Ashraf v GDC [2014] EWHC 2618, (Leveson LJ, Cranston J)The Divisional Court discouraged the 'continued anxious citation' of authorities suggesting that it will be unfair to institute disciplinary
Ashraf v GDC [2014] EWHC 2618, (Leveson LJ, Cranston J)
The Divisional Court discouraged the 'continued anxious citation' of authorities suggesting that it will be unfair to institute disciplinary proceedings where (i) the sanction is likely to be serious and (ii) where the conduct under investigation is in substance the same as in criminal charges in which a registrant was acquitted.
A was acquitted of criminal charges relating to fraudulent NHS claims. The GDC subsequently investigated the same matters and a PCC refused an application by A to stay the proceedings as an abuse of process. The PCC found the allegations proven and directed that A be erased from the register. A appealed on the basis that, in the circumstances, the PCC should have exercised its discretion to refuse to allow him to be ne subject to disciplinary proceedings in respect of the same matter. A relied heavily on Redgrave v Commissioner of the Metropolis and Sacha v GMC (which itself relied heavily on Redgrave)
In Redgrave, Simon Brown LJ (as he then was) commended to disciplinary tribunals 1999 Home Office Guidance on Police Unsatisfactory Performance. The guidance said that (a) where the conduct under investigation is in substance the same as the criminal charge so determined, and where the alleged failure is so serious and the likely sanction serious such that it would be reasonable to look for proof to a high degree of probability, it will normally be unfair to institute disciplinary proceedings and (b) where the conduct under investigation is not in substance the same as the criminal charge so determined, it may nevertheless be unfair to proceed where a matter essential to the proof of the misconduct was in issue in criminal proceedings and had been resolved in the officer's favour.
In Sacha v GMC, which may be considered as the high-water mark of the post-Redgrave authorities, Lloyd-Jones J described this as "most welcome guidance as to what may be considered an abuse of process in the circumstances of the present case” and held that the GMC had been right to stay proceedings against a doctor.
In the present case, Leveson LJ discouraged a general application of the Redgrave approach, pointing out that the judge in Sacha had failed to note that the reason for staying proceedings was that the evidential foundation for the allegations had fallen away rather than there being a generally applicable principle that it would be unfair to proceed in circumstances where there had already been criminal proceedings. He also referred to the judgment in Bhatt v GMC that Simon Brown LJ's comments in Redgrave were 'limited to a fact-specific analysis of the case before him', were 'obiter… guidance, and certainly [were] not binding' and that there was force in the view that they 'no longer represent the law'.
Dismissing the appeal, he commented: 'It is essential that regulators are confident in exercising their discretion in these matters and the continued anxious citation of this line of authority ought to be discouraged. In my judgment, the approach in paras. 37 and 38 of Redgrave, confirmed in Phillips, Sacha and Bhatt, is clearly correct. Simon Brown LJ (at para. 46 of Redgrave) was not enunciating the law but merely commending the approach set out in guidance which, in any event, has since been altered. The latest Home Office Guidance in this area (to such extent as it is relevant)… states at para. 2.36 that an acquittal is simply “a relevant factor which should be taken into account in deciding whether to continue with those proceedings'.'
Further, he gave limited guidance of circumstances in which it may be unfair to proceed: 'it might be that no further investigation by the regulator is justified because the allegations do not, in any way, touch upon professional responsibilities either to patients or (as here) to the NHS (which is required to invest trust in the integrity of the professional to fulfil the terms of the funding contract honestly).'
The case provides helpful clarity on this issue and underlines the fact that there is no parity between criminal and disciplinary proceedings and that different public policies are engaged.
The Divisional Court discouraged the 'continued anxious citation' of authorities suggesting that it will be unfair to institute disciplinary proceedings where (i) the sanction is likely to be serious and (ii) where the conduct under investigation is in substance the same as in criminal charges in which a registrant was acquitted.
A was acquitted of criminal charges relating to fraudulent NHS claims. The GDC subsequently investigated the same matters and a PCC refused an application by A to stay the proceedings as an abuse of process. The PCC found the allegations proven and directed that A be erased from the register. A appealed on the basis that, in the circumstances, the PCC should have exercised its discretion to refuse to allow him to be ne subject to disciplinary proceedings in respect of the same matter. A relied heavily on Redgrave v Commissioner of the Metropolis and Sacha v GMC (which itself relied heavily on Redgrave)
In Redgrave, Simon Brown LJ (as he then was) commended to disciplinary tribunals 1999 Home Office Guidance on Police Unsatisfactory Performance. The guidance said that (a) where the conduct under investigation is in substance the same as the criminal charge so determined, and where the alleged failure is so serious and the likely sanction serious such that it would be reasonable to look for proof to a high degree of probability, it will normally be unfair to institute disciplinary proceedings and (b) where the conduct under investigation is not in substance the same as the criminal charge so determined, it may nevertheless be unfair to proceed where a matter essential to the proof of the misconduct was in issue in criminal proceedings and had been resolved in the officer's favour.
In Sacha v GMC, which may be considered as the high-water mark of the post-Redgrave authorities, Lloyd-Jones J described this as "most welcome guidance as to what may be considered an abuse of process in the circumstances of the present case” and held that the GMC had been right to stay proceedings against a doctor.
In the present case, Leveson LJ discouraged a general application of the Redgrave approach, pointing out that the judge in Sacha had failed to note that the reason for staying proceedings was that the evidential foundation for the allegations had fallen away rather than there being a generally applicable principle that it would be unfair to proceed in circumstances where there had already been criminal proceedings. He also referred to the judgment in Bhatt v GMC that Simon Brown LJ's comments in Redgrave were 'limited to a fact-specific analysis of the case before him', were 'obiter… guidance, and certainly [were] not binding' and that there was force in the view that they 'no longer represent the law'.
Dismissing the appeal, he commented: 'It is essential that regulators are confident in exercising their discretion in these matters and the continued anxious citation of this line of authority ought to be discouraged. In my judgment, the approach in paras. 37 and 38 of Redgrave, confirmed in Phillips, Sacha and Bhatt, is clearly correct. Simon Brown LJ (at para. 46 of Redgrave) was not enunciating the law but merely commending the approach set out in guidance which, in any event, has since been altered. The latest Home Office Guidance in this area (to such extent as it is relevant)… states at para. 2.36 that an acquittal is simply “a relevant factor which should be taken into account in deciding whether to continue with those proceedings'.'
Further, he gave limited guidance of circumstances in which it may be unfair to proceed: 'it might be that no further investigation by the regulator is justified because the allegations do not, in any way, touch upon professional responsibilities either to patients or (as here) to the NHS (which is required to invest trust in the integrity of the professional to fulfil the terms of the funding contract honestly).'
The case provides helpful clarity on this issue and underlines the fact that there is no parity between criminal and disciplinary proceedings and that different public policies are engaged.