Knowledge and approval - When is a will suspicious?
Virdee v General Pharmaceutical Council  WL 376003
Judgement date: 30 January 2015
The Appellant qualified and registered as a pharmacist in July 2009. The Appellant was subject to Fitness to Practice proceeding before the General Pharmaceutical Council (GPhC) in respect of alleged professional misconduct between October 2009 and August 2010, when he was working as a locum at a pharmacy with Ms A, the complainant. The charges all related to complaints by Ms A of various incidents of sexual harassment and/or sexual assault at the pharmacy. The proved charges were that on four different occasions the Appellant had approached Ms A from behind and rubbed his penis against her or pushed it against her bottom, and that these approaches were sexually motivated. The Appellant was removed from the Register.
The Appellant brought an appeal under article 58 of the Pharmacy Order 2010 against the GPhC determination. The appeal and the subsequent process raised a number of issues.
Background to Appeal
The Appellant was represented before the Panel by Counsel, Mr Mohammed Abdul Hay. Mr Hay was instructed by Fiona Samuda, Solicitor acting on behalf of a firm of solicitors called Samuel Louis (the proprietor was Samuel Ezeh) on a “pro bono” basis.
The Grounds of Appeal were marked as a draft “subject to approval”. The Appellants' Notice stated that a skeleton argument would be lodged in 14 days, but it was not. The Appellant made an application in person to the court on 7 April 2014 to vacate a hearing fixed for 8 April 2014 and for a two month stay of the proceedings to enable him to secure legal representation.
The Appellant was advised on 15 April 2014, that if he no longer wished to instruct the solicitors who were still on the record, he would need to file the appropriate notice to inform the court that he wished to act in person or change his legal representatives. The Appellant's application for a stay was fixed for 21 May 2014, and the judge ordered a stay until 8 June 2014. The adjourned hearing was fixed for 21 October 2014. The Appellant did not provide any skeleton argument.
The matter came on before Thirlwall J; Ms Samuda sought an adjournment on the basis that Counsel had been taken ill and was unable to attend. This was opposed by the Respondent’s representative on the basis that the matter was straightforward and there was no substance in any of the grounds. Nevertheless, Thirlwall J granted the adjournment on the basis that the Appellant was entitled to pursue his appeal as of right.
Thirlwall J directed that a skeleton argument be lodged no later than 11 November 2014. Mr Hay sought a seven day extension due to illness. However, a document entitled “skeleton argument preliminary” was prepared and filed by Ms Samuda before the deadline. This was never replaced or finalised prior to the substantive appeal hearing, despite Ms Samuda confirming that, “Counsel will be drafting and lodging a separate Skeleton Argument”.
Thirlwall J made an order directing that the appeal be listed with a time estimate of one day and the appeal was fixed for 23 January 2015.
There were a number of issues that fell to be dealt with before Andrews J could hear the substantive appeal.
Andrews J subsequently held that;
“although the Grounds of Appeal suffer from a number of deficiencies, they (a) recite a number of key findings of fact made by the Panel without seeking to disturb them, quite the contrary; (b) criticize the approach of the Panel and where appropriate seek to draw inferences from the transcript (though the spaces for the transcript references are left blank); and (c) nowhere raise any specific issue of fact that the Panel had not decided and which could only be determined by hearing evidence afresh.”
The Skeleton Argument submitted raised no such issue and as such it was not appropriate for the Court to hear evidence on an appeal of that kind.
Andrews J came to the conclusion that the behaviour of the three solicitors involved warranted a direction that they should each write to the court to show cause why they should not appear before the Divisional Court in accordance with the principles established in Hamid  EWHC 3070 (Admin) and reiterated in Butt  EWHC 264 (Admin). She directed that the matter be dealt with thereafter by Justice Green.
Mr Hay persisted in making the application to adjourn and submitted;
Mr Faux pointed out that Andrews J had agreed with the Respondent’s submissions that in a case where the only contentious witness evidence was the complainant’s it could not be a sensible or proportionate to spend five days on a re-hearing and refused the application to adjourn.
Andrews J explained that the court could only overturn the decision if it is satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings (CPR 52.11(3)). In determining whether the decision was wrong, the court should consider the special expertise of the Panel to make the required judgment. Andrews J cited Auld LJ in General Medical Council v Meadow  QB 462 at :
“… it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers”. (emphasis in the original).
Andrews J explained that when she read the Panel determination she was concerned by some aspects of the Panel's approach to determining, on the balance of probabilities, whether the burden of proof had been discharged on each of the charges of inappropriate touching. The Panel had described the difficulties it had in assessing Ms A's credibility but concluded that she was an honest witness and that it was accepted by the Appellant that Ms A was an honest witness, but he contended that she was mistaken.
In the light of this, Andrews J anticipated that the focus of Mr Hay's submissions would be on the approach to the balancing exercise that was adopted by the Panel, and on the evidence in the Appellant's favour, to which it was alleged the Panel either failed to accord any weight or which it allegedly failed to take into account.
However, Mr Hay’s application was on the basis of procedural unfairness. The grounds for appeal were:
Andrews J held that:
Andrews J acknowledged that although it appeared that Counsel did not draft the skeleton she was shocked that Mr Hay’s submissions in relation to the vulnerability of Ms A (as referred to above) were pursued by any responsible qualified legal representative. Andrews J made it clear that in a case of this nature such arguments will not be entertained or given credence by the Court, especially if the registrant is legally represented before the Panel, as this Appellant was.
Andrew J commented that although there is no “heightened standard” of proof in proceedings of this nature, the inherent probability or improbability of an event is itself a matter to be taken into account in weighing the probabilities and deciding whether on balance the event occurred. The more improbable it is that the registrant would have behaved in the manner alleged, the more cogent and credible the evidence needed to satisfy the burden of proving on the balance of probabilities that he did.
Mr Faux submitted that the Panel's conclusion was that it believed Ms A and disbelieved the Appellant. It reached that conclusion having reminded itself that it was inherently improbable that the Appellant, a young professional man of previous good character, would sexually assault a young woman in the workplace, having subjected the evidence to the closest scrutiny, and having sought to reconcile the competing accounts where possible to the Appellant's advantage. Andrews J agreed.
Andrews J, therefore, proposed to quash the appeal.
A helpful case, which articulates the High Court’s view on bias in relation to vulnerable witnesses as well as legal representation and re-hearings.
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