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
		23/03/2016

Mrs Justice Elisabeth Laing DBE:

Introduction

1. This is an appeal, pursuant to article 58 of the Pharmacy Order 2010 ('the Order'), from a decision of the Respondent's Fitness to Practise Panel ('the FPP') on 18 September 2015 to erase the Appellant's name from the Respondent's Register. I will refer to the Appellant as 'A'.
2. There are three broad grounds of appeal.

i) The hearing was conducted unfairly.

ii) The evidence was not 'cogent' enough to support the FPP's factual findings.

iii) The penalty of erasure was disproportionate.

3. As I will explain, the background to the FPP's decision was an undercover investigation by the BBC. The BBC filmed footage which appeared to show that on 23 August 2012, when A was both the superintendent and the responsible pharmacist in the Safeer Pharmacy ('the Pharmacy'), a prescription-only medicine, amoxicillin, was supplied by a counter assistant, Thula Auda, without a prescription, that A knew that, and that the supply was unlawful. Thula Auda is A's daughter.
4. A was initially represented by solicitors and counsel. On 23 July 2015 they applied in writing for an adjournment of the hearing before the FPP that had been listed for August that year. That application was refused. A then lost confidence in her legal team. She instructed a second team. Counsel applied again for an adjournment on 17 August at a case management meeting. That application was also refused. A then applied again for an adjournment on the first day of the hearing, on 18 August. That application was refused also. A then represented herself, with the help of her husband, Dr Auda, at the hearing of the facts. The FPP adjourned on 20 August, and told A that there would be a further hearing on 18 September at which it would announce its decision on the facts, and, if necessary, deal with impairment and sanction.
5. At the hearing of the appeal, Mr Forde QC represented A and Mr Hamer the Respondent. I am grateful to both for their clear and helpful oral and written submissions.
6. Unless I indicate otherwise, any page references in this judgment are to A's appeal bundle.

The legal framework

7. Both sides agree that the legal framework is accurately set out in the Respondent's skeleton argument at paragraphs 36-42. I summarise only the main points, therefore.
8. Article 58 of the 2010 Order provides for a right of appeal to the High Court. The appeal is governed by the Civil Procedure Rules ('the CPR'). CPR rule 52.11 provides:

"(3) The appeal court will allow an appeal where the decision of the lower court

(a) was wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.''

9. 'Wrong' means, in reality, 'plainly wrong'; see Shaw and Turnbull v. Logue [2014] EWHC 5 (Admin) at [62] per Jay J. At [214] he said:

"The issue at this stage is whether the [Solicitors Disciplinary Tribunal's] key conclusions that Mr Shaw was dishonest in a number of respects and that Mr Turnbull was dishonest in one specific, albeit important, respect are "plainly wrong". My function is to review the evidence and to apply to it a strict yardstick; it is not to second-guess the STD's findings or to substitute my views for theirs even if, for example, I were of the opinion that the conclusions are probably wrong (for the avoidance of doubt I do not hold that opinion). "Plainly wrong" imports a higher onus of persuasion, and for good reason: the reviewing Court does not see and hear the witness."

10. In Bhatt v. General Medical Council [2011] EWHC 783 (Admin), Langstaff J, after referring to CPR 52.11 and various authorities, said:

''9. I accept and adopt the approach outlined in these authorities, in particular, that although the court will correct errors of fact or approach:

(i) 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;

(ii) the tribunal has had the advantage of hearing the evidence from live witnesses;

(iii) the court should accordingly be slow to interfere with the decision on matters of fact taken by the first instance body;

(iv) findings of primary fact, particularly if found 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;

(v) but that where what is concerned is a matter of judgment and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional expertise of the [fitness to practise panel], 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. To this extent I accept and adopt the submissions of [counsel for the appellant].''

11. The test in CPR 52.11(3) (b) is strict. The procedural or other irregularity must be serious. It must also have caused the decision of the lower court to be unjust; see Keith Davy (Contractor) Limited v Ibatex Ltd [2001] EWCA Civ 740 at [20], [31].
12. The principal purposes of the FPP are to protect patients and the public, and to maintain public confidence in the profession, rather than to punish. Special respect will be paid to its judgment. On appeals against sanction the High Court will correct material errors of fact and law, but should otherwise exercise a distinctly and firmly secondary judgment. A judge on an appeal should not re-sentence; see Raschid v General Medical Council [2007] 1 WLR 1460 CA at paras 19-22, 26-29. In Salsbury v Law Society [2009] 1 WLR 1286 at [30], the Court of Appeal said that since the Solicitors' Disciplinary Tribunal was an expert and informed tribunal which was particularly well placed to assess what measures were required to deal with defaulting solicitors and to protect the public interest, an appellate court must, absent any error of law, pay considerable respect to its sentencing decision.
13. In Marinovich v. General Medical Council [2002] UKPC 36, Lord Hope of Craighead, delivering the judgment of the Privy Council, said:

"28. …[I]t has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the Committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

29. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their Lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the Appellant was unfit to practise was inevitable. The Committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the Appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the Committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified."

The decisions of the chair and of the committee

14. Mr Forde submits first, that the process was unfair. There were three limbs to this submission, as he developed it in oral argument.

i) The FPP should have recused itself from the hearing.

ii) The FPP 'deprived A of the opportunity to be represented'.

iii) The hearing on sanction was unfair.

