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R (on the application of H) v Nursing and Midwifery Council [2013] EWHC 4258 (Admin) (HHJ Pelling QC Sitting as a Judge of the High Court)

In this case the High Court restated a number of important principles concerning admissibility of bad character evidence in regulatory proceedings (in this case before the Conduct and Competence In this case the High Court restated a number of important principles concerning admissibility of bad character evidence in regulatory proceedings (in this case before the Conduct and Competence Committee of the Nursing and Midwifery Council).

H, a registered nurse specialising in mental health care, faced allegations that she had entered into a sexual relationship with Service User A while he was under her care and that, after she had referred him to another practitioner, she had an inappropriate relationship with him in that she (a) engaged in a sexual relationship with him and (b) ultimately married him.  H admitted to an inappropriate relationship with Service User A after referral to another practitioner, but denied that she had entered into a sexual relationship with him while he was under her care.

At the hearing before the Conduct and Competence Committee ('the Committee'), the Committee was required to resolve a fundamental conflict of evidence concerning the nature of the relationship whilst Service User A was under H's care.  It was the NMC's case that the sexual relationship began around September 2005 while H was treating Service User A.  The NMC relied on the evidence of Service User A who said that a sexual relationship developed after his second visit with H.  H contended that the sexual relationship began a year later when Service User A was no longer under her care and that she met Service User A by chance in January 2006 when she was shopping with a friend, Mrs Polowski.  She said that it was after this meeting that the relationship developed and it became sexual in October 2006.  Many of the witnesses gave evidence as to the character of Service User A.  H also sought to adduce evidence of Service User A's convictions, including one conviction for a dishonesty offence in 1989.

The Committee determined that due to the age of the convictions and the nature of the dishonesty offence (which related to an offence under the Theft Act), the convictions (a) were not relevant to the issues in the case and (b) would have little probative value.  The Committee also decided that it would not be fair to adduce the conviction. Having heard the evidence, the Committee considered Service User A's account to be more plausible and noted that it was consistent with the contemporaneous notes.  The Committee found Service User A to be a credible witness on this issue and rejected H's evidence.

H appealed to the High Court against the Committee's finding on facts.  She contended that the Committee (1) failed to give any weight to the bad character of Service User A, (2) failed to give appropriate weight to the evidence of H's witnesses and (3) wrongly concluded that Service User A's account was consistent with the contemporaneous notes.  H submitted that the 'bad character' of Service User A included (i) his previous convictions, (ii) the fact that he had allegedly answered some questions concerning the way he treated H during their relationship untruthfully, and (iii) had acted dishonestly in ways that were collateral to the issues in the case.

Giving judgment, HHJ Pelling highlighted that in a case which comes down to the word of one person against another, the starting point in assessing whom to believe should be to compare the accounts of each witness with the contemporaneous records.  He disagreed with the Committee's decision that it would 'not be fair' to adduce Service User A's conviction, indicating that fairness is not a relevant consideration: either a conviction is relevant and admissible or it is not (with the judge stating that "the only basis on which it could be contended that the fact of a criminal conviction ought to be excluded was on the grounds of relevancy or inadmissibility by operation of statute as for example the rehabilitation of offenders legislation").

The judge indicated that convictions of dishonesty or convictions following a plea of not guilty are at least potentially relevant to an assessment of credibility.  However, in this case, the judge noted that H was not challenging the decision to exclude the material, but rather the failure of the Committee to give sufficient weight to the material.  He therefore held that "if there is no challenge to the decision to exclude the material, there can be no legitimate complaint about the failure of the Panel to take that material into account".

The other 'bad character' evidence included evidence from H's witnesses in relation to events that were collateral to the issue before the Committee, namely that Service User A was dishonest and had, for example, exaggerated an injury in order to get compensation and claimed to have 'worked the system' in order to claim benefits.  The court rejected the argument that evidence in support of such allegations should be admitted:

"Once the allegation has been put then that is the end of the matter. A party is not permitted to call evidence to contradict an opponent's witness as to matters of credit. In my judgment, the Panel cannot be criticised for leaving this material out of account in those circumstances. The material was inadmissible and before the Tribunal could take it into account it would first have to have ruled the material as admissible, then would have to make findings as to whether it preferred the evidence of the witness concerned over that of Service User A on the collateral issue before then deciding to what extent that finding impacted upon the Panel's conclusions concerning the credibility of Service User A. That is not the sort of burden that any fact-finding Tribunal should have to undertake".

H also contended that the Committee failed to give appropriate weight to the evidence of her witnesses, many of whom gave evidence of their conversations with H about her relationship with Service User A and supported her account of the relationship having commenced in October 2006.  It was said that much of this evidence had been dismissed by the Panel as "predominantly hearsay".  The High Court said that "some care is required in dismissing evidence of this sort on that basis."  It determined that where, as in this case, there are two conflicting accounts on an important issue, the Committee was required to carefully consider and take account of each element of the evidence.  It found that the Committee was wrong to reject the evidence as hearsay and that it should have made clear why it was rejecting the evidence of H's witnesses.

However, the court considered the most serious issue to be the Committee's failure to take account of the evidence of P.  P had given evidence to the Committee confirming the meeting between H and Service User A in January 2006.  Service User A had repeatedly denied that this meeting had occurred.  The High Court considered this evidence to be material to H's case in that, if accepted, it impacted on Service User A's credibility and that the Committee had been wrong not to give any consideration to it.

The appeal was allowed and the Committee's decision quashed.

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