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Cite as: [2020] ScotCS CSIH_12, 2020 SLT 443, 2020 GWD 13-180, [2020] CSIH 12, 2020 SC 305

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2020] CSIH 12

XA35/19

Lord President

Lord Menzies

Lord Glennie

OPINION OF LORD CARLOWAY, the LORD PRESIDENT

in the appeal by

DR JANE MARY McLENNAN

against

Appellant

THE GENERAL MEDICAL COUNCIL

Respondents

______________

Appellant: Duncan QC, P Reid; BTO Solicitors LLP

Respondents: Dunlop QC; Eversheds

9 April 2020

Introduction

[1] This is an appeal from a series of decisions of the Medical Practitioners Tribunal

dated 6 July 2018 (sufficiency of evidence), 11 February 2019 (determination on the facts)

and 19 March 2019 (sanction). The Tribunal found that, in a report about Mr A, which had

been prepared for the purposes of proceedings before an Employment Tribunal, the

appellant had: reported that Mr A had said certain things during the appellant’s

examination of him, which he had not said and which she knew he had not said; reported

Page 2 ⇓

that “his speech was heavily peppered with expletives” during the examination, which was

untrue; and maintained at the Employment Tribunal hearing that the report was accurate,

when she knew that it was not. She had attributed direct quotations to Mr A which she had

known to be false. The Tribunal found that the appellant’s actions had been dishonest. On

19 March 2019, it determined that the appellant’s name should be erased from the medical

[2] The primary issue in the appeal is whether the Tribunal was entitled to make the

finding of dishonesty and whether that finding was adequately reasoned. The appeal raises

a subsidiary issue in relation to decisions on the sufficiency of evidence at the conclusion of

the evidence against an individual. It also involves a question about the role of evidence of

character or reputation in determining whether an individual is proved to have acted

dishonestly or has otherwise misconducted himself or herself.

The Report

[3] Mr A had brought a claim in the Employment Tribunal against his former

employers, namely the Criminal Injuries Compensation Authority. He alleged that he had a

disability in terms of section 6 the Equality Act 2010. He maintained that he suffered from

depression, irritable bowel syndrome (IBS) and severe headaches, which had a substantial

and long-term adverse effect on his ability to carry out his normal day-to-day activities. On

this basis, he contended that he had been discriminated against when he had been dismissed

from his employment on 27 May 2013.

[4] The appellant was a NHS consultant, specialising in Old Age Psychiatry, at the Royal

Edinburgh Hospital. She had qualified in 1984 and had become a consultant in 1994. She

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had an extensive private practice which included the preparation of reports for both

claimants and employers in Employment Tribunal cases.

[5] The appellant was instructed by solicitors acting on behalf of the Ministry of Justice,

who have responsibility for the CICA, to provide a report on Mr A’s condition. She was

asked for her views on: whether, during the period of his employment, Mr A had a physical

or mental impairment; if so, what the diagnosis was; what the relative dates of the onset of

his condition were; and whether his condition met the statutory criteria. The appellant saw

Mr A on 19 July 2014. She prepared a report dated 18 August 2014.

[6] After certain preliminary matters, the report commenced with a first section on Mr

A’s family and personal history. It was said that Mr A lived with his parents. He had

started work with the CICA in 2009. Ever since then he said that he had been bullied and

victimised. He had been obstructed in his attempts to find alternative employment by the

terms of his employers’ references. The second section dealt with Mr A’s past medical and

psychiatric history. This started:

“2.01 Mr A said that he had kept exceptionally well in the past, prior to working

with CICA. He said he had never had problems with anxiety, depression or his

bowels prior to commencing work with them in 2009. This is not consistent with the

evidence in his case notes.”

References to earlier episodes of depression, as revealed in the general medical practitioner’s

records, were then mentioned.

[7] The third section covered Mr A’s “occupational difficulties”. This started:

“3.01 Mr A’s account was rather difficult to follow, as he displayed significant

pressure of speech… He cursed freely…

3.02 Mr A said that he had been harassed and victimised almost since his first day

at work with CICA. He said he became ‘f….d off’ at the language that CICA

Applicants used when they were on the phone with him. He did not feel he should

be subjected to such language from ‘these f...ing girning bastards’ and on one

occasion he became irritable with a caller.”

Page 4 ⇓

Mr A reported that he had become increasingly irritable, “stressed out”, developing

“crushing headaches” and being lethargic and lacking appetite. His bowel problem was

described. He talked about being sent to do menial tasks, at which point “His range of

expletives increased”.

[8] The report continued:

“3.13 He said his Managers frequently accused him of being confused about

discussions they had or instructions he had been given and so he kept recordings of

conversations with them, to demonstrate the ‘f…ing lies the f…ing bastards telt’…”.

Mr A said that he had been given access to his employers’ file on him by accident. This

revealed that his managers had been communicating information on allegations against him

to prospective employers. He had seen some of the “f…ing lies” which his managers had

told.

[9] In relation to his condition, the report said:

“3.17 In terms of depressive symptoms, Mr A found it difficult to describe these

other than in very vague terms. He said he felt constantly irritable and snappy…”.

Mr A described obsessive behaviour in relation to checking light switches, locks and door

handles. He did not mention any diurnal (daily) variation in mood, early morning

awakening, reduced concentration, attention or recent memory. He was always angry and

felt like hitting people at work. He found it difficult to restrain himself. He had

contemplated suicide. He had stopped socialising because of his IBS. He had withdrawn

from his family and friends. He was chronically tired and exhausted. He could not be

bothered doing anything and spent much of his time in bed.

[10] On capacity for work, the report stated:

“6.01 Mr A appeared to be a fit and well young man although he was very irritable.

His conversation was somewhat difficult to follow at times, partly because of the

number of expletives he peppered it with and partly because of the inconsistency in

his account”.

Page 5 ⇓

[11] In relation to the effect of Mr A’s conditions, the report continued:

“7.01 Mr A was very clear that he did not require any assistance or support in

carrying out normal activities of daily living as a result of his [IBS], chronic

headaches or depression. He said he had never needed any help or assistance

because of his conditions and they did not disable him in any way.

7.02 He is able to see to his self care and personal hygiene without assistance, is

able to buy and prepare food, he does not require to do housework as he lives with

his parents.”

[12] The description of Mr A’s mental state examination was as follows:

“8.01 Mr A… presented as being somewhat bombastic and had a degree of

pressure and prolixity of speech. His thought content was preoccupied by the

perceived injustices his Employers and colleagues had inflicted upon him, he was

clearly significantly angry… His speech was heavily peppered with expletives.

There was no evidence of depression or anxiety, abnormal perceptions or thoughts.

His attention, concentration and recent memory were good…”.

The appellant described the content of some of the Employment Tribunal documents (ET1

and ET3), which had been lodged by Mr A, and his GP’s records.

[13] The report’s summary and opinion included a statement that Mr A’s assertion, that

his employment had been the sole cause of a depressive disorder, IBS and headaches, was

plainly inaccurate as these conditions had predated his employment. His account was not

consistent and was “tinged with mendacity” (deception). The report continued:

“10.08 As Mr A did not provide a consistent account nor one which accorded with

the evidence in his case notes, it is not easy to come to a view regarding the effect of

his alleged symptoms. I was unable to find evidence either from his account, his

presentation nor the evidence before me that he was disabled in any way by

Depression, [IBS] or… headaches and he was clear that he had no disabilities as a

consequence of these”.

The appellant expressed the view that Mr A had a condition which was akin to a Paranoid

Personality Disorder with some features of a Dissocial Personality Disorder. Her report

ended with a docquet which stated that the facts contained in the report, in so far as within

her knowledge, were true.

Page 6 ⇓

The Employment Tribunal

[14] The Tribunal Hearing took place in Glasgow on 6 January 2015. Mr A represented

himself. On 13 January, the Tribunal held that Mr A did not have a disability within the

terms of section 6 of the Equality Act 2010. During the hearing, Mr A announced that he

had covertly recorded his examination by the appellant. He maintained that the recording

(which he had not formally produced) and his transcription of it (which he had lodged)

demonstrated that the appellant had fabricated what he had said and that her account of the

examination was inaccurate. One example was the appellant’s reference to Mr A having

sworn during the examination. His transcript showed (inaccurately) no swearing at all. The

Tribunal declined (at para 5) to listen to the recording. It was not persuaded “regarding the

authenticity” of Mr A’s transcript and attached (para 35) no weight to it. Rather, the

Tribunal, not having listened to the recording or having had regard to the transcript,

expressed (para 39) a lack of surprise about Mr A and the appellant having different views

on what had been said during the examination.

[15] The Tribunal noted (para 41), specifically in relation to swearing, that the appellant

had recorded “in quotation marks, some of the comments made… where expletives were

used” and that the appellant had described Mr A as having sworn “frequently and freely”.

Although the Tribunal did not consider that the issue of swearing was material, it accepted

(para 42) the appellant’s account about it.

[16] In what are erroneously headed “Findings of fact”, the Tribunal rehearsed large

tracts of the appellant’s report, including most of her summary and opinion. It had not been

disputed that Mr A had IBS and headaches. The Tribunal accepted that he had a mental

impairment in the form of “anxiety/depression”. These conditions had had adverse effects

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on Mr A’s ability to carry out normal day to day activities. The Tribunal found, in

accordance with the appellant’s view, that Mr A had provided no details to support his

assertions. It noted (para 84) that the appellant had:

“specifically asked [Mr A] questions to identify the effect the impairments had on

day to day activities, but she found he could provide no details and became irritated

by her questions”.

The Tribunal did not find “substantial” adverse effect proved, as would have been required

for a finding of disability under the 2010 Act.