Although the first and second decisions not to postpone the hearing are not challenged, they are the background to the first two limbs of Mr Forde's argument, and I therefore need to address both before I consider those two limbs.

The first application for a postponement

15. The hearing was listed in April 2015 for hearing between 18 and 20 August 2015. On 23 July, A applied for a postponement. The parties agreed that the application should be dealt with on paper. The application was drafted by leading counsel for A. A deputy chair ('DC') considered that application, the Respondent's response to it, and Appellant's solicitor's reply.
16. As I have said, the background to the allegations was a BBC programme in December 2012, which appeared to disclose widespread sales, without a prescription, of prescription-only medicines in a number of pharmacies. The reporter who made the programme was Guy Lynn. He paid Arabic-speaking undercover reporters, wearing hidden cameras and recording equipment, to go into various pharmacies and try to buy prescription-only medicines without a prescription. The programme led to an investigation by the police. Footage taken in the Pharmacy appeared to show A being involved in such a sale. A was interviewed on 1 May and on 13 June 2013. She was represented by a solicitor. She gave a prepared statement each time. On both occasions her representative made clear that she did not accept that the footage was genuine. The June statement alleged that the footage was unreliable and had been edited. She relied on her husband's view for that position. He was said to have some expertise in these matters.
17. The July written application for a postponement started by saying that its author had to be careful to avoid breaching privilege. It referred to a conference at which the case documents had been settled, and advice given. A's husband had then told her legal advisers that A was unhappy with aspects of the advice. It then said, 'There are cultural factors at play and the Registrant cannot be persuaded to defy the wishes of her husband'. A had been advised that she was 'not in a position to run the case theory put forward by the [A's] husband without evidential support (expert).' That would take 6-8 weeks to obtain. It would resolve the case, one way or another.
18. In her decision on this application for an adjournment, the DC observed that it was not disputed that A had received a copy of the BBC footage before February 2015. The basis of the application was that A wanted to instruct an expert to support her case that the footage was unreliable. The Respondent resisted that application, pointing out that A had registered concerns about the footage as early as May 2013. A had not explained why she had not instructed an expert sooner.
19. The DC said that the application did not explain why, in the light of the long-held concerns about the footage, an expert had not been instructed long before. Fairness involved fairness to both sides. There was a clear public interest in the expeditious disposal of proceedings. The events leading to the allegations had taken place in August 2012. If A's point (that the case had not been pursued expeditiously so far) was right, that enhanced the need for it to be heard on the date allocated to it. In general terms, the further away the events, the more difficult it can be to evaluate evidence. That might disadvantage the prosecutor, given the burden of proof. A postponement would cause inconvenience to the witnesses. The Respondent would lose three days of hearing time. New dates would have to be found, which would displace other cases. Late applications for postponements affected efficiency, and the timely disposal of other cases. The Respondent was not at fault. The DC took into account the difficulties raised by leading counsel. A had known since February 2015 the case she had to meet.
20. The overriding issue was fairness; to both sides. These were serious allegations, and could lead to a serious sanction. There was a risk of unfairness to A, because if the case was heard on 18 August, she would have no expert evidence. But on the face of it, that risk had arisen because A had not taken timely steps to prepare her defence. She had had an ample opportunity to pursue the issue before 23 July. Balancing all considerations and in exercise of her discretion, the DC decided to refuse the application for a postponement.
21. This decision is not the subject of a separate ground of appeal. But I do not consider that the decision is wrong, still less, clearly wrong, or that it caused unfairness which meets the test in CPR 52.11(3)(b). In short, the DC was right to say that A had not explained sufficiently, or indeed, at all, why she had decided to instruct an expert so late in the day. She had first challenged the integrity of the footage in 2013 and had known of the date of the appeal since April 2015. As against the risk of unfairness to A (for which she and/or her advisers were responsible) the DC had to balance the risk of unfairness to the Respondent, the inconvenience to witnesses, and to the public interest which would result from further delay in this case, and the disruption caused to the timetabling of other cases by any postponement.

