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 WC2A 2LL
		4th July 2008

1. MR JUSTICE IRWIN: The appellant in this case, Dr Shyam Sinha, appeals pursuant to section 40 of the Medical Act 1983 from a determination of the Fitness to Practise Panel (henceforth "the Panel") of the General Medical Council (henceforth "the GMC") reached on 12th December 2006. The finding of the Panel was that Dr Sinha's fitness to practise was impaired by reason of misconduct and that his name should be erased from the medical register.
2. They found that his misconduct consisted of consistently inappropriate sexual behaviour towards female patients, including young and vulnerable patients, under the guise of medical examinations. As part of the formulation of charges before the Panel the GMC also alleged such ancillary matters as failure to offer or to introduce chaperones into the examination room, saying inappropriate sexual or personal things to patients, stroking the back of the hand of a patient, failing to provide privacy for a patient to dress or undress, and so forth. However, it is clear that the heart of the allegations against Dr Sinha was sexual misconduct towards patients.
3. The appellant qualified in India in 1969 and migrated to the United Kingdom in 1977. After holding various training posts in NHS hospitals and training as a general practitioner, he joined the Peatwood Medical Centre in Southdene, Liverpool as a general medical practitioner. He practised as a sole practitioner there from 2001. In 2002 allegations against him surfaced and the police were involved in initiating investigations. Those investigations culminated in allegations of indecent assault against female patients and Dr Sinha was charged and prosecuted. The criminal proceedings culminated in an extensive voire dire held in a private hearing at the Crown Court at Liverpool before his Honour Judge George. Dr Sinha was represented at the criminal proceedings by Mr William Coker QC. This voire dire focused on the conduct of the investigation by the police, and in particular on the conduct of the detective most active in the investigation, Detective Constable Carver.
4. It seems to be common ground that in the course of this investigation DC Carver was given responsibility which was beyond him and for which he had not been properly trained and was not properly supported. Whilst nominally under the supervision of more senior officers, DC Carver appears in practice to have operated with considerable independence.
5. In the course of his submissions and cross-examination of DC Carver, which took, in total, 8 days of hearing in the Crown Court, leading counsel for Dr Sinha concentrated with some effect on exposing deficiencies in investigational methods, note-taking and disclosure of material by DC Carver. At the heart of all this was the suggestion that the complainants may have been contaminated or may have colluded, meaning that their evidence against Dr Sinha was unreliable. At the end of this hearing, in circumstances which I will detail a little later in this judgment, the prosecution was dropped.
6. During the period of the police investigation the appellant was suspended by Knowsley Primary Care Trust on 22nd August 2002. On the same day as his suspension, the head of health and performance at the GMC was informed by the Primary Care Trust of the suspension, and of the general nature of the allegations which were being investigated. Thus the GMC knew from early on the nature of the police investigation and the allegations against the appellant. It also seems clear that they had the contact details of DC Carver, although there is no evidence of any particular contact between the GMC and the police. There is certainly nothing to suggestion that the GMC or anyone acting on their behalf took any active part in looking at the allegations before the criminal proceedings were dropped. However, once those proceedings were abandoned, the GMC undertook its own investigations.
7. A letter went to Dr Sinha on 27th June 2005 concerning the allegations and requiring an answer from Dr Sinha. The response was a letter on his behalf from his then solicitors Messrs RadcliffesLeBrasseur, sent on 8th August 2005. The essence of this letter was to take the point now advanced to this court, namely that the approach taken by DC Carver in his investigation meant that there could not be a just trial of the issue by any Fitness to Practise Panel, and that the only appropriate course was to drop the investigation and not to issue any proceedings against Dr Sinha before the GMC. As will be evident, the GMC did not agree with these submissions, and they proceeded. However, the significance of the letter is that the GMC were fully alive to the suggestion that Dr Sinha could not receive a fair trial on investigation before the GMC. As the letter put it:

"No subsequent investigation by the GMC could remedy the failures of, retrieve the material which has been lost by, or undo the damage done by this flawed and incompetent police investigation."

8. Through various excursions and alarms, including applications for adjournment of the disciplinary proceedings, and indeed attempts at preventing the proceedings from continuing by resorting to judicial review, the Panel was constituted and heard the allegations between 9th November 2006 and 12th December 2006 over 19 days of hearing. There were seven complainants who had been witnesses in the criminal proceedings, and three more who had not. Oral evidence was heard from at least eight of the patients, with supporting witnesses. Some evidence was received in written form, including from at least one complainant. Dr Sinha gave evidence himself for 3.5 days. The outcome was that the great majority of the allegations were found to be proved, with the consequence that Dr Sinha's name was erased from the register and he was immediately suspended.
9. As is already clear, the GMC had been forewarned of the objections to be taken at the hearing. Messrs RadcliffesLeBrasseur were long out of the picture by the time the hearing took place. Dr Sinha was on his third firm of solicitors. In anticipation of such points being taken, the GMC had obtained a complete transcript of the proceedings before His Honour Judge George, and it appears to me that there had been at least some discussion between the GMC's prosecutor, Mr Donne QC, and counsel then representing Dr Sinha, Mr Myers, about which excerpts, if any, from those transcripts should be available to the Panel during the hearing.
10. I turn to the points taken in this appeal. In his original grounds for this appeal, Dr Sinha took several points which are no longer pursued: that the Panel was not impartial; that the Panel failed adequately to consider all the evidence; and that the hearing was "unsafe because of inherent unfairness". All those points are now abandoned. The single ground of appeal remaining is as follows:

"The Respondent failed to take into consideration the possibility of collusion of the witnesses, despite the fact that [the] Appellant's case was dismissed at Liverpool Crown Court on 28th May 2004 due to the nature of the investigation of the allegations and that could not rule out the potential collusion and contamination of evidence."

