England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		12 March 2015

1. MRS JUSTICE ELISABETH LAING: The appellant is a registered social worker. He appeals against a decision and order of the Investigating Committee ("the Committee") of the Health and Care Professions Council ("the HCPC") made on 8 August 2014. The Committee imposed an interim suspension order for 18 months. That order was imposed after the appellant had been arrested on suspicion of possessing indecent images of children and extreme pornographic images. His trial is now listed for 1 to 2 days starting on 15 March 2015 and I make it clear at the outset that the appellant denies these allegations.
2. On 19 February 2015, a Committee, which had different members from the Committee which had made the original order, reviewed 8 August 2014 decision, as it was required to do under Article 31(6) of the Health and Social Work Professions Order 2001 ("the Order"). The appellant did not go to the review hearing and he was not represented at that hearing. He explained in his oral submissions this morning why he did not go to the hearing and I fully understand his reasons for not going. No possible criticism attaches to him for not attending that hearing in February 2015. The Committee on that occasion decided that it was necessary to continue the interim suspension order in the public interest and in view of the risk of harm to the public.
3. The appellant has represented himself today and argued his case with great concision and impressive realism. Miss Butler-Cole represented the HCPC. She prepared a skeleton argument, which I have found very helpful and for which I am grateful. She made it clear in her submissions that the Committee will review the interim suspension order once the criminal trial has come to an end.

Procedure

4. The appellant lodged an appeal against the Committee's decision under CPR Part 52. The correct procedure is provided for in Article 31(12)(a) of the order. That would have been for the appellant to have applied to this court for the suspension order to be terminated. The HCPC recognises that as the appellant is not represented it would not be fair to take any point about the procedure which he has used for getting this matter in front of the court, and Miss Butler-Cole suggested in her skeleton argument that the court might wish to exercise its case management powers so as to hear this appeal as an application, and I do so. It seems to me that that is a fair procedure to adopt in this case.

The Facts

5. In November 2012 the appellant's employer, Surrey County Council, contacted the police about concerns they had about the appellant. On 31 July 2013, the police searched his home and he was arrested. On 5 August 2013, Surrey County Council suspended the appellant pending the outcome of the police investigation. On 22 July 2014, Thames Valley Police wrote to the HCPC. The letter said that the appellant had been charged with two counts of possessing indecent photographs, or pseudo photographs, of a child and with five counts of possessing extreme pornographic images.
6. On 8 August 2014, as I have already indicated, the Committee held a hearing in order to decide whether or not to impose an interim order and decided that one should be imposed. On 1 September 2014, the appellant pleaded not guilty to the charges and, on 5 September 2014, he lodged this appeal. As I have already indicated, there was a review decision by the Committee in February 2015 and the Committee decided to continue the interim suspension order that had been made in August 2014.

The Law

7. The HCPC's relevant powers are conferred by Article 31 of the order. Article 31(1) gives the Committee power to make an interim order pending the final determination of an allegation against a registrant. Article 32(2) provides:

"32(2) Subject to paragraph (4), if the Committee is satisfied that it is necessary for the

protection of members of the public or is otherwise in the public interest, or is in the interests

of the person concerned, for the registration of that person to be suspended or to be made

subject to conditions, it may—

(a) make an order directing the Registrar to suspend the person's registration (an 'interim suspension order'); or

(b) make an order imposing conditions with which the person must comply (an 'interim conditions of practice order')

..."

8. It can be seen from that that there are three grounds on which an interim order can be made: if the Committee are satisfied that it is necessary for the protection of members of the public, is otherwise in the public interest or is in the interest of the person concerned for registration to be suspended. The HCPC may apply to the court for an interim order to be extended for a period of up to 12 months (Article 31(8)). The registrant may apply to the court to terminate or to vary an interim order. Article 31(12) provides:

"(12) Where an order has effect under paragraph (2), (7) or (9), the court may, on an application being made by the person concerned—

(a) in the case of an interim suspension order, terminate the suspension;

(b) in the case of an interim conditions of practice order, revoke or vary any condition imposed by the order;

(c) in either case, substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it)

and the decision of the court under any application under this paragraph shall be final."