[17] On the physical element (IBS), the Tribunal founded (para 89) upon the appellant’s

view that Mr A had said that he did not require any assistance or support in carrying out

normal day to day activities. It found (para 90) the appellant’s report “persuasive”,

especially (para 93) in relation to the appellant’s conclusion that Mr A’s account had been

dramatic and exaggerated. Mr A’s claim on this basis, and that relative to his headaches,

failed. In relation to the combined effects of the various conditions, which Mr A

undoubtedly had, the Tribunal was guided (para 108) by the appellant’s opinion in rejecting

that there were any substantial adverse effects.

The Medical Practitioners Tribunal

General

[18] Meantime, on 14 November 2014, Mr A had raised his concerns about the report with

the General Medical Council. He provided the GMC with the recording and his transcript.

In January 2015, the GMC told Mr A that the matter was not to be pursued. He successfully

sought a review of that decision. Although the GMC decided to review the case in August

2015, it was not until March 2018 that a hearing commenced. It lasted a remarkable 26 days

over the following 12 months.

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[19] The Tribunal had obtained a professionally produced transcript of Mr A’s recording.

It had the appellant’s notes, which extended to only three pages for the 1 hour and

48 minutes of the examination. There was expert evidence from an “audio analyst” on the

content of the recording and from a professor of phonetics who specialised in Glaswegian

accents.

[20] In its determination of a submission on the sufficiency of evidence (The General

Medical Council (Fitness to Practise) Rules Order in Council 2004, rule 17(2)(g)), prior to the

appellant giving evidence, the Tribunal made certain comments about Mr A’s account. It

noted, in relation to swearing, that, taking the expert evidence at its highest, only eight

instances of swearing could be identified; five of which had been noted by the audio analyst.

The Tribunal stated:

“34. …Whilst there are over 200 inaudible sections in the recording, many of these

are no more than a second in length, and many occur when [the appellant] herself is

speaking. Further, the inaudibles are not always contextually relevant to the

allegation. They also amount to only a very small percentage of the total recording.

The Tribunal cannot conceive that it would be practically possible for Mr A to have

consistently masked the use of expletives in the recording, and in any event notes his

view that such use is acceptable.”

[21] The Tribunal regarded (para 35) Mr A as a reliable witness, in so far as proceedings

before it were concerned. This view was based partly on Mr A’s ability accurately to

recollect the layout of the examination room some four years after having been there. The

Tribunal took into account that Mr A had earlier denied using expletives, although at the

hearing he conceded that he had done so. Mr A denied using the word “bastards”, whereas

the tribunal found that he had done. The Tribunal held that this did not materially affect his

reliability because his use of swearing had not been deliberate or conscious. His demeanour

during the hearing had been composed and calm.

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[22] In reaching its view on sufficiency, the Tribunal had regard to Soni v General Medical

Council [2015] EWHC 364 (Admin), in which Holroyde J expressed the view (para 61), which

was founded upon by the appellant, that, before an inference of dishonesty could properly

be drawn, a Tribunal required:

“…to be able safely to exclude, as less than probable, other possible explanations for

[the doctor’s] conduct”.

Holroyde J considered that powerful evidence of a positive good character was relevant to

the equation as was the evidence, in that case, that a particular written form may not have

been completed because of “…oversight, or administrative error, or loss of the form”. He

continued (para 62):

“Thus the possibility of there being an explanation other than dishonesty for the

absence of [the forms] was clearly before the [Tribunal]. … [T]here was no evidential

basis on which the [Tribunal] could conclude that any such explanation was less

probable than deliberate dishonesty”.

[23] On this basis the Tribunal determined that, in relation to alternative explanations for

the inaccuracies in the appellant’s report:

“45 … Only where those explanations were less probable than deliberate

dishonesty, did [the Tribunal] determine there was a case to answer in respect of the

dishonesty aspect of the allegation”.

Thus, when it came to the allegation that Mr A had not said that he had been given access to

his file by accident, and that the file had shown that his employers had been informing

prospective employers of allegations against him, the Tribunal considered that the relevant

entries in the appellant’s report could be explained by the appellant having poor recollection

of the consultation “due to the passage of time or inadequate notes, and that this is not less

probable than dishonesty”. Similarly, although the Tribunal held that Mr A had not felt

“’paranoid’ and as though everyone was against him”, this too could be explained by poor

recollection or inadequate notes. These alternative explanations were not “more probable

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than dishonesty…, particularly in view of [the appellant’s] many years of experience and

status as an expert witness”.

[24] The Tribunal having rejected most of the appellant’s submissions on sufficiency, the

appellant gave evidence. The Tribunal:

“20. …noted that [the appellant] has been candid in the sense that she accepts that

this report was not ‘her finest hour’ and that she was distracted due to problems with

her father at the time and the fact that she was sleep deprived. It took account of her

evidence that she was working full–time in the NHS, amounting to 12 sessions over

5 days each week. She had an on-call commitment of one in eleven. The Tribunal

also had regard to the volume of private work she was undertaking. In 2014, she

prepared 160 reports, which would have averaged three per week”.

The Tribunal accepted the appellant’s evidence on this, but continued that:

“…whilst all of these factors could have a bearing on the quality of a written report,

this would only pertain where a report lacks detail. In the cases where the report

contains a high level of detail including a number of direct quotes the explanation is

less convincing…”.

[25] The Tribunal recorded that its chair had advised that previous good character was

something which could be taken into account. In the result, the Tribunal gave limited

weight to the appellant’s previous good character. The chair had also referred the Tribunal

to Ivey v Genting Casinos (UK) [2018] AC 391 in which Lord Hughes had said:

“74 …When dishonesty is in question the fact-finding tribunal must first ascertain

(subjectively) the actual state of the individual’s knowledge or belief as to the facts…

[O]nce his actual state of mind as to knowledge or belief as to facts is established, the

question whether his conduct was honest or dishonest is to be determined… by

applying the (objective) standards of ordinary decent people. There is no

requirement that the defendant must appreciate that what he has done is, by those

standards, dishonest.”

The allegations and their determination

[26] The first issue for determination by the Tribunal (allegation para 1(a)) was whether

the appellant’s report had contained a number of comments, which she had attributed to

Mr A, which had not been made by him and (para 1(b)) whether she knew that they had not

Page 11 ⇓

been made by him. The comments were detailed in a schedule. They were 17 in number.

The Tribunal held that it had been proved that some 14 of these had been inaccurate and

that each had involved dishonesty. Only three items, numbers 2, 8 and 13, in relation to

whether the statements were accurate, were ultimately challenged in the appeal. It was

accepted that the Tribunal had been entitled to reach the conclusions which it did in relation

to the other items in relation to accuracy (although not dishonesty). The Tribunal’s

conclusions, including those on the disputed items, were as follows:

[27] Item 1: Mr A had not said (cf para 2.01 of the appellant’s report) that he had never

had problems with anxiety, depression or his bowels prior to commencing work with the

CICA in 2009. As already observed, at the stage of the submission on sufficiency, the

Tribunal had considered whether, in relation to the allegation of dishonesty, it was possible

that the problem had simply been poor recollection by the appellant, either because of the

passage of time between the examination and the report (three weeks) or the absence of

adequate notes; there being only three pages to cover the whole examination. The Tribunal

considered the possibility of misunderstanding or conflation of evidence from other sources.

It did not consider that either of these explanations “would be more probable than

dishonesty at this stage, particularly in view of [the appellant’s] many years of experience

and status as an expert witness”.

[28] As it transpired, the appellant accepted in her evidence that Mr A had not made the

statement which she had attributed to him. Not only had Mr A not said it, it was contrary to

what he did say. This was demonstrated by the recording and the transcript in which Mr A

had said that he had depression since 2004. The appellant had acknowledged that Mr A had

depression prior to working for the CICA. Although the appellant disputed that she had

known that Mr A had not made this statement, the Tribunal found that she had.

Page 12 ⇓

[29] Item 2: Mr A had not “cursed freely” (cf para 3.01). The Tribunal had, in the course of

the submission on sufficiency, interpreted “freely” as meaning “with regularity” and

“within natural conversation”. The Tribunal accepted the appellant’s evidence that she had

understood “freely” to mean “as part of normal speech” and without inhibition. The

Tribunal identified only eight occasions in the recording on which a swear word had been

used. The first was at 25 minutes; the second at 58 minutes; and the last one was at 1 hour,

45 minutes. In its determination on sufficiency, the Tribunal repeated the formula regarding

whether the possibility of poor recollection or misunderstanding was “more probable than

dishonesty at this stage”. It repeated this formula at the sufficiency stage in relation to items

3-8, 12-13, 15 and 17.

[30] In their final determination, the Tribunal had regard to the appellant’s notes, which

did not record any swear words or that Mr A had sworn. The explanation, which the

appellant had tendered, that she had not noted them because she was afraid that Mr A

might see her writing, was not accepted. She had exaggerated the frequency of his swearing

and would have known this.

[31] Item 3: Mr A had not said (cf para 3.02), in the context of the CICA applicants, that he

had become “f…d off” at their language on the phone. The appellant’s notes did not contain

this as a direct quotation. The appellant’s explanation, that Mr A had used the phrase in

another context and she had mistakenly attributed it to the phone calls, was not accepted.

The appellant had directly attributed comments to Mr A which he had not made.

[32] Item 4: Mr A had not referred (cf para 3.02) to CICA applicants as “these f.....g girning

bastards”. He had used the word “bastards” twice, at 58 minutes and at 1 hour 42 minutes,

but not the words “these f…ing girning”. There had been no credible explanation as to why

the report directly quoted something that Mr A had said, when he had not said it.