Whilst Mr Clayton QC for the appellant might have wished to rephrase that ground, he stands over it as a matter of substance. It is essentially the point taken by RadcliffesLeBrasseur in the letter they wrote in August 2005. Mr Clayton expands this ground in the following sequence of connected points.

11. Firstly, the Panel should have ordered a stay of proceedings. This should have arisen because Mr Myers, acting for Dr Sinha at that stage, should have made a clear and properly argued application to stay the proceedings.
12. Secondly, even in the absence of such an application, Mr Donne QC, prosecuting before the Panel, who was aware of the contents of the transcripts of the Crown Court hearing, should have exercised his prosecutorial responsibility to ensure fairness by dropping the proceedings.
13. Thirdly, it is said in the alternative, although with less emphasis, that Mr Donne should have placed the whole transcript of the Crown Court proceedings before the Panel.
14. Fourthly, it is also said, but with a good deal less emphasis, that the Panel should have declined to proceed in the face of what had happened in the Crown Court. For these purposes the Panel means the legal advisor, Mr Robin Grey QC.
15. Generally it is said that where proceedings have been "dismissed" because the defendant could not receive a fair trial, that must be as true of the disciplinary proceedings as it was of the criminal proceedings. For these purposes, it is said there should be no distinction being made between them. For those reasons, Mr Clayton says that the outcome of the Panel hearing is "wrong", which is agreed to be the test pursuant to the Civil Procedure Rules, Part 52.11.2(3)(a).
16. What had emerged at the Crown Court? Mr Clayton has provided a helpful and extensive written exegesis of the evidence from DC Carver and of the argument before Judge George. It is not necessary to repeat much of that, but it may be helpful to rehearse one or two of the cardinal points.
17. In the course of a note made by DC Carver, which had eventually been produced, it was recorded that the complainant CB "has had problems with doctors in the past when she was younger herself. She told me a story of what happened to her ages ago and she has always been wary of doctors since". That point is lent significance by the fact that CB had made previous allegations against doctors. Also in relation to the complainant CB, the evidence revealed that she and another complainant, JT, had known each other. They lived in the same area. Under cross-examination from Mr Coker, DC Carver made answers in which he appeared to admit that he might have asked CB to go to JT's house and give JT the details of her, CB's, complaint.
18. It emerged in the course of the evidence that Mr Carver had been asked by a CPS lawyer about contamination or collusion during the run-up to the voire dire hearing. This issue having been raised, DC Carver rang all of the complainants to ask if they had spoken to each other. This investigation by him was either not noted at all or not properly noted by him. The fact of it having taken place was not communicated to counsel for the prosecution, or to the representatives of the CPS.
19. At a subsequent conference, where Mr Carver was present, the CPS representative asked specifically if there had been any formal investigation into collusion or contamination in this inquiry. Mr Carver, who was present, knew that he himself had conducted that inquiry into collusion, but it seems he did not inform anyone of his own actions. When asked about this in giving his evidence, his response to Mr Coker was equivocal. Mr Coker pressed on the point in the course of the voire dire, emphasising that DC Carver's role in the investigation, in his submission at any rate, was pivotal to the viability of the trial. Mr Carver's credibility was crucial and it was relevant to know whether counsel and the CPS representatives had been informed by Mr Carver of his own actions.
20. It was also relevant to know how many times the question had been asked, and in what context it had been asked before it was answered. All this was said to bear on Mr Carver's credibility and on how far the problems with the investigation might have gone. Once it was developed, prosecution counsel before the judge sought to meet this point by offering admissions to the effect that none of the counsel or the CPS representatives involved could recall being informed of DC Carver's actions in pursuing the issue of discussions or collusion with the complainants. This offer did not satisfy Mr Coker, who was also unsatisfied by proffered admissions as to the process by which disclosure of all the relevant notes and documents which were produced had eventually taken place.
21. These points, taken together, took prosecution counsel to the point where they acknowledged to Judge George that none of the counsel in the case could proceed to trial, since they would need to be available as witnesses as to the progress of the investigation itself.
22. On the eight day of the voire dire, Judge George sought to summarise Mr Coker's position on behalf of Dr Sinha and put it to the prosecution. The judge said this:

"... the question of the credibility of DC Carver is fundamental to that question, not the question of there being a fair trial, but whether I can make a judgment now as to whether or not there can be a fair trial. Do you see what I mean?"

