KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE |
Appellant |
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- and - |
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(1) GENERAL PHARMACEUTICAL COUNCIL (2) AZHAR AHMED |
Respondents |
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Hannah Smith (instructed by Legal and Enforcement Department of the General Pharmaceutical Council) for the First Respondent
The Second Respondent appeared in person.
Hearing date: 3 December 2024
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Crown Copyright ©
Mrs Justice Lang :
The Decision
"You, a Registered Pharmacist,
1. Were employed as a pharmacist by Northumbria Healthcare NHS Foundation Trust from 26 July 2021 until 24 November 2021.
2. On 9 September 2021 whilst working at [M] Medical Centre you:
2.1 Touched your crotch against Colleague A's shoulder;
2.2 Grabbed Colleague A's crotch and:
2.2.1. Put your hand on his penis; and/or
2.2.2. Rubbed your hand; and/or
2.2.3. Grabbed and/or squeezed your own crotch;
2.3 Said to Colleague A words to the effect of "You're not going to tell anyone are you?".
3. Your actions as set out at 2.1 and/or 2.2 were sexually motivated.
And by reason of the matters set out above, your fitness to practise is impaired by reason of your misconduct."
Facts and evidence
i) Colleague A and the Registrant were alone in the reception area of the medical centre in which they worked. Colleague A was seated behind the reception desk.
ii) In the course of conversation with the Registrant the discussion turned to nightclubs and, in order to locate a shisha bar on Google maps, the Registrant moved around the reception desk to look at the computer screen.
iii) When doing so, his crotch touched Colleague A's shoulder. Colleague A initially assumed this was an accident and moved his seat. He subsequently formed the view that this was an intentional act.
iv) In the course of the conversation Colleague A explained that he attended a gay bar because this closed later than other clubs. He mentioned that he had been "grabbed" at that club on occasion but portrayed this in a negative light. The Registrant then put his hand on Colleague A's penis over the top of his trousers, rubbed up slightly and grabbed.
v) The Registrant had his hand on his own penis at the same time, was looking into Colleague A's eyes and breathing heavily.
vi) Colleague A told the Registrant to go back to his room, more than once, and the Registrant asked if Colleague A was going with him.
vii) When the Registrant left he said to Colleague A "You're not going to tell anyone are you".
i) The Registrant accepted that he did go around the reception desk.
ii) He did not accept that he touched Colleague A's shoulder with his crotch.
iii) The Registrant accepted that, at the point Colleague A discussed being touched in gay bars, his hand made contact with Colleague A's penis. The Registrant denied that this was intentional.
iv) The Registrant accepted that Colleague A "did mention to go back to my room" but only once and in a respectful manner.
v) The Registrant accepted that he did ask Colleague A not to tell anyone. The Registrant stated that this was due to embarrassment.
Reg: "… soz about you having the extra tab yesterday lol" ["Tab" here is understood to be a reference to a cigarette]
A: "think its funny?"
Reg: "no mate – just wanted to say sorry. I'll[?] get you a drink to make up for it"
A: "I don't fancy you pal"
Reg: "I know mate. just professional from now on. I misread and misunderstood"
A: "U think its fair on your wife and kids? Baffles me pal"
Reg: "I'll speak to you in person."
i) Colleague A's witness statement dated 7 July 2022 annexed, inter alia, two investigation statements made by Colleague A on 30 September 2021 and signed 9 November 2021 and a record of interview from the Registrant's Panel. There were photographs of the scene.
ii) Christine Gray, the Trust's Administration Manager, made a statement for the Council on 30 August 2022, annexing a note of her conversation with Colleague A on 16 September 2021 and her investigation statement dated 4 November 2021 (in which she reported Colleague A having told her that the Registrant had "… come up to him and 'grabbed his cock'…").
iii) David Fisher, the Deputy Chief Pharmacist/Head of Operational Pharmacy at the Trust, provided a statement to the Council on 22 September 2022, to which he annexed inter alia his internal investigation report dated October 2021.
