Case Law Updater

March 2022

Ali, R (On the Application Of) v Police Appeals Tribunal [2022] EWHC 646 (Admin) (18 March 2022)

Police appeals tribunal – service of notice – preliminary enquiries

[21] “The principled starting point is that there is nothing on the face of the [Police (Conduct) Regulations 2012], or identifiable by reference to their purpose, which excludes as being unlawful and incompatible with the Regulations an ‘informal factual enquiry’ preceding a Regulation 15 Notice in an appropriate case. That is so, notwithstanding the safeguarding protections and purpose of Regulation 15. Such an enquiry does not, in and of itself, serve to undermine the safeguards of the Regulation 15 Notice mechanism.”

Gray v Solicitors Regulation Authority Ltd [2022] EWHC 624 (Admin)

Dishonesty – reliance placed on civil judgement finding dishonesty

In the course of litigation in the Commcercial Court, Flaux J held that solicitor Mr Gray had deliberately and dishonestly misled the court. The SRA brought proceedings which were upheld by the SDT, which ultimately struck him off the Roll of Solicitors. Mr Gray appealed, largely on the basis that the SDT had placed such reliance on the judgement in the Commercial Court that it could not be said to have come to “its own independent view”. The parties agreed that the tribunal was required to form an independent review and the appeal was dismissed on the facts.

Ramaswamy v General Medical Council [2022] EWHC 732 (Admin)

Interim conditional registration – adjournment – costs

In a brief ruling on administrative matters, the court acceded to a registrant’s application to adjourn so that counsel could be instructed to represent, on the basis that an appropriate costs order was made against her.

Veeravalli v General Medical Council [2022] EWHC 747 (Admin)

Impairment – misconduct – conditions on registration

Following a finding of impairment and the imposition of conditions for 12 months, the appellant appealled on the basis that the findings of fact were wrong or irrational, that the findings on misconduct were wrong and that the appellant was not impaired. Appeal dismissed on all grounds.

April 2022

Bibi v Bar Standards Board [2022] EWHC 921 (Admin)

Professional misconduct – disbar – criminal conviction – disclosure to employer – service of notice – private life – power to disbar

In a case judged on its facts, the court rejected a number of challenges to the jurisdiction of the disciplinary tribunal, the admissibility of evidence, bias and other grounds.

[28] “The thrust of the provisions around service is to ensure that someone facing disciplinary charges has sufficient notice of them such that they can prepare their defence. To the extent that there were any issues with service (and it is far from clear that there were), the Appellant had been able to do that.”

Further, the appellant submitted that the tribunal lacked jurisdiction as the offence for which she had been convicted was summary only.

[35] “The Appellant could not point to any provision in the BSB Handbook limiting the Tribunal’s jurisdiction in this way. During the appeal she did take me to rE169, set out above. Within that rule the word ‘conviction’ is italicised, such that, following rI15, its meaning is defined in Part 6 of the Handbook. There, ‘conviction’ is defined as ‘a criminal conviction for an indictable offence’. However, per Ukiwa, rE169 is not a jurisdictional provision, but a rule of evidence (and its application in this case are considered under Ground 3 below). I accept the BSB’s submission that the Appellant’s assertion was simply incorrect, and that conduct need not be criminal at all, let alone indictable, to amount to professional misconduct. This much is clear from the wording of the charges against the Appellant.”

[36] “The Appellant also alleged that the Tribunal had erred in considering matters that related to her private life and not her professional life in respect of charges 1 and 2. Although the background to the criminal proceedings was the Appellant’s council tax (arguably an element of her private life), the Tribunal was entitled to conclude that the manner in which the Appellant had conducted herself in respect to it raised the professional misconduct issues alleged in charge 1. Charge 2 was understandably considered by the Tribunal to be particularly serious because the Appellant’s accounts, which were found to be dishonest, had been given on oath (RFS, paragraph 33).”

[41] “She also alleged that the Tribunal had no power to disbar her. The Tribunal did have this power (although the actual disbarment is carried into effect by the Inns of Court).”

Dr MXM v General Medical Council [2022] EWHC 817 (Admin)

Interim suspension – sexual misconduct – public and private conduct

The applicant was alleged to have engaged in sexual misconduct with a patient (who was also worked at a proximal pharmacist) at his GP premises.

Steyn J found (inter alia) [84-86] that the reasoning of the tribunal was “thin”, that there was a lack of reasons provided as to not imposing conditions of practice as opposed to interim suspension and that the reasoning for imposing an 18 month order was also inadequate. Nevertheless, while the adequacy of these reasons were called into question, the appeal on the ground of failing to adequately distinguish between private, personal matters and those that were amenable to professional regulation was unsuccessful.

The appeal succeded on the grounds that the tribunal’s [89] “evaluation of risk to patient safety and the public interest, and of the proportionality of the nature and duration of the order, was flawed.” In particular, Steyn J noted that the relationship had commenced independently of the applicant’s status as a doctor.

Rakoczy v General Medical Council [2022] EWHC 890 (Admin)

Strike out – suspension – appeal – filing appeal and payment of appeal fee – fee remission – date of filing – extension of time limit – Article 6 – Dual Principles

The appellant had sought to challenge the making of an interim suspension order by the tribunal in the High Court. He had filed his notice of appeal in time but had not filed the requisite fee or the fee remission form until several days after the time limit. Upon appeal, Fordham J considered the European case law as to the appellant’s Article 6 rights on the question of whether to extend the time limit for filing. Competing arguments were advanced by the parties as to the interpretation of the relevant law.

