AC-2023-LON-002171 - [2024] EWHC 132 (Admin)

Rule 57 of the FTP Rules provides:

“57 Evidence

(1)

A Practice Committee may in the course of the proceedings receive oral, documentary of other evidence that is admissible in civil proceedings in the appropriate court in the part of the United Kingdom in which the hearing takes place.

(2)

A Practice Committee may also, at their discretion, treat other evidence as admissible, if, after consultation with the legal adviser, they consider that it would be helpful to the Practice Committee, and in the interests of justice, for that evidence to be heard.

(3)

...

(4)

It shall be for the Council to prove any fact alleged in the notification of hearing, on the balance of probabilities.”

Accordingly, the Committee has a discretion to admit hearsay evidence that would be admissible in civil proceedings pursuant to the CEA 1995; and also a broader discretion to receive evidence that would not be admissible in civil proceedings where it considers it to be “helpful to the” Committee and “in the interests of justice” to do so.

The material provisions of the CEA 1995 are as follows:

“1.

– Admissibility of hearsay evidence

(1)

In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

(2)

In this Act –

(a)

‘hearsay’ means a statement made otherwise than by a person whilst giving oral evidence in the proceedings which is tendered as evidence of the matters stated;

Accordingly, the default position pursuant to section 9(1) of the CEA 1995 is that records of a business may be received in evidence without further proof, subject to the power contained in subsection (5) to disapply this provision. It is unnecessary to consider what amounts to the “records of a business” in any detail, as Mr Hodivala accepts that the PCC was correct in treating the contents of NHS4, NHS5 and Schedule C as the records of a business.

The Courts have considered a number of appeals where it was alleged that hearsay evidence was unfairly admitted, including contentions that the procedure adopted by the disciplinary committee breached the fair trial requirements of Article 6 of the European Convention on Human Rights (“ECHR”). The caselaw was reviewed by Linden J at paras 58 – 65 of El Karout v Nursing and Midwifery Council [2020] EWHC 3079 (QB) (“El Karout”), where he referred to Nursing and Midwifery Council v Ogbonna [2010] EWCA Civ 1216 (“Ogbonna”), R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (“Bonhoeffer”) and Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (“Thorneycroft”). Mr Hodivala relies upon these authorities.

Article 6(1) provides that: “In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Article 6(3)(d) provides that everyone charged with a criminal offence has the right to “examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.

In Ogbonna the Court of Appeal refused to grant permission to appeal to the Nursing and Midwifery Council (“NMC”) from the High Court’s finding that the Committee had misdirected itself in deciding to admit a witness statement from a Ms Pilgrim, the registrant’s team leader. The NMC’s case was centrally dependent upon this evidence; her account was disputed and it was accepted that there had been a difficult relationship between the two women. The NMC had made no effort to arrange for Ms Pilgrim to be available to attend the hearing for cross-examination. Rule 31(1) of the NMC (Fitness to Practice) Rules Order of Council 2002 was similar to rule 57(2) of the FTP Rules, save that the text referred to “the requirements of relevance and fairness” rather than to admission of the evidence being “helpful” to the Committee and “in the interests of justice”. As Linden J summarised in El Karout:

“58.

...the Court of Appeal emphasised that the issue of fairness under r.31 goes to the admissibility of the evidence rather than merely to its weight. It therefore is not open to the [Committee] to adopt an approach which involves admitting the evidence and then giving such weight to it as the Committee thinks fair: see, in particular, paras 23 and 25 of the judgment of the Court of Appeal.

59.

In Ogbonna, the NMC had placed reliance on the statement of a Ms Pligrim without calling her. At para 23, Rimer LJ, with whom Pill and Black LJ agreed, said this:

‘...the criterion of fairness referred to in 31(1) is relevant to whether a statement should be admitted at all; the rule expressly requires decisions as to the admission or exclusion of a hearsay statement to be governed by considerations, inter alia, of fairness. In that context, the NMC should perhaps be reminded that it was seeking to adduce Ms Pilgrim’s statement as the sole evidence supporting the material parts of Charge 1, when it knew that the evidence was roundly disputed and could not be tested by cross-examination. It was, moreover, seeking to adduce it in support of a case that it was promoting, whose outcome could be (and in the event was) the wrecking of Mrs Ogbonna’s career as a midwife, a career which had lasted over 30 years. I should have thought it was obvious that, in the circumstances fairness to Mrs Ogbonna demanded that in principle the statement ought only to be admitted if she had the opportunity of cross-examining Ms Pilgrim upon it.’”

Rule 34 of the General Medical Council (Fitness to Practice) Rules Order of Council 2004 provided that where evidence would not be admissible in criminal proceedings in England, the Committee or Panel should not admit such evidence unless satisfied after due enquiry that its admission was “desirable”. In Bonhoeffer the High Court allowed the registrant’s application for judicial review, finding that the Panel’s decision to admit the hearsay evidence in question had been irrational and a breach of his Article 6(1) right to a fair hearing. The evidence concerned video-taped police interviews with a young man who lived abroad, who was the single source of most of the allegations of sexual misconduct faced by the claimant. The young man had indicated he was willing to travel to attend the hearing in person, but the GMC decided not to call him. The principles relating to the right to cross examine were summarised by Stadlen J at para 109 as follows:

“i)

Even in criminal proceedings the right conferred by Article 6(3)(d) to cross-examine is not absolute. It is subject to exceptions referrable to the absence of the witness sought to be cross-examined, whether by reason of death, absence abroad or the impracticability of securing his attendance.