Legal framework
The role of the Authority
"(4) Where a relevant decision is made, the Authority may refer the case to the relevant court if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4A) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the profession concerned; and
(c) to maintain proper professional standards and conduct for members of that profession."
The approach of the High Court
i) dismiss the appeal,
ii) allow the appeal and quash the relevant decision,
iii) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or
iv) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court,
v) may make such order as to costs as it thinks fit.
"73. What are the criteria to be applied by the Court when deciding whether a relevant decision was 'wrong'? The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession. The role of the Court when a case is referred is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. Is that any different from the role of the Council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession.
…
76. This passage was cited with approval by Leveson J in Solanke. As he observed, not all of it is appropriate in a case where the primary object of imposing a penalty is the protection of the public. We consider that the test of whether a penalty is unduly lenient in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of the disciplinary proceedings, could reasonably have imposed.
…
78. The question was raised in argument as to the extent to which the Council and the Court should defer to the expertise of the disciplinary tribunal. That expertise is one of the most cogent arguments for self-regulation. At the same time Part 2 of the Act has been introduced because of concern as to the reliability of self-regulation. Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the Council and the Court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where, however, there has been a failure of process, or evidence is taken into account on appeal that was not placed before the disciplinary tribunal, the decision reached by that tribunal will inevitably need to be reassessed."
"The correct approach to appeals under section 40A
39. As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550 ) as appropriately modified, can be applied to section 40A appeals.
40. In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56)."
The Council's regulatory framework
"(1) The over-arching objective of the Council in exercising its functions is the protection of the public.
(1A) The pursuit by the Council of its over-arching objective involves the pursuit of the following objectives—
(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the professions regulated under this Order;
(c) to promote and maintain proper professional standards and conduct for members of those professions; and
(d) to promote and maintain proper standards in relation to the carrying on of retail pharmacy businesses
at registered pharmacies."
"(1) For the purposes of proceedings under this Order in England and Wales—
….
(b) the Fitness to Practise Committee, the Appeals Committee or any party to proceedings before either of those committees may apply for the issue of a witness summons directing a person to attend the proceedings in order to give evidence or to produce a document.
(2) No person may be compelled under any such summons to give any evidence or to produce any document which that person could not be compelled to give or produce on the trial of an action.
(3) Section 36 of the Senior Courts Act 1981 1 (subpoena issued by High Court to run throughout the United Kingdom), which provides a special procedure for the issue of such a summons so as to be in force throughout the United Kingdom, applies in relation to any proceedings under this Order in England and Wales as it applies in relation to causes and matters in the High Court."
"Evidence
24.—(1) All questions of admissibility of evidence and law before the Committee are to be decided by the Committee (after having obtained the advice of the legal adviser, where appropriate).
(2) Subject only to the requirements of relevance and fairness, the Committee may receive—
(a) subject to paragraph (3), any documentary evidence; and
(b) where a hearing is held, any oral evidence,
whether or not such evidence would be admissible in any subsequent civil proceedings if the decision of the Committee were appealed to the relevant court."
"45. For the purposes of this appeal, the relevant principles which emerge from the authorities are these:
1.1. The admission of the statement of an absent witness should not be regarded as a routine matter. The FTP rules require the Panel to consider the issue of fairness before admitting the evidence.
1.2. The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to the objection to admissibility.
1.3. The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason does not automatically result in the exclusion of the evidence.
1.4. Where such evidence is the sole or decisive evidence in relation to the charges, the decision whether or not to admit it requires the Panel to make a careful assessment, weighing up the competing factors. To do so, the Panel must consider the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The Panel must be satisfied either that the evidence is demonstrably reliable, or alternatively that there will be some means of testing its reliability.
In my judgment, unless the Panel is given the necessary information to put the application in its proper context, it will be impossible to perform this balancing exercise."