9. In her skeleton argument Miss Butler-Cole referred me to the decision of the Court of Appeal in Perry v Nursing and Midwifery Council [2013] EWCA Civ 145:

"20 What the Committee cannot do, and should not do, is to seek to decide the credibility or merits of a disputed allegation: that is a matter for the substantive hearing of the allegation by the Conduct and Competence Committee, pursuant to Article 27 of the Order. Necessarily, at the interim stage, the Committee must not and cannot decide disputed issues of fact in relation to the substantive allegations. The Committee must also be extremely cautious about rejecting or discounting evidence on the basis that it is incredible or implausible...

27 It can be seen that Hiew's case [2007] 1 WLR 2007 is authority for the proposition that the matters to be taken into account on an application to the court for the continuation of a suspension order are the same as those relevant to the making of the order by the professional interim orders body (there the Interim Orders Panel and in the present case the Investigation Committee), and that is 'to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension' and that 'In general, it need not look beyond the allegations'."

Perry, as its title suggests, concerns the powers of the Nursing and Midwifery Council, but it seems to me obvious that similar principles must apply in this context also.

The Decision.

The Committee's decision was in the following terms:

"In deciding whether to impose an interim order today the Panel is not in a position to weigh all of the evidence, but must act on the information that is available. The appropriate place to consider and weigh all of the evidence in relation to the allegation is at a fitness to practise hearing. The Panel's task today is therefore to consider whether the nature and severity of the allegations is such that if Mr Chigoya remains free to practise without restraint he may pose a risk to the public or to himself or that for wider public interest reasons his freedom to practise should be restrained.

The Panel had regard to the overall strength of the evidence, whether the allegations are serious and credible and the likelihood of harm or further harm occurring if an interim order is not made. The decision to make an interim order should not be taken lightly and will depend upon the circumstances of each case. However, cases in which restraint of freedom to practice may be appropriate include those involving serious misconduct and cases where the broader public interest, such as public confidence in the regulatory process or the profession concerned, may be at risk.

In view of the seriousness of the allegations the Panel considered that an interim order was necessary. The Panel considered less onerous alternative interim conditions of practice would secure the requisite degree of protection, because an interim suspension order should only be imposed if the Panel regards conditions of practice as being an insufficient safeguard. The Panel finds that no workable, verifiable and appropriate conditions of practice can be formulated in Mr Chigoya's case, in view of the nature and the number of the allegations.

The Panel finds that an interim suspension order is necessary in this case due to the serious nature of the criminal charges faced by Mr Chigoya. If the Registrant remains free to engage in unrestricted social work practice whilst awaiting trial for possessing two indecent images of a child and five extreme pornographic images concerning animals it is not in the public interest, because it is likely to undermine public confidence in the social work profession and the HCPC regulatory process. It is also necessary to protect the public, in particular vulnerable service users, including children, by imposing an interim suspension order. Taking into account the evidence of Mr Chigoya and his wife the Panel concludes that an interim order of suspension is proportionate.

I therefore order that the registrar is directed to impose an interim order of suspension on the registration of Mr Clayton Chigoya for a period of 18months. The order will be reviewed by a Committee no later than 8 February 2015, or if new evidence which is relevant to the order becomes available, after it is known. There is a right to apply to the court, and all of that is set out in the decision."

