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When should disciplinary proceedings be stayed after procedural errors?

16/03/2018
A recent High Court decision considered when procedural errors in a disciplinary proceeding will require a hearing to be stayed. While the Court relied on accepted case law, it appears to have set a high standard for when a stay will be appropriate and has given considerable discretion to the tribunals.

Clinton v General Medical Council [2017] EWHC 3304 (Admin)

A recent High Court decision considered when procedural errors in a disciplinary proceeding will require a hearing to be stayed.  While the Court relied on accepted case law, it appears to have set a high standard for when a stay will be appropriate and has given considerable discretion to the tribunals.

C appeared before the Medical Practitioners' Tribunal Service (MPTS) in relation to allegations from three individuals that he had conducted unnecessary and sexually motivated physical examinations.  During cross-examination of the complainants it became clear that each complainant had received the GMC's decisions to investigate all three complaints, including details of each other's complaints and evidence.  C applied for the proceedings to be stayed on the basis that each complainant's evidence could be tainted by their knowledge of the other allegations.  The GMC resisted and, after criticising the GMC's rules on disclosure, the MPTS dismissed the application on the basis that the public interest in having effective disciplinary proceedings outweighed the public interest in maintaining public confidence in the regulatory system.  C applied for permission for judicial review and this was granted after an oral renewal.

The High Court considered in detail the existing case law on the power to stay proceedings on the grounds of abuse of process, and most particularly the decision of the Supreme Court in R v Maxwell [2010] UKSC 48.  The Supreme Court there reaffirmed that there were two grounds for staying cases: "(i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case."  This had been expanded on in Warren v AG of Jersey [2011] UKPC 10, which confirmed that the second ground was in the court's discretion, having balanced the interests in play.  While most of the case law referred to was from the criminal law jurisdiction, following CHRE v GMC and Saluja [2007] 1 WLR 3094, the Court proceeded on the basis that the applicable principles also applied to disciplinary proceedings.

Where an application for a stay fell under the second ground, i.e. that the procedure offends the Court's sense of justice and propriety, the Wednesbury unreasonableness standard applied: "The proper approach is to consider whether the tribunal's decision was perverse or one that any reasonable tribunal, properly directing itself, could have reached".  However, the Court found that "When it comes to assessing whether the integrity of the system has been compromised to such a degree as to render it morally repugnant to continue proceedings, the specialist tribunal is well placed to decide that issue." 

While there were serious procedural defects in this case, this in itself was not sufficient for a stay to be granted.  The tribunal must also "consider whether, in the light of those defects, the public interest in ensuring that standards are upheld and grave crimes are prosecuted is outweighed by the public interest in the integrity and the fairness of the process."  In this case, the Court noted that each complainant was giving evidence on different incidents, and none of them had materially changed their evidence since being informed of the other complaints.  On this basis, the Court did not consider that the Tribunal's decision not to grant the stay was not unreasonable or perverse, and the application was refused.

While the legal principles referred to in this case are clearly settled, the Court has set a high bar for when a stay may be considered appropriate.  The potential contamination of witness evidence is a serious issue, particularly in behaviour-related cases when there may be little or no documentary or expert evidence, and regulators must give careful consideration when preparing cases as to how they will prevent this.  It appears that the crucial fact in this case was that the witnesses were giving evidence on separate events.  As such, regulators should be cautious in relying on the high bar set in this case to avoid re-hearings in light of flaws in process.

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