Page 13 ⇓

[33] Item 5: Mr A’s range of expletives had not (cf para 3.10) increased when he had

described being given menial tasks. The Tribunal noticed eight occasions when expletives

were used, viz: “Christ”, “Christ sake”, “bastards”, “hell”, “f…ing, “f...ed”” and “f..k”. No

new swear words were used after the reference point. The Tribunal did not accept the

appellant’s evidence that her memory may have been at fault. It reasoned that, whereas

poor recollection might lead to vagueness or a lack of detail, it would not lead a doctor, who

was experienced in the writing of expert reports, to include a highly specific detail

incorrectly.

[34] Item 6: Mr A had not said (cf para 3.13) that he had kept recordings of conversations

with his employers, to demonstrate the “f…ing lies the f…ing bastards telt”. There was no

evidence in the recording of this comment having been made. In light of, inter alia, the lack

of a contemporaneous record of this remark in the appellant’s notes, the Tribunal did not

find the assertion that this comment had been made to be credible.

[35] Item 7: The complaint had originally been a wider one, involving access to his

employer’s file on him (supra). It had been narrowed down at the stage of the determination

on sufficiency. In relation to the remaining element, Mr A had not said (cf para 3.14) that he

had “seen some of the ‘f…..g lies’ that his Managers had put into his references”. This was

not audible on the recording. No note of it had been made by the appellant. Since the

appellant must have been compiling her report from memory, she must have known that

Mr A had not said this.

[36] Item 8: Mr A had not found it difficult to describe his depressive symptoms only in

“very vague terms” (cf para 3.17). Prior to the examination, Mr A had sent the appellant an

email, a copy of which he had given to the appellant at their meeting, in which he had set

out his symptoms clearly. The appellant’s evidence had been that the symptoms which he

Page 14 ⇓

had described were not those of depression. The appellant had listed a number of

symptoms of depression. Mr A had reported the majority of these, notably problems with

memory, concentration and sleeping, having no interest in socialising, anhedonia (lack of

pleasure) and chronic anxiety, in both his email and at the examination. The appellant had

not asked Mr A specifically about his symptoms or how they had affected him during his

employment with CICA. There had been considerable evidence from the GP records that

Mr A had been suffering from depression; having required treatment for many years. The

appellant must have known that what she had written was incorrect.

[37] Item 9: Mr A had not said (cf para 3.19) that he was always angry, felt like hitting

people at work that it was very difficult to restrain himself. He had not said that he was

always irritable and often just felt like killing himself. This was not on the recording. There

was an entry in the GP records from 5 April 2013 which stated:

“… says head going to explode - actually referring to headaches - also stressed at

work - CICA in Glasgow - also short temper - had been falling out with people and

nearly fighting with strangers…”.

The appellant accepted that her comments had come from the GP records and that they had

not been said during the examination.

[38] Item 12: Mr A had not said (cf para 5.01) that his condition had kept him inside the

house for most of the day, watching TV or “playing on his computer”. There was no

reference to “playing” on the recording. The appellant accepted that Mr A had not said this.

The phrase ought to have been “working on his computer”.

[39] Item 13: Mr A’s conversation had not been “peppered” (cf para 6.01) with expletives.

In view of the length of the consultation and the use of a swear word on only eight

occasions, the appellant would have known that this did not constitute being “heavily (sic)

peppered”.

Page 15 ⇓

[40] Item 14: Mr A had not said (cf paras 7.01 and 10.04-06) that he did not require any

assistance or support in carrying out the normal activities of daily living. He had not said

that his condition did not disable him in any way. There was no evidence in the recording

that Mr A had said this. There was no contemporaneous record of it in the appellant’s notes.

She had not specifically asked Mr A about his daily activities. The appellant had said that

she had retrieved this information from Mr A’s application to the Employment Tribunal

(Forms ET1 and ET3). The information on that form had been simply to inform the ET about

whether Mr A would need any assistance as his claim progressed. It was not about whether

he required assistance or support in carrying out daily activities. The appellant had not

explained how she came to write (at para 7.01) that “Mr A was very clear” on these matters.

She would have known that she had not asked Mr A about his daily living, but her report

read as if she had.

[41] Item 15: Mr A had not said (cf paras 1.01 and 7.02) that he lived at home with his

parents and elder brother. The appellant had accepted that this was an error. The appellant

must have known that Mr A had not said that he lived with his parents. He did not in fact

live with his parents.

[42] Item 17: Mr A had not become (cf para 9.04) verbally aggressive as the consultation

continued. The Tribunal deleted the additional comment that Mr A had also become more

agitated on the basis that this may not have shown up in the recording. The latter did not

suggest that Mr A had become “verbally aggressive”. In the recording he appeared to be

calm and non-aggressive. He had maintained his composure. He could be heard laughing

at times. The appellant’s evidence was that her wording was “unfortunate”. She must have

known that he had not been verbally aggressive.

Page 16 ⇓

[43] The remaining paragraphs of the allegation were, first (para 2), whether the

statement in the appellant’s report (at para 8.01) that Mr A’s speech had been “heavily

peppered with expletives” was untrue. This issue was similar to items 2 and 13 of

paragraph 1 of the first allegation (supra). The Tribunal considered that eight expletives did

not amount to Mr A’s speech being heavily peppered, as the appellant had reported. The

appellant had accepted that the phrase had been “an unfortunate use of words”. The second

allegation (para 3) was that, at the Employment Tribunal hearing, the appellant had

maintained that her report had been accurate when the statements which she had attributed

to Mr A had not been made. This was especially the case in relation to the direct quotations

referred to in items 3, 4, and 6–8 (supra). The third allegation (para 4) was that the

appellant’s actions had been dishonest. All of these allegations were found established.

[44] The Tribunal considered (para 27), as they had been invited to do by the appellant,

what motive there could be for the appellant to act dishonestly. The Tribunal took notice of

certain aspects of the appellant’s evidence which suggested that she had formed a dislike of

Mr A. These were that she had referred to being uncomfortable with his demeanour and

language and had perceived him to be overfamiliar. She had been keen for the consultation

to end. It was unusual for her to consult with a patient who swore as often as Mr A had

done. She had found it a particularly difficult task to draft the report. She had said in her

written statement:

“I had been quite intimidated by Mr A and his presentation during our consultation.

I felt I was being bullied in the way he was taking control of the consultation and I

have never responded well to such behaviour, perhaps because of the way my father

had been with me. I can only think that this had an effect on the way in which I was

reluctant to address Mr A’s report”.

[45] The Tribunal concluded (para 28) that the appellant had chosen to select information

from sources which supported her view that Mr A was not disabled. She did not look for

Page 17 ⇓

support for Mr A’s position. It did not consider (at para 29) that a professional could, in

good faith, make fifteen errors of the kind that she had made due to problems with

recollection. This was “far less probable than dishonesty”. The Tribunal had first

considered the appellant’s knowledge or belief as to the facts. It concluded that she had

included detail in her report that she had known to be incorrect. There was no other

possible explanation other than her need to produce a report when she had not garnered the

relevant information during the examination. Having identified her state of knowledge, the

Tribunal applied the standards of ordinary decent people and determined that the

appellant’s behaviour had been dishonest.

Submissions

Appellant

[46] The appellant acknowledged that the bar in relation to disturbing the findings in fact

of the Tribunal was a high one. Neither party had produced a transcript of the evidence at

the Tribunal hearing. In summary, however, (1) in assessing the appellant’s report, the

Tribunal’s reasoning had been affected by errors in relation to items 2, 8 and 13; (2) the

Tribunal had failed to take into account that what the Tribunal had identified as errors in the

report had involved subjective or impressionistic judgments; (3) the Tribunal had erred in:

(i) reasoning that, in relation to the passage of time and the effect of stressors, memory could

only be lost and a false memory could not be created; (ii) failing to proceed on the basis that

dishonesty was inherently improbable; and (iii) overlooking the onus which had been on the

respondents to demonstrate dishonesty rather than honest mistake; and (4) making the

finding of dishonesty. It was unlikely that the appellant would have periled her career on

the contents of the report.

Page 18 ⇓

[47] It was accepted that a court could not intervene with a tribunal’s decision on fact, in

the absence of a serious flaw in the process or the reasoning, unless it could be shown to

have been “plainly wrong” (Professional Standards Authority for Health and Social Care v

Nursing and Midwifery Council 2017 SC 542 at para [25]; Garner v General Teaching Council

2016 SC 1 at paras [18]–[22] ). Where the decision did not concern matters within the

Tribunal’s specialist area, however, there was little to inhibit the court from substituting its

own judgment if there was cause to do so (Mallon v General Medical Council 2007 SC 426 at

para [20]).

[48] When making a finding of dishonesty, a tribunal had first to ascertain (subjectively)

the individual’s knowledge or belief as to the facts. It had then to determine whether the

conduct was dishonest by applying the standards of ordinary decent people (Ivey v Genting

Casinos (UK) (supra) at para 74, following Royal Brunei Airlines v Tan [1995] 2 AC 378 and

Barlow Clowes International v Eurotrust International [2006] 1 WLR 1476 at para 10; Frank

Houlgate Investment v Biggart Baillie 2015 SC 187 at para 44).

[49] The appellant departed from the submission, which had been contained in the

written Note of Argument, that the Tribunal had not had regard to the personal attributes of

the appellant, including her experience, intelligence and motive (Royal Brunei Airlines (supra)

at 391). Evidence of previous good character was relevant to the assessment of knowledge

(Bryant v Law Society [2009] 1 WLR 163). It was accepted that this was a matter of weight

and that the Tribunal had taken these factors into account.

