Adverse Inferences: A Watershed Moment

R(Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin)

In a clear and useful judgment, the Divisional Court has put beyond doubt a longstanding question in establishing that professional disciplinary tribunals have an inherent power to draw adverse inferences from a practitioner's failure to give evidence before them.

An Interim Orders Tribunal imposed a conditions of practice order on K pending the outcome of substantive disciplinary proceedings. Those conditions required K to inform the Hampshire Doctors On Call Service ('DOCS') of the other conditions. K did not do so upon the order being made, and ultimately only notified them of the conditions he considered relevant to that employment.

Although the Medical Practitioners Tribunal ('MPT') did not uphold the index allegations, the MPT also considered whether he had dishonestly failed to notify DOCS of the conditions. K indicated that he would not call any evidence and applied to withdraw a witness statement he had submitted. Upon an application by the GMC, the MPT held that it was able to draw adverse inferences from K's silence.

K appealed, arguing that disciplinary proceedings are quasi-criminal (given the role of 'charges', 'prosecution' and appropriate sanction), that the common law position in respect of criminal proceedings prohibits adverse inferences being drawn from a 'defendant's' silence, that the position in criminal proceedings had to be changed by statute (the Criminal Justice and Public Order Act 1994 'CJPOA'), and that the only way in which disciplinary tribunals could draw such inferences would either be by way of legislation, or a generally applicable policy or guidance after full consultation.

The Divisional Court (Lord Justice Hickinbottom and Mr Justice Butcher) rejected the appeal. The Court held that as a general rule, tribunals may draw such inferences as they consider appropriate from the primary facts. As a matter of normal common sense, it may be reasonable to draw the inference that a person who remains silent when he has a case to answer has no answer (particularly where that person has a professional obligation to engage with the regulator in respect of allegations against him). The question is simply one of fairness in the individual circumstances.

The Court emphasised that disciplinary proceedings are civil and not criminal in nature. The procedural fairness requirements in Article 6(2) and (3) of the ECHR (which apply only to criminal proceedings) are largely co-extensive with common law standards of fairness (which also apply to disciplinary proceedings). Either way, it is well established that neither article 6 nor the common law forbids the drawing of adverse inferences from silence in appropriate circumstances (see R(Panjawani) v Royal Pharmaceutical Society of Great Britain [2002] EWHC 1127 (Admin)).

The fact that CJPOA had abolished the right in criminal cases was immaterial. The Court referred to Kearsey v NMC [2016] EWHC 1603 (Admin), Radeke v GDC [2015] EWHC 778 and Panjawani which suggest that the fact that disciplinary tribunals do not generally draw adverse inferences is a matter of practice rather than as the result of any common law rule. The Court also noted that the Solicitors Disciplinary Tribunal had issued a Practice Note making clear it would draw adverse inferences from silence – if prohibition against adverse inferences was a common law rule (as asserted by K) it was difficult to see how a Practice Note could alter this (notwithstanding that K accepted that such a note would be sufficient).

The Court went on to state that in general no inference should be drawn unless:

1. There is a prima facie case to answer;
2. The individual has been given appropriate notice and an appropriate warning that an inference may be drawn (as well as an opportunity to explain why it would not be reasonable to give evidence and, if it is found that he has no reasonable explanation, an opportunity to give evidence);
3. There is no reasonable explanation for him not giving evidence; and
4. There are no other circumstances in the particular case which would make it unfair to draw such an inference.

Nevertheless, the court indicated that guidance from regulators confirming the existence of the power and how it might be used would be useful for panels and practitioners (with such consultation as the regulator considers necessary).

The case will be useful to practitioners, Tribunals and registrants in clarifying an issue which has long been debated but not fully resolved. In addition, the Court's 4-stage test provides a useful framework for how the discretion to drawn an adverse inference from silence should be exercised in practice such that registrants have proper visibility on what may happen in practice. Regulators should consider how they might formulate guidance applicable to their own proceedings.