QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ALAN HUTCHINSON
|- and -
|GENERAL DENTAL COUNCIL
Ms Jenni Richards (instructed by Capsticks) for the Respondent
Hearing dates: 13 & 14 November 2008
Crown Copyright ©
Mr Justice Blair:
The statutory framework
"But even when a review is a full re-hearing in the sense of considering the matter afresh, if necessary by hearing oral evidence again and, even admitting fresh evidence, the appellate court should still, said May L.J. at paragraph 96 [in E.I. Dupont de Nemours & Co v. ST Dupont (Note)  1 WLR 2793, paras 92-98] 'give to the decision of the lower court the weight that it deserves'. This elasticity of meaning in the word re-hearing in CPR 52.11 should clearly apply also to the same word in the Practice Direction. It all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal, was, as provided by CPR 52.3(a) "wrong", and, whether on the way to reaching such a conclusion, it draws, pursuant to CPR 52.4 "any inference of fact which it considers justified on the evidence"."
"… it is plain from the authorities that the court must have in mind and give such weight, as is appropriate in the circumstances to the following factors: (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
"Because it does not itself hear the witnesses give evidence, the court must take into account that the Disciplinary Committee was in a far better position to assess the reliability of the evidence of live witnesses where it was in issue. In that respect, this court is in a similar position to the Court of Appeal hearing an appeal from a decision made by a High Court Judge following a trial. There is, however, one important difference between an appeal from a High Court Judge and an appeal from a Disciplinary Committee. The Disciplinary Committee possesses professional expertise that a High Court Judge lacks … This Court appreciates that such a Disciplinary Committee is better qualified to assess evidence relating to professional practice, and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more …"
The appellant's case
Abuse of process
(i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;
(ii) Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;
(iii) No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held;
(iv) When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate directions from the judge;
(v) If, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted.
There is no complaint by the appellant as to the advice thus given. Having been so advised, the Committee retired, and returned with a decision refusing the application, stating in its reasons that it was not satisfied that the delay was such that the appellant would suffer serious prejudice to the extent that no fair trial of the issues could take place.
Standard of proof
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."
"… are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established."
The evidence relating to charges 2(c), (d), (e) and (f)
The evidence relating to charges 10(a), (b) and (c)
Closing speeches and the advice given to the PCC
The Committee's findings of fact
Conclusions on the appeal