10. In his notice of appeal the appellant made a broad point, which was that the decision to make the interim order was unjust because of serious procedural errors. His point really was that the order had been based on the mere fact that the appellant had been charged with the counts to which I have referred, and that the Committee did not weigh the evidence or consider the appellant's evidence at all in coming to its decision. He argued in his notice of appeal that the Panel failed to prove the credibility of the allegations, as well as the likelihood of harm or further harm if an order were not imposed, and he then made some points about the facts, which are expanded in his statement, to which I now refer.
11. In his statement the appellant made eight broad points about the facts. First, he said that he was not aware of the images until they were played at the police station when he was charged. Second, he said that it was important that at the time when he was arrested he had stopped using the mobile 'phone, which was the centre of the allegations, for about 3 to 4 months and had been using his wife's old handset. Third, he said that he had been having problems with this mobile 'phone for quite a long time and as it had not been insured he had not been able to afford to send it to be repaired and as a result had continued using it until it became more or less unusable. Fourth, he said that at the time he was arrested he was actually waiting for an upgrade for his 'phone and he would have transferred all the numbers from the old 'phone to a new 'phone, and the upgrade in fact only arrived the day after he was arrested.
12. Fifth, he said that he had been told that the images were on WhatsApp social media and he has never asked anybody to send him anything and has no control over what is posted on his WhatsApp. Sixth, he said that when he was arrested the police seized 19 exhibits, which included five phones, three laptops, various recordable media and USB keys. The police found nothing at all on 18 of the exhibits, which were returned to him. The only item on which they found anything suspicious was this 'phone that was not working properly, and which he had stopped using at the time he was arrested. Seventh, he said that if he were a danger to the public in any way, more similar material would have been found on his other devices and no such material was found. The eighth point he made in his statement was that he had a clean record at work and he felt that that should have been taken into account by the Committee when it made the order and that as a result the order was a gross miscarriage of justice.
13. The appellant's wife has also given a statement and she makes three relevant points. She says that she believes that he is innocent; she knows that he would not have kept the material if he had known that it was on his 'phone; and she knew that his 'phone was not working properly, and that the appellant had been using her handset at the time that he was arrested.
14. The appellant's argument in his notice of appeal is effectively that the Committee should have weighed up his evidence and the evidence of his wife before it reached a view, and should have proved the credibility of the allegations as well as the likelihood of harm. His case essentially is that given the background facts that he refers to in his statement, and which I have just set out, the allegations that he faces are not credible. He feels that the Committee dismissed his evidence and the evidence of his wife without giving reasons, and that that evidence was belittled by the Committee. He also argues in his notice of appeal that the Committee wrongly focused on the public interest to the exclusion of all other factors.
15. In his oral submissions this morning he made two broad points. The first was that he said what a hearing should consider consists of two sides both saying their piece and then somebody arbitrating between them. If that does not occur at a hearing, then why should there be a hearing at all? His second point was that he questioned why the Committee could not have waited for the criminal case to come to an end before making a decision.
16. I fully understand the appellant's frustration with the situation which he faces. However, as Miss Butler-Cole points out in her skeleton argument, the Committee did refer in their decision, albeit briefly, to the evidence which they had heard. But more fundamentally it seems to me that given the approach of the Court of Appeal in Perry the appellant's criticisms of the approach of the Committee are, as a matter of law, misplaced. It is clear from Perry that the Committee has a very limited role (if indeed any role at all) in making decisions about the allegations which underlie an application for an interim order. The role of the Committee rather is to decide whether or not it is necessary to make an order in order to protect the three interests to which I have referred.
17. That was the approach that was clearly adopted by the Committee in this case, as can be seen from the terms of its decision which I have quoted in full. Moreover, it is clear from the Committee's decision that it did not just rely on the public interest in maintaining confidence in the profession when deciding to make an interim order. It also relied on the need to protect the public, especially vulnerable service users.
