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
		24 April 2012

1. MR JUSTICE BURNETT: On 14 April 2011, the Fitness to Practise Committee of the General Optical Council ("the Committee") found that the appellant's fitness to practise as a registered dispensing optician was impaired by reason of a number of convictions for fraud, for which he had been sentenced at Southwark Crown Court by HHJ Rivlin QC on 13 April 2007, and by other misconduct. The Committee decided to remove the appellant's name from the register and immediately suspended him. The decision was given on the third day of a hearing, which the appellant did not attend but at which he was represented. An application to adjourn the hearing had been refused on the first day, namely 12 April 2011. The day before the hearing was listed to start, an indication was given by Mr Graham, who appeared then on behalf of the appellant, that he would be seeking an adjournment on health grounds. On 12 April, the Committee refused that application. It continued to deal with the substance of the case.
2. This appeal is brought pursuant to section 23 of the Opticians Act 1989 ("the 1989 Act") against the decision to erase the appellant's name from the register. The appellant advances four grounds of appeal: first, that the Committee should have adjourned the hearing; secondly, that the panel should have concluded that there was no fraud on the basis of written evidence from Dr Yaqub, to whose role I shall return, despite the underlying convictions; thirdly, that the Committee misstated and misapprehended the extent of the fraud identified in the criminal proceedings (the Committee proceeded on the basis that the fraud amounted to between £50,000 and £65,000 when, says the appellant, it concerned £3,185); fourthly, that the Committee was wrong to erase the appellant's name from the register in any event.
3. The background is this. The respondent is the statutory body responsible for regulation of registered optometrists and registered dispensing opticians, such as the appellant was from 1970. Dispensing opticians are not permitted to test the sight of patients, save to a limited extent under the delegation of a registered optometrist or a registered medical practitioner. Similarly, a dispensing optician may not prescribe glasses. Dr Yaqub was a registered medical practitioner with whom the appellant worked. He was in fact removed from the register by the GMC for administrative reasons, having earlier been suspended in circumstances which are unclear.
4. On 16 March 2007, the appellant pleaded guilty to nine counts of obtaining a money transfer by deception contrary to section 15(a) of the Theft Act 1968. The basis of the convictions was that the appellant, who had been carrying out National Health Service eye tests on patients resident in homes for the elderly and infirm, obtained money transfers from NHS Primary Care Trusts by deception. The nature of the deception was this. He falsely represented that a medical practitioner, namely Dr Yaqub, had signed the forms. In short, this was a case of forgery. Such forms must be submitted to secure payment for an eye test on the National Health Service. The details of the forms are immaterial for the purposes of this appeal.
5. The sentencing hearing occurred on 13 April 2007. At that hearing, the appellant's counsel confirmed that he, the appellant, having carried out eye tests accepted that he then forged Dr Yaqub's signature on the forms to secure payment. The indictment before the Crown Court ranged rather more widely than the counts to which the appellant pleaded guilty. There were counts alleging that the appellant had made false representations to the effect that Dr Yaqub, and not he, had carried out the eye tests, and that his family firm were entitled to claim for the work carried out. There were a number of separate charges of what was described as "unregistered sight testing" contrary to section 24 of the 1989 Act. All of those counts were left on the file in the usual way.
6. The appellant, who appears in person today, submits that he was not in fact guilty of the offences to which he pleaded guilty in the spring of 2007. He denies ever having forged Dr Yaqub's signature on the relevant forms. He suggests that he was "indoctrinated, manipulated and brainwashed" in the Crown Court proceedings by dishonest and unscrupulous lawyers, aided by the prosecution acting in the same way, lying witnesses and what he described as a "renegade judge".
7. The appellant sought permission to appeal both his convictions and sentence out of time to the Court of Appeal Criminal Division. The sentence was a suspended sentence order. Prior to his pleading guilty, the appellant had sought a Goodyear indication from the learned judge. The appellant submits that, to the extent that at the sentencing hearing his counsel accepted on his behalf that the fraud amounted to between £50,000 and £65,000, that he represented the appellant as accepting dishonesty and that he gave an explanation for that dishonesty, his counsel was acting without instructions; indeed, contrary to instructions.
8. A defence case statement, signed long before by the appellant, accepted, in terms, the fraud. It took issue with the other matters which in due time were not proceeded with. The appellant told me this morning that his signature to that document had been coerced from him by his solicitors in the face of threats. This last point, he tells me, would be supported by his son were the matter ever to come for adjudication, because his son was with him at the material time.
9. The general points about the misconduct of the appellant's legal team and his assertion that he was coerced into pleading guilty were, amongst other matters, advanced in the out-of-time application for permission to appeal to which I have referred. That application was refused on paper by the single judge. As was his right, the appellant renewed his application before the full court. That renewed application was made on 22 January 2010. It was dismissed by the court. A lengthy and comprehensive judgment was delivered on behalf of the court by Owen J. It may be found with the neutral citation number [2010] EWCA Crim 117. That judgment recounts the history of the proceedings. It quotes from a document which the appellant signed, recording that he wished a Goodyear indication to be sought from the trial judge. It quotes from the Goodyear hearing itself, and sets out the Goodyear indication. In short, Judge Rivlin QC indicated that, on guilty pleas to the dishonesty counts, there would be no immediate custodial sentence.
10. In the presence of the appellant, and having given the Goodyear indication, Judge Rivlin said this:

