England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/03/2010

THE HONOURABLE MRS JUSTICE NICOLA DAVIES DBE:

1. This is an appeal by Mr. Saunders pursuant to section 9 of the Hearing Aid Council Act 1968 ('the Act') against a decision of the Council's Disciplinary Committee ('the Committee') dated 9 February 2009 to erase the name of Mr. Saunders from the Register of Hearing Aid Dispensers, and further ordering him to pay costs of £30,000.
2. Section 7 of the Act provides grounds upon which a sanction may be imposed on a registered dispenser by the Disciplinary Committee of the Council. The three categories of conduct which may result in sanction are:

i) A conviction for a non-trivial criminal offence.

ii) Serious misconduct in connection with the dispensing of hearing aids or the training of persons to act as dispensers of hearing aids.

iii) Contravention of any code of trade practice published by the Council under section 1 of the Act.

It is in relation to category (iii) that it is alleged the appellant's conduct falls. Paragraph 1(a) of the Code of Practice provides 'all dispensers and all employers of dispensers shall maintain at all times a high standard of ethical conduct in the operation of their practices, the dispensing of hearing aids and in the training of their trainees.'.

If found proved pursuant to Section 7(1), the Committee may impose any one or more of the following penalties:

i) An admonition;

ii) A monetary penalty, presently not exceeding £5,000;

iii) Suspension of the registration of a person's name for such a period as the committee think fit;

iv) Erasure from the register of the name of the person.

Section 8 of the Act permits a person whose name has been erased from the register to apply to the Committee to be reinstated, but not before 10 months from the date of erasure.

Section 10(3A) empowers the Committee to order any party to the proceedings before them to pay the whole or any part of the cost of the proceedings.

3. The appellant is a registered dispenser of hearing aids. In May 2005 he began working at a Specsavers store in Eastbourne. He did so under a standard arrangement whereby a company was created, Eastbourne Specsavers Hearcare Limited, of which the appellant was a director and employee. The company was part-owned by the appellant and part-owned by Specsavers. The appellant had access to a computer in the 'open hearcare' testing room, a room used for carrying out hearing tests and programming hearing aids. In addition to work related matters the appellant used the computer to receive personal emails. Through a social networking website the appellant received pornographic pictures which he viewed and saved onto the computer. The appellant deleted these images, but it would appear that thumbnail versions of the images remained stored on the computer. On 27 April 2007 another employee of Specsavers visited the Eastbourne shop. He inserted a USB memory stick into the computer in order to transfer some files of patient records. The insertion of the memory stick caused a computer programme to open, displaying thumbnails of the deleted images on the screen. The employee alerted more senior employees within the company and there followed an investigation by the police and by Specsavers. The police took no action against the appellant, however, the matter was referred to the Hearing Aid Council.

The Hearing

4. At the outset of the hearing on 16 October 2008, Counsel who appeared on behalf of the Council informed the Committee that he was limiting the original charge, by reducing the number and nature of images relied upon. Originally the nature of the images went beyond what might be termed adult pornography, but it was adult pornography images which were now relied upon. The charge as formulated read:

"CHARGE 1

That contrary to Clause 1(a) of the Code in force at all material times

1. Between the 23 May 2005 and 9 May 2007 you were an employee and director of Eastbourne Specsavers practising at 43 Terminus Road, Eastbourne, East Sussex, BN21 3QL. Your duties included the dispensing of hearing aids and the day to day management of Eastbourne Specsavers.

2. The facilities at Eastbourne Specsavers included a testing room. Situated within the testing room was a computer ('the Computer'), the principal use of which was intended to be the maintenance of client records and programming of hearing aids. Consequently, the use of the computer was not restricted to yourself as other individuals required access to it from time to time, in order to undertake their professional duties.

3. Between 23 May 2005 and 29 April 2007 you stored a number of pornographic images on the computer. These images included adult pornography and an image of yourself naked. You stored these images in a file named 'Dirty'.

4. On or around 28 April 2007, a locum hearing aid dispenser used the Computer in your absence and was exposed to indecent images stored on the Computer.

5. You failed to comply with the terms of Clause 1(a) of the Code in relation to maintaining a high standard of ethical conduct in the operation of your practices relating to your use of the computer in that you used it to store the following images:

i. pornographic images of adults.

ii. an image of yourself naked.

Further, in storing these images on the computer, you exposed your colleagues to images of an offensive nature"

5. The substantive hearing commenced on 16 October 2008 and continued on 10 December 2008 and 9 February 2009. The appellant was represented by counsel at the preliminary hearing, thereafter he was unable to afford legal representation. The appellant accepted that he had stored pornographic images on the computer, but denied there was a naked image of himself. The Committee found that there was an image of the naked appellant on the computer. It also found that the appellant had fallen below the standard of conduct required. The Committee ordered the appellant's erasure from the register and that he pay costs in the sum of £30,000.

