Cross-border criminal justice post-Brexit – Operation Yellowhammer
Rasool v General Pharmaceutical Council  EWHC 217 (Admin)
Judgment date: Friday 6th February 2015
Disciplinary proceedings were commenced against the appellant, Mr Rasool, following an undercover investigation by the British Broadcasting Corporation (“the BBC”) into the alleged unlawful supply of prescription-only medicines by a number of pharmacies in central London. Mr Rasool was the superintendent pharmacist at one of the pharmacies which the BBC investigated. The undercover team visited the pharmacy on four occasions between August and November 2012. Mr Rasool was the responsible pharmacist on each of those occasions. On each occasion a prescription-only medicine was supplied in exchange for money without a prescription from an approved practitioner. The footage was broadcast on television on 17th December 2012. As a result of the investigation, Mr Rasool’s actions were investigated by the GPhC and proceedings commenced.
On 18 June 2014 a case management meeting was held. During the meeting, the Chairman disclosed that he had previously chaired a Fitness to Practise Committee in proceedings against a colleague of Ms Sarheed, who had worked at the same pharmacy as Mr Rasool. The allegations against Ms Sarheed related to an undercover BBC visit on another date, which was not included in the allegations against Mr Rasool. Ms Sarheed had stated that she was acting on the instructions of the superintendent pharmacist, who was not named, but it was presumed this referred to Mr Rasool.
Mr Rasool applied for the Chairman to recuse himself because he had been shown the transcript page from the interim order hearing in which reference was made to Ms Sarheed's statement as follows:
“He was 50/50 to admitting everything and be done with it. However, he believed by admitting to it that it would make things worse for himself.”
Mr Rasool submitted that, in a fact finding exercise such as this including assessment of Mr Rasool's credibility, it would be very difficult objectively for the Chairman to put that out of his mind.
The Chairman dismissed the application stating:
“I have considered the point you have made. It is quite apparent to me that at the time I took no notice of it, and I will not take notice of it, and I do not think that any objective observer, having regard to my position and my training, would ever think that any bias would arise by reason of being read this document at a review hearing. Accordingly, I am not going to recuse myself and will continue.”
At the final hearing, Mr Rasool admitted that he supplied the prescription medicines and that the recipient did not have a prescription. However, he stated that the supplies were not unlawful as they were all emergency supplies or sales permitted under the Human Medicines Regulations 2012. Nonetheless Mr Rasool’s defence was rejected and the Committee found the facts proved. The Committee found that Mr Rasool’s fitness to practise was impaired by reason of misconduct and ordered that his name be removed from the register.
The first ground of appeal raised by Mr Rasool was that on the basis of apparent bias the Chairman of the GPhC Committee should have recused himself, having heard matters relating to Mr Rasool in the course of an interim order hearing against another pharmacist and employee at the Pharmacy, Ms Sarheed. Mr Rasool submitted that the chairman had erred in law and that there was material procedural irregularity leading to injustice.
The Court looked to the test for bias, which was outlined as follows:
Would a fair-minded observer, having considered the relevant facts, conclude that there was a real possibility that the tribunal was (consciously or subconsciously) biased, as outlined in Porter v Magill  2 AC 357 and Lawal v Northern Spirit Limited  ICR 856 (HL).
It was held that the Court must first ascertain all the circumstances that have a bearing on the suggestion that the judge was biased.
The Court drew attention to the fact that the appearance of independence and impartiality is just as important as the question of whether these qualities exist in fact, as justice must not only be done, it must be seen to be done.
The Court held that each case would turn on its own facts. On considering the relevant circumstances and authorities, the Court could not disagree with the Chairman’s assertion that a fair-minded and informed observer would not conclude that there was a real possibility that he was biased.
The Court held that no material error of law had been identified and the chairman considered the circumstances, applied an objective test and considered the question of bias. The Court found that while the ruling was short, and no specific authority cited, the relevant test for bias was well-known. Additionally the Court found that from the wording used that the Chairman had the correct test in mind.
The second ground of appeal which Mr Rasool relied upon was that the sanction of erasure was disproportionate and that a lesser sanction should have been considered. Mr Rasool stated that the Committee had given undue weight to the BBC publicity, failed to give due weight to relevant factors in his case and to the fact that Mr Rasool had already been suspended for two years at the time of the decision.
Mrs Justice Carr stated that the Court will only interfere with a determination on a sanction if it is wrong or there has been injustice through serious procedural or other irregularity. The Court referred to the case of Raschid v General Medical Council  1 WLR 1460 where it was held that a principal purpose of the Fitness to Practise Panel was the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, and it was necessary to accord special respect to its judgment. It was further stated that while the High Court should correct material errors of fact and law, it should exercise a “distinctly and firmly secondary judgment”. The Court also referred to the case of Salsbury v Law Society  1 WLR 1286 in which it was held that, “absent any error of law, an appellate court must pay considerable respect to the specialist tribunal's sentencing decisions. If, nevertheless, the court was satisfied that the tribunal's decision was clearly inappropriate, then it would interfere.”
It was found that the Committee identified and considered all possible sanctions. The Court held that the Committee was entitled to reject the option of suspension in the light of the Indicative Sanctions Guidance and for the reasons that it gave, namely that suspension would not serve sufficiently the threefold purpose of sanction: the protection of the public, the maintenance of public confidence in the profession; and the maintenance of proper standards of behaviour within the profession. It was held that the Committee was entitled to take the view that a “stronger and more emphatic message than would arise from suspension” was required.
Mrs Justice Carr stated that she could see no basis for interference with the sanction of erasure imposed by the specialist tribunal who had the benefit of seeing and hearing the evidence after a full five day hearing and the judgment of which, absent any error of law, should be respected. The appeal was dismissed.
The Court here refused to allow the appeal on the basis of apparent bias. However, this case serves as a reminder of the test that should be applied when the issue of bias is raised, and the importance of providing detailed reasons for any decision made to make it clear that the correct test has been applied.
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