Whilst it is true that this is a summary by the judge of the defence position being advanced to him, Mr Clayton asked me to infer that the judge was giving an indication of his own thinking, and for present purposes I think it is fair to do that.

23. Later on the eighth day, after an adjournment to consider their position, the prosecution dropped the case. In explaining that position, Mr Killeen for the Crown emphasised that the Crown had had to think very carefully about the involvement of the lawyers, and had concluded that certainly counsel, and probably the CPS representative, would have to withdraw. That decision having been taken, counsel indicated that they had to take an overview of the case:

"... in terms of what that will mean and really look once again at the impact of any evidence, if we were to become witnesses, that we would have to give in relation to the nature and quality of this investigation in relation to what we knew or did not know of steps that were taken within it by the officer in charge/investigating officer. We have had to make an assessment, having regard to everything we have heard, not merely the nature and quality of the investigation, but more particularly [the] impact of the evidence of that officer yesterday, the impact upon the case as a whole."

It was following that reflection that the case was dropped.

24. As both counsel agreed in the course of argument before me, it is not possible to infer all of the considerations that entered into this decision. However, what is perfectly clear is that the credibility of DC Carver was important, the position of counsel was important, and it is evident, in particular from the passage last quoted, that counsel were considering the impact on a jury in a trial in which the whole team of prosecuting lawyers would have to be called to be cross-examined about how the police investigation had been mounted. In my judgment, it is clear that any competent counsel would be likely to regard that necessity as making it very difficult to present the case to a jury. That conclusion is far from being a concession by counsel that a conviction following such a trial would be a miscarriage of justice. It is clear that Mr Killeen never made such a concession. In argument before this court, Mr Clayton QC accepted that the upshot of this could fairly be summarised in the following points:
25. Firstly, DC Carver could not be used to exclude the possibility of contact or collusion between complainants. His credibility was too damaged and his note-taking and methodology too poor.
26. Secondly, there was at least some limited evidence to suggest that there had been contact between CB and JT, perhaps casually or perhaps at the instigation of DC Carver. There was no direct evidence in favour of such contact or collusion in respect of any other complainant.
27. Thirdly, the proceedings before the Crown Court demonstrated that there was an absence of records, notes or other documentation which should have existed, because they should have been created by DC Carver, and which, if they had existed, could have been used or an attempt could have been made to use them to test the risk of contact or collusion between other complainants. In other words, the suspicion of such contact or collusion could not be allayed by reference to such notes or records.
28. In my judgment, those points represent a summary of all that can fairly be said to be derived from the proceedings of the Crown Court.
29. I turn to the legal basis of the Panel hearing. Miss White, who appeared on behalf of the GMC, lays emphasis on the legal basis under which the GMC operates. So it is helpful to summarise that, before proceeding to considering what took place at the Panel hearing. The relevant provisions appear in the Medical Act 1983. Subsection (1) reads:

"(1) There shall continue to be a body corporate known as the General Medical Council (in this Act referred to as 'the General Council') having the functions assigned to them by this Act.

(1A) The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.

...

(3) The General Council shall have the following committees..."

At (f) the statute provides for:

"(f) one or more Fitness to Practise Panels..."

By section 35C the statute provides that:

"(5) If the Investigation Committee decide that the allegation ought to be considered by a Fitness to Practise Panel—

...

(b) the Registrar shall refer the allegation to a Fitness to Practise Panel..."

By section 35D:

(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit—

(a) ... direct that the person's name shall be erased from the register;

(b) direct that his registration in the register shall be suspended..."

Section 40 provides for appeals. Subsection (1) reads:

(1) The following decisions are appealable decisions for the purposes of this section, that is to say—

(a) a decision of a Fitness to Practise Panel under section 35D above giving a direction for erasure, for suspension or for conditional registration..."