The second application for a postponement

22. On 12 August, new solicitors instructed by A wrote to the Respondent asking for an adjournment. A case management meeting was listed on 17 August 2015 to deal with that application. The DC who had made the decision on 23 July on the papers conducted that meeting. The solicitors' position was that if a postponement was not granted, they would not represent A at the hearing. A was represented at the case management meeting by Ms Bracken of counsel. She applied for a postponement.
23. The DC said that A was already unhappy with her legal representatives on 23 July. She was unhappy with advice given on 21 July. A nonetheless signed a witness statement on 4 August. She contacted the second firm on 6 August. That firm did conflict checks on 7 August and agreed to act on 10 August. On 11 August they took instructions on the limited basis that they would not act for A unless there was a postponement. The DC did not understand why the solicitors could not prepare for the hearing between 6 August and the hearing date. There were three witnesses plus video evidence. Instead, they wanted two months. It was therefore clear that they wanted expert evidence. She had already rejected an application on those grounds in July.
24. A wished to be represented. The charge was serious and it affected her reputation and livelihood. She had no experience of legal proceedings. She had always disputed the integrity of the video footage. She raised that in her police interview in 2013. If she was not represented, she would not have counsel to cross-examine on her behalf. Counsel submitted that she had a right to choose her legal representative, and that if there was no postponement, she would be deprived of that choice. In the view of the DC, it was not so simple. It was a late application. One of the reasons for it was the contention that the footage was unreliable. But that concern had been identified in 2013.
25. There was a clear public interest in dealing quickly with allegations. There would be inconvenience if there were a postponement. The witnesses would have to be de-warned and to find new dates. Three days would be lost from the hearing calendar. That would affect the speed with which other cases could be dealt. It was not possible to fill the days allocated to this case with other cases. All the dates have to be chosen carefully because of the needs of the parties, witnesses, representatives and panels.
26. The Respondent was not at fault. A was not a lawyer. But she was a professional who had known since April that the hearing date had been set. She appeared to have lost confidence in her legal team on 21 July, but despite the refusal of postponement on 26 July, did not exercise a choice to change her representative in a timely way. Fairness applied to both sides. It was difficult for A because she had lost confidence in her legal representatives, and her professional reputation and livelihood were at stake. The allegations were serious. But the lack of representation would not mean there was no fair hearing. A had not been deprived of the choice of representative. Balancing all factors, the DC again refused the application for a postponement.
27. This decision was not the subject of a ground of appeal. I do not consider that the decision is wrong, still less, clearly wrong, or caused unfairness which meets the test in CPR 52.11(3)(b). Again, the DC was entitled to decide that there was unexplained delay between the date when the grounds for the application first arose, and its making. She took into account the relevant factors and balanced them appropriately, in my judgment. She was right that the public interest pointed in favour of proceeding with the listed hearing. In effect, she decided that A's desire to change her legal representatives close to the hearing because she had lost confidence in them, and the desire of those representatives to obtain expert evidence, did not trump the other considerations which were in play.