[50] It was a general rule of thumb that the more serious the allegation, the less likely it

was to have occurred. Thus, fraud was inherently less likely to have occurred than

negligence (Re H (Minors) [1996] AC 563 at 886-7; In re S-B (Children) [2010] 1 AC 678 at

para 11). A finding of dishonesty required careful reasoning (Qureshi v General Medical

Page 19 ⇓

Counsel [2015] EWHC 3729 (Admin) at paras 45-46); the test being that set out in Wordie

Property Co v Secretary of State for Scotland 1984 SLT 345). A professional person ought to

have a presumption of innocence, so that very cogent evidence would be required before the

allegation is held to be established (Lawrance v General Medical Council [2015] EWHC 586

(Admin)).

[51] The appellant did not challenge the findings on items 1, 9, 12 and 15 (supra) in so far

as they found that what the appellant had reported Mr A as saying had not been what he

had said. She accepted that, in the absence of a transcript of the evidence before the

Tribunal, she had some difficulty in challenging the other items other than 2, 8 and 13. The

latter items were all reports of the appellant’s impression, recorded three weeks after the

examination and in the absence of adequate notes.

[52] On item 2 (cursed freely) the Tribunal’s approach to the word “freely” was wrong.

The appellant’s assessment had been subjective. She had used the word in the sense of Mr A

being uninhibited, having regard to what was a relatively formal setting, as opposed to it

meaning “with regularity”. The Tribunal’s arithmetical exercise was not appropriate. The

Tribunal erred in failing to deal with the numerous inaudible passages. In equating their

conclusion that Mr A did not curse freely with what the appellant actually knew, the

Tribunal erred. This had been a subjective assessment. The effect of the use of expletives

was a matter predominantly for the appellant to gauge. The Tribunal’s assertion that the

appellant had exaggerated the frequency of swearing had no basis in the evidence.

[53] On Item 8 (description of symptoms), the appellant’s comment represented an

impression formed by her rather than a statement made by Mr A. The Tribunal erred in

relying upon the email, which had been sent to the appellant, and the GP records. Neither

undermined the appellant’s report that Mr A was a poor historian. The Tribunal failed to

Page 20 ⇓

have regard to the difficulty which the appellant had had in controlling and directing the

examination. The appellant’s report had been about oral presentation.

[54] On item 13, the allegation in the particular paragraph (6.01) was that Mr A’s account

was “peppered” and not “heavily peppered”(cf para 8.01). The Tribunal erred by failing to

consider why this characterisation had not been open to the appellant. It failed to address

the knowledge of the appellant.

[55] The Tribunal had made no proper assessment of the credibility and reliability of

Mr A. Although, at the time of the decision on sufficiency, it had mentioned his reliability,

that could only have been provisional. At that stage no assessment of credibility or

reliability arose; beyond the Tribunal being satisfied that the evidence was not so inherently

weak that it could not be relied upon (Fox v HM Advocate 1998 JC 94 at 113; R v Galbraith

[1981] 1 WLR 1039 at 1042). The Tribunal required to return to the issue at the stage of the

final determination. Saying that its view had not changed was not enough. A comparison

of the competing positions was required. This was so even though it was acknowledged

that there was force in the respondents’ argument that the findings in fact would make little

sense if the Tribunal had overlooked Mr A’s credibility.

[56] In relation to the appellant’s awareness that what she had written was untrue, the

Tribunal had erred in its approach to how the memory worked. That approach did not

coincide with day to day experience. This was against a background of dishonesty being an

inherently improbable explanation and the onus being on the respondents. The Tribunal

had not explained how it had come to find that what was inherently improbable had been

established. At the sufficiency stage the Tribunal had misdirected itself in considering

whether the alternative possibilities were “more probable” than dishonesty. This had been

carried through to the determination stage. The Tribunal had moved away from a

Page 21 ⇓

presumption that dishonesty was less probable to one in which the appellant had had to

establish that the alternatives were more probable.

[57] It was possible to misremember things. It was a non sequitur to hold, as the tribunal

did repeatedly in relation to the individual items, that the fact that it was established that

Mr A had not said what the appellant had reported him saying meant that the appellant had

been aware, when writing her report, that he had not said what was reported. She had only

taken three pages of notes. A period of three weeks had elapsed. The appellant’s

description of the extent of Mr A’s swearing was very impressionistic in nature. The real

issue in relation to many of the quotations was whether or not there had been swearing. In

summary, the Tribunal’s approach to awareness affected all of the findings.

[58] In relation to whether dishonesty had been proved, the Tribunal had erred in failing

to make a finding on the appellant’s knowledge. It had recited, but not applied, the test in

Ivey v Genting Casinos (UK) (supra). It had not considered the possibility of carelessness. It

had not explained how ordinary decent people would have considered the appellant to be

dishonest. It had been important for the Tribunal to address why the appellant might have

been dishonest. The conclusion that she had disliked Mr A was neither fair nor rational. It

had not been suggested to the appellant that she had attempted to paint Mr A in the poorest

light. The appellant had intended that the report be sent to Mr A for comment, although

that had not happened. The Tribunal had failed to take account of the fact that any errors in

the report had not affected the accuracy of the conclusion, which had not been challenged.

The accuracy of much of the report had not been attacked. Some of the erroneous

attributions had been garnered from other accurate sources. The Tribunal had not taken

account of the trivial nature of many of the errors, including whether the appellant had been

Page 22 ⇓

playing on, or working with, his computer. The failure to attach weight to the appellant’s

good character was also an error.

Respondents

[59] The respondents did not dispute the appellant’s summary of the law, with two

qualifications. First, in relation to the inherent improbability of dishonesty, In Re S-B

(Children) (supra at para 11) had made it clear, following In Re B [2009] 1 AC 11 (at para 13)

that, despite earlier dicta in other cases in England and Wales, which suggested that the

standard of proof may vary with the gravity of the allegation or the seriousness of the

consequences to the individual who had been accused, there was only one standard of proof

in civil cases. That was proof that the fact in issue more probably occurred than not. There

was no connection between inherent probability and seriousness. In the present case, there

had been between 12 and 15 inaccuracies in a report which had been compiled by an

experienced professional for use at an Employment Tribunal. The decision to be made was a

binary one: had there been dishonesty or a mistake? It was inherently improbable that the

appellant had made this number of innocent mistakes. The choice, of where on the balance

of probability the answer rested, was for the Tribunal to make.

[60] The Tribunal’s determination on sufficiency had favoured the appellant. The

appellant had not suggested that the Tribunal ought to have sustained the appellant’s “no

case to answer” submission. It was not legitimate to take the generous approach of the

Tribunal at that stage and then to build on that for the purposes of the final determination.

The assessment of probability had to involve looking at the evidence as a whole. The court

had to ask whether the Tribunal’s determination of the facts had been “plainly wrong”. It

was not possible to do this without a transcription of the evidence at the Tribunal (Robertson

Page 23 ⇓

v Council of the Law Society 2016 SLT 103 at para [21], following Allardice v Wallace 1957 SLT

225 at 227).

[61] It was for the Tribunal to decide what evidence to accept, what weight to give to it

and to make findings in fact based upon it (Garner v General Teaching Council (supra) at

para [47]). The test for interference on matters of fact was that in Thomas v Thomas 1947 SC

(HL) 45 (at 54); that the court should only do so when an error “unmistakably… appears

from the evidence”. Deference should be paid to a specialist tribunal, dealing with

professional persons, in relation to the writing of a specialist medical report. In any event,

the test for overturning findings in fact was a high one (Robertson v Council of the Law Society

(supra) at para [22]; Gupta v General Medical Council [2002] 1 WLR 1691 at para 10; Perry v

Raleys Solicitors [2019] 2 WLR 636 at para 52).

[62] On item 1 (history of depression), the appellant had reported that Mr A had said that

he did not suffer from depression until he had started with the CICA. The appellant’s

statement to that effect was designed to demonstrate that Mr A had been lying. She had

accepted that he had not said this. In the summary section of her report, the appellant had

said that Mr A had said that his employment had been the sole cause for the development of

depression and his other problems. She had said (para 10.3) that “This [is] plainly not the

case, as these conditions all began some years prior to his employment…”. She continued

by stating (at para 10.7) that Mr A’s account was “tinged with mendacity”.

[63] On items 2 (cursing freely) and 13 (number of expletives), it had been for the

Tribunal to assess the evidence, including the recording and the transcript, in order to

determine what could be heard and what, on the evidence as a whole, could be determined

as fact. The Tribunal’s arithmetic on the number of swear words, which had been used, was

not challenged. The Tribunal’s finding on the allegation (para 2) was that eight occasions

Page 24 ⇓

did not amount to a heavy peppering or a liberal sprinkling. That conclusion was not

plainly wrong.

[64] On item 8 (vagueness on symptoms), Mr A had handed the appellant an email which

described his symptoms. He had spoken about his symptoms of depression. The challenge

on all three items (2, 8 and 13) was not made out.

[65] It was inconceivable that the Tribunal had not found Mr A credible, given the

findings in fact. Where there was a straightforward dispute, whose resolution depended

simply on which person was telling the truth, it is likely to be enough for the judge to

indicate that he believes X rather than Y. There may be nothing else to say (Flannery v

Halifax Estate Agencies [2000] 1 WLR 377 at 382). Even if it had not determined his

credibility, that did not take the appellant anywhere, since eleven of the items were not

challenged.