30. The central purpose of quoting the statute, aside from giving a short picture of the scheme of the Act, is that Miss White for the Panel lays great emphasis on section (1A) and the objectives of the General Council. She says that since they are to protect, promote and maintain the health and safety of the public and, therefore, do not constitute an open-ended investigative function but focus on protection of the public, this statute underpins the difference of approach which is discernible in the authorities and should operate and bear on this case, as between criminal proceedings and disciplinary proceedings before a Panel of the GMC. Miss White for the GMC also argues, therefore, that proceedings before the Fitness to Practise Panel involve different considerations as to the propriety of the prosecution from those which apply in criminal prosecutions. This arises centrally from the main objective under section (1A) of the Act.
31. Thus, she says, even where, on a given set of facts with a given defendant, public interest considerations would mean that a criminal prosecution should not be carried through, the same might not necessarily apply to a Fitness to Practise Panel hearing disciplinary proceedings. Miss White argues that would be so, even when the evidence was identical rather than merely overlapping, as in this case. Where there have been failures in the prosecution investigation or failures alleged in the conduct of the police in the course of a criminal investigation, as here, or perhaps where resource implications arise, a different approach might be proper. Certainly where, for any number of reasons not necessary connected with unfairness of outcome, a jury trial would be likely to fail, whereas a prosecution before the Panel might very well not fail, she says a different approach is legitimate.
32. As a general proposition, I accept those submissions. I would add one point: part of the consideration in whether to continue with criminal proceedings is the public interest in the prosecution. It seems to me that it would be entirely valid, when a prosecuting authority is considering the public interest in whether or not criminal proceedings should be carried through to a conclusion, that they should bear in mind the question of whether relevant disciplinary proceedings are going to follow. For the reasons set out above, we do not know as a matter of fact whether such thinking played its part in this case, but it might well have done. The point certainly illustrates how different considerations may very well properly apply to the question of mounting or continuing with proceedings in the two different jurisdictions.
33. The principle that different considerations apply in the two forms of proceedings is well established. It was developed in the speech of Lord Bingham in the case of Bolton v Law Society [1994] 1 WLR 512, touched on in R (Redgrave) v Commissioner of Police of the Metropolis [2003] 1 WLR 1136 and reaffirmed in Selvarajan v General Medical Council [2008] EWHC 182 (Admin) in the judgment of Blake J. Mr Clayton QC accepts that there is no strict rule of double jeopardy as between dismissal of criminal proceedings and subsequent disciplinary prosecution, the precise point in view in the Redgrave case. However, he correctly responds that none of the authorities deal directly with the position where criminal proceedings had been stopped because a fair trial had been impossible, and yet subsequent disciplinary proceedings proceeded on the same evidence, or even substantially the same evidence. Miss White also accepted that. Thus, this case falls to be decided on its facts and on the application of first principles.
34. It is agreed between the parties that the Panel proceedings were and are adversarial, but at the time the prosecution bore the burden of prosecuting the case to the criminal standard of proof. These points are trite, but not irrelevant. With adversarial proceedings come a specific set of duties, and a specific approach. In general terms, the parties agree that a prosecutor before the FPC, and the Panel itself have a duty to ensure the proceedings are conducted fairly. But, subject perhaps to the very extreme case, in adversarial proceedings neither the prosecution nor the Panel have the duty, or indeed the right, to interfere with the way a defendant's lawyer chooses to conduct his case, or so the GMC suggest.
35. How did matters proceed at the Panel hearing? The Panel first met on 6th November 2006 and Mr Myers asked for a 2-week adjournment because, as he frankly said, "We are not yet fully prepared." This was resisted by Mr Donne. In the event, the Panel granted an adjournment until Thursday of that week, 9th November 2006. The Panel reconvened on 9th November 2006. They began late because Mr Myers was late and, as he explained, "something I have eaten has not agreed with me". He then resumed his application for an adjournment, mingled with an application for more disclosure. Mr Donne responded that:

"All unused material in the possession of the Council has been served on the doctor."

And that enough time had been wasted.

36. Mr Myers went on to refer to the proceedings before the Crown Court, and to the dropping of the case there, suggesting that there must be more documentation associated with that whole decision. Mr Myers said that his application was a continuation of the application he had made on the Monday. It is necessary to quote from the way he put this to get the flavour of the proceedings. The chairman of the Panel said this:

"THE CHAIRMAN: I think in due course when the Panel retires to consider the matter, after having heard Mr Donne and the Legal Assessor, we shall need to be clear, Mr Myers, as to exactly what you are asking for, which sounds to me like a further adjournment, and how long that might be and what other actions you want to take place and your reasons in full, which you are elaborating on now. But we do need to, or I need to be particularly clear as to exactly what the application is for, for how long and what your reasons are and as to the admissibility of the papers you have there I think we have yet to rule on that.

MR MYERS: To answer how long and what I seek I will do at the end. What is important here is the fact that one has asked for an adjournment based upon two premises. The first premise in regard to disclosure and the second premise, a ruling in regard to the evidence that the GMC are going to use that we say is unreliable and Dr Sinha could not receive a fair trial based on that evidence."

37. A little later Mr Myers went on:

"There was a failure by the police to record statements of accounts given by the complainants to third parties. There was failure to record preliminary conversations with complainants. There was a failure to record conversations with complainants in regard to relevant materials relating to the identity of other complainants. There was a failure to record how the complaints were identified and what was used to identify them, what methods, what means. There was no attempt whatsoever to guard against the possibility of contamination linking the various individuals within the unit."

Then a little later he said this:

"The evidence that was used to try to support the fact that Dr Sinha had been or was attempting or had attempted to commit these various allegations could not support the proposition because of what had gone on previously. Of course, it is extremely serious — extremely serious and what one is scared of, what one is unhappy about, on behalf of Dr Sinha, is that this evidence that was obtained by a policeman, an experienced police officer, was so poorly taken, followed no codes, reckless and yet we are going to use these documents in this hearing. I can read, if one wants to, exactly what was wrong with the documents, I can read each and every page but, of course, by putting that document in one would take time if one was trying to illustrate exactly what breaches of the Attorney-General's guidelines were not followed by the policeman, were not followed by an investigating officer, were not followed by doctors in charge, were not followed by the prosecution, and of course then it leads on to the disclosure itself.

One of the problems that we have is simply this, that if it is the case that the GMC say 'We are going to rely upon this evidence because we believe it is not as bad', then there has to be something, there has to be some sort of investigation to see just how bad these written statements were, but we have nothing."