Appeal

6. It is contended by the appellant and not disputed by the respondent that the approach of the court should be that summarised in the case of Cheatle v General Medical Council [2009] EWHC 649 (Admin) 12-15. In essence:

i) The question is whether the Committee's decision was wrong;

ii) This is a broader test than judicial review of rationality;

iii) Weight must be given to the expertise of a specialist tribunal, particularly in relation to sanction, but the amount of deference to be given depends on the circumstances, including the composition of the panel, for example whether it has more lay than professional members.

7. At the outset, it appeared that there may be an issue as to whether or not this appeal was out of time, but this is not a matter which has been pursued.
8. The sole ground of appeal is that the sanction of erasure was disproportionate and the costs order was wrong or excessive.
9. Given the facts of this particular case it is contended on the behalf of the appellant that less deference should be given to the Committee than might otherwise be the case. These facts do not involve clinical practice or issues of professional judgment. The Committee comprised three lay and two professional members. The court is therefore in as good a position as the Committee to exercise its judgment as to the appropriate sanction.
10. It is submitted that the sanction of erasure was wrong; it was disproportionate to the appellant's misconduct. The sanction imposed had the effect of punishing the appellant in circumstances where confidence in the profession could have been maintained by means of a lesser sanction. Specifically, the Committee's decision demonstrates the following errors:

i) The decision did not identify which aspect of the appellant's conduct was considered to be fundamentally incompatible with his continued registration, therefore there was no basis for erasure;

ii) The Committee gave insufficient weight to the fact that the images themselves were not illegal and that there were relatively few of them. They did not indicate a pattern of regular and large scale downloading of images;

iii) The Committee gave insufficient weight to the fact that the appellant had deleted the images at least a year before their discovery, and at that at the time they were discovered they were in a part of the computer which could not be deliberately accessed;

iv) The Committee gave insufficient weight to the unlikelihood of the images being seen by a colleague or a patient;

v) The Committee described the appellant's behaviour as showing contempt for colleagues, patients and their feelings. It was submitted that this was an unfair description for which there was no sound basis. The appellant's viewing and storage was an entirely private act, he was the principal user of the computer on which the images were stored, he had no intention of the images being seen by anybody else;

vi) The Committee wrongly and unfairly described the appellant's evidence as 'unreliable' and 'evasive on many events' and the appellant 'continually minimised' what he had done. No examples were given by the Committee;

vii) The Committee appeared to give no weight to the appellant's early admissions and expression of regret;

viii) The Committee gave insufficient weight to the appellant's good character, good professional record and positive testimonials;

ix) The Committee gave no weight to the fact that the appellant had already lost his job, his livelihood, and had not worked for almost two years by the time of the hearing;

x) The Committee gave no or few reasons for not imposing a lesser sanction than erasure.

11. On behalf of the Council the following points were made by Mr McNally; neither Mr McNally nor his instructing solicitors had conduct of the case at the original hearing.

i) The decision was one which was properly open to the Committee to make;

ii) Specifically it was stated that the appeal "is to be determined on the unchallenged findings that Mr Saunders had, over some time, deliberately used a 'work' computer for the purpose of accessing (or obtaining) and storing hardcore pornography in a folder called 'Dirty', and this included a naked image of himself";

iii) The Committee was well placed to understand the nature of the duties imposed upon a practitioner;

iv) Having pornography or indulging one's sexual interests at the workplace is no part of the role of being a hearing aid dispenser. The Committee cannot be criticised for recognising the additional stigma which attaches to Mr Saunders himself featuring in the range of offending pictures;

v) No mitigation was to be attached to early admissions of wrongdoing. The acceptance of responsibility for some images was at best an evasion of responsibility in the face of what would have been overwhelming evidence, further the matter had to be tried fully and this culminated in Mr Saunders having an adverse finding made against him, most importantly as to his probity. This in turn undermined his position and the attestations as to his previous good character;

vi) The sanction which followed upon the finding against the appellant should properly comprise an element of punishment and is not limited to a notion of rehabilitation;

vii) The factors which the Committee took into account were all properly reasoned and open to them;

Facts

12. The claimant's case on the facts:

i) The images were lawful;

ii) They numbered 15 in total;

iii) The viewing and storage of the images was intended to be a private act;

iv) The images had been deleted;

v) The images had been stored and deleted when the appellant was using the computer as his own, he was the co-owner of the company;

vi) There was no practical risk of patients seeing the images and no patient did;

vii) There was no reason for the appellant to think that having deleted the images he had failed to remove them from the computer;

viii) The discovery of the images was at least one year after deletion. There has never been a satisfactory explanation as to how they appeared.

