Unacceptable Professional Conduct and Conviction cases: avoid the pitfalls of applying the wrong tests to the wrong facts

21 December 2020

Wray v General Osteopathic Council [2020] EWHC 3409 (QB)

Mr Wray (‘Mr W’), an osteopath, appeared before a Panel of the Professional Conduct Committee (‘PCC’) of the General Osteopathic Council (‘GOsC’) after self-reporting a series of events he had been involved in.

Facts

In or around 2018, Mr W’s teenage daughter had developed behaviour and lifestyle problems, (including drug taking) following a family tragedy two years previously. On the evening of 10 March 2018, she returned home in a distraught state apparently intoxicated by drugs. After falling asleep, her mobile phone rang continuously and Mr W answered it. The caller, unknown to Mr W at the time, was a young man with whom his daughter was in a relationship. The caller said he had attacked Mr W’s daughter and threatened to do it again. The caller told Mr W to meet him that evening so that they could discuss matters. Fearful for his daughter and anxious to know more about the details of her intoxication, Mr W set off in the car with his son to meet the caller.

When he arrived at the agreed location, Mr W’s vehicle was surrounded by young males who began hitting his car. Before exiting his vehicle, Mr W picked up a softball bat for self-defence. He held it by his side and did not brandish it. As soon as he left his vehicle both he and his son were attacked. Mr W was hit with his own bat, resulting in him needing stitches. He also suffered a concussion and psychological after-effects.

Initially, the police had treated Mr W as a victim of an attack. But in the course of him explaining what had happened, he disclosed that he had picked up the softball bat which culminated in him being charged with having an offensive weapon contrary to Section 1(1) of the Prevention of Crime Act 1953. That provides that anyone who, without lawful authority or reasonable excuse, has with them in a public place any offensive weapon, is guilty of a criminal offence.

Mr W was initially advised to contest the charge but shortly before his preliminary hearing at the Magistrates Court, he was advised to plead guilty. Mr W heeded that advice and was sentenced to a six-month conditional discharge. When preparing for the hearing before the PCC with his new legal team, he was advised he had a complete defence to the charge; the only basis upon which he could have been found guilty was if he intended to use the softball bat for causing injury and had no reasonable excuse for taking it. His application to appeal his conviction was rejected as being too far out of time.

The charge considered by the PCC was as follows:

  1. On 10th March 2018 at Genotin Road, Enfield, without lawful authority or reasonable excuse, he had with him in a public place an offensive weapon, namely a softball bat, contrary to section 1(1) of the Prevention of Crime Act 1953;                                                                                                                
  2. On 27th February 2019, at Highbury Magistrates Court, he pleaded guilty to that offence and was conditionally discharged for 6 months.

The case was brought as one of Unacceptable Professional Conduct (‘UPC’), not a criminal conviction, seemingly because his 6 months conditional discharge had expired. Section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 provides that on expiry a conviction ‘shall be deemed not to be a conviction for any purpose’.

At his PCC hearing, Mr W admitted the facts alleged against him but on the basis he had not acted unlawfully. He denied his actions amounted to UPC.

 

PCC Decision

The PCC accepted Mr W admission of the facts alleged, recorded them as proven and concluded the fact-finding stage of the proceedings. It then went onto find Mr W guilty of UPC and administered an admonishment.

 

UPC

In reaching its decision on UPC, the PCC considered the context in which the offence took place and made the following findings:

  • Mr W’s conduct amounted to a criminal offence;                                                                 
  • In arming himself with the bat he had escalated the situation;                                                                                  
  • The circumstances were upsetting and stressful and so Mr W’s level of criminal culpability was towards the lowest end of the scale;                                                                                             

In spite of the sympathy the PCC had for Mr W’s position ‘it could not escape the conclusion that equipping himself with a softball bat in a public place, in front of a crowded bar, in a potentially volatile situation, and thereby committing a criminal act, would attract a degree of moral opprobrium from an objective bystander, knowing all the facts.’

 

Registrant’s Appeal

Mr W’s appeal was brought on the basis that the PCC had fallen into serious procedural error by muddling UPC and conviction case procedures under the Rules and that ultimately, they had applied the wrong tests to the wrong facts.

 

Judgment

In her judgment, Mrs Justice Collins Rice set out the distinctions to be drawn between a criminal conviction case brought under section 20(1)(c) of the Osteopaths Act 1993 (‘the Act’) and a case brought under UPC under section 20(1)(a) of the Act.

