The importance of adhering to the terms of the charges

The Bar Tribunals and Adjudication Service Newsletter 4

This is the fourth edition in our series of newsletters for the Bar Tribunals and Adjudication Service panel members. The newsletters are circulated at regular quarterly intervals and address either cutting-edge development in regulatory law or matters that require greater explanation than the guidance currently provided for you by BTAS.

The BTAS team values your feedback and if you require additional information on a topic, or identify an issue of particular importance, then please let us know and we will endeavor to include it in future.

Please also provide us with comments on this edition, for which we are indebted to Tom Weisselberg, Blackstone Chambers.

The importance of adhering to the terms of the charges

This article considers the role played by the charge sheet in a disciplinary hearing – and the importance, as a matter of fairness, for Tribunals (a) to confine themselves to those charges when determining a particular case; and (b) to give reasons in relation to each of those charges.

The Disciplinary Tribunal Regulations 2009

Regulation 5 of the Disciplinary Tribunal Regulations 2009 requires charge(s) to be formulated by Counsel appointed by the BSB Representative and for the service of a copy of those charge(s) on the defendant within a specified period of time.

Regulation 16 makes clear that the charge(s) may be amended by a Disciplinary Tribunal before or during the hearing provided always that certain conditions are satisfied.  Those conditions are (1) the Tribunal is satisfied that the defendant will not by reason of the amendment suffer any substantial prejudice; (2) the Tribunal may, if so requested by the defendant, adjourn for such time as is reasonably necessary to enable him to meet the amended charge(s); and (3) the Tribunal may make such order as to the costs of or occasioned by the amendment, or of any consequential adjournment of the proceedings, as it considers appropriate.

The Tribunal is required (by Regulation 18) to set out in writing its findings on each charge, “together with its reasons”.  If the members of the Tribunal are not unanimous as to the finding on any charge, the finding to be recorded on that particular charge shall be that of the majority.

Regulation 24 provides that as soon practicable after the conclusion of the proceedings, the chairman of the Tribunal shall prepare a report in writing of the finding on the charges of professional misconduct and the reasons for that finding and, where applicable, the sentence.

The Regulations thus make clear the importance of the charges; indeed, it is reasonable to consider the charges that are put to the defendant as forming the cornerstone for the hearing before the Disciplinary Tribunal.  Moreover, they make clear that it is the duty of the Disciplinary Tribunal, and the Chairman, to provide written reasons for the decision that is reached in relation to the charges.

Disciplinary Tribunals should confine themselves to the charges: relevant cases

The importance of a regulatory tribunal using the charges as the cornerstone (or perhaps the touchstone) for its consideration of the case was exemplified in the case of Chauhan v General Medical Council [2010] EWHC 2093 (Admin).  In that case, King J held that insofar as a Fitness to Practise Panel of the GMC[1] makes material findings of fact adverse to the practitioner which could themselves have been the subject of a charge of professional misconduct, but which were not within the charges, then those findings could not properly or fairly be used by the Panel to support its decision in relation to the charges.  As a result, insofar as the Panel had used those findings, then the decision of the Panel was liable to be vitiated and set aside.

In reaching that conclusion, King J relied on dicta from a number of other Judges who had expressed similar views.  In Cohen v GMC [2008] EWHC 581 (Admin)  Silber J had held (at [48]) that findings in relation to any particular charge “must be focussed solely on the heads of the charges themselves”. In a similar vein, Pill LJ had observed in Strouthos v London Underground Ltd [2004] EWCA Civ 402 at [12] that “it is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed and that the evidence should be confined to the particulars in the charge”.

In Chauhan, the GMC denied any breach of those principles and there followed a painstaking and lengthy appeal hearing (lasting 6 days) in the High Court.  The Court ultimately held that there had indeed been a breach of the relevant principles and the case was remitted to a newly constituted Panel.