[66] In relation to the appellant’s awareness, the Tribunal had methodically gone through

every item and explained why it had found, in each instance, that the appellant had been

aware of the true position. It set out what the appellant had written, what Mr A had said

and what the appellant had known. There was a clear analysis of what the appellant had

believed. The Tribunal had referred to the appellant’s explanation; that her mental state

may have contributed to the errors, being less convincing when she had included a high

level of detail. That was a matter for the Tribunal to assess. In relation to the number of

inaccuracies in the report, there was no “magic” in the use of quotation marks. The

appellant had been reporting what Mr A had said or done, whether or not direct speech was

used. It was common sense that a person may have forgotten something, but it was difficult

to understand how so many statements could be attributed to Mr A when he had not made

them. Out of 14 allegations, nine had been accepted as errors. The Tribunal’s approach in

Page 25 ⇓

relation to probability at the sufficiency stage had been created by the appellant’s citation of

Soni v General Medical Council (supra). Inaccuracies having been established, the binary

choice of deliberate or accidental remained. The Tribunal had found that the appellant must

have known that she was not reporting the truth.

[67] On dishonesty, there was no complexity. As in Ivey v Genting Casinos (supra), the

question was whether right thinking people would consider that the appellant had

knowingly misstated the position. The Tribunal had been specifically directed to this test

and had applied it. The Tribunal found, in relation to each item, that the appellant had said

things that she had known to be untrue. These were clear examples of dishonesty. In

reaching its decision, the Tribunal had taken into account all of the factors relied upon by the

appellant, including her unblemished career, possible absence of motive, intimation of the

report to Mr A and stressors. The Tribunal’s approach to memory, and the recollection of

detail, was plainly correct. There was no need for a finding of motive, although the Tribunal

had thought that animus played a part. Once a tribunal finds that a person has said

something which he or she knows to be untrue, in the absence of exceptional circumstances,

there is no room for anything other than a finding of dishonesty. Given the binary nature of

the decision which was taken, no informed reader would have been in any doubt as to the

reasons for the decision in terms of Wordie Property Co v Secretary of State for Scotland (supra).

Decision

Sufficiency of Evidence

[68] It is worth commenting, in limine, that the Tribunal’s approach, to the issue of

whether there had been a sufficiency of evidence at the conclusion of the respondents’ case

(The General Medical Council (Fitness to Practise) Rules Order in Council 2004

Page 26 ⇓

rule 17(2)(g)), was very much in favour of the appellant. Sufficiency of evidence is not about

whether one version of events is more or less probable than another. It is whether, on the

evidence already led at that stage of the proceedings, a Tribunal would be entitled to draw

the inference that the facts, which form the allegation, have been proved.

[69] It is not normally legitimate at the stage of determining sufficiency to take into

account alternative explanations, especially if there has been no evidence to support the

existence of these alternatives. It is not appropriate to offer a view on probability at that

stage. Probability is concerned with the assessment of the weight to be attributed to

evidence supporting competing versions of fact. Even if probability were a feature, it would

not be correct to reject a claim of dishonesty because an alternative was not regarded as

more probable. The test would have to be whether dishonesty was more probable. This,

however, is essentially a semantic debate in the context of this case.

[70] The evidence led by the respondents, if it were ultimately accepted by the Tribunal,

was capable of demonstrating that a significant proportion of what the appellant had

attributed to Mr A in her report had not been said by him. In the absence of an acceptable

explanation from the appellant, which did not exist at the sufficiency stage of the

proceedings, a Tribunal would be entitled to infer dishonesty on the part of the appellant

from the fact of the multiple discrepancies alone. In any event, when testing sufficiency, the

Tribunal ought to disregard any explanation because, after all the evidence is led, that

explanation may either not be live or it may be rejected as not credible or reliable (Fox v HM

Advocate 1998 JC 94, LJG (Rodger) at 101). The Tribunal is not ultimately bound to draw the

inference, but it is one which was open to it to draw from the disconnection between the

terms of the report and the evidence of what was said at the examination. In deciding at the

Page 27 ⇓

stage of determining sufficiency whether that inference can be drawn, the character or

reputation of the appellant is irrelevant (see infra).

[71] The possibility of poor recollection, or a conflation of different sources of material,

having been the cause of the disconnect, and stemming from the time lapse of three weeks

or thereby between the examination and the preparation of the report, did not arise at the

stage of sufficiency. It was not for the appellant to proffer alternative causes in advance of

giving evidence. It follows that the Tribunal should not have dismissed those parts of the

allegations which were deemed by it to be the possible consequence of poor recollection

(eg in items 7 and 17). The court must disagree with the dicta to a contrary effect in Soni v

General Medical Council [2015] EWHC 364 (Admin) (Holroyde J at paras 61 and 62 supra).

The Standard of Proof of Dishonesty

[72] It was for the respondents to prove the allegations which they had proffered.

However, once all the evidence in a dispute of fact is adduced, the question of onus seldom

remains in play (SSE Generation v Hochtief Solutions 2018 SLT 579, LP (Carloway) at

para [273] citing Gibson v British Insulated Callenders Construction Co 1973 SC (HL) 15, Lord

Reid, at 22). The straightforward question for the Tribunal was whether, on the balance of

probabilities, the allegation of dishonesty had been made out. It is no doubt correct to say

that a finding of dishonesty requires careful reasoning. Almost all tribunal decisions do.

The required quality of that reasoning remains that described in Wordie Property Co v

Secretary of State for Scotland 1984 SLT 345 (LP (Emslie) at 348); being whether the decision

leaves:

“… the informed reader and the court in no real and substantial doubt as to what the

reasons for it were and what were the material considerations which were taken into

account in reaching it”.

Page 28 ⇓

[73] If there is a dispute on a critical fact, the resolution of which depends upon the oral

accounts of witnesses, if the fact finder accepts one or more witnesses and rejects others, it

will rarely be sufficient for the Tribunal merely to state the fact of acceptance or rejection.

Some reason, albeit that it may be a short one, will almost always be required in the event of

a challenge to the decision. If the dicta in Flannery v Halifax Estate Agencies [2000] 1 WLR 377

(Henry LJ, delivering the opinion of the Court of Appeal at 382 (para (3)), is taken as

suggesting otherwise, the court must disagree.

[74] Equally, there ought to be cogent evidence before dishonesty is found. In that

respect, the court agrees with Lawrance v General Medical Council [2015] EWHC 586 (Admin)

(Collins J at para 35). However, the use of such axiomatic language does not detract from

the general legal proposition that the test to be applied in determining whether a crucial fact,

including dishonesty, is to be found remains the balance of probabilities (cf Walker &

Walker: Evidence (4th ed) para 4.3). Is the fact, on the whole relevant evidence which is

accepted by the Tribunal, more likely than not to be the case?

[75] In approaching the exercise of deciding the critical issue, a Tribunal should keep an

open mind, untinged by any preconceived general notions that dishonesty is less likely than

not to have occurred or that it is inherently improbable, especially when the person accused

is one of good repute. Whether dishonestly is made out will depend entirely on what facts

are ultimately admitted or proved and what inferences can legitimately be drawn from

them. If, for example, there is a lack of coincidence between what a patient is proved to

have said at an examination and what the doctor reports that patient to have said, and the

disconnect occurs on multiple occasions, it may not be too onerous a task for a Tribunal to

draw an inference of dishonesty, even if it need not do so in particular circumstances.

Page 29 ⇓

[76] In order to find dishonesty established, all that was required was a determination

that it was more probable than not. That would involve eliminating any alternative

possibilities which were live at the end of the evidential hearing, but there was no need to

find that these alternatives were “more probable” than dishonesty in order to find that

dishonesty was not proved. Nevertheless, it is clear that the Tribunal found that dishonesty

was more probable; in fact that it was, in relation to many of the items, the only possible

explanation for what the appellant had reported.

[77] In Ivey v Genting Casinos (UK) [2018] AC 391, Lord Hughes explained (at para 74) that

the exercise of determining whether dishonesty had occurred involved, first, the

ascertainment of the individual’s knowledge or belief as to the facts and, secondly, the

application of the standards of ordinary decent people. That was a useful test in the context,

which arose in that case, of distinguishing dishonesty from “cheating” at cards. It explained

that the fact that the person’s belief was reasonable was not a factor in the dishonesty

equation. The issues in the present case may be more easily resolved, whilst still applying

that test. As Lord Hughes observed (at para 53) “…dishonesty is… primarily a jury concept,

characterised by recognition rather than by definition”. It was his taking notice of the view

of the English Criminal Law Revision Committee (8th report, para 39), that dishonesty was

“… something which laymen can easily recognise when they see it…”, that may have

prompted his reference to ordinary decent people, when disapproving of the complexities

introduced in England and Wales by R v Ghosh [1982] QB 1053. Once it had been established

that Mr A had not said what the appellant had reported him as having said, the simple

question could be more simply expressed as being whether the appellant knew that what

she was reporting was not true. If that were the case, there would only be one inference that

an ordinary decent person could draw.

Page 30 ⇓

Evidence of Character

[78] A person’s character, whether good or bad, is normally a matter which is collateral to

the issue of whether a person acted dishonestly on a particular occasion. It is not directly

relevant to the proof of that issue. In the court setting, the evidence would be inadmissible

(Dickson: Evidence (Grierson ed) para 6; Walker & Walker: Evidence (4th ed) para 7.4.1;

Davidson: Evidence para 10.01). The quality of a person’s general repute does not make the

particular dishonesty on the occasion libelled more or less likely. Even if it did have some

peripheral relevance, inquiry into it would normally be excluded on expediency grounds (A

v B (1895) 22 R 402, LP (Robertson) at 404). Character may, however, be taken into account

by a court or tribunal when assessing a person’s credibility and, to a lesser extent, reliability;

should he or she give evidence which refutes the allegation and invokes his or her

reputation as a factor in assessing her credibility. Bryant v Law Society [2009] 1 WLR 163

(Richards LJ, delivering the opinion of the court, at para 161, following Donkin v Law Society

[2007] EWHC 414 (Admin) Maurice Kay LJ at para 24) is correct on the effect of character or

reputation on credibility, but not on it having a bearing on whether the person had or did

not have a “propensity” to have been dishonest on the particular occasion under

investigation.