38. The chairman then said this:

"THE CHAIRMAN: Mr Myers, if I may just interrupt you, I am not a lawyer myself but I understand the application, I think, that you are asking for, but I think I am going to need some advice from Mr Grey on my right here as to the relevance of your legal argument about what went on in another place altogether and how relevant that is to the specific application you are making to us today. So I will ask Mr Grey to make a comment. I am sorry to interrupt you on this, but I am not a lawyer and I was having some difficulty in just working out the relevance and the admissibility, perhaps, of what you are saying. Mr Grey, could you please help me on this one?"

The legal assessor then said:

"THE LEGAL ASSESSOR: Mr Myers, I may or may not have to advise the Panel on this application, but in order to be able to decide whether I have to do that at the end of the application I need to understand what the application is. I am sorry, but I really am having difficulties. It seems to me that your application is for a further adjournment, and I thought it was in order to be able to get your hands on (if one can use that expression) evidence which will help you in the defence of the doctor and particularly in the cross-examination of the witnesses who are to be called by the GMC. During the course of making that application you seemed rather to switch your line of application to deal with, as it seemed to me, information that you had in your possession, because it seemed to me that far from needing disclosure you had it all, because you were making such remarks as I could read out exactly what was wrong, you were talking about failure to do this, failure to do the other, and so I was not sure whether you were wanting time to get hold of documentation or whether you have already had the documentation and you were not quite sure how you were going to be able to use it."

39. That is the end of the passage I intend to quote from that passage of events. Eventually Mr Myers gave an answer to the legal assessor. The legal assessor pressed counsel as to what he was really asking for, established that these points had been raised 2 years earlier by RadcliffesLeBrasseur, established that it was third-party documentation that Mr Myers wished to obtain, but made it clear, as legal assessor to the Panel, that he was unsure of what documentation was said to be actually in question.
40. Mr Grey then turned to Mr Donne and asked if the GMC had appreciated that there might be a problem with contamination. Mr Donne answered as follows:

"MR DONNE: The underlying concern, as I understand it, is the possibility of deliberate or, indeed, inadvertent collusion between witnesses as a result of the way the investigation was conducted. That is the umbrella concern that was expressed at an early stage and it has been expressed now. Of course the Council has been concerned with that issue. It was an issue that was live since the criminal proceedings."

Thus it was clear that the GMC and the Panel were fully alive to the potential problem of deliberate or inadvertent contamination or collusion.

41. Over the next part of the hearing, it became clear how Mr Donne and the GMC responded to all this. Firstly, he said that what had emerged at the Crown Court was as a consequence of a fishing expedition with Mr Carver. He did not suggest that that was improper or intend to describe it in a pejorative way, but that was what it was. Secondly, Mr Donne said that the case at the Crown Court had developed into a morass and that the decision to stop the trial was taken on that basis.
42. Mr Donne then went on to analyse the implications for the evidence of the complainants, and the approach taken by the GMC. He said this in reference to the decision to drop the criminal proceedings:

"That decision was not taken on any adverse assessment of the complainant's evidence at all. It was not taken because the CPS considered that the complainant's evidence was unreliable. It was taken because they were not able to fulfil either their obligation of disclosure because the material did not exist, or because the pressure the Defence bought to bear on the proceedings at that stage was such that issues had developed that were in fact probably extraneous but nonetheless they added to the weight and, of course, there was this difficulty with prosecuting Counsel and the officer. Subsequently, no evidence having been offered and the complainant's evidence never having been tested, the PCT considered what it should be doing with Dr Sinha, bearing in mind there are all these extant complaints to the PCT. So, the PCT conducted an investigation and they appointed a doctor with terms of reference to investigate the matter and that doctor interviewed witnesses and took further statements from them, so in addition to statements given to the police by complainants there were also statements given to the PCT. All of those have been disclosed to the Defence, as have the terms of reference, as had that doctor's report and, indeed, all the underlying correspondence and communication between the PCT, the police and the CPS. The only material that has not been disclosed in its entirety is the professionally privileged material but really that does not add to the picture. If there is anything there that undermines the Council, I would seek to disclose it, but they have had a very great deal of that."

43. A little later Mr Myers said this:

"Of course, the first question is, if those documents, if those seven witness statements that we have before us today were ruled unreliable in the Crown Court and there has been no further investigation conducted now — I say there has been no further investigation because we have got no disclosure, so of course I am presuming that there has been no further investigation because we have no more documents in regard to what took place post the Crown Court.

So that is the first issue, in that Dr Sinha, I say on his behalf, based upon seven witness statements, cannot receive a fair hearing based upon the witness statements that are what we are using because nothing has changed. They were obtained in breach of numerous codes, in breach of good practice and, of course, the issue of collusion was rife then and it is rife now."