The third application for postponement

28. At the start of the hearing on 18 August, A again said she wanted to be legally represented. The chair of the FPP was the DC who had dealt with the two earlier applications for a postponement. A had discovered communications between her barrister, counsel and the Respondent's representative which A found offensive and insulting and which were 'not at all a portrayal of events'. She wanted to show the email chain to the DC. Before she did so, the DC explained that she needed to think very carefully before disclosing privileged material to the FPP. The DC then explained carefully what that meant. She made it clear that it could 'open up a can of worms', and gave the A the opportunity to have five minutes to discuss this with her husband.
29. The email chain showed that A's husband had told her solicitor that he was shocked at the language used by leading counsel in his exchanges with the Respondent's representative. He had been the person who had considered the option of telling A to 'admit'. It was a lie to say that cultural sensitivities prevented A from defying her husband. The accusation seemed libellous. What cultural sensitivities were being referred to? Their religion? If leading counsel was generalising from what he read in the newspapers, this was 'truly unacceptable', and he would not expect a barrister to use such language about his clients when dealing with the other side. He found it 'quite offensive' and was 'deeply worried' that such a message had been conveyed to the other side. It is not clear, therefore, whether A's husband was aware of the terms of the written application for a postponement to which I have already referred. He also said that he and A had been under a lot of stress since being advised to admit the allegation. An email dated 4 August 2015 which A's husband sent to her legal advisers, which was also part of the email chain, made it clear that A's position all along was that the accusation was denied, because 'we have never engaged in such activities'.
30. A said she was on medication as she had had two strokes and needed to avoid stress. The case was an old one, and she 'strongly' sought an adjournment to be legally represented. It was a very serious matter affecting her honour, her reputation and her income. A decided to put the emails before the FPP. The DC read them and summarised their effect by saying that the relationship with her legal representatives had broken down.
31. The application was opposed by the Respondent. The DC checked with A whether she was relying on ill health as a basis for the application. She said 'Absolutely not'.
32. The FPP retired to consider the application. It decided to refuse the adjournment. The FPP referred to correspondence which showed that A had been very upset by inappropriate observations made by leading counsel. A found out about the communication on 4 August and was very upset about it. It had led to the breakdown in the relationship. The FPP referred to the GP's letter. The state of health was a circumstance which was relevant to the exercise of discretion to adjourn. The FPP had listened carefully to the application which A had explained clearly. A had wanted the hearing in June, and she was not delaying. The FPP recognised that A would feel at a disadvantage. The FPP agreed that very serious issues were at stake. But the hearing was not complex and involved issues of fact. FPP considered the earlier postponement decisions. The FPP acknowledged A's stress and her medical condition. It balanced all the factors afresh. The FPP considered that a fair hearing was possible, and that it was fair that it continued that day.
33. It was submitted in A's grounds of appeal that the FPP should have recused itself from hearing the appeal because it had seen privileged correspondence which was likely to have created a 'prejudicial impression' of A and of her case. The emails showed, it is said, that A was being pressurised by her husband into adopting a course of action she had not chosen, that leading counsel then representing her thought that expert investigation of the footage was not warranted, and that A's defence, which cast doubt on the integrity of the footage, had no merit. Mr Forde did not make much of the point in his oral argument, and I asked him if he was maintaining this ground of challenge. His modified position was that the fact that the FPP had seen this email chain meant that they should have recused themselves from dealing with sanction.
34. There are six obvious answers to this. First, much of this material was contained in the written application for an adjournment on 23 July which was refused by the DC. That was an open document, and that decision has not been challenged. Second, the email chain made it absolutely clear that A's position throughout had been that she did not admit the charge. Third, the email chain also made clear that A's position was that leading counsel's suggestion that A's husband was putting pressure on her was not true. Fourth, if and to the extent that there is material in the emails which was not in the written application of 23 July, A was clearly and carefully warned by the FPP of the risks of disclosing privileged material, and chose, nonetheless, to do it. Finally, it is not argued that the FPP should have recused itself from hearing and deciding the facts. I do not see how, having dealt with that hearing, they could possibly be required to recuse themselves from dealing with sanction. Nothing relevant about their state of knowledge had changed between those two stages of the hearing.