[79] The degree to which evidence of character or reputation may be significant to the

issue of credibility or reliability will vary according to the facts and circumstances of the

particular case. Some caution is required, however, before giving it too much weight. The

inquiry by a Tribunal into an allegedly dishonest act or other misconduct will, or at least

should, focus on the act itself. The Tribunal will look primarily at the evidence which bears

directly on whether or not the act occurred. It is important for a Tribunal not to be deflected

Page 31 ⇓

from that task by delving too deeply into an individual’s professional or personal

background. Although that individual may well be able to secure testimonials to his or her

good character from amongst his or her close associates, it is unlikely that the opposing

party, who is attempting to prove the allegation, will have either the time, resources or

ability to delve into the individual’s past in an attempt either simply to refute the terms of

such references or to secure evidence of a less than perfect past.

[80] As with evidence of good character, proof of bad character will equally have no

direct relevance to a central issue of dishonesty in a particular setting. Even if it had a direct

bearing on whether the individual had a “propensity” to act in the manner alleged, that is

not relevant to proof of the particular act. As a generality, those pursuing disciplinary

proceedings should not be permitted to introduce evidence of general bad character as an

element in the proof of dishonesty on a specific occasion. They are not to be encouraged to

ingather evidence of bad character either to refute the terms of references, which might be,

or have been, produced, or as an attempt to undermine either credibility or reliability. If it

were to be otherwise, tribunal hearings would be greatly prolonged, and the tribunal could

be deflected from its purpose, by parties addressing matters of peripheral, if any,

significance. Although it may be legitimate to establish that an individual has no previous

disciplinary record, since that is a matter which is usually readily ascertainable, there must

be practical constraints on the extent to which a tribunal should otherwise permit evidence

of either general good or bad character, when that character is not the gravamen of the

complaint. In this case, the Tribunal were entitled to attach little weight to the appellant’s

good character in so far as it bore upon the merits of the case.

Page 32 ⇓

Mr A’s Credibility

[81] It is not every case that requires a determination on the credibility and reliability of

each party. In this case, Mr A’s credibility and reliability was of limited importance. The

essential matters requiring determination were, first, what Mr A had said at the

consultation. That was, in large part, established by the recording and its transcription. It

was not disputed that Mr A had made the recording of the examination. There was expert

evidence from the audio analyst that the recording had not been tampered with. Secondly,

there was the appellant’s belief of what had been said. There was the appellant’s evidence

on that matter. The issue turned in large measure on her credibility and reliability. What

the appellant had written in her report was not disputed.

[82] Quantum valeat, the extent to which Mr A’s credibility, as distinct from his reliability,

was an issue in the mind of the Tribunal is unclear. The Tribunal had, at the stage of the

determination on the submission on sufficiency, expressed the view that it regarded his

evidence as reliable. There is little point in addressing the reliability of a witness, if his or

her credibility has not already been accepted. Given that the Tribunal ought not to have

been making any concluded findings on credibility or reliability, other than perhaps in an

extreme case, at the stage of a determination on sufficiency, it is reasonable to infer that what

the Tribunal was saying about Mr A’s reliability then was simply that, taking his evidence as

both credible and reliable, there was a case to answer. At the determination stage, the

Tribunal did state that its view on Mr A’s reliability had not changed. In the context of a

case in which his credibility and reliability was of marginal importance, that was sufficient

to meet any reasons challenge.

Page 33 ⇓

The Finding of Dishonesty

[83] The Medical Practitioners Tribunal is a specialist body which has been created by

statute to examine and determine allegations of professional misconduct in the context of

medical practice. As such, the issue of whether there has been serious misconduct is “pre-

eminently” a matter for the Tribunal, which has the requisite expertise in matters of practice

which it can bring to bear on the critical issue (Robertson v Council of the Law Society 2016 SLT

103, Lord Menzies, delivering the opinion of the court, at para 22, citing Mallon v General

Medical Council 2007 SC 426, LJC (Gill), delivering the opinion of the court, at para [28]).

Although there is some force in the argument that the court is equally, if not better, placed to

assess a matter of dishonesty, the allegation is of dishonesty in a particular context; that is in

the compilation of medical reports for legal proceedings. The manner in which

examinations of patients are conducted and recorded by the medical practitioner, and the

form and content of the report, fall within the Tribunal’s area of specialism. Due deference

therefore has to be given to the Tribunal’s conclusion on the facts; it having had the

advantage of seeing and hearing all of the evidence, especially that of the appellant herself

(see now General Medical Council v Raychaudhuri [2019] 1 WLR 324, Sales LJ at para 57).

[84] It is not the case that the court cannot interfere with findings in fact simply because

there is no transcription of the proceedings before the Tribunal. In certain situations,

notably appeals from inferior or delegated courts, a transcription may be necessary before

the court can review a finding in fact and substitute its own judgment, having detected an

error in the inferior court’s approach. Such substitution may not be possible without a

transcript of the whole, or a substantial part, of the testimony. However, there are many

other situations in which the court has an adequate account of the evidence which was given

before an inferior court or tribunal. Some tribunals do not record proceedings verbatim and

Page 34 ⇓

such an account may, in any event, be quite expansive. The court may be able to detect an

error, and quash the decision in relation to a particular finding in fact, on the basis of, for

example, an erroneous conclusion which unmistakably appears from the account of the

evidence provided. Where, as here, the Tribunal has set out an adequate narrative of the

evidence, it would be unreasonable to require a party to produce a transcription of 26 days

of proceedings in order to present an appeal.

[85] Nevertheless, the test for reviewing matters of fact, especially in a situation where

there is no transcript, remains a high, but by no means an impossible, one (cf Southall v

General Medical Council [2010] EWCA Civ 407, Leveson LJ at para 47: ”virtually unassailable”

citing, inter alia, Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger at

para [10]). The traditional test has been that the finding must be capable of being described

as “plainly wrong” (Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35, Lord Shaw

at 37, adopted in Thomas v Thomas 1947 SC (HL) 45, Lord Thankerton at 55, Lord Macmillan

at 59). This simply means, in modern parlance, that the inferior court or tribunal has

reached a decision on a particular fact which no reasonable judge could have reached or that

the decision on that fact cannot reasonably be explained or justified (Henderson v Foxworth

Investments 2014 SC (UKSC) 203, Lord Reed at paras 62 and 67; HS v FS 2015 SC 513, LJC

(Carloway), delivering the opinion of the court, at para [19] et seq).

[86] It may be accurate to describe an assessment of the quantity of a person’s swearing in

a person’s speech as an evaluative judgment, which depends to a large degree on the

subjective view of the person describing the frequency of the oaths used. There may also be

a degree of force in the contentions that: an arithmetical approach may not provide a

complete answer; and the high level of inaudible passages in the transcript of the

examination could have been dealt with in a more comprehensive fashion. The Tribunal did

Page 35 ⇓

explain that, although there were over 200 inaudibles, many were no more than a second in

length and many were during the appellant’s speech. They amounted to a very small part of

the total. In these circumstances, and having regard to the limited number of occasions

which were detectable, it cannot be said that the Tribunal was plainly wrong, not only in

holding that what had occurred did not involve a heavy peppering of swear words or

cursing freely, but also that the appellant knew that to be the case. Although, were this to

have been the only allegation of dishonesty, the Tribunal’s reasoning may have been the

subject of a more critical analysis, the combination of the swearing with the individual

findings of dishonesty, and the cumulative effect of multiple findings in that regard, renders

the Tribunal’s conclusions on this aspect fully justified and reasoned.

[87] It is not the swearing or the appellant’s approach to it which merits the greater

consideration. What was under investigation were a large number of attributed statements

in a single report which, it was established, Mr A had not said. The circumstances in which

this occurred were that the appellant, as a respected member of the medical profession,

knew that her report would be relied upon in legal proceedings, which had been initiated by

the subject of the report with a view to establishing disability discrimination. The

importance of a high degree of accuracy would have been obvious. The Tribunal was able

to establish not only that Mr A had not said what he was, in indirect speech, described as

saying (eg absence of depression pre CICA, freely cursing) but that he had not said

particular words which had been attributed to him in direct speech. The latter included:

describing himself as “f....d off” at CICA applicants; referring to CICA applicants as “these

f...ing girning bastards”; calling his employers’ remarks to him as the “f...ing lies the f...ing

bastards telt”; and seeing “some of the “f...ing lies” that his employers had composed. As

the Tribunal reasoned, it is extremely difficult, in circumstances in which it is proved that

Page 36 ⇓

Mr A did not use these phrases, to attribute such specifics to anything other than dishonesty;

that the appellant knew that what she was reporting was fabrication.

[88] There is no reasonable explanation, other than dishonesty, for the appellant stating

that Mr A had said he had no problems prior to working with the CICA when not only had

he not said that but also he had said the opposite. Similarly, in the description of Mr A’s

behaviour during the examination, stating that he had been “verbally aggressive” when, on

listening to the recording, he was not, is reasonably attributable only to dishonesty. Most

significant in all of this was the multiple nature of the proved or accepted erroneous

attributions. It is not possible to categorise the Tribunal’s finding of dishonesty as plainly

wrong in these circumstances.

[89] It may be somewhat speculative to conclude that the appellant had composed a

report which was adverse to Mr A’s interests simply because she had disliked him. What is

clear is that the false details and embellishments, which the appellant had incorporated in

the report, gave it a veneer of attention to detail, and thus professional skill and competence,

which would not otherwise have been present. Although it may be that the errors in the

report had not affected the appellant’s overall conclusion, the persuasive nature of the report

stemmed at least in part from the convincing nature of the detailed analysis of what Mr A

had said, including the references to direct speech, and his peppering of expletives. Without

the false elaboration, the weight which the Employment Tribunal placed on its content may

have been altogether different.