"I do very much hope that it is fully appreciated the case of Goodyear, upon which this indication is based, makes it clear that it is entirely up to a defendant to decide whether he pleads guilty or not, but, should he plead guilty, Mr Preedy must understand that that is it. He could not thereafter come back before the court and say 'well, I have made a mistake. I should not have pleaded guilty. I did not understand what was going on' and the like. Any pleas of guilty would be final. Also, that if he did not plead guilty and this matter went to trial, as he has so clearly expressed in his own document, it must be anticipated that the Crown would be free to pursue their case on whatever basis they felt appropriate, and that the learned trial judge would not be bound in anyway by the indication that I have given."

11. The Goodyear indication was given on 15 March 2007. The clear warning from Judge Rivlin carried with it some particular potency in that case. It was not until the next day, 16 March, that the appellant pleaded guilty.
12. As I have recorded, he was sentenced on 13 April 2007. In the course of his judgment in the Court of Appeal, Owen J recounted much of the mitigation advanced on behalf of the appellant and quoted from the sentencing remarks. The appellant contended for the purposes of his application for permission to appeal before the Court of Appeal that his counsel and solicitors had acted improperly. Of that submission, Owen J said this:

"His second complaint it is that he was forced to plead guilty by his counsel and solicitors, whom he alleges to have acted wholly improperly in the conduct of his defence. But it is absolutely clear from the transcript of the hearings that the learned judge was at pains to ensure that the applicant was being given advice as to his position; and that he fully understood and agreed to the steps taken on his behalf. In short, we find no arguable basis upon which the court could be invited to set aside the pleas of guilty that he entered."

13. The appellant, dissatisfied with the approach of the Court of Appeal, pursued the matter to the European Court of Human Rights in Strasbourg. His application was declared inadmissible. The appellant has explained to me this morning that he believes that the Strasbourg court was confused in its approach to his application relating to the criminal proceedings because he had lodged a second application with that court. The second application related to civil proceedings, the detail of which is not before me, but which the appellant explained were brought against him by the NHS. They sought to recover the sums they said had been obtained by the appellant fraudulently. The total was something of the order of £80,000. That sum was mentioned in the course of the criminal proceedings but, as I have indicated, the judge sentenced on the basis of a lower sum.
14. The appellant's contention is that those civil proceedings were grossly unfair, just as were the criminal proceedings. In respect of both, he sought to advance arguments pursuant to Article 6 of the Convention for the consideration of the Strasbourg court. Be that as it may, and in a way which is not really explained, the appellant believes that Strasbourg got mixed up.
15. The appellant continued his efforts to overturn the convictions by approaching the Criminal Cases Review Commission. He has explained to me this morning that the Criminal Cases Review Commission declined to take up the cudgels on his behalf, and therefore declined to become involved in a process which might lead to the criminal convictions being referred back to the Court of Appeal.
16. In the face of a refusal by the Criminal Cases Review Commission, the appellant tells me that he lodged judicial review proceedings, seeking to compel them, I infer, to assist him. His application for permission to apply for judicial review was refused on the papers. He renewed his application to an oral hearing, which took place on 30 March 2012 before Wilkie J. Permission was refused. The appellant is now seeking to overturn that decision in the Court of Appeal Civil Division. He showed me a letter he has received from the Civil Appeal Office which confirms the broad outline that I have sought to explain relating to the Criminal Cases Review Commission and the proceedings which have followed it.
17. It has been necessary to set out in some detail the appellant's dissatisfaction with the whole criminal process because it is, in truth, the springboard from which all his other arguments advance. Put shortly, he says that he has been wrongly convicted and has never acted dishonestly.
18. By way of footnote, I add that the appellant has explained a profound dissatisfaction with the way in which the General Optical Council has conducted itself towards him, in particular (although I am bound to say that the matter is not relevant for the purposes of this appeal) the appellant has told me that the Council involved the Independent Safeguarding Authority in his case in a way which the appellant considers to be disgraceful.
19. The allegations which were before the Fitness to Practise Committee came to this. It was suggested that the appellant's fitness to practise was impaired by reason of his convictions and other misconduct in the following ways:

