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Disciplinary Proceedings: 'the key is whether, on the available evidence, the professional is fit to practise'

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United Kingdom

The High Court recently considered the case of Dinesh Kumar Soni v General Pharmaceutical Council (GPhC) [2020] EWHC 348, and in particular, the approach it should take in considering fresh evidence when determining appeals from a disciplinary tribunal.
 

Background

Patient A complained to the GPhC that, in a consultation for provision of the morning after pill, Mr Soni (a GPhC registered pharmacist) physically examined her breasts.  A fitness to practise tribunal upheld the allegation and removed Mr Soni from the Register.  Subsequently, Mr Soni claimed to have received (and produced) an anonymous letter alleging that Patient A had made up the allegations as part of a plan to make money in a civil claim.  Mr Soni appealed the decision to the High Court and, as a preliminary issue, sought permission to rely on the letter to support his argument that the case should be remitted for rehearing.  

The Court considered the principles in Ladd v Marshall [1954] 1 WLR 1489 (namely whether (i) the letter/evidence could have been obtained with reasonable diligence before the original trial, (ii) its content would have had a substantial impact on the findings at the original trial, and (iii) whether it appeared to be credible). 

Acceptance of the Letter

Although the GPhC argued that the letter was not credible and would not have had a substantial impact at the original trial, the Court disagreed.  Swift J held that, despite some factual incongruences in the letter itself, its reliability could be tested (for example, by calling witnesses named in the letter).  In light of the standards at national and European level – respectively Al-Khawaja v UK [2012] 54 EHRR 23 for anonymity and Doorson v Netherlands [1996] 22 EHRR 330 for hearsay – the Court reiterated the need for caution in admitting anonymous evidence without the practical possibility to cross examine the author.  Nevertheless, although it would not be possible to cross-examine the author, the Court was satisfied that 'the satisfaction of Ladd v Marshall simply provides an ability of the appellate court to consider the material: it is then necessary to consider the impact of the evidence and whether it should lead to an order to remit.'  It would be for the court hearing the substantive appeal to consider the letter's impact.

Dismissal of the Appeal 

In determining the substantive appeal, Freedman J considered whether the interests of justice required that it remit the case for a rehearing.  Elements of the letter were not credible.  For example, the author indicated that they wished to remain anonymous because they were afraid that patient A would take revenge.  Yet the detail in the letter would mean that Patient A would be able to identify them in any event.  In addition, the letter alleged that Patient A's lawyers had given her detailed coaching, and told her to 'fake' being emotional/upset.  

The Court concluded that there was no justification to remit the case for a rehearing. The Court noted that the original tribunal had consistently preferred Patient A's account to Mr Soni's.  In that the letter carried little weight, admitting it would amount to little more than an attack on Patient A's credibility, which the tribunal had previously had no reason to doubt.  Introducing this letter was unlikely to change that, and would have also imposed a difficult burden on a second Committee to assess retrospectively the weight given to each evidence.

The case provides useful insight into the approach that the courts will take when considering fresh evidence on appeal.  Although on the preliminary issue Swift J was prepared to take a relatively inclusive approach, that was largely to allow the court to consider the evidence as a whole.  Freedman J's judgment illustrates how it will ultimately be a much more difficult task to persuade the court to remit the matter.

Written by Andrea Carrera

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