35. In short, A had wanted the FPP fully to understand why the relationship with her legal team had broken down, and in order to do that, she chose, despite advice about the potential risks, to put these privileged communications before the FPP. I do not consider that this sequence of events even arguably meets the test in Porter v Magill [2002] AC 357. There was no application by A to the FPP for recusal. Given her lack of legal knowledge, that, of course, is not a point against her. But any such application, if made, would have been bound to fail.
36. Nor do I consider that there was any relevant unfairness in the decision on this application for an adjournment, or that it was arguably wrong. Nothing had changed since the day before. This is not a case where the Respondent has a policy of not permitting legal representation at hearings; the Rules permit it. This is a case where A had been free to instruct legal advisers, and had done so. Indeed, as the FPP knew, the first legal team had prepared, before the hearing, a skeleton argument, and a witness statement, which A had signed. At p 382 G, the FPP said that her statement dealt with her case 'in a comprehensive manner'. The question is whether a registrant has an unfettered right, effectively in any case where he or she has fallen out with his or her legal team shortly before a hearing, to insist on instructing a new team, regardless of the consequences for the public interest and for the Respondent. In my judgment, in the absence of something very compelling, the answer to that question is 'No'. Registrants are intelligent, well-educated professionals. In a disciplinary hearing they will be familiar with the facts of their own case and with the regulatory framework.
37. It is significant that, immediately after its decision, the FPP said that it would keep the matter under active review and would try to ensure that A could put forward the case she wanted to, and to take part in the hearing. The FPP is entitled to take the view that, with appropriate help and guidance from it, in the normal case, a registrant will be able to represent him or herself. It is clear from the transcript that the FPP in this case discharged that duty by explaining the procedure to A, by explaining the relevant legal concepts, and by doing its best to ensure that she understood what was going on. There are examples of this in the transcript at pp 226, 236F, 263C, and 238B of A's bundle. The FPP was scrupulously fair in its approach to the 'expert' evidence given by A's husband. It received that evidence, despite its dubious admissibility, given his obvious lack of independence, and considered his evidence with care (pp 389 B- 390 C).
38. Mr Hamer showed me the notice of hearing, which contained the allegations and gave detailed information about the hearing, and the procedure which applies. It contains a link to the Rules and was sent out with the Respondent's Indicative Sanctions Guidance ('ISG'). That, in turn, contains information about insight (including the cultural factors which may affect the expression of insight), and about testimonials. The section on testimonials provides no support for Mr Forde's submission that a valuable testimonial can only be provided by a person who knows that there has been a finding of guilt. What it suggests, instead, is that a person who provides a testimonial should know about the allegation which a registrant faces.
39. Mr Hamer also showed me a passage in the transcript at the end of the third day of the hearing, in which the FPP took pains to explain to A what would happen next, so that she could prepare for the next hearing. At the end of the third day, the next hearing date (18 September) was fixed for the convenience of the parties. He submitted that A knew what would happen at the next stage, and that she could have instructed lawyers at that stage. Mr Forde could not explain, when asked, why she had not done so. I accept Mr Hamer's submission.
40. In his grounds of appeal, Mr Forde puts it no higher than 'It is not possible to know what more pertinent or persuasive points might have been made by a legal representative had she had one'. He also said that there was a 'myriad' of points, where, from the transcript, it is clear that A was 'struggling' to grapple with legal concepts (but at many of those points, she was helped by the DC). Neither complaint meets the demanding test in CPR 52.11(3)(b). The FPP was entitled to decide that a fair hearing was possible in this case, and to refuse the third application for postponement. As I have said, it took active steps throughout the hearing to ensure that it was, and continued to be, fair. Mr Forde accepted that this was 'commendable', but nonetheless submitted that it was 'far from ideal'. I have no doubt that a legal representative would have conducted the hearing more smoothly, and would have explored every apparent anomaly in the evidence. But the real issue is whether the lack of representation caused the injustice referred to in CPR 52.11. For the reasons I have given so far, and for those which I am about to give in relation to the facts, I do not consider that it did. I will deal below with Mr Forde's distinct submissions about the fairness of the 18 September hearing below.
41. I note that the FPP revisited the question of the fairness of the hearing in its factual determination (pp 328G-383E). It had 'closely observed' A during the hearing, and she appeared to the FPP 'at all times well able to articulate her concerns and her case in structured and comprehensive way'. In my judgment, that assessment is supported by A's written submission at half time, which is in the bundle. Of course it does not refer to R v Galbraith [1981] 1 WLR 1039. But apart from that Mr Forde's criticisms of it were somewhat harsh. It is a clear and well-argued attack on the Respondent's evidence. In the view of the FPP, the risk of any substantive unfairness could be addressed by self-direction and anxious scrutiny of the evidence. The FPP also considered anxiously whether A had been prejudiced in her defence by the passing of time (pp 384C-E).

