The Regulator EXTRA - Autumn 2011 - Hearsay: To admit or not to admit?

31 October 2011

In the wake of the recent High Court judgment in the case of Bonhoeffer, Elizabeth Taheri takes an in-depth look at the rules of admissibility of evidence for each of the main regulators and questions how much impact this ruling will really have in future professional discipline proceedings.

Article 6(3) of the European Convention on Human Rights provides that everyone charged with a criminal offence is entitled to examine or have examined the witnesses against him. Accordingly, the Criminal Justice Act 2003 imposes a tight framework to govern the circumstances in which hearsay evidence may be admitted in evidence in criminal proceedings. So, what of professional disciplinary proceedings? Whilst they do not put at risk a person’s liberty or good character in the traditional sense, the outcome of a professional discipline hearing can have severe consequences for a Registrant.

Each regulator has its own statutory rules to govern the admissibility of evidence in fitness to practise proceedings. Reviewing the rules, two distinct schemes exist:

  1. Civil rules of evidence apply: the effect being that hearsay evidence is admissible. Having admitted it however, the Committee is required to look to section 4 of the Civil Evidence Act 1995 to decide what, if any, weight to attach to it (GDC and HCPC); and
  2. Hearsay evidence is admissible subject to the requirements of “relevance” and “fairness” (GTC, NMC and RPS): though note the additional provision within some regulators’ rules whereby evidence that would be inadmissible in criminal proceedings can only be admitted where it is “desirable” to enable the Committee to make “due enquiry” into the case (GMC and GOC).

Whilst the rules may be different in their wording, the effect of each set is the same; in each of the schemes identified, the objective is to uphold the principle of fairness to the Registrant. For some bodies, such as the HCPC and GDC, this is achieved by admitting the hearsay evidence and then assessing the weight to be attached to it. To that end, the focus of the six factors set out within section 4 of the CEA 1995 is whether it would be safe, and therefore just, to rely on the evidence. For other bodies, such as the NMC and GTCE, the onus is on the Presenting Officer to demonstrate, before the evidence can be admitted, that the requirements of relevance and fairness are satisfied.

What can be considered to be “fair” will necessarily vary on a case-by-case basis, in the same way that different hearsay statements, measured against the factors set out in section 4 of CEA 1995, will be afforded different weight. This is the principle at the heart of the recent High Court judgment in R (on the application of Bonhoeffer) v the GMC [2011] EWHC 1585 (Admin). Professor Philipp Bonhoeffer, an internationally renowned paediatric cardiologist, mounted a High Court challenge against the decision by a GMC Fitness to Practise Panel to admit hearsay evidence against him. The High Court has recently quashed the Panel’s decision, deeming it to have been irrational and a breach of the professor’s Article 6 rights.

Professor Bonhoeffer, faced allegations of sexual abuse of children and young men whilst working as a doctor in Kenya for a charity, which he strongly denied. The only complainant to support the allegations was a man in his late 20s, known only as witness A; other witnesses interviewed by the police denied that the events alleged by witness A had occurred. The Police travelled to Kenya to interview him, and witness A was willing to come to London to give evidence: the GMC had agreed to fund not only his expenses, but also those of his family. The Metropolitan Police advised however, that witness A could be at risk of reprisals in Kenya (where homosexuality is illegal), and from those loyal to Professor Bonhoeffer. Subsequently, rather than calling witness A to give evidence, the GMC made an application at the start of the hearing under Rule 34 of the GMC Fitness to Practise Rules 2004, to rely on hearsay evidence. The Panel agreed to admit documents pertaining to witness A’s complaint. Live evidence was heard from two police officers, witness Z and a solicitor. The GMC proceedings were stayed in November 2010 pending judicial review.