ii)

In criminal proceedings there is no ‘sole or decisive’ rule prohibiting in all circumstances the admissibility of hearsay evidence where the evidence sought to be admitted is the sole or decisive evidence relied on against the defendant.

iii)

In proceedings other than criminal proceedings there is no absolute entitlement to the right to cross-examine pursuant to Article 6(3)(d).

iv)

However, disciplinary proceedings against a professional man or woman, although not classified as criminal, may still bring into play some of the requirements of a fair trial spelt out in Article 6(2) and (3) including in particular the right to cross-examine witnesses whose evidence is relied on against them.

v)

The issue of what is entailed by the requirement of a fair trial in disciplinary proceedings is one that must be considered in the round having regard to all relevant factors.

vi)

Relevant factors to which particular weight should be attached in the ordinary course include the seriousness and nature of the allegations and the gravity of the adverse consequences to the accused person in the event of the allegations being found to be true. The principal driver of the reach of the rights which Article 6 confers is the gravity of the issue in the case rather than the case’s classification as civil or criminal.

vii)

The ultimate question is what protection is required for a fair trial. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.

viii)

In disciplinary proceedings which raise serious charges amounting in effect to criminal offences which, if proved, are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed on the evidence of an accuser between whom and the accused party there is an important conflict of evidence as to whether the misconduct alleged took place, there would, if that evidence constituted a critical part of the evidence against the accused party and if there were no problems associated with securing the attendance of the accuser, need to be compelling reasons why the requirement of fairness and the right to a fair hearing did not entitle the accused party to cross-examiner the accuser.”

In Thorneycroft the High Court quashed the Panel’s decision that the registrant’s fitness to practice was impaired by reason of misconduct, finding that there were a number of irregularities that had a material bearing on the findings of fact that were made. Neither of the two principal complainants had attended the hearing to give oral evidence and there were suggestions that they had personal antipathy towards the registrant. Mr Andrew Thomas QC sitting as a Deputy High Court Judge (“DHCJ”) found that the Panel had erred in deciding to admit their statements as evidence, in particular as it had done so without having first undertaken a careful balancing exercise in respect of the relevant matters.

The DHCJ summarised the principles at para 45 of his judgment as follows:

“1.1

The admission of the statement of an absent witness should not be regarded as a routine matter. The FTP rules require the Panel to consider the issue of fairness before determining the evidence.

1.2

The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to objection to admissibility.

1.3

The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reasons does not automatically result in the exclusion of the evidence.

1.4

Where such evidence is the sole or decision evidence in relation to the charges, the decision whether or not admit it requires the Panel to make a careful assessment, weighing up the competing factors. To do so, the Panel must considers the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The Panel must be satisfied either than the evidence is demonstrably reliable, or alternatively that there will be some means of testing its reliability.”

At para 56 of his judgment, Mr Thomas identified the considerations that the Panel should have taken into account. These included: whether the statements were the sole or decisive evidence in support of the charges; the nature and extent of the challenge to their contents; whether there was any suggestion that the witnesses had reason to fabricate their accounts; the seriousness of the charges and the potential impact on the registrant’s career; and whether there was a good reason for the non-attendance of the witnesses.

In El Karout Linden J found that the Committee had erred in determining that it was fair to admit the statement of Patient C, a significant witness who had failed to attend the hearing. The errors he identified in the Committee’s reasoning included: concluding that the evidence of Patient C was not the sole or decisive evidence; failing to consider whether their account was demonstrably reliable or whether there was some means of testing its reliability (in circumstances where there were question marks over its reliability); not reading the statement before making its decision on admissibility; and failing to refer to the seriousness of the issues faced by the registrant (paras 77 and 81).

In Mansaray v Nursing and Midwifery Council [2023] EWHC 730 (Admin) (“Mansaray”), Stacey J dismissed the registrant’s appeal from the Panel’s decision upholding allegations of misconduct and finding that his fitness to practice was impaired. She concluded that the Panel was entitled to admit hearsay evidence from a witness, Patient A, regarding allegations of inappropriate sexual behaviour towards him. In summary, the Panel had conducted a careful evaluation of the relevant factors before deciding to admit the evidence (paras 48 – 56). As I return to (at paras 103(vi) and 121 below) Mr Hodivala places reliance upon the following paragraph of Stacey J’s judgment:

“55.

The appellant criticises the wording of the Panel’s decision that stated: ‘The panel did not consider Patient A’s account to be so unreliable that it should not be admitted into evidence’. This was a good point well made by Ms Ahmed. If that had been how the Panel had directed itself as to how to approach the question of the admissibility of hearsay evidence, it would be worrying as it is wrong. However, when one reads those words in the context of the Panel’s overall self-direction and all its findings and reasoning, it is clear that it is just a stray phrase – merely infelicitous wording or a Homeric nod – and does not represent the test they have applied. The Panel did not consider the admission of Patient A’s statement as a routine matter. It noted the good and cogent reason for the inability of Patient A to attend the hearing to give evidence...His evidence was decisive, but after careful consideration the Panel concluded that Patient A’s account...was demonstrably reliable and in some respects was capable of being tested by other evidence.”

The Court also rejected the proposition that including the evidence in the hearing bundle before admissibility had been determined was a procedural irregularity; the Panel had to consider the hearsay evidence in order to rule on its admissibility (para 64).