The FPP's determination on the facts

42. The FPP's decision on the facts is careful and thorough. It occupies nineteen pages of transcript. The FPP made clear that if it did not refer to any particular aspect of the evidence, it should not be assumed that the FPP had not taken it into account. The decision contains a rigorous analysis, and evaluation, of the evidence. The FPP understood A's case (see p 388E-389C). It considered A's arguments and dismissed them. I will do no more than to summarise the FPP's approach to the case. Mr Forde's overarching point was that the evidence was not 'cogent' enough to warrant the conclusion that the charge was proved. He did not challenge any of the FPP's self-directions on the legal issues it considered (such as entrapment, abuse of process, delay, good character, burden of proof, standard of proof, and the legal framework which applied).
43. At pp 390D-391C, 392G-393B, 394C-394F, 394F-H the FPP tested A's case by reference to what should have happened, on her case, and whether there was any evidence to support her version. They concluded that there was not. I asked Mr Forde whether he contended that there was anything wrong with this approach. His reply was 'Arguably not'. At p 395F, the FPP said that the various scenarios put forward by A were not consistent with what was shown in the footage. That meant that the real question for the FPP was what weight it should attach to the footage, in the context of A's 'strong denials' (p 395F). For her case to be right, significant sections of the footage must have been removed; and there were no written records which supported her case.
44. At p 396B the FPP referred to Mr Lynn's evidence on the subject of editing. The FPP then considered A's attacks on the integrity of the footage. The FPP accepted that dates on metadata can be changed, and that frames can be cut and manipulated. The FPP considered it 'most unlikely' that the footage had been edited as A suggested. The FPP did not accept that anyone was involved in the supply other than A and her daughter. The most significant evidence about the date was that 'SAF 23/8' had been written on the packet of amoxicillin (p 396G). The FPP could think of no possible reason why Mr Lynn would have written this on the packet if the events had happened on 2 August, as the date was (at that stage) wholly immaterial. The FPP noted (for the second time) that he had not produced his diary, but said that other documents supported this date. The FPP found that the date on the 'slate' was a simple mistake, and that Mr Lynn was 'a wholly credible and reliable witness' (p397 A-B).
45. At pp 397B-F, the FPP reminded itself of a number of factors in A's favour (her good character, the various difficulties she had faced in challenging the evidence, and the fact that she was not represented). The FPP had already referred, at p 395D-E, to evidence A had given about why she had given the reporter a business card. This had not been mentioned before, and, in the FPP's view, 'had every appearance of being an afterthought to bolster her case'. At p 397 D-E, the FPP said that A had 'clung tenaciously to her many explanations'. The FPP's view was that her 'account was designed to seek to provide answers to the obvious problems in her case. Her account was rehearsed and manipulative. She showed a marked tendency to avoid the actual questions asked of her. We formed the very clear view that this tendency had nothing to do with any deficit in understanding or the fact that she was unrepresented. She was not a credible or reliable witness'.
46. The FPP found the charges proved. It added, at p 397G, 'Although strictly unnecessary to do so, we add that we consider the evidence in this case to be overwhelming'. This is a convincing answer to Mr Forde's cogency argument. It shows that, on the FPP's assessment of the evidence, this was not a marginal case, or one that was decided only just on balance. The FPP, having directed itself correctly about burden and standard of proof, having scrutinised the evidence carefully, and having reminded itself of A's good character and the various difficulties she had had in challenging that evidence, nonetheless found it 'overwhelming'.
47. The points taken in the grounds of appeal are

i) the original footage was not available;

ii) the names of the undercover reporters were not disclosed;

iii) the FPP gave no, or insufficient, weight to the evidence of DS Dancy; and

iv) there was a factual inconsistency in the FPP's findings.

