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

Fecha: 31-Ene-2024

The Appellant’s submissions

The Appellant’s submissions

Ground 1

103.

During his oral submissions, Mr Hodivala accepted that the contents of Schedule C was a business record and, as such, that it would have been admissible in civil proceedings under the CEA 1995. However, he submitted that the admission of the hearsay evidence in Schedule C was unfair and constituted a breach of Article 6(1) of the ECHR, so that the PCC was wrong to admit or to fail to exclude this evidence. He relied upon the following contentions in particular:

The GDC declined to apply to admit the hearsay evidence;

ii)

In turn this led to unfairness to the Appellant, as the PCC treated the application as one to exclude the evidence, thereby placing the burden on Dr Imani to show why it should be excluded, rather than on the GDC to establish that it was fair to admit the evidence;

iii)

The evidence given by Mr Lee about the quality assurance auditing process and its outcomes involved multiple hearsay evidence. In addition, the evidence was unsatisfactory as the audits were carried out by third parties and the results simply taken on trust by the BSA. In oral submissions he added for the first time that it was irrational for the PCC to accept that an auditing process, which tested a 10% sample, provided a sufficient indicator of reliability, particularly in the absence of any expert evidence as to its statistical significance;

iv)

As the FP17 forms and the audits had been destroyed Dr Imani had no opportunity to test the accuracy of the evidence contained in Schedule C. The Legal Adviser failed to address this matter adequately in his advice to the PCC, wrongly indicating that the admission of hearsay always involved the inability to challenge the evidence (in the passage set out at para 51 above). Furthermore, the PCC was wrong to conclude that the Appellant could test its accuracy in any meaningful way;

As shown by the agreed fact, the PCC relied on inaccurate evidence from Mr Lee that the TAD and TCD were included in the material that was made available to all dentists (para 46 above). As this part of the data was not sent to the dentists, there could not have been any concerns raised by them as to its accuracy and it was irrational for the PCC to have attached any weight to the absence of voiced concerns in these circumstances;

vi)

The PCC placed the onus on Dr Imani to show that the material was unreliable, rather than placing the onus on the GDC to show that it was reliable. The PCC referred in terms to whether the data was “demonstrably unreliable”, and the Legal Adviser had wrongly suggested that the burden was on Dr Imani to establish this. The PCC had thereby adopted the very approach described as “wrong” in para 55 of Mansaray (para 101 above); and

vii)

It was particularly unfair to admit the evidence given the errors that had been shown in the data.