"56. However, in my judgment the Panel were led into error in their approach to the evidence of the two missing witnesses, Ms 1 and Ms 2. The decision to admit the witness statements despite their absence required the Panel to perform careful balancing exercise. In my judgment, it was essential in the context of the present case for the Panel to take the following matters into account:
(i) whether the statements were the sole or decisive evidence in support of the charges;
(ii) the nature and extent of the challenge to the contents of the statements;
(iii) whether there was any suggestion that the witnesses had reasons to fabricate their allegations;
(iv) the seriousness of the charge, taking into account the impact which adverse findings might have on the Appellant's career;
(v) whether there was a good reason for the non-attendance of the witnesses;
(vi) whether the Respondent had taken reasonable steps to secure their attendance; and
(vii) the fact that the Appellant did not have prior notice that the witness statements were to be read."
"Procedure at principal hearings before the Committee in fitness to practise proceedings
31.(1) Unless the Committee determines otherwise, the order of proceedings at a principal hearing in fitness to practise proceedings is to be in accordance with paragraphs (2) to (18).
(2) The Committee must hear and consider any preliminary legal arguments.
(3) ….
(4) The person acting as secretary must read out the allegation and the alleged facts upon which it is based.
(5) The chair must inquire whether the registrant wishes to make any admissions.
(6) Where facts are admitted, the chair must announce that such facts have been found proved.
(7) Where facts remain in dispute, the presenter is to open the case for the Council and may adduce evidence and, subject to paragraph (19), call witnesses in support of it.
(8) The registrant may make submissions regarding whether sufficient evidence has been adduced to find the facts proved or to support a finding of impairment, and the Committee must consider and announce its decision as to whether any such submissions should be upheld.
(9) The registrant may open their case and may adduce evidence and, subject to paragraph (19), call witnesses in support of it.
(10) The Committee must consider and announce its findings of fact.
(11) The Committee must receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the registrant's fitness to practise is impaired.
(12) The Committee must consider and announce its finding on the question of whether the fitness to practise of the registrant is impaired, and give its reasons for that decision.
(13) The Committee may receive further evidence and hear any further submissions from the parties or from any other person who has a direct interest in the proceedings where the registrant's fitness to practise is found to be impaired, as to the appropriate sanction, if any, to be imposed, including evidence as to any mitigating circumstances and any relevant matters in the previous history of the registrant concerned.
(14) The Committee must consider and announce its decision as to the appropriate course of action to be taken in respect of the registrant of those specified in article 54(2) of the Order and give its reasons for that decision.
……"
"Burden and standard of proof
42.—(1) Where facts at a principal hearing are in dispute, the burden of proving the facts rests on the Council.
(2) …..
(3) Where facts are in dispute, the Committee must consider whether they have been established in accordance with the civil standard of proof."
"Vulnerable witnesses at hearings
44.—(1) In proceedings before the Committee, the following may, if the quality of their evidence is otherwise likely to be adversely affected, be treated as vulnerable witnesses—
(a) any witness under the age of 18;
(b) any witness with a mental disorder (within the meaning of the Mental Health Act 1983;
(c) any witness who is significantly impaired in relation to intelligence or social functioning;
(d) any witness with a physical disability who requires assistance to give evidence;
(e) any witness, where an allegation against a person concerned is of a sexual nature and the witness was the alleged victim; or
(f) any witness who complains of intimidation.
(2) Upon—
(a) hearing representations from the parties; and
(b) in relation to a health allegation, after seeking the advice of a legal adviser,
the Committee may adopt such measures as it considers necessary to enable it to receive evidence from a vulnerable witness.
(3) Measures adopted by the Committee may include, but are not to be limited to—
(a) use of video links;
(b) subject to paragraph (4), use of pre-recorded evidence as the evidence-in-chief of a witness, provided always that the witness is present at the hearing for cross-examination and questioning; and
(c) use of interpreters (including signers and translators).
(4) Where—
(a) there is an allegation against a person concerned of a sexual nature;
(b) a witness is the alleged victim; and
(c) the person concerned is not represented,
the person concerned is not to be allowed to cross-examine the witness directly in person.
(5) In the circumstances set out in paragraph (4), any questioning of the witness is to be undertaken by such person as the Committee considers appropriate."
