Procedural fairness and the crucible of cross examination

19 December 2018 by Owain Thomas QC

Owain Thomas QC is a barrister at One Crown Office Row.

Sait v GMC [2018] EWHC 3160 (Admin)

This case is a salutary reminder to all who conduct litigation about the necessary elements of procedural fairness which continue to underlie our system of civil justice; even in a modern context when a cards on the table approach characterises many disputes from a very early, often pre-action, stage.

In Sait v GMC the context was regulatory proceedings against Mr Sait, an experienced consultant orthopaedic surgeon. At the conclusion of a seven day hearing, the MPTS found certain facts proved against him in a case alleging inappropriate sexually motivated conduct towards a patient. The Tribunal ordered that he be suspended for 3 months.

He appealed against the finding that he did what he did with sexual motivation and therefore against the finding that his fitness to practise was impaired by virtue of misconduct. The grounds of appeal were that the Tribunal failed to observe essential standards of procedural fairness because it was never sufficiently put to the appellant, whether in the course of cross-examination, or in the Tribunal’s own questions, that his conduct was sexually motivated.

There had originally been complaints from two patients but in the case of one some facts were not proved and those that were did not establish a sexual motivation for his conduct. However in relation to the other patient, the MPTS found proved that he had told her that she was very pretty several times, had asked a patient to meet him at a pub, and should not tell her husband about the proposed meeting. When she agreed they found that during the meeting he suggested going back to his car. The MPTS found that this conduct was sexually motivated. Allegations of physical contact between them were found not proved.

Before getting to the MPTS allegations like this are sifted by the GMC through a process which allows practitioners a right of reply to any allegations before matters progress to a full hearing. Nowadays practitioners are required to provide witness statements in response to evidence served in support of cases which do progress to a full hearing and Mr Sait provided a full statement in response to all of the allegations. The GMC will have provided full disclosure of used and unused material prior to this hearing in order to allow him to decide how to respond.

In his statement he disputed the sexual motivation but agreed that there had been a meeting at the pub. The competing accounts of what went on therefore were central with the patient alleging some inappropriate physical contact and Mr Sait denying it.

The crux of this appeal was that in cross examination Mr Sait was not asked about the allegation that he had told the patient that she was pretty on several occasions, despite the charge to this effect and her evidence given in her statement and orally in support of the charge.

They nevertheless found this proved, that this provided support for the findings made about what happened in the meeting at the pub and that therefore this was a pattern of sexually motivated conduct sufficient to amount to misconduct.

Referring to his earlier decision in Basson v GMC [2018] EWHC 505 (Admin) Mostyn J stated that the allegation of sexually motivated conduct requires proof of the person’s state of mind and that must be proved “in the usual way by the necessary body of evidence on the balance of probabilities” but because a state of mind is necessarily proved by inference not direct observation the test for overturning such a factual finding can be less stringent on appeal. In evaluating an appeal on procedural grounds he said

where a professional person is accused of a serious misconduct it is essential that the allegation is fully particularised. The accused professional must know exactly what is said against him. Second, in such circumstances an accused professional should, save in rare cases, have the accusations put to him squarely in cross-examination, so that by that time-honoured process their truth, or falsity, can be discovered.

The Court decided that this requirement of procedural fairness applied even thought the classic anti-ambush statement by Lord Herschell in Browne v Dunn [1894] 6 R 67 has become obsolete in light of the changes to the way civil litigation is conducted now, with extensive, indeed complete, disclosure of the parties’ cases being the rule. In Browne Lord Herschell stated:

it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made,and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.  My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case; but is essential to fair play and fair dealing with witnesses.

This stricture does not apply, as Lord Herschell himself recognised where

notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it.

Mostyn J followed the approach of Carr J in Williams v Solicitors Regulation Authority [2017] EWHC 1478 (Admin) and said that the rule should be applied flexibly and here the need for the matters in issue to be put distinctly in cross examination arose not from the need to avoid an ambush, Mr Sait could hardly have been unaware of the allegations against him when giving evidence, but instead from the need to test the key allegation of sexual motivation in cross-examination.

This aspect of the rule has a firm and clear basis summarised in the US case of Crawford v Washington (2004) 541 US 36 at 62 where Scalia J, when discussing the explicit command to afford cross-examination of witnesses in criminal cases contained within the Sixth Amendment to the U.S. Constitution, stated:

To be sure, the Clause’s ultimate goal is toensure reliability of evidence, but it is a procedural rather than asubstantive guarantee. It commands, not that evidence be reliable, but thatreliability be assessed in a particular manner: by testing in the crucible ofcross-examination. The Clause thus reflects a judgment, not only about thedesirability of reliable evidence (a point on which there could be littledissent), but about how reliability can best be determined. Cf. 3 Blackstone,Commentaries, at 373 (“This open examination of witnesses . . . is muchmore conducive to the clearing up of truth”); M. Hale, History andAnalysis of the Common Law of England 258 (1713) (adversarial testing”beats and bolts out the Truth much better”).

The judge concluded in this case that

if the allegation is serious (and an allegation of sexually motivated misconduct against a doctor is about as serious as it gets) then in my judgment the allegation must be fully and squarely put in cross-examination to the accused doctor. The content of the doctor’s replies, as well as his demeanour, will equip the Tribunal to decide whether the allegation is, or is not, true.

Here, then, is a statement of principle that reminds us of one of the principal purposes of cross examination namely to test evidence so that the truth can be discerned more easily by having the evidence tested. It is sometimes easy to overlook why the adversarial system adopts adversarial procedures when so much procedural law is set down in detailed case management rules and the evidence is tied up on paper long before the hearing begins.

In Mr Sait’s case there had been

a remarkable failure to cross-examine the appellant about his alleged sexual motivation beyond the perfunctory couple of questions at the very end of the exercise to which I have referred above. In my judgment this is not good enough.

This was particularly so given the MPTS had found in relation to the other patient that references to her being pretty were not sexually motivated and were instead a clumsy attempt to put her at her ease. This failure fundamentally undermined the decision and the findings were set aside and the case remitted to be retried on these issues.

This case has important lessons for those conducting litigation where charges of misconduct lie at the heart of the case. It is not good enough to challenge a witness in around about way or simply sit back and let the Tribunal make what they will of the witnesses and decide the issue in the round by evaluating everything they have seen and heard. The adversarial aspects of our system, including cross examination, are designed to imbue the evidence, so considered, with sufficient quality that it can be relied on so that facts can safely be found in a way which meets the requirements of fairness.