AC-2025-LON-000408 - [2025] EWHC 2846 (Admin)

Grounds 1 and 2 (i)(ii)(v)– Credibility In my judgment the Panel took a granular and detailed approach to the assessment of the credibility of Ms A. They heard 9 witnesses give evidence, they considered expert evidence from Prof. Fertieman, they heard the phone call excerpts, and they considered A’s written and verbal accounts and then went through the charges one by one. They set out the correct burden of proof, reminded themselves not to have a pre-conceived notion of what a victim of rape would do after being raped and took into account Dr Foy’s good character.

I take into account that the Panel found in Dr Foy’s favour and accepted his evidence on the HIV testing and rejected Ms A’s evidence. This shows that they approached each charge independently and determined the credibility of Ms A’s evidence separately in relation to each charge. There was no overall blanket acceptance of her credibility.

When considering Ms A’s credibility, the Panel started by comparing her statements to the police, made 4 weeks after the alleged events, and then carefully looked at her earlier ones (V1 to V4) and considered the alteration in her allegation from sexual assault or attempted rape to rape. They found Prof. G was involved in drafting V4. They considered the phone calls between Dr Foy and O. They found that the transcripts of 4 and 9 minutes duration were from the same call and the other (25 mins) was a different call. They rejected Dr Ejohwomu’s evidence that no Nigerian Man would go to Nigeria to apologise if he had raped another man’s daughter – there would be violence and the assertion that Dr Foy went to confront Prof. G with the fact that Dr Foy was being blackmailed by his children.

They then considered the facts relating to each charge one by one. For the Bedroom Incident they carefully considered Ms A’s various accounts to her brother, then the police. They considered the inherent improbabilities raised by the defence about her behaviours. They considered the improbabilities of her evidence about staying 2-3 days more after he “pawed” her and asked to sleep with her. They compared her evidence to that of Dr Foy and considered the inherent improbabilities within his account. He had asserted that his message to Ms A on 20.11.2018 suggesting a kiss or sex arose out of a jokey conversation the day before in which Ms A asked him if he thought that “she was a virgin”. Then she came into the lounge wearing on the t-shirt with bare legs and he got and erection and later came downstairs and told her off. They compared that explanation with his multiple messages to her that she was “pretty, gorgeous, beautiful” etc. They considered his conversation with O as well (“even if she came on to me”). They looked at Ms A’s different accounts of the date when this incident occurred and the number of days she stayed afterwards. They noted that her GMC witness statement did not mention him touching her breast. They took into account that she had her arms around his neck at the party.

In relation to the Sofa Incident, from J95 to J101, the Panel set out Ms A’s and Dr Foy’s main evidence to the police and in her witness statements, about what happened. Then, they went on between J102 and J138 to consider the challenges to Ms A’s credibility and concluded at J138 that her evidence was plausible. I do not accept that starting at J102 shows any defect in their approach. They had to start somewhere. They then carefully considered the inconsistencies in V1-V4 of her own drafted statements and Ms A's inconsistent evidence about to whom she first made the rape complaint (Prof. G or Mr X). It is clear to me that whilst doing so they considered the inherent illogicality in Dr Foy’s evidence. Why would he admit sexual assault to O and to Prof. G and why would he send an email of admission and apology to Prof. G if he had not sexually assaulted Ms A? How would admitting sexual assault to O assist him in uncovering blackmail? If Dr Foy went to Prof. G to expose his childrens’ blackmail plot, why did he subsequently send a message and then an email with apologies and admissions of sexual assault? His evidence clearly did not find favour with the Panel. The Panel considered the inconsistencies in V1-V4, her shame at being raped, O’s evidence that she was perhaps naïve, but plausible, matching their conclusion at the NCTA stage. The Panel carefully considered the telephone recordings of Dr Foy’s admissions to O, and determined as a fact which came first in time (J148). The Panel went on to consider the wider evidence about these calls and the made factual findings at J156. They rejected Dr Foy’s assertion that he was deliberately telling lies to elicit blackmail and considered that he had made admissions to O.

