R(Nakash) v (1) Metropolitan Police Service; (2) GMC [2014] EWHC 3810 (Cox J)In a case that is likely to be useful to regulators seeking to rely on material obtained from public authorities, the High
R(Nakash) v (1) Metropolitan Police Service; (2) GMC [2014] EWHC 3810 (Cox J)
In a case that is likely to be useful to regulators seeking to rely on material obtained from public authorities, the High Court has held that it is not a breach of a Claimant's Article 8 rights for the police to disclose unlawfully obtained information to the GMC in response to a statutory request, provided that the evidence is relevant to the GMC's fitness to practise functions.
N was a specialist registrar in obstetrics and gynaecology. On 5 June 2011, a patient made a complaint of sexual assault against N. On 6 June 2011 police arrested N. It was common ground that the arrest was unlawful due to a failure to inform N of the grounds for his arrest. Police searched N's house and seized computers containing private correspondence. Of note were chat messages with another doctor, W, via Skype, in which N referred to sexual arousal when examining a patient. N gave a full comment police interview without representation. The Court commented that some of the questions were improper but noted that N was aware of his right to have a solicitor present and there was no dispute before the High Court as to the accuracy of the interview. N was charged with sexual assault. Before the trial took place, the CPS indicated to N's representatives that it would not rely on N's police interview due to the fact that the arresting officer was no longer a credible witness (the officer was suspended in May 2012 in relation to separate matters, dismissed in January 2013 and was arrested on suspicion of perverting the course of justice). N was acquitted in July 2013. Tragically, the complainant committed suicide in August 2013.
On 3 July 2013 the police informed the GMC that they had material in their possession relating to the Claimant that was not adduced at his trial, namely the Skype chat and the police interview. On 8 July 2013 the GMC, relying on s.35A of the Medical Act 1983, requested that the police provide a copy of the police file for the case. The MPS decided that the interview and the Skype extract should be provided to the GMC. N then commenced proceedings on 16 January 2014 challenging the MPS's decision to disclose the material. Permission to apply for Judicial Review was granted on the papers.
N relied on two core arguments. First, the confidential material under consideration is of no relevance to the GMC's inquiry. All the other material on the police file has been or will be disclosed to the GMC without objection, and is more than ample for the purposes of the GMC's own inquiries. On the other hand, the material under consideration in these proceedings is neither relevant nor cogent. Second, the confidential material in this case has been unlawfully obtained, as a result of police misconduct, and should therefore not be disclosed unless its nature and contents make disclosure truly necessary. While accepting that, in general, material unlawfully obtained is not exempted from disclosure by the police, disclosure of the material obtained in the particular circumstances of this case would be wholly disproportionate and cannot be justified under Article 8(2).
The court rejected N's arguments on relevance. Cox J held that 'While the extract may not, in itself, be probative of M's complaint, or of any other complaint against the Claimant, or of there having been any specific act of misbehaviour by him, or even of any intended act, it is not necessary for the material to be directly probative in this sense in order for it to have relevance. The inquiry being carried out by the GMC, as the Claimant's regulatory body, is broader than the focussed inquiry of the CPS and the Crown Court. In my view, this conversation cannot be said to be irrelevant to the GMC's investigation into this Claimant's fitness to practise as a doctor.' Moreover, when looking at the content of the Skype exchange, she commented as follows: 'In circumstances where M's complaint was of an inappropriate and sexually motivated examination, under the guise of a gynaecological examination while she was in his care, the Claimant's references in this extract to his own sexual arousal during a previous conversation with a different patient, just some three weeks before the incident with M, and to this patient being attracted to him, appear to me to be relevant to an investigation into this Claimant's fitness to practise… the GMC is best placed to decide whether there are in fact further lines of enquiry to be pursued, arising from this communication, and all the other circumstances of the case.' Perhaps crucially, Cox J held that, once it was clear that extract was relevant to the GMC's inquiry, the circumstances in which the material was obtained will carry little weight when considering Article 8, since the scope and purpose of the GMC's investigation remains the same and the fact that the material was obtained unlawfully does not impact on the legitimate aim served by disclosure under s.35A. She reached the same conclusion in relation to the interview.
The case will provide a useful reference point for regulators discharging fitness to practise functions and it is notable that the court gave substantial weight to the legitimate interests pursued by regulators and that 'fruit of the poisoned tree' arguments will be unlikely to succeed where the evidence is potentially relevant to a registrant's fitness to practise. It is surely correct that potentially relevant evidence can be shared with a body tasked with protecting the public. If evidence is obtained in particularly unfair circumstances (for example, by agents provocateurs) registrants will still be able to argue that the proceedings are an abuse of process or that the evidence cannot be relied upon and therefore should not be admitted.