1) The appellant tested the sight of patients listed in a schedule put before the Committee whilst not registered as an optometrist, an ophthalmic medical practitioner, a medical student or a student optometrist.

2) The appellant forged the signature of Dr Yaqub on the material forms in relation to patients identified in another schedule.

3) The appellant made false claims for payment for sight test examinations and for the supply of prescriptions in relation to patients identified in that second schedule.

4) The appellant failed to declare that he was the subject of a criminal investigation when he was at the time being investigated by Counter Fraud Services (a) on an application for retention form dated 19 January 2006 and (b) on an application for retention form dated 21 December 2006.

5) The appellant appeared at Southwark Crown Court on 16 March 2007 and was convicted upon his own pleas of nine counts of obtaining a money transfer by deception and was subsequently sentenced to a suspended term of imprisonment.

6) The appellant failed to declare that he was the subject of a criminal conviction on an application for retention form dated 22 December 2007 following the conviction at Southwark Crown Court.

7) The appellant's actions described in 1, 2, 3, 4 and 6 were (a) dishonest and (b) not of the standard of conduct expected of a dispensing optician.

20. The appellant accepts that he failed to make the declarations concerned in particulars 4 and 6. He accepts that he was convicted, but, as is by now apparent, contends that such a conviction represents a miscarriage of justice. He asserts that he did not forge Dr Yaqub's signature or make false claims. He accepts that he tested the sight of the very large number of patients identified in the schedule, but argues that he did so under proper delegation from Dr Yaqub.
21. Stemming as they do from events in 2007, the disciplinary proceedings have a relatively long history. They first were before the Committee on 10 April 2008, when the sole matter in issue was the conviction. On that occasion, the Committee directed that the substantive hearing should take place on 17 July of that year. On that date, the Committee adjourned the matter on the application of the appellant in the light of his outstanding application to the Court of Appeal Criminal Division.
22. There was a procedural hearing on 7 September 2010, at which it was directed that the substantive hearing should follow on 17 January 2011. On that date, the Committee acceded to a further application for an adjournment. There were a number of grounds, but the main ground was that the appellant was at that time without legal assistance and was seeking fresh legal representation. The matter was relisted for 12 April 2011. I should note that the principal witness attended in January 2011. On 14 March, so just under a month before the hearing was due to occur, the Committee was once more asked to adjourn the matter, this time on the ground that the appellant's application to the Strasbourg court was outstanding.
23. It was at the beginning of the hearing on 12 April 2011 that the further application for an adjournment was made on the grounds of the appellant's health. The way in which the matter arose was this: on 11 April, so the day before the hearing, Mr Graham had received a short note from Dr Toosey, the appellant's general practitioner, which was in these terms:

"Re: Ronald Preedy [...]

I have seen Mr Preedy today. He has had long term Domestic Problems.

He's very depressed unable to think + comprehend.

He's been referred to PTPC local. Psychologist.

Today I have started him on antidepressants.

He's going to see me 2/52."

The reference to "PTPC" is to the Psychology, Therapy and Prevention Clinic; "2/52" is a reference to two weeks.

24. Mr Graham explained to the Committee that he had been receiving instructions from the appellant until the previous day, that is to say the very day upon which Dr Toosey wrote his note. That much would have been apparent to the Committee, because on 11 April 2011 the appellant signed an extremely lengthy witness statement extending to well over a hundred paragraphs. The appellant has himself explained this morning that he first received that statement in draft on a date he cannot now remember. He made a number of corrections to it. It appears, therefore, that the process was exactly as one would have expected, an exchange between lawyer and client to enable the client to ensure that the statement was accurate. In the usual way, it contained a statement of truth.
25. The short note from Dr Toosey had attached to it the results of a blood test, which to my mind carry the matter nowhere and which were not the subject of any discussion before the Committee. It was appreciated immediately that the note from the doctor was lacking in a certain amount of detail. Its use of the language "very depressed" did not indicate a diagnosis of a medical condition. It said nothing of prognosis. It did not state that the appellant was unfit to attend and engage in the process.
26. What then happened, in short, was this. There was a discussion between Mr Graham and the Committee. The shortcomings of the letter, or note, from the doctor were discussed. It was suggested that Mr Graham might go away for a short while and seek clarification from the doctor. The members of the Committee themselves identified issues and questions that might be asked of him. There was a certain amount of toing and froing during the course of the morning, with patchy information coming from Dr Toosey via Mr Graham, but in due course, and sometime into the afternoon, Mr Graham was able to produce an exchange of emails with Dr Toosey, which set out his final position.
27. The email to Dr Toosey was in these terms:

