Admissibility of hearsay evidence at General Medical Council hearing breached right to fair trial
22 June 2011
R (Bonhoeffer) v General Medical Council  EWHC 1585 (Admin) – read judgment
On 21 June 2011 the Divisional Court held to be “irrational and … a breach of the Claimant’s Article 6(1) right to a fair hearing” a decision by the Fitness to Practise Panel of the General Medical Council to admit hearsay evidence under its own rules, having determined that such evidence would not be admissible under the criminal rules of evidence .
Professor Bonhoeffer, described in the judgment as “an eminent consultant paediatric cardiologist of international repute”, was charged by the GMC with impairment of his fitness to practise arising from alleged serious sexual misconduct towards boys and young men in Kenya. It was alleged that over a number of years the Claimant travelled to Kenya to undertake charitable medical work and that the victims were children and young men to whom he had provided sponsorship by paying for their education and accommodation.
The evidence against the Claimant in respect of the majority of the charges emanated from a single source, Witness A, who had been interviewed by the Metropolitan Police Service (“MPS”) along with other alleged victims of abuse. Only Witness A supported the allegations against the Claimant and by reason of this fact and the fact that the acts concerning Witness A were alleged to have predated the coming into force of the extra-territorial provisions of the Sexual Offences Act 2003, the MPS considered that a criminal prosecution of Professor Bonhoeffer in this country was not feasible.
The MPS nonetheless continued to communicate with the GMC concerning the allegations and in particular whether witnesses who gave evidence in prospective fitness to practise proceedings in London would be exposed to a risk of harm. Following an extended correspondence between the MPS and GMC as to the existence and extent of a “general” risk of harm associated with attitudes towards involvement in homosexual activity and a “specific” risk of reprisal arising from the making of the particular complaint, it was determined by the GMC that it would not be safe to call Witness A to give evidence at the Fitness To Practise (“FTP”) hearing, either live or by video-link, despite Witness A’s willingness to attend and give evidence.
Unbeknownst to the GMC at the time this decision was taken, the videotapes of the MPS’s interviews with Witness A had been lost in an act of “admitted incompetence by the MPS” and by the time of the hearing before the FTPP only the written transcripts of the interview remained.
Before the FTPP, the GMC applied for the transcripts of the interviews to be admitted in evidence against Professor Bonhoeffer without Witness A being called to give evidence and be cross-examined, on the sole ground that if Witness A were to give oral testimony in the FTPP proceedings, whether by attending in person or by giving evidence via live video link from Kenya he would be exposed to a significantly increased risk of harm in Kenya.
The provision that governs admissibility is Rule 34 of the General Medical Council (Fitness to Practise) Rules 2004 [SI 2004/2608]:
(1) Subject to paragraph (2), the Committee or a Panel may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law.
(2) Where evidence would not be admissible in criminal proceedings in England, the Committee or Panel shall not admit such evidence unless, on the advice of the Legal Assessor, they are satisfied that their duty of making due inquiry into the case before them makes its admission desirable.
The application under Rule 34 was made on three alternative bases: first, that it was not reasonably practicable for the GMC to call Witness A and section 116(2)(c) of the Criminal Justice Act 2003 therefore applied; second, that it would be “in the interests of justice” for the transcripts to be admitted and that section 114(1)(d) of the 2003 Act therefore applied; third, that even if inadmissible in criminal proceedings, the FTPP’s duty to inquire into the allegations against the Claimant made admission of the evidence desirable and that the FTPP should exercise its discretion under Rule 34 of the 2004 Rules to admit the evidence since it would be fair to do so.
The FTPP roundly rejected the first two bases of the application, in particular recognising the “contradictory and incomplete nature of some of the evidence of the threat to Witness A”, as well as the absence of a “meaningful risk assessment”. However, the FTPP determined that the evidence should nonetheless be admitted pursuant to Rule 34. In determining that it was fair to do so, the FTPP placed emphasis on “its duty to the public interest which includes protection of patients, maintenance of public confidence in the profession and declaring and upholding proper standards of behaviour.” The lawfulness of that determination was challenged by the Claimant.
Stadlen J, giving the main judgment in the Divisional Court, deals first with the Claimant’s submission that the FTPP’s decision was contrary to natural justice and unlawful as a matter of common law. Before doing so, however, the judge underlines (at paragraphs 39 to 40) the fact-specific nature of the challenge, described as: “dependent on the application to the particular and very unusual facts of this case of the general obligation of fairness imposed on the FTPP having regard to general common law principles, the Claimant’s Article 6 rights and the terms of Rule 34”.
