, together with that of D Zenbler-Munro, would not have changed the Panel's mind, particularly in the light of the Appellant's letter of August 2006 at C6 – see the top of p 4, the middle and bottom of p 5 where the Appellant speaks of the GMC acting as a "colonial slave of ex-colonies like Ceylon/Sri Lanka" and likening D Wijay's "deficient performance" to "fatal consequences clearly dangerous – like Shipman."
79. Be that as it may, the Appellant was entitled to expect the GMC to put before the Panel all of the five testimonials, particularly if there was a possibility, as occurred, of his name being erased from the Register, and such a sanction being imposed in his absence. I have to say that in my judgment justice was not seen to be done in this respect, although it occurred through no fault of the Panel. Furthermore, although I cannot resolve whether D Zentler-Munro's testimonial was sent or received, it was undoubtedly written before the hearing and cannot be said to be irrelevant or insignificant.
80. Reluctantly, therefore, I have to come to the conclusion that in this respect the proceedings were unfair and this matter will, irrespective of any other issue, have to be remitted to the Panel for reconsideration.
81. In that event, as was agreed by Mr Rhodes and Ms Rose, there is no point in my expressing any opinion on either whether it was unfair not to adjourn the question of sanction to allow oral or written representations to be made and/or whether the sanction of erasure was excessive or disproportionate.
82. Ground 1 (iii). Mr Rhodes submitted that it was unfair of the Panel to consider charge 25 in the light of the GMC's written undertaking of 8 September not to ask the Panel to consider that conviction. The GMC wrote in a letter of that date:-

"The Chairman was satisfied that as you have lodged a formal appeal against your criminal conviction it would be imprudent for the FtPP to consider it at this time. The remaining heads of charge, as served on you on 31 July 2006, will be considered by the FtPP."

83. It was submitted that that was, at the least, ambiguous, if not actually misleading. It could be read that the Panel would not be asked to consider either the facts of the conviction or that the Appellant had failed to report it to the Trust. It should have been made clear that, although the GMC were withDawing the charge relating to the conviction – (see under "Conviction" on p 1 of the Notice of Hearing of 28 July 2006) it was not withDawing the charge relating to failing to disclose the conviction. Furthermore, although evidence of a duty of disclosure was given by Mr Avery in general terms (Day 2 p 7E), there was no evidence that the Appellant knew he was under such a duty, and his failure to report a conviction, which was quashed in October 2005 by the Divisional Court, does not amount to professional misconduct.
84. Ms Rose Dew my attention to the letter of 7 September to Mr Britton which said, inter alia:-

"We are instructed that the case will be proceeding next week on the basis of the conduct case only. The conviction case has been removed from listing pending the outcome of D V's appeal against conviction. The formal heads of charge have therefore been amended accordingly."

She submitted that that letter, when read in the context of the Note of Hearing of 28 July 2006, made it clear that the charge headed "Conviction" was to be Dopped but the charges headed "Conduct" which included that of failing to tell the Trust of his conviction, would stand. Further, that letter when read with the letter of 8 September removes any ambiguity.

85. I agree with the submissions of Ms Rose. I shall come later in this judgment to the submission of Mr Rhodes that the failure to report the conviction does not amount to professional misconduct.
86. Ground 2. It is submitted by Mr Rhodes that the Panel "wrongly ruled" that it was not abuse of the process to proceed with, and subsequently find proved, heads of charges 1 to 8 and 21 to 23.
87. The first matter to note is that no application was made orally or in writing to the Panel that it would be an abuse of process of the Panel to hear and adjudicate upon these charges. The only application made on behalf of the Appellant was in relation to all 25 charges, namely that by reason of the delay the proceedings were an abuse. That application was heard and rejected by the Panel on 11 September 2006. There is no appeal from that decision.
88. The letter of 21 May 1999. I accept that in the Appellant's undated letter in August 2006 to Mr Britton – see C6 – the Appellant at page2 stated "How can a matter that has been formally reported to – and closed by – the GMC in 1999 become a 'charge' in 2006?" That letter was before the Panel. However, as I have said, no application was made to the Panel that proceeding with the charge re the letter of 21 May 1999 amounted to an abuse of the process.
89. On 11 January 2000 Prof. Walls, the Postgraduate Dean, at the University of Leicester, wrote to the GMC asking it "not to proceed further" as the Appellant was suspended and undergoing disciplinary proceedings, i.e. by the Trust. On 20 January the GMC stated that it would keep the case open pending "the findings of the internal investigation".
90. The matter then went into limbo until December 2001. The relevant documents are at EB/T pp 11 to 14. In December 2001 a caseworker took the decision to close the case.
91. At no time did the GMC communicate this "decision" to the Appellant. The Appellant learned about it, so I was told by Mr Rhodes, when he made an application under the Data Protection Act, which yielded these documents. I was told he had them (or copies) in his possession in late 2004 or early 2005. He did not place them before the Panel. The first time he has made any complaint about this particular matter is in this appeal.
92. Mr Rhodes submitted that, in relation to the charges about the letter of May 1999, the GMC, having taken a decision in 2001 to close the file, was unfair to resurrect it. In relation to working whilst suspended, although he was warned not to work when suspended, in respect of the first period he returned to work in January 2001 and no charges were brought. In his evidence D B said, Day 2 p 21B-C, in answer to the question whether the Appellant was to be pursued for working whilst suspended:-