13. A fundamental difficulty for the Committee and this court is that the images have not been produced, crucially the exact number comprising the subject matter of the charge has not been specified. At the original hearing Council witnesses were asked questions as to the generality of images subsequently discovered. As to number and timing the answers reflected the totality of the images seen and were not limited to those contained within the charge. This is of critical importance in seeking to identify the time frame within which the images were downloaded and stored by the appellant. In his evidence the appellant stated that the unsolicited images which were the subject of the charge arrived over a period of two to three days. There was no direct evidence to contradict this assertion.

Decision of the Committee

14. The Committee concluded that the appellant had stored pornographic images on the computer and also a naked image of himself. It stated that the storing of the images on his work computer meant that the images became available and visible to colleagues and could conceivably have become available and visible to patients. As such it showed a level of contempt for colleagues and patients and their feelings which fell below the required standard. Specifically, the Committee concluded that the storage and display fell woefully short of the ethical standards which are properly expected of members of the profession.
15. The Committee began their determination on sanction by identifying the appellant's failure to comply with the obligation to maintain a high standard of ethical practice by downloading and storing on his computer a range of adult pornography as well as a naked picture of himself within his professional environment. As to the appellant's mitigation, the Committee noted that he had put forward material demonstrating that he is a trusted member of his community, that he had expressed regret and remorse, that no clients had seen the material, that by attempting to delete the material the appellant maintained he had done everything that he could, it was not reasonably foreseeable that anyone would in the future see the material.
16. Specifically the Committee stated that it was not concerned to punish Mr Saunders; it was seeking a proportionate response to the matters with a view to ensuring that future risks were appropriately managed and the public interests were secured. The following was said:

"The Committee has attempted to view this matter in the round. It was a sustained course of conduct, with repeated downloading, opening and storing of the pornographic material within the professional environment, which ultimately led to its viewing by his colleagues. We properly viewed it with a view to determining what was going on within a professional environment."

The Committee then considered each of the sanctions it could impose, and concluded that erasure was the proportionate response.

17. Criticism is directed at the finding by the Committee that there was a sustained course of conduct on the part of the appellant. The uncontradicted evidence of the appellant was that these events took place over two to three days. It is unfortunate that evidence was led from Council witnesses which did not confine itself to the specific images and relevant timeframes. Further, the reference to repeated downloading, opening and storing of pornographic material does not reflect the fact that a limited amount of images were contained in the final charge. This is a regrettable consequence of a failure to identify at the outset the number of images relied upon by the Council.
18. The evidence before the Committee did not provide a sound evidential basis for the finding of a sustained course of conduct and repeated downloading and storing. This was a significant finding by the Committee and one which underpinned its determination both as to conduct and sanction.
19. There is no challenge to the finding by the Committee that the appellant was in breach of his Code of Conduct. The conduct of the appellant was unprofessional and wholly inappropriate for any person in a workplace.
20. The appellant's conduct was not illegal. It was contained both as to time and place. The appellant did all he reasonably believed he could to eradicate the offending material. In their determination the Committee made no reference to the fact that the images were not illegal and had been deleted for at least a year prior to their discovery. Quite how a subsequent employee managed to open this programme was never known. The Committee mentioned, in passing, that the police may have characterised the underlying images as inaccessible but thereafter appear to give little or no weight to this fact. There is force in the grounds of appeal set out in paragraph 10(ii) to (v) above.
21. The finding by the Committee as to the sustained course of conduct and repeated downloading and storage is flawed. Insufficient weight appears to have been given to the matters set out in paragraph 20 above. All of these matters are relevant to sanction.
22. The Committee asserted that it was concerned not to punish the appellant. On the facts of this case it is difficult to see what other purpose the order of erasure served. The sanction of suspension would have properly reflected the gravity of the offending and been a proportionate response to the nature and circumstances of the offence. Accordingly the order of erasure is quashed and a period of 6 months suspension is substituted.

Costs

23. The appellant is a man of no means. He was dismissed from his employment with Specsavers. The Committee was aware of this when they imposed the costs order. In the proceedings before this court the Council did not seek to uphold the totality of the order, but sought instead a reduced order in the sum of £11,270.63. The court was informed that by reason of the Council's proceedings employment was difficult if not impossible for the appellant to find. The period of suspension will carry its own financial penalty. In the circumstances, the order for costs is quashed.