The High Court's judgment in PSA v GDC [2014] EWHC 2280 has reinforced Singh J's comments in Uddin v GMC [2012] EWHC 2669 to the effect that the time-honoured Ghosh test may not necessarily be an
The High Court's judgment in PSA v GDC [2014] EWHC 2280 has reinforced Singh J's comments in Uddin v GMC [2012] EWHC 2669 to the effect that the time-honoured Ghosh test may not necessarily be an appropriate one to apply in professional disciplinary cases alleging dishonesty.
We have previously commented on Uddin and more recent authorities that have lent support to Singh J's comments in that case here. In that piece, we referred to an initial summary of the then as-yet-unreported case of PSA v GDC which appeared to go against the Uddin line. The full judgment has now been handed down and, while not necessarily lending full support to the argument that the two-stage test in Ghosh should not be followed in disciplinary proceedings, is a little more nuanced than the initial reports appeared.
In allowing the PSA's appeal, King J said the following about the Ghosh test:
'On the facts of this case, I can see the strength of the submission that the Ghosh test on dishonesty was not appropriate. It is well established in criminal proceedings that it is not to be the general practice in all cases raising dishonesty, to give the so-called Ghosh two-part direction. Indeed, I have been reminded that Mr Justice Singh in Uddin expressly stated that care needs to be taken when applying a test devised in the context of criminal proceedings where a different standard of proof applies.'
The judge went on to say that this was not a case where the Ghosh test was one the PCC needed to consider since there was no issue as to whether the registrant's conduct was dishonest by the ordinary standards of reasonable and honest people: if the conduct took place, it was self-evident that it was dishonest. To that extent, rather than going against the recent Uddin-inspired flow, it could be suggested that PSA v GDC goes with that flow.
All of which begs the question, what next? It could be argued that the High Court's recent consideration of Ghosh is interesting in an academic sense but makes little practical difference. While the Ghosh test appears to have drawn some adverse comment it appears that anecdotally at least, Legal Assessors have continued to direct panels in accordance with Ghosh. Moreover, while there may be well-founded philosophical objections to Ghosh, it is not clear that the application of the test is leading panels into error in any practical sense. Unless and until the issue needs to be tackled head on, it may be the case Ghosh, while being the subject of raised judicial eyebrows, remains the test applied in practice.
We have previously commented on Uddin and more recent authorities that have lent support to Singh J's comments in that case here. In that piece, we referred to an initial summary of the then as-yet-unreported case of PSA v GDC which appeared to go against the Uddin line. The full judgment has now been handed down and, while not necessarily lending full support to the argument that the two-stage test in Ghosh should not be followed in disciplinary proceedings, is a little more nuanced than the initial reports appeared.
In allowing the PSA's appeal, King J said the following about the Ghosh test:
'On the facts of this case, I can see the strength of the submission that the Ghosh test on dishonesty was not appropriate. It is well established in criminal proceedings that it is not to be the general practice in all cases raising dishonesty, to give the so-called Ghosh two-part direction. Indeed, I have been reminded that Mr Justice Singh in Uddin expressly stated that care needs to be taken when applying a test devised in the context of criminal proceedings where a different standard of proof applies.'
The judge went on to say that this was not a case where the Ghosh test was one the PCC needed to consider since there was no issue as to whether the registrant's conduct was dishonest by the ordinary standards of reasonable and honest people: if the conduct took place, it was self-evident that it was dishonest. To that extent, rather than going against the recent Uddin-inspired flow, it could be suggested that PSA v GDC goes with that flow.
All of which begs the question, what next? It could be argued that the High Court's recent consideration of Ghosh is interesting in an academic sense but makes little practical difference. While the Ghosh test appears to have drawn some adverse comment it appears that anecdotally at least, Legal Assessors have continued to direct panels in accordance with Ghosh. Moreover, while there may be well-founded philosophical objections to Ghosh, it is not clear that the application of the test is leading panels into error in any practical sense. Unless and until the issue needs to be tackled head on, it may be the case Ghosh, while being the subject of raised judicial eyebrows, remains the test applied in practice.