18. I understand the appellant's unhappiness at the Committee's apparently cursory approach to his account of the facts, but because of the legal framework they were not required to, and indeed did not have power to, make any decisions about the underlying truth or otherwise of the allegations. It follows from that that they were not required to set out at any great length the evidence which they heard from the appellant. Given that they were not in a position to decide whether or not the evidence was true, they were not required to explain, at any great length, what that evidence was. They did clearly record that the appellant denied the allegations, which, from his perspective, is the critical point.
19. So far as the two arguments which the appellant made in his oral submissions are concerned, I would say this. The order provides that there should be a hearing when the Committee is considering whether or not to make an interim suspension order. So the first point is that the law requires there to be a hearing. Whether or not, on the facts of a particular case, there is much scope for an order to be challenged is a different question, but the right to have a hearing does protect the registrant's interests because it is his opportunity to explain to the Committee what impact an order will have on him and for him to try to persuade the Committee, in an appropriate case, that a sanction less onerous than interim suspension might be appropriate on the facts of his case. However, because of the legal framework, as I have already indicated, the Committee has a very, very limited role, if any, in deciding whether or not the underlying allegations are true.
20. I turn to the second point which the appellant made in his oral submissions: why could the Committee not have waited for the criminal case to come to an end? The answer to that is found in the decision of the Committee. They had two points in mind when they made the order. The first was the public interest in maintaining confidence in the profession, and the second was the need to protect the public, especially vulnerable service users. The point here is that if the Committee are not in a position to decide whether or not the allegations are true, they have to consider, as part of their public duty, what the consequences would be for the public interest and for the interests of vulnerable service users if the allegations were true. If the allegations were true it is absolutely obvious that both those interests would be protected by an interim suspension order. By making an interim suspension order they were not prejudging the truth or otherwise of the criminal charges, but what they did was to adopt a cautious and prudent approach to protect both of those interests.
21. For those reasons, while I fully understand the appellant's unhappiness with the position that he finds himself in, I must dismiss this appeal.
22. MRS JUSTICE ELISABETH LAING: Thank you both very much.
23. MISS BUTLER-COLE: Thank you, my Lady. It may be my hearing but I heard my Lady say that in relation to the powers of the HCPC they could apply to the court for an order to be "suspended" for 12 months, but it is actually "extended".
24. MRS JUSTICE ELISABETH LAING: It may well be I said the wrong thing. I will write a note to myself for when I correct the transcript. Thank you very much. That is very helpful.
25. MISS BUTLER-COLE: There is an application for costs on behalf of the HCPC.
26. MRS JUSTICE ELISABETH LAING: Is there a costs statement in the bundle?
27. MISS BUTLER-COLE: There is one filed with the court separately.
28. MRS JUSTICE ELISABETH LAING: I do not think it reached me.
29. MISS BUTLER-COLE: Some modification is required to it because it is premised on the basis of a 5-hour hearing, which clearly is not the case. Had the hearing been 2 hours, which was my revised estimate this morning, that was going to alter the final total so that it was £8,749. It has been 2½ hours so the figure will be somewhere around £8,800, something of that order.
30. MRS JUSTICE ELISABETH LAING: Are there any aspects of the statement you want to draw my attention to?
31. MISS BUTLER-COLE: My Lady, I checked with my instructing solicitor the "attendance on others", which is always somewhat puzzling. The personal attendance relates to attendance at court to deal with issuing documents, and so on, and the letters and telephone underneath that relate to correspondence with my chambers. The other matters are self-explanatory. Of course I am in the court's hands as to an appropriate figure on summary assessment.
32. MRS JUSTICE ELISABETH LAING: Mr Chigoya, have you had a copy of the costs assessment? Is there anything you would like to say about the amount?
33. THE CLAIMANT: It is too much. I don't think I can afford it.
34. MRS JUSTICE ELISABETH LAING: No, it does seem quite a lot. The problem is that lawyers, as you probably know, are expensive people to tangle with. Do you want to say anything about whether I should make an order for costs at all, so in other words about the principle?
35. THE CLAIMANT: What would I have to say?
36. MRS JUSTICE ELISABETH LAING: That is a very good question. The normal rule is that if you make an application to the court and you lose you have to pay the other side's costs. So I think you are right to think there probably is not very much you can say about that. It is quite difficult for me. I think what I am going to do is reduce the total to £7,500. It is a very rough and ready exercise, but that is what I will do. So I will order Mr Chigoya to pay the costs in the sum of £7,500.
37. Is there anything else I can usefully deal with? No, then thank you both very much.