"I think, basically, we hoped that we would let bygones by bygones on both sides and start afresh."

In relation to the second period of suspension it was said that although the Appellant was again warned nevertheless he had not been disciplined for working during the first period of suspension and he had to keep his medical skills honed particularly as it was a long period i.e. September 2001 to April 2003. It was, accordingly, an abuse of the process to proceed with those charges.

93. Mr Rhodes referred me to a decision of the Divisional Court Brabazon-Denning v UK Central Council for Nursing Midwifery and Health Visiting [2001] HRHL 6 DC where it was held that once a preliminary committee of inquiry had ruled that no action would be taken in relation to one of the charges, in the absence of misrepresentation, or unless they were acting under some fundamental misconception of the true position, it was not open to the Council to resuscitate that charge at will later in the proceedings.
94. In that case the Preliminary Proceedings Committee notified the appellant that it had considered the allegation of non-registration and decided not to act upon it. Subsequently a charge of non-registration was brought against the appellant and found proved (in addition to 5 other charges not relating to non-registration).
95. At paragraphs 30 and 31 Elias J, with whom Rose LJ agreed, said:-

"30. The fourth complaint was the resuscitation of charge 6. Mr Lawson submitted that it was open to the PPC, having regard to the wider range of complaints which were now being made against the appellant, to decide that that charge should, notwithstanding the original decision not to pursue it any further, be considered and referred to the PCC. He accepted, however, that it was almost certainly the case that the PPC, who made this determination, would have been in ignorance of its earlier contrary decision. Mr Janner submitted that the appellant had a legitimate expectation that in the light of the letter she had received saying that the charge would not be pursued further, that would be the end of the matter and that it was unfair for the particular charge to be resuscitated.

31. In my judgment, quite independently of the question of legitimate expectation, it seems to me that once the Committee has made its ruling and has determined that there should be no further action taken in respect of that charge, then unless there is some misrepresentation, unless they are acting under some fundamental misconception of the true position, then they are bound by that determination. I do not think it is open to them to resuscitate it at will, or because they have discovered other charges and they wish to strengthen the case in some way against the individual. If I am wrong about that, then I have no doubt, in any event, it would be unfair for the matter to be resuscitated in the circumstances of this case, particularly given the unambiguous and unequivocal way in which the decision not to pursue it had been notified to the appellant. The appellant did have a substantive legitimate expectation that the matter would not be reopened, and there was no countervailing public interest which justified the Committee frustrating that expectation."

96. Mr Rhodes submitted – mutatis mutandis, likewise in the instant case.
97. Ms Rose submitted that Brabazon-Denning was distinguishable. There the PPC had considered the merits of the case and decided to notify the appellant that no charge would be brought in relation to non-registration. In the instant case, a caseworker and not the PPC made a decision, and a decision without apparently considering its merits. No notification of the decision to close the file was ever communicated to the Appellant. The Appellant unearthed the relevant documents but made no use of them before the Panel. The abuse argument presented to the Panel was on the grounds of delay and nothing else.
98. In my judgment the Appellant's arguments must fail, for the reasons given by Ms Rose.
99. So far as the second period of suspension is concerned, Mr Rhodes accepted in his reply that the Appellant knew full well that he could not work during a period of suspension, after Ms Rose had Dawn my attention to paragraph 3:4 of the Trust's Policy on Standards of Business Conduct for Staff (G 9), and to the letters of D B of 7 January 2000 and of 23 August 2000 to the Appellant (G 3 and 4), and of 21 May 2002 of Mr Avery to the Appellant.
100. In my judgment the submissions of Mr Rhodes are unsustainable. The Appellant knew he could not work during periods of suspension and nevertheless he went ahead and did so despite clear warnings. The fact that he wanted to hone his medical skills is beside the point. The inability to do so is inherent in any period of suspension.
101. Finally, whether charges 2 to 4 and/or 5 to 8, and/or 21 to 23 did amount to serious professional misconduct is one essentially for the Panel. I, of course, accept that this Court's function in the instant case is appellate and not supervisory. However the dicta in Fatnani & another v General Medical Council [2007] EWCA Civ 46 at paragraphs 19 and 20 are instructive. Fatnani was concerned with sanctions and not with what conduct might or might not amount to serious professional misconduct. Nevertheless, at paragraphs 19 and 20 Laws LJ, with whom Chadwick LJ and Sir Peter Gibson agreed, said:-