I do not find the ground of appeal based on attacking these finding of fact relating to the calls was made out. There was no record of Dr Foy denying he had sexually abused Ms A. Both recordings contained admissions, apologies, remorse and fear of jail. After meeting Prof. G, Dr Foy made a written admission and an apology and offered to pay money. The Panel actually listened to the recordings, which I was not asked to do. I consider that the challenged findings were well within the range of findings that a reasonable Panel could make on the evidence.

Grounds 1, 2(iii) – reversed the burden of proof. Between J157 and J159 the Panel considered the other defence points undermining A’s credibility. These were the main ones raised at the NCTA stage (lies about: TB; HIV testing; failing to disclose to O her desire for secrecy about her visit to stay with Dr Foy in November; her “paid for” thesis; her knowledge of what the defence called the blackmail). Mr Bennett submitted to the Panel (J158) that these dishonesties supported Dr Foy’s credibility because the late received messages from Ms A’s phone proved that some of his cross examination of Ms A, on instructions, was true and her answers thereto were untrue. Thus, the phone records undermined Ms A’s credibility. The keystone of this ground was Dr Foy’s criticism of J159 which, on Dr Foy’s submission, shows that the Panel applied the wrong test for her credibility. They reapplied the “sufficient evidence test” from the FTP Rules r17(2)(g) (see Galbraith), not the final determination test, applying the civil burden of proof which had to be discharged by the GMC. Dr Foy asserted that they reversed the burden of proof.

The test at the NCTA stage is a simple “sufficient evidence test” as set out in the FTP Rules r17(2)(g). The guidance in R v Galbraith [1981] 2 All ER 1060, is imported into Panel cases. So, for a submission of no case to answer at the end of the prosecution case, the Panel should stop the case if either (1) there is no evidence that the charge was committed by the registrant or (2) if there is some evidence but it is of a tenuous character, because of inherent weakness or vagueness or because it is inconsistent with other evidence, and if taken at its highest, is such that the Panel properly directed could not properly convict on it. In contrast, where the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or on all of the other evidence which is within the province of the Panel and where on one possible view of the facts there is evidence on which the Panel could properly come to the conclusion that the accused is guilty, then the Panel should allow the matter to go on.

Annex F contained the Panel’s decision at NCTA stage. They took legal advice. They considered Galbraith, went through the clear criticisms of Ms A’s credibility due to her apparent untruths or inconsistencies about TB; HIV testing; the “paid for” thesis; her knowledge that she would be staying with Dr Foy overnight on 2.12.2018; conversations with her sister about May 2018; her denial of rape to O on 23.12.2018; her denial of knowledge of financial demands; the dates of the alleged Bedroom Incident and her post alleged rape phone calls. They noted that neither party sought to recall A. They considered Ms A’s motivation in delaying her complaint and then only reporting sexual assault and later disclosing rape. As set out above, they could not reach a conclusion on the TB allegations. They found that Ms A did discuss the HIV testing in June 2018 and found the HIV charges unproven, but they did not find her untruthful about November. They found her untruthful about the thesis to Glasgow University and to the Panel. They found that she did know about O making demands for money. They went through each ground one by one. They considered “at this stage” that Ms A first disclosed rape to her father. They noted how in messaging Ms A complained to her brother (O) that after the rape allegation was made that her father was behaving exactly in the way she had sought to avoid. The Panel considered Ms A’s evidence in the context of Dr Foy’s admissions of sexual assault to O and in his email to Prof. G. They considered the amendments to V1-V4. Overall, the Panel found that Dr Foy had a case to answer.

I do not consider that J159 contains a reversal of the burden of proof. What is says in short is that, whereas at NCTA the Panel decided that the GMC case was sufficiently plausible to continue, by the time Dr Foy had completed his case the panel preferred Ms A’s evidence to his and was prepared to accept it as credible. So, Dr Foy’s evidence did not strengthen his case. In effect, his case was at its height before he gave evidence, not after. I have read the cross examination of Dr Foy, it is apparent that there were many inconsistencies and illogicalities in his evidence.

