Case Update: High Court considers bias, vulnerable witnesses, re-hearings and legal representation

Virdee v General Pharmaceutical Council [2015] WL 376003

Judgement date: 30 January 2015

Background

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.

Preliminary Issues

There were a number of issues that fell to be dealt with before Andrews J could hear the substantive appeal.

1. The Appellant’s skeleton argument raised the suggestion that the court should conduct a complete re-hearing of the case. This had not been raised previously and no application notice to extend the time of the hearing was issued by the Appellant.
2. On 21 January 2015, the Respondent’s solicitors was informed that Samuel Louis were no longer acting for the Appellant and that he would be acting in person, but that Mr Hay would be instructed through direct access.
3. The application notice seeking an adjournment and a full rehearing over five days was formally issued on 22 January 2015 and was signed by Luke Ukoni on behalf of Samuel Louis. It suggested that they were still the Appellant's solicitors and that any communication regarding it had to be addressed to them rather than to the Appellant in person or to Counsel directly instructed.)
4. Mr Ezeh stated that his firm had come off the record because Ms Samuda was the only person able to deal with the Appellant’s matter, and without her (due to her ill health) the firm count not continue representing the Appellant pro bono. Mr Ezeh explained that the application notice had contained the details of the firm in error but that it had been filed as a “protective measure”.

Andrews J subsequently held that;

1. It was not clear how Samuel Louis could propose that they deal with a directions hearing if they had come off the record. It was also noted that no application for such directions had been formally applied for before they came off the record.
2. There was a reasonable explanation for why the firm came off the record, but this did not explain how an application notice came to be issued by somebody in their name with a signed statement of truth identifying them as the Appellant's solicitors.
3. If a pre-prepared application notice had been given to the Appellant himself to issue, ostensibly in the name of solicitors who were no longer acting for him, that would be a very serious matter. It would also be a very serious matter if a senior fee earner at a firm of solicitors had taken it upon himself to issue the application notice in those terms after he knew that his firm had come off the record, or even if he expected that it would be off the record by the time that application came to be heard.
4. The application to adjourn for a complete re-hearing appeared to be an abuse of process, not because the suggested course was a departure from the normal practice, but because there was no issue in the appeal which could possibly justify taking such an exceptional course. Andrew J cited Gupta v General Medical Council [2002] 1 WLR 1691 and explained 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 [2012] EWHC 3070 (Admin) and reiterated in Butt [2014] EWHC 264 (Admin). She directed that the matter be dealt with thereafter by Justice Green.

Substantive Appeal

Mr Hay persisted in making the application to adjourn and submitted;

1. that the judgment on credibility at the heart of the case was very finely balanced,
2. the consequences for his client were very serious,
3. it would be in the interests of justice to re-hear the evidence of the two main protagonists.

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 [2007] QB 462 at [197]:

“… 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:

1. The Panel had no evidence before it that the quality of Ms A's evidence was likely to be impaired if she did not give evidence from behind a screen.
2. Screens were erected for Ms A, when the Appellant was duty bound to have the fair chance of facing down his accuser, when his career and livelihood were at stake.
3. Despite the special measure put in place Ms A indicated that she did not feel comfortable reading out parts of her witness statement in public and her statement was subsequently treated as evidence in chief. The Panel failed to discharge the burden of proof and erred in law and failed to ensure a fair hearing in English law and according to Article 6 Human Rights Act 1998, by exempting Ms A from reading out her evidence and being tested in chief when the Appellant was required to do so.
4. The Panel was duty bound to be even handed and Ms A’s demeanour could not have been examined and heard in the same way as the Appellants. This suggests that the panel had demonstrated bias by undue levels of sympathy towards Ms A compared to the Appellant.
5. The Panel failed to give sufficient weight to the Appellant's good character, and especially to his good character in respect of his other (predominantly female) work colleagues.
6. The adequacy of the sanction in that suspension was not appropriate.

Andrews J held that:

1. The Panel made it abundantly clear in the determination that it was not drawing any inferences, adverse or otherwise, from the Appellant’s demeanour whilst giving evidence.
2. There was no basis for suggesting that Article 6 was infringed by this well-established procedure or that this was an inappropriate case for special measures. The tribunal was best placed to decide on the appropriate course to take, and the appellate court must defer to its decision. The Panel was able to see and hear the witness and judge whether her distress was genuine.
3. The objection to the screen was not raised at the time and was not well founded. There was no unfairness to the Appellant caused by the fact that Ms A gave her evidence from behind a screen. The Panel had been told that Ms A was distraught and nervous at the prospect of giving evidence, and it could draw its own inferences as to what the consequences were likely to be if it did not accede to the application.
4. Counsel had agreed to Ms A reading our her witness statement. The Panel made an evaluation that it was the only way in which it was going to obtain her evidence of what allegedly occurred.
5. There was no suggestion that the Appellant suffered from any vulnerability, or was unable to read out his statement as is the normal practice. The fact that he was able to give oral evidence in chief might even be regarded as an advantage; the Panel plainly felt that it was disadvantaged in judging the complainant's credibility by the fact she did not do so.
6. It is not for the Panel to “test” a witness's examination in chief. That role falls to the cross-examiner. It cannot be said that there was any procedural unfairness to the Appellant, who had ample opportunity to test the evidence of the complainant, and longer than he probably would have done if she had read her witness statement out. If his Counsel failed to take full advantage of that opportunity it is not something for which the Panel can be criticised.
7. There was no substance in the allegations of bias (whether actual or apparent). On the contrary, the Panel ensured that it decided matters in a manner that was fair to the Appellant. Mr Faux relied on evidence of email correspondence between Ms A and her best friend, Ms D, in November 2009. The evidence of Ms D was to the effect that Ms A confided in her after each of the alleged incidents of inappropriate touching. The Respondent sought to rely upon this evidence as independent corroboration of Ms A's account. The Panel expressly rejected that suggested approach. It decided that as a matter of law the evidence of Ms D could only be used to show consistency and rebut fabrication. It could not be used as evidence that what Ms A had said was true. Fabrication was no part of the defence case. This approach was favourable to the Appellant.
8. The allegations of procedural unfairness and bias should never have been made in the first place, let alone pursued. There was no serious procedural or other irregularity which casts any doubt on the fairness of the hearing. The Panel did not display “undue sympathy” to Ms A, and such sympathy as it did show to her had no impact upon the outcome.
9. The Panel made specific reference to the Appellant’s good character, including positive evidence that was adduced about him, at the onset of its determination.
10. The Panel's decision was in line with the Indicative Sanctions Guidance and in the context of the guidance, the experience of the Panel, and the submissions made on the Appellant’s behalf, “the determination on sanction is a model of elegant sufficiency rather than an exemplar of poor practice”.

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.