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

The GMC respond to these grounds relating to credibility by: (1) relying on the deference which appellate Courts must give to panels who have heard all of the evidence and seen the witnesses and then made findings of fact. Furthermore, (2) the GMC rely upon the generous ambit of reasonable disagreement allowed to the first instance panel on findings of fact and in particular on findings of credibility. In addition, (3) the GMC point out that the Panel was advised by the Legally Qualified Chair and had Dutta and Khan in mind and specifically warned itself against blanket determination of credibility and lies. They submit that the Panel did not come to a blanket view of Ms A’s credibility. They had to start writing the reasoning somewhere and so started with her police statements then compared them with V1-4 and her GMC statements and then her live evidence. They then went through a very substantial number of challenges to her credibility and set those out in detail at J102-160. Thus, the GMC submit that the Panel took a granular approach considering each and every submission made by Dr Foy in relation to Ms A’s credibility on the evidence presented which was a wholly proper way to proceed. They noted the changes in Ms A’s written statements in December 2018 from V1 (attempted rape) to V4 (rape), they then compared her evidence to that of Dr Foy. They noted that his assertion to O that his sexual behaviour was provoked by Ms A lying on him and highlighted that he did not run his defence before the Panel on that basis. Instead, he denied the asserted Bedroom and Sofa Incidents ever occurred.

The GMC commented that the Panel had considered the inconsistencies in Ms A’s accounts in their reasons J125-164, assessed the assertions of dishonesty and referred back to their reasons given at half time. I have read and carefully considered Annex F to the reasons (J386 to 492). These reasons were referred to and incorporated into the final reasoning by J159. The GMC submitted that none of the asserted lies or inconsistencies related to the central allegation of rape. They related to other matters or secondary matters. The Panel considered the HIV test evidence and concluded, at J425, that it accepted that there may have been an HIV conversation in June 2018. Then in the final reasoning rejected Ms A’s evidence and found her assertion that she did not know she was having an HIV test “not proven “ J91.

As for the Thesis, the GMC submitted that the Panel accepted at the NCTA stage (J428) that there was abundant evidence to show that a third party was clearly helping with her thesis and being paid to do so and prima facie “it would appear” that Ms A’s denial of both to the Panel was untruthful. Thus, she had been prima facie doubly dishonest, with her University and the Panel. However, at the NCTA stage they did not consider that dishonesty was enough to rule that she was generally untruthful in relation to the Bedroom and the Sofa Incidents. In the event they did not return to that dishonesty in their final reasoning. They mentioned it as to be considered at J157 and then omitted to do so save by reference to Annex F. Then GMC submit this omission was acceptable because they did not have to deal with every point in their reasoning. I shall return to this below. There is a different burden at the NCTA stage from the final reasoning.

In relation to the journey to Blackpool, the Panel found (preferring Dr Foy’s evidence) that Ms A called him, not the other way around. She did so despite the Bedroom Incident which the Panel found had occurred. They took into account (J59) that she had sternly rebuked him after the Bedroom Incident. I note that it was also dealt with at Annex F, J433 in which the stern rebuke was recited and that they had tried to put the event behind them. This was still of course the NCTA stage, so this was not a final finding.

Post rape behaviour and the cinema. Ms A made an arrangement to go out with a friend the next day whilst she was in Dr Foy’s car. The Panel did not attach much weight to the way Ms A behaved the day after the rape because of the guidance that panels cannot know and should not assume how a rape victim will behave thereafter (J160, bullet point 4). The GMC accept that the Panel did not make much other comment about this.

Knowledge of the Blackmail/civil settlement. The GMC point out that the Panel considered the evidence at Annex F, J429 stating that Ms A was informed by O on 24.12.2018 of his demand for £20,000 so her denial of that was “inaccurate” however they tempered it with the note that she was not intimately involved in the settlement discussions so it did not consider the point undermined her general credibility.

Overall, on credibility and fact finding, the GMC submitted that the Panel had to balance multiple witness evidence and a straight he said /she said conflict in the context of objective documented messaging, to assess the defects in and honesty of Ms A’s evidence against the defects in and honesty of Dr Foy’s evidence and his admissions.

Dr Foy submitted that the Panel reversed the burden of proof and imposed it upon him. After cross examination of Ms A her phone records were provided by the police. This led to a long adjournment and on the restart both parties submitted that there was no need to recall Ms A. The Panel went along with that. Dr Foy’s position was that the phone records so undermined Ms A’s evidence that her credibility was gone. He made a no case to answer submission (NCTA). That was rejected for the reasons given at Annex F J386-492. Dr Foy submits that the effect of dismissing the NCTA submission was that the Panel imported a burden onto Dr Foy as highlighted by the words in J159. Those words were: the Panel “… did not consider that the arguments put forward after the close of the Defence case strengthened the Defence case in relation to Ms A’s general credibility. It relies upon its determination in respect of the Defence submission that there was no case to answer in respect of these matters. … Annex F”

The GMC relied on the clear submissions by both parties to the Panel that the burden still lay on the GMC, not the defence, and referred to parts of the transcripts of each party’s submissions. Therefore, it was submitted that the Panel were made aware of the normal burden of proof to be applied in their final decision. In relation to J159 and its tortuous wording, the GMC submitted that it did not evidence that the Panel applied a different burden of proof but instead referred back to the reasoning on each of the issues raised about Ms A’s credibility, in their Annex F decision.