QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Zahra Hussain
|- and -
|General Pharmaceutical Council
Mr Kenneth Hamer (instructed by Head of Professionals Regulation at the General Pharmaceutical Council) for the Respondent
Hearing dates: 8 - 9 March 2016
Crown Copyright ©
Mrs Justice Elisabeth Laing DBE:
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.
The legal framework
"(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.''
"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."
''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].''
"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
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
The second application for a postponement
The third application for postponement
The FPP's determination on the facts
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.
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.