Similarly, in the case of Farag v General Medical Council [2009] EWHC 2667 (Admin), Stadlen J upheld an appeal from a GMC Fitness to Practise Panel which had rejected the case that had been brought against the doctor (dishonestly faking or exaggerating illness in order to claim sick pay) but which had then proceeded to make a finding that the doctor has dishonestly concealed that he was working for a different institution.  Although the allegation of concealing his other work had been raised in the proceedings, it had not been a free-standing allegation but merely evidence in support of the allegation that he was not ill at all.

Most recently, in the case of El-Baroudy v General Medical Council [2013] EWHC 2894 (Admin), HH Judge Raynor QC allowed an appeal against a Fitness to Practise Panel where there was no allegation that the misconduct of a practitioner either caused death or caused the loss of any realistic chance of survival – but findings of fact were made on that basis. The Judge held that if the GMC had wished to pursue those allegations, which would have been highly material, then they should have been clearly stated in the charges and, in the absence of being stated, evidence directed to those issues should not have been led and the Panel should not in any way have based a judgment as to whether the fitness to practise was impaired or as to sanction on any question of causation.

The need to adhere to the form of charge is particularly important where an allegation of dishonesty is made (but not charged). In Salha v GMC [2003] UKPC 80, the Privy Council observed (at [14]) that “it is a fundamental principle of fairness that a charge of dishonesty should be unambiguously formulated and adequately particularised.”  Tribunals should therefore be very wary of making adverse findings without giving the defendant proper warning of – and a proper chance to meet – the particular allegation(s).

In any particular case, the crucial issue is likely to be one of procedural fairness – have the defendant and their advisers been given sufficient notice of the claim that they are being required to answer?

There are a number of cases in which challenges to verdicts of regulatory tribunals have failed despite the fact that the findings of the tribunal appeared (at least arguably) to be outwith the terms of the charges.  In such cases, the appeal Courts have tended to apply an overarching test of fairness (see Moneim v General Medical Council [2011] EWHC 327 (Admin) at [46(2)] (Lloyd Jones J) and R (Shankar) v General Medical Council [2006] EWHC 2503 (Admin) at [39] (Munby J)).  In those cases, through a close analysis of the underlying issues in the case and the transcripts of the hearings, the appeal Courts were able to conclude that sufficient notice had been given to a defendant and their advisers for them to have been able to answer the particular issues which appeared to have been outside the terms of the charges.

Thus an appeal to fairness may be sufficient to ensure that a finding is upheld on appeal.  But it is not a comfortable position for a tribunal to find itself.

Overall, therefore, while it is possible that a disciplinary tribunal will be given the benefit of the doubt through a reference to fairness and lack of surprise, the safer course is for a disciplinary tribunal not to proceed to make findings outside the scope of the charges – without first expressly inviting the parties to address the Tribunal on that proposal – and if necessary considering whether some form of amendment and adjournment may be necessary.

 

Disciplinary Tribunals should give reasons in relation to the charges: recent relevant cases

As noted above, a duty is placed on the Disciplinary Tribunal, and the Chairman, to give written reasons for its decision on the charges.

As a result, assuming that the findings that the Disciplinary Tribunal wishes to make fall within the scope of the charges, it is the crucial that a proper written record of the reasons for making those findings is made. The importance of properly setting out the Tribunal’s findings in writing on each charge “together with its reasons” (as required by Regulation 18) and the preparation of the chairman of the Tribunal’s report (as required by Regulation 24) was recently emphasised by the Visitors to the Inns of Court in Quinn v Bar Standards Board  (unreported, 25 February 2013).

In Quinn, the Visitors allowed an appeal against findings of misconduct where the Tribunal had failed to give reasons for the verdicts that were entered in relation to particular charges.  In giving judgment for the Visitors, Wynn Williams J held that it was incumbent on the Disciplinary Tribunal to explain the reasoning process by which it came to reject the defendant’s account of relevant matters in circumstances where documentation existed that supported that account.  It was not sufficient to consider that the verdict of misconduct spoke for itself or that (as had been submitted by the BSB) it was clear that the Tribunal had rejected the evidence of the defendant and preferred the evidence of another witness.  The Tribunal was required to give proper reasons (i.e. a proper explanation) for its decision.

