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Supreme Court Rules on Cautions

The Supreme Court today ruled on the legality of Enhanced Criminal Record Certificates for cautions and  upheld the Court of Appeal decision that declared the 1997 Police Act incompatible wit the Article 8 right to privacy

R (On the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants)
This is an important decision from the Supreme Court. T was warned (cautioned) at the age of 11 for theft of two bicycles.  JB was cautioned at the age of 41 in 2001 in respect of theft from a shop of a packet of false fingernails. Both subsequently wished to work with children and needed to obtain  Enhanced Criminal Record Certificates [ECRCs] which were introduced by the Police Act of 1997. Neither had any other criminal convictions or cautions.

Under the Rehabilitation of Offenders Act 1974 a caution or warning is treated as spent as soon as it is administered. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 expempted specified professions and employment, and to working with children and young adults from the impact of convictions and cautions being spent.. T and JB both argued successfully that this blanket approach to restricting employment opportunities because of the disclosure of the cautions in their ECRCs violated the respect for private life under Article 8 of the ECHR.

The Secretary of State for the Home Department has already made amendment orders designed to eliminate the problems identified by the Court of Appeal.

Doctor acquitted of sexual assualts

Bill Wilson successfully defended a Doctor charged with two offences of Sexual Assault against a female colleague at Ipswich Crown Court. The Doctor was arrested and charged with two offences of sexual assault in September 2013 and his case proceeded to trial at Ipswich Crown Court following Not Guilty pleas having been entered to both counts at an earlier Plea & Case Management Hearing.

The Doctor was adamant that there was no substance to either allegation and following a trial which lasted some 5 days, the Jury returned unanimous verdicts acquitting him on both Counts. He was released from the Court without a stain on his character.

The main issues in the case centred firstly on the credibility of the complainant and secondly linguistics. The latter requiring expert input in relation to numerous text messages as to meaning and phraseology. Despite being advised by the Learned Judge that he was being released without a stain on his character, damage had already occurred as he was removed from his clinical position when charged and then found he was also subject to a GMC investigation.

Bankside team successfully defend Chiropractor before the PCC of the GCC

Our client faced a number of allegations in relation to consent, clinical justification, failure to properly explain the technique and purpose and inadequate record keeping.

The Chiropractor accepted the allegations of poor note keeping but denied the remainder of the allegations. Thanks to the skilful cross-examination of Jonathan Goldring (Counsel) the Professional Conduct Committee (PCC) commented that the complainant was inconsistent and they could place little reliance upon his evidence.

The GCC and defence case relied heavily upon expert evidence.  In their findings the PCC found that although clear about the high standards expected from a chiropractor, the GCC’s expert ‘…did not always address the issue of what would be expected of the reasonable chiropractor…’, which is the required test.  In contrast, the committee found the evidence of the defence expert (Dr Paul McCrossin) was of ‘considerable assistance… measured and fair’.  He put both sides of the argument, provided helpful opinion and applied the standards of the ordinary, reasonable chiropractor.

All of the allegations that had been denied were found not proved by the PCC. In relation to the note-keeping allegations, which had been accepted, the PCC found that they did not amount to unacceptable professional conduct relying on the case of Spencer v The General Osteopathic Council [2012] EWHC 3147 (Admin) (LINK to our previous article) and the case was dismissed.

This case again shows the importance of showing insight and accepting allegations where failings have been made, along with having good expert advice.  Where appropriate, being realistic and reasonable can often serve a defendant better than fighting every aspect of a case.

Anonymous Hearsay Evidence in Professional Disciplinary Proceedings

White v Nursing and Midwifery Council [2014] EWHC 520 (Admin)

The High Court has found that as a general rule it would be unfair to admit anonymous hearsay evidence in professional disciplinary cases.  The Court stated "it is difficult to conceive of circumstances in which the admission of potentially significant evidence which is both anonymous and hearsay will not infringe the requirement of fairness".