The judgment in this case is not to be construed as giving rise to an absolute rule entitling a person facing disciplinary proceedings to cross-examine the witnesses on whose evidence the allegations against him are based. Mr Justice Stadlen made plain that there is no such rule, either under article 6 or in common law, even where the evidence in question is the sole or decisive evidence in the case. In short, Professor Bonhoeffer’s challenge turned on the application of the general obligation of fairness to the particular circumstances of the case. As Stadlen J observed, “it is hard to imagine circumstances in which the ability to cross-examine the uncorroborated allegations of a single witness would assume a greater importance.” The allegations suggest not just sexual misconduct on Professor Bonhoeffer’s part, but also a grave abuse of a position and trust. Whilst the Panel, mindful of its public duty, had considered the serious nature of the allegations against Professor Bonhoeffer to be decisive in favour of admitting the hearsay evidence, Stadlen J took rather a different view, saying “The more serious the allegation, the greater the importance of ensuring that the accused doctor is afforded fair and proper procedural safeguards. There is no public interest in a wrong result.” It was also made plain that the potential desirability of admitting evidence, pursuant to Rule 34(2) cannot trump the requirement of fairness, which is a pre-requisite.

One cannot help but notice similarities between the Bonhoeffer ruling and that in the case of Ogbonna v Nursing & Midwifery Council [2010] EWHC 72 (Admin). In that case, at the conclusion of its oral evidence, an application was made on behalf of the NMC to read the statement of B, pursuant to Rule 31 of the NMC (Fitness to Practise) Rules Order of Council 2004, on the basis that the witness no longer lived in the United Kingdom. In January 2009 the Registrant was quite properly given notice that the NMC relied on the written statement alone and, on 10 February 2009, the Registrant objected to its admissibility. B was an important witness to the material facts. The Registrant complained that the NMC had made no plans for the witness to attend, that she had the right to cross-examine B and that she would be prejudiced if she could not. It was clear the NMC had made no plans for the witness to attend the hearing, either in person or by video link. Indeed, it said it did not have video-link facilities. The appeal was allowed. B was the sole witness of fact and a critical witness. That, together with evidence of bad feeling between the two women, meant that every effort should have been made to secure B’s attendance. It is easy in Ogbonna, where B’s attendance had never even been sought by the NMC, to see why the High Court took the stance that it did. Similarly, in the Bonhoeffer case, it was noted by the Court that witness A had repeatedly expressed his willingness and ability to attend to give live evidence and that there was nothing which would preclude the GMC from calling witness A to give oral testimony.

The Bonhoeffer judgment is not just applicable to GMC proceedings; the comments of Stadlen J are directed at disciplinary hearings in general. Whilst a number of Bonhoeffer style challenges may now be mounted by way of preliminary argument at professional discipline hearings up and down the land, it should be borne in mind that such a challenge is unlikely to take a Registrant very far where the scheme for the admissibility of hearsay is the civil rules of evidence. In those circumstances, a Committee will be much more receptive to submissions in respect of the weight that should be attached to the evidence during a half-time or closing submission. A Committee could quite properly be invited, at the appropriate stage, to attach little or no weight to hearsay evidence where the allegation is of a serious nature and insufficiently cogent reasons have been given for the failure to call a critical witness. Where the scheme of relevance and fairness applies, Committees must be mindful to consider each of these two requirements separately. In many cases, hearsay evidence will satisfy the requirement of relevance, as it did in the cases of Ogbonna and Bonhoeffer. The requirement of fairness is something quite distinct and should be considered anxiously in order to ensure that fair and proper procedural safeguards are afforded to Registrants. A Committee which, in circumstances where inadequate efforts have been made to secure a key witness’ attendance, admits hearsay evidence on the basis that the allegation is a serious one is likely, in view of the Bonhoeffer ruling, to find its decision the subject of scrutiny in a higher court.

Whilst the recent judgments in Bonhoeffer and Ogbonna do not tell us anything particularly novel, they serve as firm reminders to regulators that direct evidence should be considered, wherever possible, from any witness regarded as critical to the issues in the case and that thorough and robust efforts should be made to secure the witness’ attendance. Special measures, telephone links, search agents and witness summonses are just some of the tools available to regulators to ensure that direct witness evidence is able to be relied upon. If corners are cut, it is likely that the body of case law on this point will continue to grow.

Elizabeth Taheri, Associate Barrister

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