"19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffman giving the judgment of the board in Bijl [2002] UKPC 42 para 2 to 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions in the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 3 of Ghosh v GMC [2001] 1 WLR 1915, page 1923G:

'The board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances'

20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they command does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."

102. The Panel said at Day 4 p 11C-D that there were three distinct categories of the Appellant's conduct which "fell well short of those standards expected of a registered medical practitioner" namely, the alteration of an official document in order to mislead, numerous instances of inappropriate and unprofessional conduct towards colleagues which were inflammatory, were intended to mislead and were racially motivated, and undertaking paid medical work elsewhere contrary to Trust regulations while suspended on full pay. It then set them out in detail.
103. At day 4 p 14D the Panel said:-

"In the light of its findings of fact, which include numerous instances of inappropriate and unprofessional conduct, the Panel has concluded that D V's behaviour has fallen seriously short of the standards expected of a registered medical practitioner. The Panel has therefore determined that D V is guilty of serious processional misconduct."(emphasis supplied)

104. With respect to the submissions of Mr Rhodes, I see no error at all in that conclusion, with one exception to which I will come in the next paragraph. The Panel having heard the facts, concluded that the Appellant's conduct fell "seriously short" of the requisite standards. I did not detect in Mr Rhodes' submissions any criticism of that conclusion of the Panel. On the facts as found by the Panel such a conclusion is unchallengeable, as is the Panel's judgment that the Appellant's conduct amounted to serious professional misconduct.
105. The only exception is the charge relating to the failure to report his conviction. It is noticeable that the Panel made no reference to the failure to report the conviction in its reasons at Day 4 p 11C-E as to what conduct of the Appellant fell seriously short of the requisite standards. The only mention made of it is at Day 4 p 14B-C. It seems to me, with respect to the Panel, that the failure to report was not a matter of conduct which the Panel found to be conduct falling "well short" of the standards expected of a registered medical practitioner. It is therefore difficult to then go on to find that Charge 24 amounted to serious professional misconduct. Furthermore, as at the date of the hearing the conviction had been quashed i.e. in the Autumn of 2005. In the particular circumstances of the case I have concluded that the failure of the Appellant to report his conviction did not amount to serious professional misconduct.
106. I would wish to conclude this judgment with some general observations. A reading of the transcript of the entire proceedings, taken together with the history of the proceedings from the Autumn of 2005 does not support any submission on behalf of the Appellant that the Appellant was denied a fair hearing, with the exception of the Panel not considering all the testimonials on behalf of the Appellant (due to a mistake of the GMC). I have made no finding in respect of failure to adjourn for sentence and/or the proportionality of the sanction, for the reasons I have given.
107. I accept the submissions of Ms Rose at paragraphs 39 and 40 of her skeleton argument that the Legal Assessor took points on the evidence which might otherwise have been taken by the Appellant or his representative. The Legal Assessor also carefully advised the Panel on the approach to its findings of fact including the lesser weight to be given to the evaluation of hearsay evidence and its approach in the absence of the Appellant. No criticism of the Legal Assessor's advice to the Panel has been made by Mr Rhodes.
108. Accordingly, for the reasons which I have given the appeal will be allowed only in two respects; first, the finding of serious professional misconduct with reference to charge 24 will be quashed; and second, the matter of sanction will be remitted to the Panel in the light of the mistake made by the GMC over the Appellant's testimonials.
109. I am confident that the Panel will approach the issue of sanction with an entirely open mind and will not adopt a mindset of "we imposed the sanction of erasure last time; have we now seen or heard anything different to change our minds?" The matter of sanction must be, and I am sure will be, approached by the Panel entirely afresh.