Standing back and looking overall at these grounds relating to the Panel’s findings about Ms A’s credibility, this was a straight fight between the credibility of Ms A and Dr Foy, with the burden of proof to the civil standard on the GMC’s shoulders. It is clear to me that the Panel was open, after the NCTA stage, to being persuaded by Dr Foy that his evidence was to be preferred to Ms A’s on the two key incidents, or that the defence evidence undermined her evidence so much that the GMC’s case was not proven, but in the end they preferred her evidence to his all of the GMC evidence and his evidence. Her account of the rape was sufficiently credible for them to accept it, in preference to his denial. The Panel expressly relied on his admissions to O and the email he sent to Prof. G, that he had sexually abused Ms A, despite his denials at the hearing that any such thing had occurred. There was a deep fault in the logic of his evidence. If, on 2.12.2018, he had merely “pecked” Ms A on the cheek to get her off him, why did he admit to O and Prof. G that he had sexually abused her? Why would he tell them that he was so ashamed and why would he think he could have been sent to prison? The really tricky challenge which the Panel faced was to decide whether a proven dishonest witness, on a matter as serious as her university education, could be found credible on her rape allegation, taking into account the many inconsistencies in her evidence. That was a very difficult decision, but I do not consider that Dr Foy has overcome any of the two main deference principles for his appeal on these grounds. I do not apply any deference due to the Panel Professional expertise, because this is a rape allegation. I do consider that the Panel are due deference due to hearing the whole of the evidence live and I do accord their decision a wide margin for disagreement. I do not consider that the decision on Ms A’s credibility was wrong, or unjust and I do not consider that Dr Foy has proven that they applied the wrong burden of proof, or applied the wrong weight to the untruths and inconsistencies.

Ground 2(iv) For the reasons set out in the GMC skeleton and summarised above at para. 45, I consider that there was sufficient evidence to support all of the findings of fact challenged in this ground.

Ground 1, 2(vi) – Sufficient reasons. This ground only related to “advice … that it should not have pre-conceived notions as to how a victim of sexual assault will react.” I have considerable sympathy with Mr Bennett’s well crafted submissions. Were a Panel to take into account only evidence of post alleged rape distress and ignore post event happiness, then that would be improper. However, I do not consider that there is any sufficient evidence to justify such a conclusion in this appeal. The Panel expressly did consider the Cinema trip, the notes of the nurse at the TB clinic, Ms A’s failure to report rape, failure to take an STD test and her continuing messages to Dr Foy. They also noted that he asked if she was still angry with him and she wrote back that she was still “processing”. They took into account that she made sequential disclosure of sexual abuse (denying penetration) and later of rape, in answer to Dr X’s questions. They took into account that she did not want to get into the shame of an “abomination” situation. In my judgment the Panel were not wrong or unjust in their approach to Ms A’s post event behaviour.

Ground 3 – medical records. This evidence had been excluded by another Panel in May 2023 on the grounds of privacy and preventing victims of rape being cross examined on their past sex lives. In my judgment there was no injustice. The Panel stated that they accepted that Ms A was fully aware of STD testing (J347). Dr Foy was not prevented from making the submission or from cross examination on that point. What he could not do was raise her earlier test and the circumstance surrounding it. There is a broad margin of discretion on such decisions. I do not consider that this case management decision made by the Panel was unjust due to a serious irregularity

Ground 4 – reversal of a finding of fact. The decision made at NCTA stage was not a final decision and the Panel were entitled to change it having more carefully considers all of the evidence. Although the Panel suggested at NCTA that Prof. G was the one who persuaded Ms A to admit that she was raped, all they were determining was whether there was sufficient evidence. I do not consider that they were bound by their NCTA determination. Nor did I find the reasoning of the ground persuasive. Whether Ms A disclosed to Mr X or Prof. G makes very little difference. Both were senior to her and were parents. The best that Dr Foy could submit on the relevance of this was that if Prof. G was the one to squeeze the admission out of her that made her evidence less likely to be credible because he had more power and sway over her. I do not find that point carries much weight on its own or when set against the Panel’s finding that Ms A was trying to avoid the whole “abomination” situation and the shame involved.

Ground 5 – transcripts The Panel made clear why they only obtained the old evidence transcripts, it was because that evidence had been given months before so was not fresh in their minds. I do not consider that this gave rise to any objectively reasonable fear of bias or unfairness. The Panel had only recently heard all of the defence evidence. Memories fade over time.

For the reasons set out above I do not consider that grounds 1-5 of Dr Foy’s appeal were made out.

Grounds 6 and 7 – Misconduct and Sanction. Because grounds 1-5 were not made out these grounds do not arise.