In a case that is likely to be useful to regulators seeking to rely on material obtained from public authorities, the High Court has held that it is not a breach of a Claimant's Article 8 rights for the police to disclose unlawfully obtained information to the GMC in response to a statutory request, provided that the evidence is relevant to the GMC's fitness to practise functions.
N was a specialist registrar in obstetrics and gynaecology. On 5 June 2011, a patient made a complaint of sexual assault against N. On 6 June 2011 police arrested N. It was common ground that the arrest was unlawful due to a failure to inform N of the grounds for his arrest. Police searched N's house and seized computers containing private correspondence. Of note were chat messages with another doctor, W, via Skype, in which N referred to sexual arousal when examining a patient. N gave a full comment police interview without representation. The Court commented that some of the questions were improper but noted that N was aware of his right to have a solicitor present and there was no dispute before the High Court as to the accuracy of the interview. N was charged with sexual assault. Before the trial took place, the CPS indicated to N's representatives that it would not rely on N's police interview due to the fact that the arresting officer was no longer a credible witness (the officer was suspended in May 2012 in relation to separate matters, dismissed in January 2013 and was arrested on suspicion of perverting the course of justice). N was acquitted in July 2013. Tragically, the complainant committed suicide in August 2013.
On 3 July 2013 the police informed the GMC that they had material in their possession relating to the Claimant that was not adduced at his trial, namely the Skype chat and the police interview. On 8 July 2013 the GMC, relying on s.35A of the Medical Act 1983, requested that the police provide a copy of the police file for the case. The MPS decided that the interview and the Skype extract should be provided to the GMC. N then commenced proceedings on 16 January 2014 challenging the MPS's decision to disclose the material. Permission to apply for Judicial Review was granted on the papers.
N relied on two core arguments. First, the confidential material under consideration is of no relevance to the GMC's inquiry. All the other material on the police file has been or will be disclosed to the GMC without objection, and is more than ample for the purposes of the GMC's own inquiries. On the other hand, the material under consideration in these proceedings is neither relevant nor cogent. Second, the confidential material in this case has been unlawfully obtained, as a result of police misconduct, and should therefore not be disclosed unless its nature and contents make disclosure truly necessary. While accepting that, in general, material unlawfully obtained is not exempted from disclosure by the police, disclosure of the material obtained in the particular circumstances of this case would be wholly disproportionate and cannot be justified under Article 8(2).
The court rejected N's arguments on relevance. Cox J held that 'While the extract may not, in itself, be probative of M's complaint, or of any other complaint against the Claimant, or of there having been any specific act of misbehaviour by him, or even of any intended act, it is not necessary for the material to be directly probative in this sense in order for it to have relevance. The inquiry being carried out by the GMC, as the Claimant's regulatory body, is broader than the focussed inquiry of the CPS and the Crown Court. In my view, this conversation cannot be said to be irrelevant to the GMC's investigation into this Claimant's fitness to practise as a doctor.' Moreover, when looking at the content of the Skype exchange, she commented as follows: 'In circumstances where M's complaint was of an inappropriate and sexually motivated examination, under the guise of a gynaecological examination while she was in his care, the Claimant's references in this extract to his own sexual arousal during a previous conversation with a different patient, just some three weeks before the incident with M, and to this patient being attracted to him, appear to me to be relevant to an investigation into this Claimant's fitness to practise… the GMC is best placed to decide whether there are in fact further lines of enquiry to be pursued, arising from this communication, and all the other circumstances of the case.' Perhaps crucially, Cox J held that, once it was clear that extract was relevant to the GMC's inquiry, the circumstances in which the material was obtained will carry little weight when considering Article 8, since the scope and purpose of the GMC's investigation remains the same and the fact that the material was obtained unlawfully does not impact on the legitimate aim served by disclosure under s.35A. She reached the same conclusion in relation to the interview.
The case will provide a useful reference point for regulators discharging fitness to practise functions and it is notable that the court gave substantial weight to the legitimate interests pursued by regulators and that 'fruit of the poisoned tree' arguments will be unlikely to succeed where the evidence is potentially relevant to a registrant's fitness to practise. It is surely correct that potentially relevant evidence can be shared with a body tasked with protecting the public. If evidence is obtained in particularly unfair circumstances (for example, by agents provocateurs) registrants will still be able to argue that the proceedings are an abuse of process or that the evidence cannot be relied upon and therefore should not be admitted.