How should panels deal with past allegations made by a complainant?

27 October 2021

 

Conviction cases are ordinarily relatively straightforward for regulators. If a registrant is convicted of a criminal offence, the regulator will generally treat the fact of the conviction as proof the offence was committed – and take action to protect the public accordingly. See Achina v General Pharmaceutical Council [2021] EWHC 415 (Admin) for an example of the difficulties registrants face when they attempt to ‘go behind’ the facts of a conviction.

What is more difficult is when allegations of a criminal nature are made against a registrant but the registrant is not convicted. This might be because the registrant was not prosecuted, or it could be because the registrant was tried but acquitted. In such circumstances, regulators often exercise their discretion to bring misconduct proceedings. Case law confirms that this is entirely proper and necessary in order to protect the public (see, for example, Ashraf v General Dental Council [2014] EWHC 2618 (Admin), analysed here.

In circumstances where a registrant has not been convicted of an offence, the regulator will need to prove the facts of the allegation in order to establish misconduct. Whereas in a criminal case a jury needs to be ‘sure’ of the defendant’s guilt, in a regulatory setting the standard of proof is the balance of probabilities – is it more likely than not that the alleged conduct occurred? Often these cases amount to the registrant’s word against the complainants. The credibility of each party is therefore absolutely central to proceedings.

In the case of Arowojolu v GMC [2021] EWHC 2725 (Admin), the High Court upheld the 2020 findings of the Medical Practitioners Tribunal (“MPT”) that Dr Arowojolu had sexually assaulted Ms A, a receptionist at an out-of-hours practice. Dr Arowojolu had previously been acquitted of her assault in the Crown Court. The 2020 MPT hearing was a rehearing: a 2019 decision of the MPT was quashed by the High Court as the panel had misdirected itself on how to deal with a previous allegation made by Ms A, which the defence argued went to her credibility.

Background

Dr Arowojolu qualified as a doctor in Nigeria in 1985. His practice in the UK began in 1995. In 2013 he was working as an out-of-hours GP at a health centre in Essex. After a late shift one evening in July 2013, Dr Arowojolu had a conversation with a new receptionist, Ms A. Ms A explained to Dr Arowojolu that she was unhappy with her stomach, having gained weight after giving birth to her children. Dr Arowojolu offered to examine her and they went into a side room where Ms A lay on a table.

Dr Arowojolu’s account of what happened next was completely at odds with Ms A’s. According to Dr Arowojolu, he examined Ms A’s stomach and gave her some general advice about exercise. According to Ms A, Dr Arowojolu sexually assaulted her twice in quick succession, each time placing his hands in her knickers and touching her genitals whilst encouraging her to do sit-ups.

Ms A reported Dr Arowojolu to the police. He was arrested and charged with sexual assault. In 2014 he was convicted and sentenced to two years’ imprisonment. In 2015 the Court of Appeal quashed the conviction and ordered a retrial. The case was listed for retrial in 2016 but this was adjourned owing to the late disclosure of material relating to an allegation Ms A had made against her grandfather in 2003. This allegation was to be of central importance to the subsequent GMC proceedings. When the retrial did take place, the jury could not agree a verdict. A third and final retrial produced an acquittal. The disciplinary proceedings followed the acquittal.

 

Tribunal Proceedings

As a summary, Dr Arowojolu was charged with asking Ms A to show him her stomach in the reception of the healthcare centre, performing intimate examinations on Ms A which were inappropriate, placing his hand under Ms A’s trousers and underwear and touching her genitals, and failing to make a record of the examinations. The conduct was charged as sexually motivated.

Whilst Ms A was the only direct witness to the events, the GMC also called ‘recent complaint’ evidence which indicated that she had been very upset after her contact with Dr Arowojolu.

Dr Arowojolu gave evidence in his defence and also called character evidence.

Dr Arowojolu’s case was that the sexual assault was a fabrication. He argued that Ms A had a propensity to make false allegations of a sexual nature. He pointed to the disclosure by the police that Ms A had made against her grandfather in 2003, when she was around 14 years old. In brief, she alleged that her grandfather had sexually assaulted her repeatedly over the preceding 2 year period. Ms A’s family had disbelieved her and provided evidence to the police which they said undermined her account. No charges were brought and Ms A continued to assert the truth of the allegations.

Before the MPT Ms A was cross-examined extensively on the allegations she had made against her grandfather, as well as various inconsistencies in her allegation against Dr Arowojolu. The MPT found a number of the allegations proved and directed that Dr Arowojolu’s name be erased from the register.