The appeal arose from disciplinary proceedings brought by the Nursing and Midwifery Council (“NMC”).  Two Sisters in the A&E department of Stafford General Hospital faced multiple charges, the heart of which related to falsified discharge times to avoid breaching the set maximum target.  The NMC relied upon, in the main, evidence given by six live witnesses.  In addition, the NMC also relied upon three letters of complaint written anonymously during the course of the initial internal investigation.  The letters were potentially significant evidence about the attitude and conduct of the appellants.

Under an application for Judicial Review, the High Court considered two points.  Firstly, should the anonymous hearsay evidence have been admitted? Secondly, having been admitted, did it adversely and unfairly impact on the Panel’s findings against the appellants. The Court provided a detailed and interesting analysis of the approach that both the UK and European Courts have taken in relation to anonymous and hearsay evidence.  They found that in principle, it can be admitted in disciplinary proceedings despite the prohibition in English law on the admission of anonymous hearsay evidence in criminal proceedings (subject to an exception for anonymous hearsay by way of business evidence). The Court went on to say that whilst hearsay evidence cannot be tested by cross-examination, it can be tested by other enquiries or rebutted by conflicting evidence,  but admitting anonymous hearsay evidence would remove "both means of subjecting the evidence to critical appraisal".   Therefore the court ruled that admitting the potentially significant anonymous hearsay evidence did infringe the requirements of fairness but it was careful in limiting its conclusion to the facts of this particular case and made it clear that ‘nothing in the principles…prohibits the introduction and reliance on anonymous hearsay in all circumstances [15]’.  However it did go on to say that it would be "difficult to conceive of circumstances" where it would be fair to admit "potentially significant" anonymous hearsay evidence.

Having come to its conclusion that the evidence should not have been admitted, it went on to consider if the committees findings were unsafe.  The court considered carefully the committees reasoning and after detailed analysis ruled that it had been made abundantly clear that the committee had not relied on the inadmissible evidence and reference to the anonymous statements were by way of supporting a finding already made. Therefore, having  erred in the first instance in admitting this evidence, the error in their decision was rectified ultimately by the Panel’s detailed and considered determination on how it reached its findings. The decision to strike the applicants off the register was therefore "unassailable".

Comment:

This is an interesting and significant case and it is clear that Professional bodies hearing allegations of misconduct, and those advising them, should be extremely cautious about admitting anonymous hearsay evidence.  It also serves as a reminder to committees to give detailed and clear reasoning for their decisions. From a defence perspective, there may also be scope to argue that the principles underlying ECHR criminal procedure rights apply to protect the health registrant's rights.

It is also worth commenting, particularly in the wake of the Francis Report, how this will all be balanced with the duty of candour referred to in the Francis report and the growing call for practitioners to raise concerns theselves as set against the encouragement of the practice of whistle blowing. How all of this will sit with this case and protecting health registrant's rights to a fair hearing will no doubt cause substantial difficulties for the legal draftsmen and the health regulators for some time to come.

Successfully defended GP

Bankside Law successfully defended a GP against allegations brought by former partners to the GMC and NHS Trust A complaint from the former partners alleged failings as to probity, clinical competence and his training skills. Our client had been expelled from his partnership. He strenuously denied the allegations by his partners and maintained the allegations were unfounded and false. After examination of patient records and a detailed and thorough response to both the Trust and the GMC (in a Rule 7 response) we were able to discredit the allegations. It was held by both organisations that there was no evidence to support the allegations and no further action was taken against our client.

John Williams commented "Partnership disputes between GPs are regrettably all too common. When they evolve into complaints to the GMC they are doubly regrettable if the evidence surrounding the allegations is weak or lacking. Paragraph 25c of good Medical Practice provides 25c. If you have concerns that a colleague may not be fit to practise and may be putting patients at risk, you must ask for advice from a colleague, your defence body or us. If you are still concerned you must report this, in line with our guidance and your workplace policy, and make a record of the steps you have taken. Unilateral action without consultation or even worse, justification and documentation of the steps you have taken  can be extremely costly to all concerned in both financial and emotional terms."