The duty to give reasons
"42. Failure to provide adequate reasons for a decision was held to be a serious irregularity leading to a remittal in Council for the Regulation of Health Care Professionals v. General Dental Council & Marshall [2006] EWHC 1870 (Admin) because the Judge was unable to determine whether or not the sanction was appropriate.
43. In this case, I did not find the reasons to be inadequate, bearing in mind that they are the reasons of a regulatory panel (comprising of health practitioners and a lay member, with a legal assessor), which is not expected to give reasons to the same standard as a court. I found them intelligible and sufficient to enable the parties to know why they won or lost, and for the PSA to consider whether the decisions were too lenient.
44. At times the PSA embarked upon a forensic examination of the determination, seeking to identify ambiguities, omissions or infelicities of expression. The Panel is comprised of lay members, not lawyers, and the determination is drafted under pressure of time during the hearing, so allowance must be made for imperfect drafting. Its reasons will be adequate if they summarise the Panel's findings on the principal important issues. The Panel need not record every point made to it in evidence and submissions in order to show that it has taken it into account. This is particularly so in fitness to practise hearings where the parties and the appeal court has a full transcript of the hearing."
Grounds of appeal
Ground 1: witness summons
The Authority's submissions
The Council's submissions
Conclusions
i) Colleague A seemed reluctant to attend and give his account;
ii) It may be distressing for Colleague A to be compelled against his wishes to go over the details of the events that he states happened;
iii) He was not a regulated pharmacy professional and therefore does not have a duty to assist the Council;
iv) He did not raise the concern with the Council himself.
"Nor would it be appropriate to issue a witness summons to compel Witness A to attend as a witness. He would be deemed a vulnerable witness under the Rules and entitled to the application of special measures were he to attend. It would be wholly inappropriate for a vulnerable witness to be compelled to participate in a hearing in such circumstances."
Ground 2: refusal to consider hearsay evidence
The Authority's submissions
The Council's submissions
Conclusions
"30. Applying the principles in Thorneycroft, Ms Birks submitted that Colleague A's evidence should not be adduced as hearsay evidence for the following reasons:
a. Colleague A's evidence is the sole, decisive evidence. The only other evidence came from witnesses not present at the time of the alleged events; they did not provide any first-hand evidence.
b. It was anticipated that there would be significant challenges to Colleague A's statement at the hearing. The Registrant had already outlined some challenges in his response documentation;
c. It was likely that the Registrant would wish to cross examine in relation to fabrication of Colleague A's statement at the hearing, the Registrant having suggested, in his response documentation, a possible motive for fabrication; and
d. The allegations were serious as they related to sexual motivation/touching."
"36. … Given the clear guidance in Thorneycroft, the Committee agreed with Ms Birks that it would be unfair and prejudicial to the Registrant to allow the hearsay evidence of Colleague A to be admitted. It adopts the reasoning put forward on behalf of the Council (as summarised above) for that conclusion; this is a case where the prejudice to the Registrant outweighs the public interest in the pursuit of these proceedings….."
Ground 3: offering no evidence
Ground 4: no case to answer
The Authority's submissions on offering no evidence
The Authority's submissions on no case to answer
i) the Registrant's admissions that he did touch Colleague A's penis and that he did ask Colleague A not to tell anyone;
ii) the admitted nature of the conversation taking place at the material time;
iii) the Registrant's admission that he knew his actions "…would have given the impression that I was hitting on him in a homosexual way…" (see the Registrant's "Comments on the Allegations made about Azhar Ahmed" para. 2.4, point 6, hearing bundle page 184);
iv) the messages;
v) the fact that it was open to the Committee to infer sexual motivation from the primary facts (see e.g. Haris v General Medical Council [2021] EWCA Civ 763 at [37], and Basson v General Medical Council [2018] EWHC 505 (Admin) at [18]-[19]).