The judgment describes at length the key authorities, both English and Commonwealth, which delineate the courts’ approach to achieving fairness in circumstances where it is proposed to place reliance on documentary evidence, the maker of which is not to be subjected to cross-examination. Stadlen J focuses in particular on the recent Court of Appeal decision in Ogbonna v NMC  EWCA Civ 1216, concerning the admission hearsay evidence at a hearing before the Nursing and Midwifery Council. Stadlen J draws from the Court of Appeal’s judgment the proposition that:
in the absence of a problem in the witness giving evidence in person or by video link, or some other exceptional circumstance, fairness requires that in disciplinary proceedings a person facing serious charges, especially if they amount to criminal offences which if proved are likely to have grave adverse effects on his or her reputation and career, should in principle be entitled by cross-examination to test the evidence of his accuser(s) where that evidence is the sole or decisive evidence relied on against him. (paragraph 84)
In dealing with the Claimant’s Article 6 point, Stadlen J conducts an equally thorough review of the authorities, including most recently R v Horncastle  UKSC 14, Kulkarni v Milton Keynes Hospital NHS Trust  ICR 101, and R (G) v X School Governors  1 WLR 2218. From these he drew the following eight propositions (paragraph 108):
i) Even in criminal proceedings the right conferred by Article 6(3)(d) to cross-examine is not absolute. It is subject to exceptions referable to the absence of the witness sought to be cross-examined, whether by reason of death, absence abroad or the impracticability of securing his attendance.
ii) In criminal proceedings there is no “sole or decisive” rule prohibiting in all circumstances the admissibility of hearsay evidence where the evidence sought to be admitted is the sole or decisive evidence relied on against the defendant.
iii) In proceedings other than criminal proceedings there is no absolute entitlement to the right to cross-examine pursuant to Article 6(3)(d).
iv) However disciplinary proceedings against a professional man or woman, although not classified as criminal, may still bring into play some of the requirements of a fair trial spelt out in Article 6(2) and (3) including in particular the right to cross-examine witnesses whose evidence is relied on against them.
v) The issue of what is entailed by the requirement of a fair trial in disciplinary proceedings is one that must be considered in the round having regard to all relevant factors.
vi) Relevant factors to which particular weight should be attached in the ordinary course include the seriousness and nature of the allegations and the gravity of the adverse consequences to the accused party in the event of the allegations being found to be true. The principal driver of the reach of the rights which Article 6 confers is the gravity of the issue in the case rather than the case’s classification as civil or criminal.
vii) The ultimate question is what protections are required for a fair trial. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.
viii) In disciplinary proceedings which raise serious charges amounting in effect to criminal offences which, if proved, are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed on the evidence of an accuser between whom and the accused party there is an important conflict of evidence as to whether the misconduct alleged took place, there would, if that evidence constituted a critical part of the evidence against the accused party and if there were no problems associated with securing the attendance of the accuser , need to be compelling reasons why the requirement of fairness and the right to a fair hearing did not entitle the accused party to cross-examine the accuser.
Stadlen J was at pains to stress that neither the common law nor the Convention provided an “automatic answer” to the question raised in this claim for judicial review. Nonetheless, he finds that the requirements of both the common law and Article 6 required the FTPP, when making its determination, to take into account the absence of important safeguards on the admissibility of hearsay evidence which would normally exist in the criminal context (such as the entitlement to request that the prosecuting authority investigate the credibility of the maker of the statement and the tribunal’s ability to direct an acquittal at any time, should the hearsay evidence be so unconvincing that a conviction for the offence would be unsafe).
Stadlen J also considered that, whilst the rejection of hearsay evidence under section 114 of the 2003 Act did not necessarily lead to its rejection under Rule 34, the reasons for rejection identified by the FTPP in performing the section 114 exercise were such that acceptance of the evidence through the Rule 34 gateway was irrational. Stadlen J places particular emphasis in this regard on the inadequacies identified by the FTPP in relation to the assessment of the risk to Witness A (indeed, Stadlen J devotes an appendix of the judgment to this subject).
The judge also pours cold water on the GMC’s argument that the gravity of the allegations is a factor militating in favour of admissibility of the hearsay evidence, describing it as “misconceived”; instead, Stadlen J comments:
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.” (paragraph 129).
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