44. Those quotations from a fairly extensive transcript of the argument give a clear understanding of the flavour of what took place before the Panel. This was not, in my judgment, a clear application by counsel for a stay of the proceedings. The passage I have quoted most recently is the clearest it gets. The Panel, after further discussion, treated this application as an application for an adjournment so that further disclosure could be obtained. In my judgment, that was a fair response or characterisation of what counsel was really putting to them. There was no clear application by Mr Myers, to say directly, "There cannot be a fair hearing before you. The risks of an unfair hearing are too great and here are the reasons". However, the Panel clearly did have by then a good grasp of the complex reasons why it was said the criminal proceedings had ended, at least insofar as it was possible to discern them. They were aware, and fully aware, of the concern about contamination or collusion between witnesses, were aware of the concern raised about further documents, and were in a position to consider the impact of all of that on the fairness of the proceedings.
45. The Panel refused the application for a further adjournment and the matter proceeded. However, it is important to note that they did admit any portions of the Crown Court transcript specifically asked for by Mr Myers. Part of the transcript was admitted on day 2 and another portion on a later date. It was also clear that had Mr Myers requested that further extracts, even extensive extracts, should be placed before the Panel, Mr Donne would have agreed. He made that explicitly clear.
46. I have already referred in general terms to the outcome of the Panel hearing. The majority, but not all of the allegations, were proved against Dr Sinha. It is relevant to note, however, that where a complainant did not give live evidence, such as patient I, the Panel largely acquitted Dr Sinha of the allegations concerning that complainant, save in respect of matters effectively or indeed wholly admitted by Dr Sinha himself. It is perfectly clear that the Panel closely assessed the witnesses who gave evidence before them, and that their assessment of those witnesses was crucial to their conclusions.
47. I return to the complaints made by Mr Clayton on behalf of Dr Sinha. Mr Clayton says there should have been a stay of these proceedings, firstly because Mr Myers should have made a coherent and determined application for a stay. Mr Clayton intends to be kind, but it is clear that he is critical of the way that this was handled by counsel. All I will say is that no coherent and determined application for a stay was made.
48. Miss White argues that there is well established authority that a complaint by a party about his or her legal adviser cannot found a successful appeal. She relies on the well-known case of R v Secretary of State for the Home Department ex parte Al-Mehdawi [1990] 1 AC 876. In that case it was held by the House of Lords that:

"... a litigant, who had been deprived of the opportunity of having his case heard because of the default of his own advisers to whom he had entrusted the conduct of his case, had no ground of complaint in law that he had been the victim of procedural impropriety or that natural justice had been denied to him; that that principle applied equally to a case where the issue was one of public law and where the decision taken was of an administrative character as it did where the dispute raised issues of private law between citizens; that accordingly, in the circumstances the decision of the adjudicator affirming the deportation order [in the Al-Mehdawi case] should be restored..."

49. It is helpful to quote from the speech of Lord Bridge in the case at page 898:

"It has traditionally been thought that a tribunal which denies natural justice to one of the parties before it deprives itself of jurisdiction. Whether this view is correct or not, a breach of the rules of natural justice is certainly a sufficiently grave matter to entitle the party who complains of it to a remedy ex debito justitiae. But there are many familiar situations where one party to litigation will effectively lose the opportunity to have his case heard through the failure of his own legal advisers, but will be left with no remedy at all except against those legal advisers. I need only instance judgments signed in default, actions dismissed for want of a prosecution and claims which are not made within a fixed time limit which the tribunal has no power to extend. In each of these situations a litigant who wishes his case to be heard and who has fully instructed his solicitor to take the necessary steps may never in fact be heard because of his solicitor's neglect and through no fault of his own. But in any of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule. Again, take the case of a county court action where a litigant fails to appear at the hearing because his solicitor has neglected to inform him of the date and consequently judgment is given against him. He can at best invite the court in its discretion to set aside the judgment and it is likely to do so only on the terms that he should pay the costs thrown away. Yet, if it can be said that he has been denied natural justice, he ought in principle to be able to apply for certiorari to quash the judgment which, if he is personally blameless, should be granted as a matter of course.

These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument."

50. Mr Clayton accepts this as a true reading of the common law. However, he argues that the incorporation of the European Convention on Human Rights into English law has changed things. The argument could be characterised as follows. The right to a fair trial under Article 6 of the Convention is expressed in familiar language:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

That right is properly described as "fundamental". Furthermore, says Mr Clayton, a waiver of that right must be made in an unequivocal manner by someone giving "informed consent" as he puts it (in other words, understanding properly what they are doing) and must not run counter to any important public interest.