[16] “Having considered all the circumstances of the case, I am not going to grant an extension of time in the present case. If I take the legal position at its highest and most beneficial from the Appellant’s perspective, directly applying the Dual Principles, and doing so having regard to the Four Strasbourg Cases, this is not in my judgment a case in which the refusal of an extension of time would be incompatible with Article 6. On a view of the law which is most favourable to the Appellant, I would not extend time in this case. Nor therefore can the Appellant succeed in obtaining an extension of time if the correct legal position is more restrictive. In my judgment, holding to the 28 day time limit and holding to the requirement to pay a fee or make a Form EX160 application within the 28 days, does not in all the circumstances of this case involve the very essence of the statutory right of appeal being impaired; it does pursue a legitimate aim and involve a reasonable relationship of proportionality between the means employed and the aim sought to be achieved; it does not constitute excessive formalism; it does not impose a disproportionate burden; and it does not fail to strike a fair balance. Nor, to be clear, can the Appellant satisfy the formulation which is found in the Mance Observation and the Kay Observation. As the Court of Appeal has observed (Daniels at §§38, 43), the Court does not – unfortunately – have a general discretion to extend time in all the circumstances.”

[18] “The Four Strasbourg Cases are context- and fact-specific illustrations of the sorts of features and combinations of features that can justify the conclusion that there is excessive formalism in the strict insistence on a precondition as to access to the court, so as to constitute an impairment of the very essence of the right of access to the court, or to constitute the absence of a reasonable relationship of proportionality and the failure to strike a fair balance. When I put the facts and circumstances of the present case alongside, I cannot accept that the present case calls for the grant of an extension of time so as to avoid an Article 6 violation, in the application of the Dual Principles.”

Fordham J founds against the appellant, taking the appellant’s arguments as to the applicable law at their highest. Nevertheless, he offers an analysis of the law on extensions of time to file appeals. He notes (obiter) [21 vi] “However, if the High Court were satisfied in the application of the Dual Principles that – absent an extension of time – the statutory time limit would “operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under Article 6.1 in Tolstoy” (Pomiechowski at §39, adopted in Adesina at §15), the grant of an extension of time would be a faithful application of the decisive reasoning of the appellate courts in those cases, not a departure from it. And, ultimately, that would be so, whether or not the facts and circumstances would fit within the description of the appellant having “personally … done all [they] can to bring the appeal timeously”.”

May 2022

Farquharson v Bar Standards Board [2022] EWHC 1128 (Admin)

An appeal from a barrister who was disbarred having been convicted of sexual assault of a colleague. It was also alleged that F sent two text messages with the intention to construct a false narrative to pacify suspicions of his then partner, rather than mislead the police.

The Panel had not erred in distinguishing this case from Howd and holding that the conduct amounted to professional misconduct.

Despite the fact that “dishonesty” was never specifically alleged before the hearing, the nature of the charges regarding F’s behaviour after the offence left no doubt that dishonest conduct was alleged. Further, the BSB had opened its case at first instance on the basis that there was dishonesty.

The Panel did err in law as Article 8 ECHR was never mentioned nor brought to their attention as regards the charges relating to the text messages when it clearly was engaged. However the interference with F’s Article 8 rights was justified in the circumstances.

On sanction, despite the wording in the guidance that for serious offences, the starting point is disbarment save where there are “exceptional circumstances”, it was held that the more favourable interpretation of “clear mitigating factors” which appears elsewhere in the guidance should be preferred. Considering this interpretation, Williams J substituted the disbarment for a two-year suspension.

It was held, obiter, that the definition of “professional misconduct” and when the Tribunal must be satisfied of the severity of the misconduct could do with a greater degree of clarity in the next edition of the BSB Handbook. It was also held, obiter, that it would be good practice for panels to provide dissenting reasons (if applicable).

Hawker v The Health And Care Professions Council [2022] EWHC 1228 (Admin)

An appeal from a paramedic who was struck off having not assisted, whilst off-duty, a woman who was having a stroke and subsequently died. It was agreed that H had not contributed in any way to her death. The Court emphasises the global approach to misconduct and sanction. In addition, lack of insight and risk of repetition, through distinct, are closely interrelated, particularly in this case. The sanction of striking off was neither unreasonable nor disproportionate, despite being severe.

June 2022

Srinivasan v General Medical Council [2022] EWHC 1606 (Admin) 

S was erased it having been determined that he had performed actions which were not clinical indicated and were sexually motivated. A clear example of the difficulties appellants have in challenging decisions purely on a factual basis. None of the arguments raised on appeal was capable of disturbing the primary findings of fact made by the Tribunal.

Williams v The General Dental Council (Rev1) [2022] EWHC 1380 (Admin) 

W was erased after multiple findings of professional misconduct. Parts of the original determination were marked private. This was extended to the appeal so that parts of the judgment were redacted. As the appeal took the form of a rehearing, the lengthy judgment dealt mainly with disputes as to findings of facts. There was also a ground of appeal in that there was a failure to put key factual issues in cross examination, particularly allegations of dishonesty. It was held that in more modern hearings, both in civil and tribunals, the rule requiring cross examination to challenge the opposer over every detail of the alleged dishonesty is more flexible and dependent on the context of the allegation within the claims and the context of the main issues. The rule is yet more flexible when the opposer has been given an opportunity in advance of the hearing to answer the allegation. On sanction, erasure was substituted for a 9-month period of suspension, considering W’s age, insight and retraining.