In respect of criminal conviction cases she held at [32]:

‘…The authorities have consistently held that where statutory provision is made for disciplinary bodies to attach professional consequences to a criminal conviction, the effect of the statute has been to preclude the practitioner from denying the truth of any facts necessarily implied in the conviction.  In such cases, the decision of the disciplinary body is properly based on the fact of the conviction, and the practitioner cannot go behind it and endeavour to show that he was innocent of the charge and should have been acquitted (Kirk v The Royal College of Veterinary Surgeons 2004 WLUK 267, paragraph 6; General Medical Council v Spackman [1943] AC 627, 634–635).  That includes cases where conviction is based on a guilty plea (Royal College of Veterinary Surgeons v Samuel [2014] UKPC 13).  Additional evidence about the underlying facts on which the conviction is based may be adduced and relied on in relation to the disciplinary consequences, provided the facts are not inconsistent with the finding that the practitioner was guilty of the offence. What the practitioner cannot do is to relitigate the conviction as to the facts.’

She continued at [33]:

‘That is why regulatory regimes, including the one in this case, make special provision for conviction cases.  It is both unnecessary and undesirable to re-try a criminal case – unnecessary where the facts have already been pleaded and established to the criminal standard, and undesirable because of the public interest in the finality of criminal procedure.  The only issue left for a disciplinary body is the relevance of conviction and sentence to the professional standing of the participant.’

A case brought as UPC requires the identification of a set of facts, or actions by the practitioner, which, if proved, constitute a serious departure of the standards expected of a registered professional.

In Mr W’s case there had been no trial and so no facts had been established to the criminal standard. Unlike Royal College of Veterinary Surgeons v Samuel [2014] UKPC 13, there was no detailed set of factual evidence before the PCC capable of amounting to any criminal offence at all. The evidence consisted of the plea-and-conviction, and the conviction had been wiped away. The only facts established by the PCC at the fact-finding stage were those accepted by Mr W; who expressly invited the PCC to go behind his plea. His unanimous evidence to the PCC was that he had not acted unlawfully and recounted his unsuccessful efforts to appeal his conviction. As such the facts required to find the factual allegations proved were unaccepted, unevidenced and unproven.

In paragraph 36 of her Judgment Collins Rice J held:

‘…the PCC seems to have responded by treating Mr Wray's case in hybrid fashion.  It accepted the plea as conclusive, as it would have done in a conviction case, but in circumstances which left ambiguity as to the precise matrix of facts that it was conclusive of.  And unlike in a conviction case, they did not then go on to consider the relevance of the conviction (if any) to Mr Wray's fitness to practice.  Instead, they turned to apply the UPC test to the 'facts'.’

Collins Rice J held that PCC’s conduct of Mr W’s hearing was ‘seriously irregular’ and in addition to the irregularities identified above,  the PCC appeared to have found a number of (new) facts adverse to Mr W which it relied on to support a finding of UPC. There was no evidence to support those factual findings, they formed no part of the charge against him or the plea to which he was convicted.

The Court also criticised the regulator for pursuing an allegation which in substance pleaded an allegation of conviction stating at [58]:

‘…the effect of the 2000 Act is that Mr Wray was entitled not to have a conviction case brought against him, either expressly or by the necessary implication of alleging plea and (spent) sentence...it is never necessary to establish all the elements of a criminal offence in a UPC case; the regulator is always free to bring (and prove) whatever facts it considers may add up to UPC. And if it has to think twice before bringing a case going behind a spent conviction, there may be a good reason for that.’

As such, even if an allegation of UPC had been properly brought against Mr W, the Court failed to see how the tests of moral opprobrium amongst the public, and deplorability within the profession, would fall to be applied straightforwardly to the whole affair. Collins Rice J held at [60]:

‘At worst, a fair-minded observer might conclude that Mr Wray had been foolish and ill-advised to rush out that night, contrary to his son's advice and leaving his daughter unattended, and without seeking the help of emergency services.  An observer might also conclude that he had been foolish and ill-advised to get out of the car and face a gang.  The observer might think the same thing about picking up the bat.  The observer might, especially, think he had been foolish and very ill-advised to plead guilty to a criminal offence if he had a proper defence to the charge.  But in the absence of any other information, the observer would in my view be likely to think no worse than that of him, to share the substantial degree of sympathy the PCC expressed for his plight in the whole circumstances of his story, and to be baffled by an invitation to discern grounds for moral opprobrium’

Whilst Mr W’s conduct may be thought to be ill-judged, it did not cross the threshold of seriousness so as to be fairly described as UPC.

Mr W’s appeal was allowed and the decision of the PCC quashed.

 

Commentary

An interesting judgment which confirms the distinction in process to be taken between cases brought as conviction cases versus those brought as UPC. Further, it serves as a reminder to regulators to think carefully before pursuing an allegation of UPC in respect of conduct which falls squarely within the factual nexus of a spent conviction.

 

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 author

Kathryn Sheridan is a barrister in the Regulatory team. She is an experienced regulatory and criminal law advocate. 

 

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