51. Support for that proposition can be drawn from some European cases: Deweer v Belgium [1980] 2 EHRR 439, Hakansson and Sturesson v Sweden [1990] 13 EHRR 1 and from Millar v Dickson [2002] 1 WLR 1615, a decision of the Privy Council in this country. By that route, Mr Clayton says that the principle annunciated in Al-Mehdawi no longer applies. Dr Sinha's lawyer takes a step which prevents his side of the argument being properly heard. That has the capacity, says Mr Clayton, to prevent the hearing being fair and is a prima facie breach of Article 6, unless there was an effective waiver, which there was not. There was no informed consent. That is the way the argument runs.
52. If I may say so, this argument is imaginative but quite wrong. Firstly, the Article 6 right is concerned with the fundamental attributes of the legal system such as, in particular, access to an independent and impartial tribunal. These rights are not in question when considering details of the judgment exercised by advocates in the course of a day in court.
53. Secondly, if Mr Clayton's argument were right, it would have been successfully advanced somewhere in Europe where the Convention has been incorporated into domestic law for very many years. It is not excessively rude to think that over those years some lawyers in some of those countries will have been making gross mistakes in the conduct of their clients' cases. I have been referred to no authority which supports the proposition Mr Clayton makes, derived from any of those European jurisdictions.
54. Thirdly, the situation for which Mr Clayton argues is unworkable. It would mean that each important tactical or strategic decision by an advocate would require "informed consent" by the client in order to establish an explicit and clear waiver if the decision proved to be an error in the event. This is a sure recipe for chaos.
55. I am quite clear that the principles developed in the European jurisdictions, governed by the Convention and affirmed by the Privy Council in Millar v Dickson, are concerned with the fundamentals of the legal system, not such questions as arise in this case. I am reinforced in that conclusion by a recent decision of the Court of Appeal. In Gopakumar v General Medical Council [2008] EWCA Civ 309 the point at issue was the suggested failure by the advocate for a medical practitioner before a Panel, allegedly without consultation or instructions from his client, to fail to introduce relevant evidence before the Panel. In the judgment of Tuckey LJ, with which the Master of the Rolls and Jacob LJ agreed, the court reaffirmed the principle previously annunciated in E v Secretary of State for the Home Department [2004] EWCA Civ 49, that being: when considering whether or not to admit fresh evidence, the general rule is that failure to adduce evidence by the party's legal advisers provides no excuse, even in this type of case.
56. In my judgment, the analogy with Dr Sinha's case is very close. The law forbids reopening a case on the basis, presumed to be true for the purpose of the argument, that there was a negligent failure to adduce what might be crucial evidence in medical disciplinary proceedings, evidence with the potential to alter the outcome of the case. If that is correct, then the court will be very slow to permit a case to be reopened where the lawyers have failed to make a coherent application for a stay.
57. In Gopakumar the court also touched on the duty of the legal assessor, whose duties are set out in the General Medical Council (Legal Assessors) Rules 2004. By Rule 2 the legal assessor is required to advise the Panel on any question of law referred to him, but he is also enjoined to intervene to advise the Panel where there is a possibility of a mistake of law being made, or where he learns of any irregularity in the conduct of the proceedings. This clearly means a duty actively to take steps if the assessor considers that any procedural or legal problems of importance may be arising. For present purposes I am content to accept that such a duty might arise if an assessor felt that there was a serious abuse of process, or an evidential problem on such a scale that he felt no reasonable Panel could find the charges proved and yet the appropriate arguments were not being advanced by the doctor's legal representatives. However, the circumstances would have to be very clear for a court to consider intervening on the basis that the legal adviser had not done so.
58. In my judgment, the final answer to Mr Clayton's argument, based on the acts or omissions of Dr Sinha's then counsel, is an answer on the facts. The facts also give the ultimate answer to the points made based on the obligations of the prosecutor or of the tribunal or of the legal assessor. On the facts of this case I do not find that a fair procedure, that is to say a fair trial of these disciplinary charges, was rendered impossible. The claimant and his lawyers had access to all the available information in existence. Any relevant part of the Crown Court transcript could have been before the Panel, and probably the most relevant parts were in fact before the Panel. There is no actual evidence of collusion, or contamination of what these complainants said. At its height, there was some material raising suspicion of it in respect of two women, only one of whom was a complainant before the Panel in any event. The ground of complaint is that "The respondent failed to take into consideration the possibility of collusion of the witnesses". On my view of the facts, on the contrary, the issue of collusion was very firmly before the Panel and could be and was addressed on the evidence.
59. Collusion and contamination are the stuff of life in the criminal courts, where sexual allegations are concerned. It cannot be an objection to proceeding in a case that such questions are raised, even where there may be imperfect documentary evidence against which to test the validity of the allegations. Hence, in my judgment, had Mr Myers made a coherent and determined application for a stay, it would properly have failed. It follows that, however high may be the obligation on a prosecutor or on the legal assessor to the Panel not to proceed with a disciplinary hearing, such an obligation could not arise on these facts. For all these reasons, Dr Sinha's appeal fails and the Panel's determination stands.
60. MR HARE: My Lord, I am obliged for that, obviously. As your Lordship will be aware, given that the case did run over one day, the presumption of proceeding directly towards a summary assessment of costs does not apply. Nonetheless, we would submit that it is an appropriate case for your Lordship to carry out a summary assessment. The case was obviously listed for a day.