[90] The appellant submitted that the Tribunal had misunderstood how the memory

worked. Although there was no attempt on the appellant’s part at the hearing of the appeal

to describe the way in which memory did work, in contrast to the Tribunal’s understanding,

the suggestion was that false memory (confabulation) could have played a part. It would be

Page 37 ⇓

extremely alarming to the legal system if false memory were to play a part in the work of

medical professionals when producing reports upon examinations, even if composed three

weeks later. The Tribunal did not consider that to be a possibility. They were correct to do

so.

[91] In relation to each item, the Tribunal explained the reason for its decision on the

particular discrepancy. Its reasoning is clear in each case. It leaves the informed reader in

no real or substantial doubt as to what the reasoning for the decision was and what material

considerations had been taken into account in arriving at it.

[92] The appeal should accordingly be refused

Page 38 ⇓

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Menzies

Lord Glennie

OPINION OF LORD MENZIES

[2020] CSIH 12

XA35/19

in the appeal by

DR JANE MARY McLENNAN

against

Appellant

THE GENERAL MEDICAL COUNCIL

Respondents

______________

Appellant: Duncan QC, P Reid; BTO Solicitors LLP

Respondents: Dunlop QC; Eversheds

9 April 2020

[93] I am in complete agreement with your Lordship in the chair, and there is little

further that I wish to add. For the reasons given by your Lordship, I agree that the appeal

should be refused.

[94] I do not suggest that the Tribunal’s decision is completely flawless, but I am satisfied

that the Tribunal was entitled to reach the conclusions which it did, and I can find no error

of law such as might vitiate its decision. The issue which has most influenced my

assessment of the Tribunal’s decision is item 1 of Schedule 1, which is set out at

Page 39 ⇓

paragraphs [26] & [27] above. At an early stage in the appellant’s report, in paragraph 2.01,

which was the opening paragraph of the section of the report dealing with Mr A’s past

medical & psychiatric history, the appellant stated as follows:

“Mr A said he had kept exceptionally well in the past, prior to working with CICA.

He said he had never had problems with anxiety, depression or his bowels prior to

commencing work with them in 2009. This is not consistent with the evidence in his

case notes.”

[95] It was accepted before the Tribunal that the statements attributed to Mr A were

never said by him, and indeed that he stated the opposite. The effect of this paragraph was

to cause the reader to regard Mr A as lacking credibility, or at least as being unreliable. This

laid the foundation for other observations in the report which were more or less critical of

Mr A, and were generally unfavourable (see the submissions for the Respondents at

paragraph [61] above). As your Lordship in the chair observes at paragraph [87] above,

there is no reasonable explanation, other than dishonesty, in the appellant stating that Mr A

had said he had no problems prior to working with the CICA when not only had he not said

that but also he had said the opposite.

[96] The Tribunal is a specialist body, and so its conclusions are due the deference which

the court accords such bodies. Even without such deference, I can find no error of law in the

Tribunal’s conclusion that the appellant had acted dishonestly with regard to item 1. This

alone, even leaving aside the other items relied on (and I do not suggest that they should be

ignored), is in my view enough to justify the Tribunal’s decision, and the refusal of this

appeal.

Page 40 ⇓

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Menzies

Lord Glennie

OPINION OF LORD GLENNIE

[2020] CSIH 12

XA35/19

in the appeal by

DR JANE MARY McLENNAN

against

Appellant

THE GENERAL MEDICAL COUNCIL

Respondents

______________

Appellant: Duncan QC, P Reid; BTO Solicitors LLP

Respondents: Dunlop QC; Eversheds

9 April 2020

[97] Your Lordship in the chair has helpfully set out the nature of the appeal, the relevant

decisions and reasoning of the Tribunal and has summarised the arguments on both sides. I

gratefully adopt all of that. In addition, I respectfully agree with what your Lordship says

about a number of discrete points under various headings, viz. sufficiency of evidence,

standard of proof for dishonesty, evidence of character and Mr A’s credibility. I also agree

with what your Lordship says in paras [83]-[85] about the approach of the court to fact

findings of a specialist body such as the Medical Practitioners Tribunal and, indeed, any

Page 41 ⇓

inferior court or tribunal. Nonetheless I feel bound to disagree with your Lordship’s

conclusion that the appeal should be refused and the decision of the Tribunal upheld. In my

opinion the Tribunal’s reasoning on a significant number of the individual items which it

had to consider is seriously flawed, not only calling into question their conclusions on these

items but also casting doubt upon the validity of their decisions on other items and the

fairness of the process. For my part, I would allow the appeal and quash the Tribunal’s

decision. My reasons for coming to this conclusion appear from the following paragraphs.

[98] In assessing the strengths of any challenge to the Tribunal’s decision, much depends,

so it seems to me, on where one starts. If one were to start with the finding at item 1 – a

finding that the appellant deliberately misreported Mr A as having said that he had never

had depression prior to commencing work with CICA in 2009, in order to contrast this with

his medical records showing that he had had symptoms of depression considerably earlier

than that, and thereby showing his account to be inconsistent and, in places, “tinged with

mendacity” – one might readily come to the view that any criticism of particular findings by

the tribunal on other individual items of the complaint paled into insignificance compared

with this clear and obvious example of the appellant’s dishonesty. But the finding of

dishonesty in relation to item 1, like all other findings of dishonesty in relation to other items

in the complaint made against the appellant, turned ultimately on the tribunal’s assessment

of the appellant’s credibility. The Tribunal disbelieved her when, in respect of some items,

she insisted that her account was accurate and, in respect of those and other items,

disbelieved her explanation of how errors might have arisen without any dishonesty on her

part. Although in respect of individual items in the complaint the Tribunal endeavoured to

set out its reasons for rejecting the appellant’s explanation, it is, in my opinion, impossible to

divorce this exercise from the adverse view which the tribunal had formed as to the

Page 42 ⇓

appellant’s overall credibility. That view was heavily influenced by the conclusion to which

the Tribunal came on the question of the appellant’s statements concerning Mr A’s swearing

during the interview.

[99] It is convenient to look compendiously at those items in Schedule 1 of the Tribunal’s

decision which relate to the appellant’s account, in her report, of Mr A’s swearing in the

course of her interview with him. The relevant items are set out below. The words in

quotations are words from the appellant’s report which, so it is alleged, to the appellant’s

knowledge, did not reflect what Mr A had said during the interview. The paragraph

numbers are numbers in the appellant’s report.

Item in

Schedule 1

Words complained of

Para in

appellant’s report

Item 2

“He cursed freely…

Para 3.01

Item 3

“He said he became ‘f…d off’ at the language

that CICA Applicants used when they were on

the phone with him”

Para 3.02

Item 4

“He did not feel he should be subjected to such Para 3.02

language from ‘these f…ing girning bastards’”

Item 5

“His range of expletives increased at this

point…”

Para 3.10

Item 6

“… he kept recordings of conversations with Para 3.13

them, to demonstrate the ‘f…ing lies the f…ing

bastards telt’”

Item 7

“… he had seen some of the ‘f…ing lies’ his

Managers had put into references …”

Para 3.14

Item 13

“His conversation was somewhat difficult to

follow at times, partly because of the number

of expletives he peppered it with…”

Para 6.01

Page 43 ⇓

In addition, there is an allegation at para 2 of the complaint that the following passage in the

appellant’s report was untrue:

Para 2 of

complaint

“his speech was heavily peppered with

expletives”

Para 8.01

[100] In considering these parts of the complaint, the Tribunal heard evidence from the

appellant and from Mr A. It also had before it the appellant’s notes of the interview, such as

they were (and they were admittedly inadequate). In addition, the Tribunal had the

advantage of hearing the recording of the appellant’s interview with Mr A, of considering a

professionally prepared transcript of that recording (Mr A’s own transcription having been

shown to be inaccurate in material respects) and of hearing expert evidence as to how the

recording was deciphered and what could or could not be heard on it. We did not have a

transcript of the evidence from the appellant or of that from Mr A. Nor did we listen to the

recording. To that extent I recognise that the Tribunal was, in many respects, in a better

position than this court to evaluate the evidence. Nonetheless, we were given a copy of the

transcript of the interview (6/2 of process, “Record of Patient Consultation”) and the

Tribunal set out clearly its reasoning and its conclusion as regards the use of expletives

during the interview as evidenced by the transcript. In my opinion, therefore, we are able to

consider critically that reasoning and conclusion, and should only hold back from such

adverse comment as might appear to be warranted if there is a possibility that other

material, which we have not seen, might cast a more favourable light on it.

[101] The interview lasted just over an hour and three quarters. The transcript of the

interview runs to 36 pages. It begins with an exchange of pleasantries on Mr A’s arrival and

concludes when, as the transcript records, “the patient appears to have left the

Page 44 ⇓

consultation”. For present purposes I am interested only in the “inaudibles”, ie those parts

of the conversation where the word “[inaudible]” appears in the transcript, indicating that

the transcriber could not make out what was being said. Given that the recording was being

made surreptitiously by Mr A, it is perhaps not surprising that there were a large number of

inaudibles. The number of inaudibles fluctuates but tends to increase as the interview

proceeds. To give an impression of the frequency

 on page 2 there are only three inaudibles, two of which are when the appellant

was speaking;

 on page 3 there are nine inaudibles, four of which occurred while the appellant

was speaking;

 on page 8 there were eight inaudibles, all of them occurring while Mr A was

speaking;

 on page 13 there were only three inaudibles, two of them while Mr A was

speaking.