48. In his oral argument, Mr Forde made a number of criticisms of the evidence on which the FPP based its conclusions. For example, he submitted that the date when the prescription-only medicine was sold was not proved, and that Mr Lynn's credibility had not been adequately challenged. He did not produce his diary or notes; and the un-redacted record of evidence in relation the Pharmacy showed that other drugs, not referred to in the charges, or those faced by Mr Abdul-Razzaq, had been recorded there.
49. Mr Hamer took me to five pieces of evidence which, he submitted, supported the FPP's conclusions. They were the footage (which I watched, at his invitation and with Mr Forde's consent), the translation from the Arabic of the interaction between the undercover reporter and A and her daughter which was shown in the footage, the evidence about the date of that interaction, the packet of amoxicillin which was said to the subject of the interaction, the lack of any evidence of a prescription for 23 August or 2 August 2012, and the evidence that A knew that the subject of the interaction was amoxicillin, a prescription-only medicine.
50. I am satisfied that there was evidence before the FPP from which they could have concluded, as they did, that the footage had not been edited in a material way. Mr Lynn gave evidence that the only editing that occurred was at the start and end of the footage, so as to ensure that the identity of the reporter was not disclosed. If the FPP accepted that evidence, it did not matter that the entire footage was not available. The reason why that was not before the FPP was because the police only asked for a disclosure order from the crown court of the part of the footage which did not disclose the identity of the reporter (see transcript of reasons p 378F-G).
51. As the FPP knew, there was a dispute about the date of the interaction shown on the footage. Mr Lynn gave evidence that there was a mistake on the 'slate' at the start of the footage. This referred to '2nd August 2012'. He did not know who had produced the 'slate'; but that person had made a mistake which was spotted relatively quickly. He had other evidence which, he said, showed that the date was 23 August. That included metadata about the footage, his expenses claim, and what he had written on the box of amoxicillin: 'SAF/23/8'. The FPP referred twice to the fact that Mr Lynn had mentioned his diary and not produced it. I do not consider that his failure to produce the diary made either the FPP's decision that other documents and evidence supported the contention that 23 August was the right date, or the FPP's decision to accept his evidence, wrong, or plainly wrong.
52. The FPP took DS Dancy's evidence into account on the issues of entrapment and abuse of process (p 381C). The FPP returned to his evidence when it considered whether or not there was reliable evidence that the reporter had left the Pharmacy with a packet of amoxicillin. The FPP summarised DS Dancy's criticisms of the evidence trail at p 392B-C. The FPP could see why, as a police officer, he would take that view. The FPP took those criticisms on board, but decided, nonetheless, that there was reliable evidence to support that conclusion (392D). This conclusion was open to the FPP on the evidence which it accepted. It is not wrong, let alone clearly wrong.
53. The FPP dealt with the naming of the undercover reporter at p 382 A-B. The FPP recorded A's argument that this was unfair, and its view that, for the reasons it would explain, this had not led to unfairness. The FPP returned to this at 393C-F. The FPP said that if any record had been made on 2 or 23 August 2012, 'it should have been possible for it to be found and produced' even though A did not find out about the allegation until May 2013. The relevant regulations required any record to be kept for two years. No such record, was produced, however. The point here is that whether or not A knew the actual name of the reporter, or any name assumed by him for the purposes of the programme (I observe in passing that the footage does not show him using any name at all), A could have checked the relevant records for 2 and 23 August 2012 to see if any prescription at all for amoxicillin had been issued by the Pharmacy, or by its resident doctor. The existence of such a prescription, or of such a record, regardless of the name of the patient, would have been powerful evidence in her defence, yet no such evidence was produced by A.
54. The contention that the FPP's decision is factually inconsistent is based on a supposed inconsistency between a passage in which the FPP referred to a test purchase on 12 October 2011 and its findings about 23 August 2012. At p 379 D-G the FPP explained that three dates had been mentioned in the evidence. On 12 October 2011 there was an 'earlier claimed incident' which was said to have been part of 'initial test purchases' by the BBC. This was not filmed. For this, A was 'subsequently able to produce a prescription'. No charge resulted from this and the FPP said that material about it had properly been redacted from the bundle. A wanted to refer to it, because she argued that there was a strong possibility that the footage related to 12 October 2011, 'for which there is a prescription for amoxicillin'. She considered that the redaction was an act of manipulation by the Respondent.
55. This is said to be inconsistent with the FPP's view, expressed at p 393 G, that it was improbable that the reporter had had a prescription on 23 August, and its acceptance of Mr Lynn's evidence that he had told the reporter to say, if asked, that he had no prescription. In my judgment there is no relevant inconsistency. The events of October 2011 did not form the basis of any charge. It was not necessary for the FPP to make findings of fact about events on that date, and in my judgment it did not purport to do so.
56. What the FPP did, instead, was to note that A had produced a prescription for amoxicillin for that date. Because she did not know the name of the reporter, she would not have been able to show, nor could the FPP have found (if it had been relevant for it to do so), that the prescription she produced did relate to the test purchase on 12 October 2011. It might have done; but equally, it might have related to a different transaction altogether, because somebody other than the reporter could have come into the Pharmacy on 12 October 2011 with a prescription for amoxicillin. The fact that there happened to be a prescription for amoxicillin for 12 October 2011 did not show that the reporter who made a test purchase on that date had done so with a prescription; still less did it cast doubt on the clear evidence about 23 August, which the FPP accepted, which was that the reporter did not have a prescription. In my judgment, there is nothing in this point.
57. I should also say that Mr Hamer has also persuaded me that, if the FPP was entitled to accept Mr Lynn's evidence that the footage related to 23 August 2012, and to find that the box of amoxicillin he produced had been obtained from the Pharmacy on 23 August, the existence of a prescription for amoxicillin dated 12 October 2011 did not help A's defence, as private prescriptions (like NHS prescriptions) are only valid for six months.
58. I consider, finally, Mr Forde's point about the police record of the evidence submitted by the BBC in relation to the Pharmacy. It appears that Mr Lynn put all the evidence relating to each pharmacy in an unsealed plastic sleeve, and that he put those in a box. This procedure was, understandably, criticised by DS Dancy. There are two versions of DS Dancy's witness statement. It was made under section 9 of the Criminal Justice Act 1967. The statement says that he took possession of medicines from the BBC. 'The BBC stored and presented the medicine to me in plastic A4 sleeves that also displayed a date, a pharmacy and medicine'. He then put each plastic sleeve into an exhibit bag. He set out the details in a table. Under the column 'Pharmacy' is 'the Pharmacy'. Under the column 'Medicine' in the un-redacted version is 'Amoxicillen [sic] x 3 Viagra x 1. Diazepam x 2. (Ginger Chews)'. In the redacted version, what appears is 'Amoxicillen [sic] (Ginger Chews)'. This version is visibly redacted.
59. I had noticed, as I mentioned during the hearing, that one of the cases on which Mr Forde relied for his submissions on sanction concerned another pharmacist, Mr Abdul-Razzaq, who had worked at the Pharmacy. His first job after qualifying was working there as a locum. The allegation against him was that on a number of occasions he had failed adequately to supervise assistants who had made supplies of prescription-only medicines without prescriptions. The charges concerned one supply of amoxicillin, two of diazepam and one of viagra. Mr Forde submits that even if it is assumed that the medicines listed in the un-redacted table came from the Pharmacy, if one adds the medicines which were the subject of the charges in each case, there is one supply of amoxicillin which is unexplained. I do not find that surprising, since this was not explored in the evidence which the FPP heard. There may well be an explanation for the 'spare' supply of amoxicillin, or there may not be. None of this casts doubt on the findings of the FPP in A's case. They were entitled to find on the evidence that, on 23 August 2012, one box of amoxicillin had been supplied without a prescription. The fact that other medicines had been given to the police which were said to relate to the Pharmacy, and whether their provenance or relevance was explained or not, cannot, logically, cast any doubt on the evidence on which the FPP relied for its conclusion that the supply in question had been made on 23 August 2012.