"Thank you for affording time to Mr Graham this morning.

We appreciate you are extremely busy and, of course, your patients come first. However, you are aware that we are before the General Optical Council today in proceedings against Ronald Preedy.

They have raised some questions in respect of the medical note, which are as follows:

1. Can you please elaborate and provide more details in respect of the previous history of depression and associated treatment in respect of Mr Preedy.

2. Can you clarify how you established that Mr Preedy is not able to think and comprehend.

3. Are you registered under the Mental Health Act Section 12? Did you make the diagnosis on that basis, or is it a non-clinical diagnosis of depression and anxiety?

In my view, reading your note and your helpful telephone call, I would conclude that Mr Preedy is not fit to attend these proceedings. Do you agree?

To assist the Panel, are you able to provide any prognosis, ie when is he likely to be fit to attend?

We apologise for sending you this communication but we would appreciate speaking to you this morning as we are due to be before the Panel at 1pm and we need these answers clarified."

28. The information that had been provided in the course of the morning by Dr Toosey included that he had seen the appellant on 22 March. Although the email from Mr Graham sought a response by 1 pm if possible, the email response came at 2.07 pm. Dr Toosey said this:

"1. I can if you write to me then I can write a report from his record.

2. I have been a general practitioner since 1977. I see several patient in this situation and have to make assessment to assess their mental state. My assessment what wrote in my note to you yesterday is the same.

3. No I am not registered under health act section 12. But have sufficient experience to assess patients if they need treatment or refer to psychiatrist/psychologists.

He has already been referred to PTiPC

In Sutton Hospital.

About prognosis?

When I get report from PTiPC

And treatment give then I will be able to assess.

I am seeing him in two weeks time to review his other medical conditions.

In future please write to me with mr Preedy consent. And will provide.

His mental physical problems/disabilities."

