QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ROBIN POPE
|- and -
|THE GENERAL DENTAL COUNCIL
Miss Rebecca Harris (instructed by Kingsley Napley) for the Defendant
Hearing date: 28th January 2015
Crown Copyright ©
The Hon Mr Justice Turner:
THE LEGAL FRAMEWORK
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
"…although the court will correct errors of fact or approach:
(1) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;
(2) [it will have regard to the fact] that the tribunal has had the advantage of hearing the evidence from live witnesses;
(3) the court should accordingly be slow to interfere with decisions on matters of fact taken by the first instance body;
(4) findings of primary fact of the first instance body, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
(5) but that where what is concerned is a matter of judgment and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair."
THE BURDEN AND STANDARD OF PROOF
"It shall be for the Council to prove any fact alleged in the notification of hearing, on the balance of probabilities"
"19. The standard of proof relates to the level of certainty which the PCC must reach before it decides that factual allegations have been proved. The GDC has determined that the standard to be applied, in all fitness to practise cases, is the civil standard. This means that the PCC must find that it is more likely than not that the allegations are true.
20. The adoption of the civil standard is appropriate in a system concerned with fitness to practise issues that is aimed at protecting the public."
"13.The PCC appear to have properly understood that they had to be satisfied that an allegation is more likely than not in order to find it proved, but their varied and inconsistent explanations for how they reached that position suggest that the burden of proof has not been ascribed its proper weight. Since the PCC sometimes expressed the direction of the burden of proof correctly and were given proper advice on this basic principle by the Legal Adviser, it does not appear that they simply erred by reversing the direction of the burden.
14. Rather, the only way in which their various descriptions of how they reached their conclusions can be reconciled is if they started from a neutral position when considering the evidence; that is, they started without any assumption about whether the allegations were correct or not, with the evidential scales evenly balanced. The effect of this error is profound. It substantially lightens the burden of proof, effectively rendering it weightless."
"If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. It would be an entirely different case from those exceptional instances of special verdicts where a judge asks the jury to find certain facts and directs them that on such facts the prosecution is entitled to succeed. Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence."
"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
And, with respect specifically to the facts of that case in which the charge was one of murder:
"If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted."
"It was common ground between the parties that for a finding of dishonesty to be made, the GMC must prove that (a) the act or omission concerned was dishonest by the standards of reasonable and honest people and (b) that the practitioner must have realised that what he or she was doing was dishonest if applying those standards. The onus of proof rests throughout on the GMC and the applicable standard of proof is the civil standard – that is the balance of probabilities. However, as Lord Nicholls observed in Re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563 at 586:
"The balance of probabilities standard means that a court is satisfied that an event occurred if a court considers that on the evidence the occurrence of the event was more likely than not. In assessing the probabilities, the court will have in mind as a factor to whatever extent it 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 court concludes that the allegation is established on the balance of probabilities. Fraud is usually less likely than negligence … Built into the preponderance of probabilities standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Mr Forde submitted, and I agree, that the principle identified by Lord Nicholls of Birkenhead in Re H applies in relation to allegations of dishonesty such as those that gave rise to the findings of dishonesty in this case. It is noteworthy that the legal assessor did not draw the attention of the FTPP to this point, which is one that all fact-finding tribunals applying the civil standard of proof are bound to have regard to when considering an allegation of dishonesty. In my judgment he ought to have done so."
"However, on the facts of this case, in my judgment this might, and I emphasise the word "might", have made a difference in relation only to one of the allegations of dishonesty."
"(a) an examination of a patient, an assessment of his oral health, and the planning of any treatment to be provided to that patient as a result of that examination and assessment, and
(b) the provision of any planned treatment (including any treatment planned at a time other than at the time of the initial examination) to that patient up to the date on which—
(i) each and every component of the planned treatment has been provided to the patient, or
(ii) the patient either voluntarily withdraws from, or is withdrawn by the provider from, treatment,
by one or more providers of relevant primary dental services;"
"(a) an examination of a patient, an assessment of his oral health, and the planning of any treatment to be provided to that patient as a result of that examination and assessment; and
(b) the provision of any planned treatment (including any treatment planned at a time other than the time of the initial examination) to that patient, provided by, except where expressly provided otherwise, one or more providers of primary dental services, but it does not include the provision of any orthodontic services or dental public health services;
and defined 'complete' in relation to a course of treatment as meaning that:
(i) where no treatment plan has to be provided in respect of a course of treatment pursuant to paragraph 7(5) of Schedule 3 (treatment plans), all the treatment recommended to, and agreed with, the patient by the contractor at the initial examination and assessment of that patient has been provided to the patient; or
(ii) where a treatment plan has to be provided to the patient pursuant to paragraph 7 of Schedule 3, all the treatment specified on that plan by the contractor (or that plan as revised in accordance with paragraph 7(3) of that Schedule) has been provided to the patient…"
"In relation to the findings of dishonesty made against you, the Committee bore in mind that it found you had made 31 inappropriate claims for payment. Of those claims it was found that 20 were knowingly and dishonestly made. In instances where the Committee had accepted there was ambiguity in the regulations governing claiming or where there was a possibility that you had simply made an error in your financial claims, it made no finding of dishonesty against you."
am entirely satisfied on the evidence that this assessment was unimpeachable.