The Council's submissions on offering no evidence
The Council's submissions on no case to answer
Conclusions on offering no evidence and no case to answer
"53. The NMC has made the Nursing and Midwifery Council (Fitness to Practise) Rules Order 2004, 2004 SI No 1761 ('the Rules') pursuant to various powers conferred by the 2001 Order. Rule 2 defines 'Case Examiner' as a professional or lay officer of the NMC appointed by the Registrar for the purposes of exercising the functions of the Investigating Committee in accordance with article 26A of the 2001 Order. Rule 2A(2) of the Rules requires the Registrar to refer any allegation which (he or she considers) falls within article 22(1)(a) of the 2001 Order to the Case Examiners for consideration under rule 6C of the Rules. Where the Case Examiners 'agree that there is a case to answer', they must refer the allegation (if it is an allegation of misconduct) to the Committee (rule 6C(2)(a)(ii)).
54. Rule 12 requires the Committee to conduct a hearing in accordance with the procedure set out in Part 5 of the Rules, and to 'dispose of the allegation' in accordance with articles 22(4) and 29(8)-(4) of the 2001 Order. Rule 24 of the Rules requires the Committee 'unless it determines otherwise' to conduct the initial hearing of an allegation 'in the following stages'. Four stages are then described in rule 24(1)(a)-(d). The possible components of each stage are then described in rule 24(2)-(5), (6)-(11), (12), and (13). Some of the components of those stages are mandatory ('shall') and some discretionary ('may').
55. It is sufficient for the purposes of this case, first, to record Mr Bradly's realistic concession that, even though this is not expressly provided for in the Rules, it must be open to the NMC, in an appropriate case, to offer no evidence. I note that the NMC has produced operational guidance about offering no evidence which makes it clear that this course is only appropriate in limited circumstances. None of those circumstances applied in this case. I accept Mr Bradly's further submission that the cases in which it would be appropriate to offer no evidence will be rare.
56. Second, my clear view is that:
i) rule 24(6) requires the NMC to open the case; and
ii) rule 24(7) and rule 24(8) permit the Committee to accept a submission of no case to answer, but only (1) where the NMC has closed its case, and presented its evidence, and (2) only at the instigation of the registrant, or where the Committee does so 'of its own volition'. It is inherent in a submission of no case to answer that it can only be made at the end of the Council's evidence. The test in R v Galbraith [1981] 1 WLR 1039 can only be applied if a tribunal has considered evidence; if it has not, there is nothing to which that test can applied.
57. I accept Miss Fleck's submission that rule 24(1) gives the Committee power to decide, in an appropriate case, not to conduct a hearing in accordance with the stages set out in rule 24. In my judgment that general power cannot be used to contradict the effect of the specific provisions in rule 24(6), (7) and (8) which I have just described. It follows that that rule 24(1) does not enable the Committee to take short cuts, such as releasing the NMC from its obligation to open the case, or as accepting a submission of no case to answer without hearing any evidence, or at the instigation of the NMC. I consider that it is especially important, if the NMC considers that it is appropriate to offer no evidence, that it fully opens the case, so that the Committee is able to make a decision, informed by a sufficient knowledge of the facts, whether it is appropriate for the NMC to offer no evidence, or whether it should require the NMC to reconsider that view, and try and obtain more evidence. In this case, for reasons which should be clear from what I have said before, and which I elaborate to some extent below, the Committee were not given the information they needed to make a fully informed decision."
Offering no evidence
Submission of no case to answer
"In Galbraith (1981) 73 Cr. App. R. 124, CA, the earlier authorities were reviewed and guidance given as to the proper approach:
"(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty—the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury" (per Lord Lane CJ at p.127)."
i) the Registrant's admission that he did touch Colleague A's penis and that he did ask Colleague A not to tell anyone;
ii) the admitted nature of the conversation taking place at the material time; the Registrant's admission that he knew his actions "…would have given the impression that I was hitting on him in a homosexual way…" (see the Registrant's "Comments on the Allegations made about Azhar Ahmed" para. 2.4, point 6, hearing bundle page 184);
iii) the messages exchanged between the Registrant and Colleague A soon after the incident;
iv) that it was open to the Committee to infer sexual motivation from the primary facts.
Final conclusions