However, and this is an illustration of the number of inaudibles tending to increase as the

interview went on,

 there were 12 inaudibles on page 18, all but two of which were attributable to

Mr A;

 on page 19, there were 14 inaudibles, all but one of which were attributable to

Mr A.

Going further forward into the transcript, and counting the number of inaudibles on the last

seven pages,

 on page 29 there are 10 inaudibles, eight of them attributable to Mr A;

 on page 30 there are 14 inaudibles, 13 of which are attributable to Mr A;

 on page 31 there are 13 inaudibles, all but one attributable to Mr A;

 on page 33 there are 17 inaudibles, all but one of which is attributable to Mr A;

 on page 34 there are 15 inaudibles, all but one attributable to Mr A;

Page 45 ⇓

 on page 35 there are seven inaudibles, all but one attributable to Mr A; and

 on page 36 there are 16 inaudibles, all of them attributable to Mr A.

[102] That is the transcript of the interview which the Tribunal had before it. In

paragraph 34 of its decision on the question of sufficiency under Rule 17(2)(g) of the General

Medical Council (Fitness to Practise) Rules 2004 (as amended), the Tribunal made these

remarks about the number of times Mr A used expletives during the course of the interview

with the appellant. It did so under reference to the transcript of the interview to which I

have referred:

“34. … Taking the available expert evidence at its highest (and even taking into

account those that have not been identified by both experts) the Tribunal has not

identified more than eight expletives, the presence of five of which were confirmed

by the GMC expert … Whilst there are over 200 inaudible sections in the recording,

many of these are no more than a second in length, and many occur when [the

Appellant] herself is speaking. Further, the inaudibles are not always contextually

relevant to the allegation. They also amount to only a very small percentage of the

total recording. The Tribunal cannot conceive that it would be practically possible

for Mr A to have consistently masked the use of expletives in the recording, and in

any event notes his view that such use is acceptable.”

[103] Although this was said in the context of the question of sufficiency, it is clear that it

was a determination to which the tribunal adhered throughout its decision-making. Thus:

 In its final decision, for example, it made the following finding as regards item 2 (“he

cursed freely”):

“… The Tribunal has only been able to identify eight sections of the 1 hour and

48 minute recording and transcript of the recording where a swear word was used.

… The Tribunal could find no evidence to support the assertion that Mr A had

sworn “freely”. This allegation is therefore proved …”

 As regards item 3 (where the appellant is criticised for having said that Mr A used

the expression “f…ed off”, the Tribunal said that

Page 46 ⇓

“Having listened to the audio recording and read the transcripts, the Tribunal could

find no evidence that Mr A had said this. Neither expert identified this expletive

within their reports. This allegation is therefore proved. …”

 As regards item 4 (“f…ing girning bastards”), the Tribunal found that Mr A had

used the word “bastards” but could find no evidence from the recording or the

transcript that he had used either of the other two words (“f…ing girning”). It

therefore found the allegation proved.

 Similarly, with item 5, where it was said that the range of expletives increased from a

certain point, the tribunal identified from the transcript that from the relevant point

“… no new swear words were used beyond this point, which had not been used

previously. The range did not therefore increase at this stage and this allegation is

therefore proved.”

 As regards item 6 (“f…ing lies the f…ing bastards telt”) the Tribunal said that it had

listened to the recording and read the transcripts and could find no evidence that

supported this. The appellant tried to identify three places in the transcript where it

might have been said but, having listened to all three sections, the Tribunal

concluded not only that it did not hear this being said but that it would not fit

contextually with the comment made in those sections.

 As regards item 7 (which was concerned with whether the appellant had correctly

recorded Mr A as having referred to “some of the ‘f…ing lies’” his managers had put

into references for him), the Tribunal noted that neither expert had identified the

swearing in their reports of the recording and the Tribunal did not hear it either –

and since the appellant did not herself have any notes of this they found the

allegation proved.

 As regards item 13 (“His conversation was somewhat difficult to follow at times,

partly because of the number of expletives he peppered it with…”), having identified

that the concern related to the accuracy of referring to expletives rather than the

conversation being somewhat difficult to follow, the Tribunal said this:

“… The Tribunal refers to its findings for allegation 2. This allegation is therefore

found proved. … Given the length of the consultation and the use of a swear word

on only eight occasions, [the Appellant] would know this did not constitute being

“heavily peppered”. This allegation is therefore proved.”

 The reference in that quoted passage is a reference to the allegation made in

paragraph 2 of the complaint (“His speech was heavily peppered with expletives”).

Having explained that it was prepared to accept the appellant’s definition of what

constituted an expletive, the Tribunal said that it

“… found eight examples of expletives under her definition … Bearing in mind the

consultation lasted 1 hour and 48 minutes, the Tribunal considered that these eight

Page 47 ⇓

examples did not amount to Mr A’s speech being ‘heavily peppered with expletives’

…”

[104] The Tribunal’s reasoning on the question of Mr A’s use of expletives can be

summarised in this way. Having listened to the recording and read the transcript, they

could only be sure that swearing could be heard in eight places. Therefore – and this is a

logical non-sequitur – there were only eight occasions on which Mr A swore or used

expletives. The appellant was wrong to suggest that Mr A swore or used expletives on more

than eight occasions. She must have known, therefore, that his language was not full of

expletives as stated by her – and any statement in her report that Mr A used expletives on

more than these eight occasions was therefore dishonest.

[105] That approach by the Tribunal is manifestly illogical and unfair. It is obvious that

the fact that the Tribunal could only identify eight occasions on which expletives were used

does not mean that there were only eight such occasions. Their reasoning gives no credence

to the possibility that many of the countless inaudible passages in the transcript may have

contained swearing or the use of expletives by Mr A. Given his view, mentioned by the

Tribunal, that such language was acceptable, there is no reason to think that he would not

have used expletives on more than those eight occasions. The Tribunal makes the point, in

the passage quoted from paragraph 34 of their decision on the sufficiency argument, that

“many” of the inaudibles in the transcript were “no more than a second in length” – but its

use of the word “many” implies that some such passages were clearly longer than that, and,

in any event, there are few swear words which cannot be spoken within the space of a

second. The Tribunal also makes the point that some inaudibles occur when the appellant

was speaking – but, as indicated above, by far the majority of the inaudibles occurred in the

speech of Mr A. The Tribunal says that the inaudibles were “not always contextually

Page 48 ⇓

relevant to the allegation” – but you do not need many to be “contextually relevant” (only a

couple of the items refer to language where context might be relevant), and, in any event,

there is no relevant “context” to the assertion in the appellant’s report about, for example,

the range of swear words increasing or Mr A’s account being “peppered” with expletives.

The Tribunal says that these inaudibles amount to only a very small percentage of the total

recording – but many pages show inaudibles in double figures, and if only a few of those

inaudibles masked the existence of swear words the picture would be entirely different.

Finally, the Tribunal says that it would not have been practically possible for Mr A to have

consistently masked the use of expletives in the recording, but that is not the point – it does

not follow that he was not inadvertently mumbling, dropping his voice or becoming semi-

indistinct when swearing.

[106] Taking as their starting point, almost as an established fact, the proposition that

Mr A resorted to expletives on only eight occasions during the interview lasting 1 hour and

48 minutes, the Tribunal not only disbelieved the appellant’s evidence about the frequency

and range of his use of expletives, but also refused to accept her evidence of particular

things being said when this was not apparent from the transcript and she could not support

her evidence by reference to her admittedly inadequate manuscript notes of the interview. It

is clear, in my opinion, that the Tribunal formed the view, based upon its analysis of the

transcript of the interview, that the appellant was not to be believed. There was no rational

basis for that conclusion.

[107] In my opinion that undermines the findings of the Tribunal in respect of items 2, 3, 4,

5, 6, 7 and 13, as well as its finding in relation to the allegation in paragraph 2 (“his speech

was heavily peppered with expletives”). But it goes further than that. In respect of all the

other items the Tribunal had to make an assessment not only of whether Mr A had said

Page 49 ⇓

what he was reported to have said by the appellant in her report, but also, if he had not said

that, whether the appellant had acted dishonestly in including the relevant passage in her

report. In every instance the Tribunal decided that the misstatement of Mr A’s position was

not, as she contended, the result of error on her part but was done by her deliberately,

knowing it to be false, and therefore dishonestly. It is, to my mind, impossible to conceive

that in reaching its conclusion on these various matters, the Tribunal was not influenced to a

significant extent by its finding that the appellant was engaged in an exercise of bad-

mouthing Mr A by making him out to be foul-mouthed throughout the interview when,

according to the Tribunal, he only swore on eight occasions. I consider that the whole of the

Tribunal’s decision – including the finding of dishonesty in relation to item 1 – is likely to

have been infected by its manner of dealing with the question of the use of expletives under

reference to the transcript of the interview.

[108] There are aspects of the Tribunal’s decision in respect of other items which I find

difficult to comprehend; but, except for saying that they too may well have been arrived at

in part because of the irrational view reached by the Tribunal on the issue of swearing, they

are of relatively minor importance and I do not propose to deal with them further.

[109] In light of the unsatisfactory manner in which the Tribunal has proceeded, as set out

above, I would allow the appeal and quash the decision of the Tribunal. In the ordinary

course the appropriate order to make would be to remit the matter to a freshly constituted

Tribunal to reconsider the complaints made against the appellant. However, given that the

hearing before the Tribunal took some 26 days, given that the events with which these

proceedings are concerned took place in 2014, and given that, so we were informed, the

appellant has now retired, it seems to me that it would serve no useful purpose to remit the

Page 50 ⇓

matter. In those particular circumstances, I would simply allow the appeal and quash the

decision.