The MPT’s first decision was quashed by the High Court (see here). Mr Justice Julian Knowles held that the panel had misdirected themselves by failing to consider whether Ms A had made a false allegation in relation to her grandfather.

At the 2020 re-hearing, the legally qualified chair directed the panel as follows:

"55. In considering the evidence in relation to the 2003 incident, the Tribunal must first consider the issue of whether the allegations made by Ms A were false.

56. The Tribunal must ask itself whether there is, at the very least, a real possibility that the allegations Ms A made against her grandfather in 2003, and which she has maintained to date, were deliberate lies.

57. If the Tribunal were to conclude that there was no real possibility that the allegations were false, or, if the Tribunal concluded that it was unable to determine whether there was such a possibility or not, then the 2003 allegations would have no further relevance to the case.

58. However, if the Tribunal were to conclude that there is a real possibility that it was a deliberate false complaint made against her grandfather, the Tribunal would next need to consider whether this fact shows that Ms A has a propensity or tendency to tell lies.

59. If the Tribunal were to conclude that Ms A does have propensity or tendency to tell lies this is something the Tribunal should consider when assessing her reliability and credibility in relation to the current Allegation.

60. However, the issue of the truth or otherwise of the 2003 allegations, is only part of the evidence. The fact that someone may have made a false complaint in the past does not, and cannot, mean that every complaint they make in the future must be false."

In their decision, the panel stated that they could not determine whether the 2003 allegations were false. They rejected defence counsel’s submission that the evidence necessarily led to a finding that the allegations were false. The panel stated that given the incomplete evidence, it was entirely possible that the allegations were true, but that it was equally possible that they were false. However, regardless of the truth or falsity of the allegations against Ms A’s grandfather, they were not relevant to Ms A’s credibility because of the passage of time and the factual dissimilarities.

The MPT found the case against Dr Arowojolu proved and directed his erasure from the register.

 

Appeal to the High Court

As noted above, this was the second appeal to the High Court. Dr Arowojolu argued that the only reasonable inference on the evidence was that Ms A’s allegation against her grandfather was false, and that this went to her credibility. The MPT had yet again ‘ducked’ the question of whether or not Ms A’s allegation against her grandfather was false.

Mr Justice Julian Knowles, who had also presided over the 2019 appeal, dismissed this appeal. He noted that the panel had been directed in accordance with the submissions of both counsel before the 2019 tribunal proceedings and reflected in his 2019 judgment (at §48):

"… the Tribunal should have been directed that it needed to decide whether, on the balance of probabilities, the allegations Ms A had made against her grandfather were false. If the Tribunal concluded that the allegations were false, then it should have been directed to consider whether that proved she had a propensity to make false allegations. If it concluded she did have such a propensity, then it should have been directed to take this into account when judging the truth or otherwise of her allegations against the Appellant, and that it added weight to the defence contention that she was a fantasist.”

Furthermore, the panel had made clear that even if Ms A’s 2003 allegations against her grandfather were false, it would have made no difference to their findings about her credibility in 2013 in relation to Dr Arowojolu. This was a view they were perfectly entitled to take based on the evidence they heard.

 

Commentary

This is a case with an unhappy procedural history, first as a criminal and then a regulatory case. It would appear that Ms A had to be cross-examined about her sexual assault five times – three times in the Crown Court and twice before the MPT. The need for criminal proceedings to be determined before any regulatory matter could commence meant that this matter took 8 years to be brought to a conclusion.

In this case the Regulator had to grapple both with an acquittal in the criminal proceedings, and an entirely undetermined allegation made by the complainant when she was teenager. It can only be hoped that the direction endorsed by the High Court in these proceedings will help tribunals to get it right first time in future.

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact a member of the Regulatory team.

 

ABOUT THE AUTHORS

Alice Trotter is a trainee solicitor at Kingsley Napley and is currently in her first seat in the Regulatory team. Alice joined Kingsley Napley in 2018 as a paralegal in the Family team. She was offered a training contract with the firm in 2020.

Amy Woolfson was called to the Bar in 2017 and has a mixed criminal and regulatory practice. She has experience prosecuting and defending a wide range of criminal offences in the Crown Court, Magistrates’ Court, and Youth Court. Her regulatory experience includes prosecuting and defending cases for the Nursing and Midwifery Council (NMC) and the Health and Care Professions Council (HCPC), as well as prosecuting on behalf of the Architects Registration Board (ARB).

 

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