Perennial Pitfalls Professional Discipline Cases – Part 2: Hearsay

In this series, Sebastian Winnett identifies some of the common pitfalls which those prosecuting and defending in the Regulatory sphere should expect to encounter, and offers practical suggestions on how these can be avoided or mitigated.

Part 2. Hearsay

Background

Regulatory proceedings, from investigation to resolution invariably involve striking a balance between fairly and accurately presenting a case and avoiding an unrealistically exhaustive investigation. This is particularly true in a significant number of cases where the key issues to be determined are:

a). Whether the alleged conduct in fact amounts to misconduct; or

b). Whether the Registrant’s fitness to practise is in fact impaired (where there is no dispute regarding the conduct taking place).

From a practical perspective, identifying these cases at an early stage and securing the engagement of the Registrant/Regulator to narrow the focus and agree the extent to which evidence is unchallenged is of course the ideal solution. Sensible, targeted application can save considerable costs as well as tribunal time (often at a premium) and can reduce the risk of panel members having to recuse themselves. This level of engagement, however, is not always possible nor necessarily forthcoming.

Basis for admissibility of Hearsay

Given the nature of regulatory proceedings, both Regulators and Registrants have prayed in aid Section 1(1) of the Civil Evidence Act 1995 which provides that “in civil proceedings, evidence shall not be excluded on the ground that it is hearsay”. While each Regulator is different and has distinct rules; in effect, hearsay evidence can be heard provided it is in the interests of justice.

A broadly similar basis for admission exists for all regulators, albeit sometimes expressed differently (“necessary to protect the public” in HCPC proceedings for instance).

A large body of case law has emerged from cases brought on behalf of the Nursing and Midwifery Council (NMC). The specific basis for the admission of hearsay in respect of NMC fitness to practise hearings is Rule 31(1) of the NMC (Fitness to Practise) Rules Order 2004, which permits a committee to admit (in effect) any evidence subject to requirements of relevance and “fairness”.

Development of the principles: Key Cases

No discussion of hearsay in regulatory proceedings would be complete without reference to NMC v Ogbonna [2010] EWCA Civ 1216. The Registrant (a midwife) was struck off the Register following a hearing at which the NMC relied upon a statement from the Registrant’s manager (who resided abroad) who was the sole witness to the alleged misconduct, without calling her as a live witness. Objection was taken to this course by the Registrant who wished to cross-examine the witness.

The Regulator had not given consideration to the use of a video-link, or any other method of securing the attendance of the witness.

The High Court, in quashing the decision, found that the Panel had misdirected itself by stating that the witness was not available to attend when no actual enquiry had taken place in relation to her availability. This was a lack of proper consideration of the fairness test in rule 31(1).

The NMC (doubtless fearing a tightening on general principles) appealed to the Court of Appeal, who clarified the High Court’s decision, determining it to be fact specific rather than of general applicability.

Commentators at the time considered the position to be, in effect, that if a witness were legitimately unavailable, and a party could provide some evidence of this, then hearsay applications would generally be granted.

This position was reaffirmed in Ward v NMC [2014] EWHC 1158;Njie v NMC [2014] EWHC 1279, in which the High Court was asked again to consider the circumstances under which it would be fair to adduce hearsay evidence. These cases post-dated both Ogbonna and the GMC case of R (Bonhoeffer) v General Medical Council [2011] EWHC 1585.

In Ward the Panel had admitted hearsay, holding the evidence to be relevant and its admission to be fair. In doing so, the Panel cited the fact specific nature of Ogbonna and considered the following:

a). The Registrant had copies of the statements and an opportunity to make written submissions as to their admissibility;

b). The statements were not central to the issues;

c). Whilst the NMC had made limited attempts to secure the attendance of the witnesses, the Registrant was not present to cross-examine in any event;

d). The weight given to the hearsay evidence would need to be address in the context of the case as a whole.

The High Court agreed with the Committee, holding the fairness test in Rule 31(1) had been correctly applied.

Njie’s appeal was based (in part) on the weight attached to admitted hearsay evidence being unfair. The Court held that the committee had been entitled to consider the evidence as part of the “totality” of the evidence and no unfairness arose.

The flurry of related cases was followed by Razzaq v Financial Services Authority [2014] EWCA Civ 770,in which the Court of Appeal set out some practical considerations of assistance to Regulators and Registrants.

The principles arising from the 2014 cases can be summarised in ten points:  

1. The admissibility of hearsay evidence remains subject to the general common law requirements of relevance and fairness;
2. Neither Article 6 nor the common law provides any absolute entitlement to cross-examine a witness;
3. Fairness remains fact and case specific (practitioners should always keep the issues in mind);
4. If admitting hearsay, a Panel can factor in a reduction in weight to be given (for instance where a Registrant may otherwise have cross-examined);
5. The reason for a witness not being available is important, but the lack of a good reason is not determinative;
6. In general the more serious the case, the more compelling the reasons for seeking the hearsay application must be. This is particularly true where a Registrant is prevented from cross-examining a key witness. If there are no problems with securing the attendance of a really critical witness, the application should expect to fail;
7. The Courts are reluctant to interfere with decisions where hearsay evidence was not admitted, or to permit the admission of hearsay evidence where it was the sole or decisive evidence in the case;
8. Even greater reluctance applies where the evidence is anonymous hearsay;
9. Hearsay is more likely to be admitted where it is ancillary to the issues or evidence or where it is not subject to significant challenge;
10. The fact that the registrant is absent does not have a bearing on the standards of fairness, nor the level of scrutiny which should be given to applications.

The most recent case of importance on the subject is El Karout v NMC [2019] EWHC 28 (Admin). In this matter the Registrant was found to have stolen controlled drugs (several of the findings were based entirely on hearsay evidence) and appealed the decision. Mr. Justice Spencer’s judgment focusses on the vital distinction between admissibility and evidential weight.

The proper approach is two-stage, with admissibility being considered before weight. A growing tendency to rubber-stamp hearsay applications on the basis that limited weight could be given to the evidence later was not a proper application of the distilled principles.

Practical Considerations Post-COVID

The regulatory landscape following the impact of COVID-19 is one in which regulators have fully embraced virtual hearings, with the relevant technology now tried and tested.

The practical consequence of this is that it is now arguably easier to hear from witnesses remotely than it has been in the past, and tribunals are comfortable doing so. As Regulators begin to phase in in-person hearings and restrictions are eased, it seems likely that the existing apparatus will be relied upon to secure the attendance of witnesses whose evidence might otherwise have been the subject of a hearsay application.

The world has shrunk in the decade since Ogbonna and practitioners should bear in mind the increasingly familiarity that Panels have with virtual and hybrid hearings and consider including reference to this option in written submissions. Pursuing a hearsay application only to have the evidence ruled inadmissible with a Panel wondering why an application was not made for the witness to appear virtually is a situation very much to be avoided.