61. MR JUSTICE IRWIN: It took nearly 2 days of argument.
62. MR HARE: It did take nearly 2 days. As your Lordship is aware, I was not in court for that. I have spoken to Miss White about it. She suggested that part of the fact that it overran was attributable to Mr Clayton having certain difficulties in obtaining instructions for part of the second day, at least. The final point I make in relation to whether or not it is appropriate to proceed to summary assessment is that, as your Lordship will see from the three schedules of costs that have been prepared on behalf of the GMC, it is not a large sum, in the circumstances, we say, although the question of proportionality is one for your Lordship. Therefore, we would say that it would be appropriate not to engage in the further costs of a detailed assessment in relation to it. I should indicate that my learned friend does not accept that this is an appropriate case for a summary assessment, and you may wish to hear from her first, my Lord, before you consider the actual amount.
63. MR JUSTICE IRWIN: Yes. I just want to remind myself. There is a summary assessment statement of costs, 19th June; supplemental statement of costs, 25 June. Did you mention three?
64. MR HARE: There should be a second supplemental statement of costs of 27th June, which relates only to the additional day, if I can put it that way.
65. MR JUSTICE IRWIN: Yes. I better hear from Miss Hearnden.
66. MISS HEARNDEN: My Lord, yes. I was not counsel in the main hearing of this case.
67. MR JUSTICE IRWIN: No.
68. MISS HEARNDEN: My learned friend has presented me with the statements of costs this morning. I have had a chance to glance at those, but have not had an opportunity to take full instructions, but as a general principle, my Lord, in my submission this is not suitable for summary assessment. It is an extensive piece of litigation in the statements. The standard, it took one day so deal with costs at the end, is because there is a certain simplicity reflected on the face of the costs schedule, based on what the hearing was about. Here we have something which has gone on much longer. There has been a need for three separate cost schedules and, that being so, a more considered opportunity to deal with the matters would be appropriate, which is at the discretion of the court, once it is over one day, what it chooses to do. If the court were minded to summarily assess the costs today, I would ask for a brief adjournment to take full instructions on the figures in that costs schedule. I have not been provided with my own copy.
69. MR JUSTICE IRWIN: Well, Miss Hearnden, I am against you for this reason, that although there are three schedules, and although it went on rather longer, the first schedule is added to only by a minor extent by the further two, particularly the second supplemental. So it seems to me, rather than involve the parties in the time and cost of assessing the costs, I would prefer to summarily assess. Do you want to deal with that now before 1.00 pm? How long would it take you?
70. MISS HEARNDEN: My Lord, I think that would be adequate. Perhaps a brief 5-minute adjournment to take instructions.
71. MR JUSTICE IRWIN: You do not resist costs in principle?
72. MISS HEARNDEN: No, my Lord. I should also, perhaps, flag up that I am instructed to make an application to appeal the court's decision this morning, primarily to protect Dr Sinha's position as to what happens next.
73. MR JUSTICE IRWIN: We will deal with things one at a time. What I can say is that I will release the other case until 2.00 pm, unless there is a difficulty caused by that.
(A short adjournment)
74. MR JUSTICE IRWIN: Yes.
75. MISS HEARNDEN: My Lord, I am grateful for the court's indulgence. Just a couple of observations about the statements of costs provided. I am grateful to my learned friend for his arithmetic. The grand total of the three is £18,448.75.
76. MR JUSTICE IRWIN: That is including VAT?
77. MISS HEARNDEN: Yes. That is for an appeal listed for a day that ran into two. I would invite the court to find that globally that that is quite a large figure, and then exercise its discretion on proportionality to assess individually. If one then goes down to the micro level, I have a couple of observations, starting with the statement of costs, the first and main one of 19th June 2008, looking at the itemised figures: attendance on others, my Lord, is over 10 hours. That seems fairly extensive and I must confess I am slightly at a loss as to who the others, beyond the court, might be.
78. Looking further down, work done on documents that we have, two entries here, it is evident that two fee earners are working, given the two different rates claimed. Those instructing me are concerned that there might therefore be some sort of overlap and I would invite the court to aggregate a slightly more modest figure for work on documentation, had one person been allowed to do both.
79. Then the final point, which sits in a sense across the three schedules, relates to Miss White's briefing. We have a £8,000 brief then a £1,000 refresher, and then a £650 for the final hearing. My Lord, I invite the court to use its discretion as to whether a slightly lower figure, all in, might be appropriate, given the nature of this hearing. Those are the only observations that I have.
80. MR JUSTICE IRWIN: Thank you. Well, the respondent shall have their costs. I am grateful for the detailed points made. It seems to me that this case had a very great deal of paper in it. I am not persuaded that the attendance time or the work done on documents was wrong in principle. It does seem to me that the counsel's fees are a little on the high side. So what I propose to do is to run the matter down and say £16,000 plus VAT.
81. Yes?
82. MISS HEARNDEN: My Lord, then, yes, I am instructed apply for leave to appeal today, given the (inaudible) and other compelling reasons why leave may be granted. This, as the court observed, deals with very sensitive matters and has extremely serious consequences for Dr Sinha, given he has pre-retired a number of years when he was intending to practise, given the underlying conceptual difficulties, perhaps unusual factual matrix dealing with the Crown Court prosecution as it was, and how that affected the regulatory proceedings, I would invite the court to allow permission.
83. MR JUSTICE IRWIN: Thank you, but permission is refused. I accept the implications for Dr Sinha and I accept the case has its unusual aspects, but it seems to me there is no reasonable prospect of successful appeal.