Sanction

60. Mr Forde made four broad points about the sanction in this case, which, he said, showed that it was disproportionate, and clearly wrong.

i) It was not in line with the submissions on sanction made to the FPP by the Respondent's representative.

ii) It was not in line with the sanctions in other cases involving this programme.

iii) It was draconian.

iv) There was a chance that the sanction might have been less severe if A had been represented.

The fourth of these was linked to his argument, which I consider below, that the hearing on sanction was unfair.

61. Mr Forde accepted that the FPP was not bound to accept the Respondent's submissions on sanction. He showed, by reference to the transcript, that the DC had pressed the Respondent's representative to accept that erasure was the appropriate sanction, the Respondent's representative having made clear more than once that the Respondent's submission was that erasure would be disproportionate and that suspension was, in the Respondent's view, the appropriate sanction. Once it is accepted that the FPP was not bound by the Respondent's view on sanction, this point goes nowhere, or at least, not far enough. It is clear from the transcript that the FPP was clearly told what the Respondent's view was, and that the FPP disagreed with that view. The FPP was entitled, in principle, to differ from the Respondent. The issue is whether it was wrong on the facts of this case so to differ. That difference of view does not, of itself, show that the sanction was disproportionate; simply that that was the Respondent's view at the time of the hearing. The main factors which were material to the FPP's decision on sanction (insight and risk of repetition) were, in any event, for the FPP to assess, having seen A give evidence and having questioned her about insight.
62. Mr Forde showed me the decisions of other constitutions of the FPP on other cases involving the same BBC programme. He accepted that those decisions did not have the force of precedent. He submitted, in a nutshell, that other pharmacists whose offences had been worse (because they involved a prosecution, and/or more supplies, and/or supplies of controlled drugs, and/or the pharmacists did not have an unblemished record), had been suspended. This showed, he argued, that the sanction in this case was disproportionate.
63. Although the background to these decisions was the same investigation, each case was different on its facts. In two, for example, the pharmacist was younger and more inexperienced. In one case there was a failure to supervise, rather than knowledge of a supply. Not all the pharmacists were superintendent pharmacists. One admitted his guilt, others did not. Moreover, in many, the FPP expressly said that the decision on sanction was finely balanced, and in one case, 'on the cusp' of erasure. I do not consider that the fact that other constitutions of the FPP have taken a more merciful course in different cases shows that the sanction imposed by the FPP in this case was so disproportionate as to be clearly wrong. What it shows, rather, is that it is open to different constitutions of the FPP, in different cases (albeit they all came to light because of the programme) to take a different view, in an otherwise finely balanced case, about the appropriate sanction for different types of connection of a pharmacist to the supply of a prescription-only medicine without a prescription. I also bear in mind that the degree of insight shown by the registrant (which can be evident during the factual stage of a hearing and afterwards) and the risk of repetition are matters of expert assessment for each FPP in each case, and cannot readily be captured on the page.
64. Mr Forde also submitted that the sanctions imposed in the other cases showed that pharmacists who had legal representation had a better chance of a favourable outcome on sanction. There is no rule of law which requires that a pharmacist must be legally represented at the hearing on sanction. Whether the fact that a registrant is not represented is materially unfair will depend on why the registrant is not represented, and on what happens at the hearing. A was not represented on 18 September (when the FPP announced its decision on the facts and then made its decisions on impairment and on sanction) because of the FPP's earlier rulings, A's decision to dispense with her first legal team, her second legal team's insistence that it would only represent her on 17 July to make submissions in support of an adjournment, and A's decision not to get legal representation between the end of the hearing on the facts, on 20 August, and 18 September 2015. That background does not make the absence of representation intrinsically unfair, and I do not consider that the conduct of the hearing, given that lack of representation, was unfair, either, as I shall explain.
65. Mr Forde's real point was that the hearing on 18 September was unfair, and that that was because A was not represented. Although I think he accepted that it was difficult on the facts found to challenge the FPP's finding of impairment, he submitted that the unfairness meant that the FPP's conclusions on insight were suspect, and this infected the decision on sanction. At times it seemed that his submission was an argument that legal representation is an essential protection for registrants who might, in its absence, naively show a lack of insight which experienced legal representatives would school them out of. But I appreciate that his submission was a different one; that in various respects, which he sought to support by reference to the transcript, the hearing on 18 September was unfair to A. For example the transcript shows that as an unrepresented litigant, A found it difficult to grasp, despite careful explanations by the DC, that once the FPP had announced its findings, she had to treat those findings as final, and deal with their implications. That was not unfair. The FPP did as much as it could be expected to explain to A, at each stage, what the procedure was, and she had had the opportunity to read the ISG.
66. He gave other examples. He submitted that though the possibility of erasure was referred to, it was not made clear enough that the FPP might adopt that course. I reject that submission. It is clear from various passages in the transcript, no doubt from the documents sent before the hearing, that A knew that the hearing could have serious implications for her and that those must have included erasure; that was part of the reason she gave for wanting legal representation. The ISG gives clear advice about sanctions, and the letter of 27 July 2015, which was sent to A and which attached the new version of the ISG, said that the ISG 'describes the options available to the Committee at the sanctions stage and the various factors which may make one sanction more or less appropriate in any particular case'. Mr Forde submitted that if A had had the benefit of legal advice, she could have asked for an adjournment to obtain more references. But the ISG gives advice about testimonials and A had that before the 18 September hearing. I also note that she has only produced two since the hearing, at a stage when she had the benefit of legal representation and that neither refers either to the allegations, or to the FPP's findings.
67. He also referred to possible language difficulties. First, A did not suggest to the FPP that she had any language difficulties and that these were a reason for adjourning the hearing. Second, I do not accept that the transcript shows that A was having difficulty understanding English. She has, after all, as the FPP knew, lived here for a long period, studied in the UK for a degree taught in English, and worked in the UK as a pharmacist, and presumably interacted with customers, for a long time. She expresses herself clearly and articulately on the transcript, as the FPP noted on more than one occasion. I accept that it is apparent that she needed help with legal concepts, and with the FPP's procedure, but in my judgment, that did not stem from any language difficulties. The FPP observed her closely over the course of the hearing, and I have already set out their comments on her evidence.
68. Mr Forde argued that the FPP failed to have regard to 'cultural factors' when considering the question of insight, despite the advice in the ISG that these can make it difficult for some to express contrition and insight. The FPP does not refer to cultural factors in its decision on sanction. But in my judgment, that does not make its approach to sanction wrong, or clearly wrong. The FPP, having dealt on 18 August 2015 with A's application for an adjournment (see above), was well aware that this was a very sensitive topic for A and her husband. They had felt insulted (with some justification) at what, in their view, was an incorrect reliance on 'cultural factors' by their previous lawyers. They were so upset by this that they withdrew their instructions very close to the hearing date. I do not consider that the FPP can be criticised for not adverting expressly to 'cultural factors' in its decision on sanction.
69. The FPP also had ample material from its observation of A during the hearing of the facts, and from its questions to her about serious misconduct, about impairment and what she had learnt about the obligations of a pharmacist, to form a view about her insight. The only change she referred to was that the pharmacy and staff were more vigilant than ever about the standard operating procedures which applied to the supply of prescription-only medicines. Her answers to the questions recorded on p 402 might well not have inspired confidence in the FPP. The FPP was entitled to rely, in relation to insight, on the way she conducted her defence. Her defence went well beyond robust denial, and involved serious allegations of wrongdoing against the undercover reporter, Mr Lynn, the Respondent and the BBC. Moreover it was not supported by expert evidence, despite the time which A had had to obtain such evidence.
70. Did the fact that A was not legally represented on 18 September lead to a decision which was so disproportionate as to be wrong or clearly wrong, or was it unjust because of a serious procedural or other irregularity? The starting point is that I have already accepted Mr Hamer's submission that A could have instructed lawyers between 20 August and 18 September, and, for whatever reason, decided not to. It is also highly relevant that, as I have already noted, A had been advised, both in the letter of hearing and its attachments, and by the FPP on 20 August, about what to expect on 18 September. Mr Forde, with characteristic candour, put it no higher than that 'her case was not put as well as it could have been and that might have made a difference on sanction'. In my judgment, on the facts found by the FPP (and those findings were not clearly wrong), it was entitled to conclude that A's conduct was fundamentally incompatible with continued registration. It was therefore entitled to consider whether erasure was the appropriate sanction, but as the ISG advises, nonetheless considered all the available sanctions in ascending order. Its decision that erasure was the appropriate sanction was not disproportionate, wrong, clearly wrong, or unjust because of any serious procedural irregularity. The possibility (and that is the highest that it can be put) that a different constitution of the FPP might have decided on a more lenient sanction cannot make it so.

Conclusion

71. For those reasons, I dismiss this appeal.