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Hearsay and Absent Defendants

Thorneycroft v NMC [2014[ EWHC 1565 (Admin), Andrew Thomas QC sitting as a judge of the High CourtThe High Court overturned the decision of a Conduct and Competence Committee ('CCC') based on the Thorneycroft v NMC [2014[ EWHC 1565 (Admin), Andrew Thomas QC sitting as a judge of the High Court

The High Court overturned the decision of a Conduct and Competence Committee ('CCC') based on the hearsay evidence of two complainants in a case where the defendant did not appear and was not represented.  The case is the latest in a recent line reminding tribunals and practitioners of the importance of closely scrutinising applications to admit material hearsay evidence.

The appellant disputed all of the allegations against him but, shortly in advance of the hearing, indicated that he could neither afford to attend the hearing nor to instruct a representative.  He asked that the CCC be careful to act fairly in deciding his case.  Unknown to the appellant, two of the three witnesses of fact refused to attend the hearing, citing ill-health.  Notwithstanding the fact (i) that the appellant disputed the evidence, and (ii) that the evidence the sole or decisive evidence against him in relation to specific allegations, the CCC considered it fair to admit their evidence.  In addition, the CCC did not consider written material the appellant had submitted prior to making its determination of the factual allegations, allowing itself to be led by the Case Presenter as to whether the material was relevant.

Allowing the appeal, the Court reiterated the principles discussed in Ogbonna and Bonhoeffer and concluded that the CCC had erred in admitting the statements of the complainants since it did not consider (1) whether the statements were the sole or decisive evidence in support of the relevant allegations, (2) the nature and extent of the appellant's challenge to the contents of the statements, (3) whether there was any suggestion that the witnesses had reasons to fabricate their allegations, (4) the seriousness of the charge, taking into account the impact which adverse findings might have on the Appellant's career, (5) whether there was a good reason for the non-attendance of the witnesses, (6) whether the Respondent had taken reasonable steps to secure their attendance, and (7) the fact that the Appellant did not have prior notice that the witness statements were to be read.  Accordingly, the CCC had failed to make a proper assessment of whether it would be fair to admit the statements. In addition, the Court held that the failure to provide the CCC with all of the appellant's documents at the fact-finding stage was another material error since in the circumstances of the case, character evidence he had submitted was relevant to the credibility of the allegations (Donkin v Law Society applied) and the CCC had committed a significant error by abrogating the decision of whether to review this material to the Case Presenter. Finally, because the evidence of the one live witness was intimately bound up with the evidence of the absent witnesses, and given that the CCC had not had the benefit of seeing evidence presented by the appellant that undermined that witness's evidence, the Court also held that the CCC's findings in relation to the allegations of the third witness were unsustainable.

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