29. Rule 21 of the General Optical Council Fitness to Practise Rules 2005 provides the Committee with a discretion to proceed with a hearing where the registrant, as he is described, is neither present nor represented if "having regard to any reasons for absence which have been provided by the registrant they are satisfied that it is in the public interest to proceed". The rule was obviously not directly applicable because the appellant was represented before the Committee on 12 April. Nonetheless, the parties made submissions concerning the question of an adjournment, accepting that the broad approach of the rules should apply, and also accepting that the Committee should apply the approach identified as being relevant to criminal proceedings in the case of R v Jones [2003] 1 AC 1. The Committee was referred not only to that decision in the House of Lords, but also to passages in the judgment of the Court of Appeal (to be found at [2001] EWCA Crim 168) which had been explicitly approved by their Lordships' House. Other authorities were referred to, including Tait v Royal College of Veterinary Surgeons [2003] UKPC 34, which was directly concerned with disciplinary proceedings.
30. In my judgment, it is abundantly clear that the Committee directed itself on the question of an adjournment by reference to the correct legal principles. The appellant submits that, in the light of the material available to the Committee, it had in reality no discretion but was obliged to adjourn the hearing. I note that such a contention is contrary to the way in which the application was advanced by Mr Graham on behalf of the appellant before the Committee. Correctly, in my view, he recognised that the Committee was tasked to make a discretionary decision, having regard to all of the factors identified in the authorities to which the Committee's attention was drawn.
31. I have set out the circumstances, touching upon the appellant's medical condition, as they were described to the Committee. It is apparent, in my judgment, that there was no proper diagnosis, nor was there any real suggestion of when the appellant might attend. Importantly, there was no explicit indication that the appellant was unfit to attend, despite that very question having been asked in the email sent to Dr Toosey from which I have read.
32. Following consideration of those emails, and having listened to the legal advisor who correctly summarised the legal position, the Committee retired to consider the matter at 3 pm. It is worth noting that the care with which the Committee approached this question of adjournment is reflected in the fact that they started the hearing at 9.40 am and had adjourned in and out of both open and private hearings to enable Mr Graham to illuminate further the medical position. They returned after just short of 20 minutes and refused the adjournment.
33. In the reasons which the Committee gave, which came later, the chairman again referred to R v Jones. In concluding that there should be no adjournment, the Committee noted that the material from Dr Toosey did not state that the appellant was unfit to attend. The Committee balanced the interests of the appellant with the interests of the witness, who had now attended twice, and questions of fairness to the Council. It also had regard to the public interest. In my judgment, there is no proper basis upon which this decision of the Committee, namely not to adjourn, can be impugned. In the circumstances faced by the Committee, it was entitled to reject the application for an adjournment.
34. I turn now briefly to the other grounds of appeal. Dr Yaqub's evidence came before the Committee by way of three documents. There was no question of Dr Yaqub giving oral evidence at the hearing in April. That much is common ground. Thus, his statements were never going to be subject to cross-examination. It does not seem to me that the Committee can be criticised for taking account of the fact that Dr Yaqub had been suspended by the Interim Orders Panel of the General Medical Council, and then that his registration had ceased for administrative reasons. That said, however, the evidence from Yaqub comes nowhere near suggesting that the signatures on the very large volume of forms that were in contention in the case were signed by him and not by the appellant. Dr Yaqub's evidence could not at its highest have begun to undermine the convictions which were at the heart of this case.
35. There were, as I say, three documents: two statements, the first dated 30 January 2007 and the second dated 7 March 2007, and an affidavit of 4 November 2008. It is right to observe that the contents of those documents do not comfortably sit together, but at the heart of the difficulty is the fact that it is accepted, and always has been accepted, that Dr Yaqub was abroad for much of the period during which the material forms were being signed and submitted. There is nothing, in my judgment, in the criticism advanced against the Committee concerning the way in which they treated Dr Yaqub's evidence.
36. Similarly, I can detect no error in the approach of the Committee to the question of the extent of the fraud in respect of which the appellant had pleaded guilty and was sentenced. The figures which the Committee used were the figures which are set out, discussed and explained in the transcript from the criminal proceedings.
37. Finally, the appellant complains that the sanction of erasure was wrong in principle because first, he had already been sentenced for the frauds; secondly, there was no continuing danger to the public; and thirdly, he had been continuing to operate without any adverse incident for some years since the events of 2007. In the course of its explanation for its decision on sanction, the Committee referred to the mitigation that had been advanced on behalf of the appellant. In terms, it recognised that he had been punished for the crime. However, the Committee indicated that it had regard to two particular factors. The first factor was the need to protect others from similar activity in the future, and the second, and perhaps more potent, was the need to protect the reputation of the profession. In professional disciplinary matters, as is well known, the reputation of the profession is a factor which may substantially inform the question of sanction. In my judgment, in this case and given the extensive nature of the frauds, the sanction imposed by the Council Committee was not only a lawful sanction but a sanction that was almost inevitable. In these circumstances, the appeal is dismissed.
38. MR BRADLEY: My Lord, in light of your Lordship's judgment, I, on behalf of the Council, ask for the Council's costs of the appeal.
39. MR JUSTICE BURNETT: There is a schedule, is there not, somewhere?
40. MR BRADLEY: My Lord, there is a schedule. I do not know if your Lordship has a copy. It has been served on Mr Preedy. My Lord will see that in fact the lawyers at the Council have not made any charge for their services, and the only costs, therefore, are my fees.
41. MR JUSTICE BURNETT: I see. Well, now, Mr Preedy, I have dismissed the appeal. There is an application for costs. A schedule of costs has been served and I am invited summarily to assess them. Do you have anything to say on the question of costs?
42. MR PREEDY: Yes, my Lord. I don't think they should be awarded. I think there is enough evidence that I've submitted to at least have some doubt on the proceedings that led up to the hearing, and I would object to any costs being awarded.
43. MR JUSTICE BURNETT: Thank you.
44. There is an application for costs in this matter. I am invited summarily to assess costs in the sum of £7,200 including VAT. The costs claimed are limited to disbursements. The General Optical Council has chosen not to make any claim in respect of its in-house lawyers' costs; a generous approach, it may be thought, by contrast to some other organisations.
45. I am entirely satisfied that the amount claimed is appropriate. Mr Preedy asks me not to order costs against him essentially on the basis that there is, despite my conclusions, some merit in his appeal. That is not a basis upon which I can refuse the application for costs. The respondent shall have its costs of appeal assessed at £7,200.