In a case where there were serious potential consequences for the defendant (she was suspended from practice for 2 years), Wynn Williams J emphasised that it was not sufficient for the Tribunal to announce verdicts on the charges without explaining in some detail the reasoning process which underpinned them.

In reaching this conclusion, the Visitors reflected the existing law in relation to the giving of reasons (see in particular Southall v General Medical Council [2010] EWCA Civ 407 at [55] to [56]).  In short, in a straightforward case, where there is a simple conflict of factual evidence, there is no need to set out reasons because it will be obvious from a statement of the findings, when read with the nature and content of the evidence, why the panel has decided what it has. However, in a more complex case, there is a need to give reasons, which may be short and summary but should still be adequate, so that the losing party may understand why he or she has lost.

Tribunals may consider that it is safer to err on the side of caution and to give proper and full reasons in each case.  As a matter of fairness, practitioners would clearly prefer to be told why they have lost – properly considered reasons serve to encourage confidence in the system of regulation and to make an appeal less likely.

Regulation 18 of the Disciplinary Tribunal Regulations 2009 also gives rise to the interesting question as to whether or not a dissenting minority should give a reasoned decision for its dissent.  Although there is no express obligation on the Tribunal to do so nor any express entitlement on dissenting member(s) to record their findings, member(s) who do disagree with the findings of the majority on a particular charge may well consider that they wish, as a matter of fairness, to record their own reasons for reaching a different conclusion to that of the majority.

Indeed, in the very recent case of McCarthy v Visitors to the Inns of Court [2013] EWHC 3253 (Admin), Moses LJ noted (at [3]) that a dissenting member of the Visitors had taken the view that there had been a grave breach of natural justice during the course of the hearing before the Tribunal, sufficient to mean that there should be a re-hearing, but had not given reasons for reaching that view.  Although it is perhaps unlikely that any such dissenting reasons would have led Moses LJ to reach a different conclusion on the application for judicial review (he dismissed the application notwithstanding a serious breach of the rules by reason of clear and unanswerable documentary evidence that made out the charges of misconduct),  dissenting members of a Disciplinary Tribunal or the Visitors may consider that they wish to assist any reviewing body by setting out their reasons for their dissent.

Moreover, in a case where a minority view has formed in relation to the charge(s), the majority may wish to engage directly with the reasoning of the minority.  As a matter of fairness, a defendant may well be entitled to know why the majority disagrees with the minority – but, as is so often the case, much will depend on the particular facts of the particular case.

Future changes

The BSB is on schedule to launch a revised Handbook in January 2014, and which will replace the current 8th edition to the Code of Conduct.  The new Handbook is based upon an outcomes focused and risk-based approach to regulation, and the Code will now include ten Core Duties applicable to all barristers.  These Core Duties are supplemented by Rules.  In the future the BSB will charge for breaches of the Handbook, and the charges may be brought under the Core Duties and/or the rules.

BTAS will be holding training for all of its panellists and clerks in the New Year to familiarise them with the changes to the Handbook, and specifically the necessary changes to our Sentencing Guidance.

Any comments or feedback on this newsletter are welcomed, and should be sent to info@tbtas.org.uk

Future issues will cover Fitness to Practise guidance, and implications of the ECHR on decision-making.  Ideas or requests for further topics should be sent to info@tbtas.org.uk

 

[1] Fitness to Practise is the term used by the GMC (and other health regulators) to describe a disciplinary hearing, and is not restricted to matters of a professional’s health as the term implies when applied to barristers.  GMC FtP is therefore analogous with BTAS Disciplinary Tribunals.