By Susan Monogan

When William Shakespeare wrote the Merchant of Venice there were separate courts in England for the administration of law and equity. One could appeal to the Court of Common Law to seek redress under codified law or to the Court of Equity to avail oneself of the judgment of men. The two spheres were kept strictly separate until the reign of James I. 

From a perusal of the regulations of many professional bodies it is apparent that the procedural rules seek to redress the rigidity of the law on one side with fairness on the other. The point at which they balance, presumably having taken into account public interest, being Equity. The complexity of this fine balancing act was considered in the recent case of R (Bonhoeffer) v GMC [2011] ALL ER (D) 141.

This case considered the concept of fairness and Article 6 of the ECHR when seeking to adduce hearsay evidence in disciplinary proceedings. These issues have been considered at length in the detailed and erudite judgment of Mr Justice Stadlen.

When this case was considered by the Fitness to Practise Panel of the General Medical Council (GMC), it determined to admit hearsay evidence under its rules, having first determined that such evidence was not admissible under the rules of criminal evidence.

By admitting such evidence it was held by Stadlen J to be “irrational and constituted a breach of the Claimant’s Article 6(1) right to a fair hearing”.

Whilst this case concerned proceedings before the GMC, the points raised are just as relevant to other disciplinary bodies that have similar rules. The relevant rules for consideration before the GMC were rules 34(1) and (2) (referred to later). However, one can see further examples of a similar provision in the Nursing and Midwifery Council Fitness to Practise Rules Order of Council 2004, rule 31(1) and the Health Professions Council (Conduct and Competence Committee) Procedure Rules 2003, rule 10(b) and (c).

The facts of Bonhoeffer concerned an eminent consultant paediatric cardiologist of international repute. It was alleged that he was guilty of serious sexual misconduct towards boys and young men whilst working in Kenya. The evidence against him in respect of the majority of charges came from one witness (witness A) who had been interviewed by the Metropolitan Police Service (“MPS”). The MPS had taken the view that a criminal prosecution of Professor Bonhoeffer would not be feasible because the alleged acts had taken place before the coming into force of the extra-territorial provisions of the Sexual Offences Act 2003. However the GMC took the decision to pursue the case before its fitness to Practise Panel (FTPP).

Before the hearing commenced the GMC took the view that it would not be safe for Witness A to give live evidence because he may be exposed to a general risk of harm in Kenya due to attitudes there associated with homosexuality and there was also a concern of reprisal for “A” because of having made the complaint. This decision was made despite “A”’s willingness to attend and give evidence. When the GMC took the decision not to call “A” they were unaware that the MPS had lost the videotapes of the interviews with “A”. 

At the hearing the GMC applied to the FTPP to admit the transcripts of the interviews with “A” without him being called to give evidence on the basis that if he did so he would be exposed to a significantly increased risk of harm in Kenya.

The GMC applied to have the transcript admitted on three alternative bases. Firstly, that it was not reasonably practicable to call “A”, therefore relying on section 116(2)(c ) of the Criminal Justice Act 2003. Secondly, relying on Section 114(1)(d) of the same Act on the basis that it was in the interests of Justice for the transcripts to be admitted and, thirdly, that even if the transcript would not be admissible in criminal proceedings, the panel’s duty to inquire into the allegations made the admission of the evidence desirable and that it would be fair to admit it. The relevant provision is Rule 34 of the General Medical Council (Fitness to Practice) Rules Order of Council 2004 provides as follows: 

“(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 enquiry into the case before them makes its admission desirable…..”

The FTPP rejected the first two bases upon which the application was made. It was concerned by the “contradictory and incomplete nature of some of the evidence of the threat to witness A”. It also referred to the absence of any “meaningful risk assessment” to “A”. Notwithstanding this, the FTPP decided to admit the evidence pursuant to rule 34. In support of its decision that FTPP determined that “[i]n considering this issue of fairness the Panel notes not only its obligations to Dr Bonhoeffer but also 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 judgment considers a significant number of authorities from English, Irish and Commonwealth jurisdictions on the approach to achieving fairness where documentary evidence is being relied upon without the ability to cross examine the relevant witness.

The Court of Appeal confirmed in Ogbonna v NMC [2011] EWCA 1216 that it did not lay down a general rule that fairness requires that a nurse facing disciplinary proceedings is entitled in every case to test the evidence of her accuser(s) by way of cross-examination unless good and cogent reasons can be given for the non-attendance of the witness. Insofar as the Court of Appeal laid down any general rule, it was that the resolution of what is required by the fairness requirement in Rule 31(1) will necessarily be fact-sensitive. Stadlen J at paragraph 84 commented thatOgbonna “in my judgment supports 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”

In considering the right to cross examine a witness Stadlen J also considered Article 6 and concluded that there is no absolute rule whether under Article 6 or in common law entitling a person facing disciplinary proceedings to cross-examine witnesses on whose evidence the allegations against him are based. He further commented that “[n]or does such an entitlement arise automatically by rea-son of the fact that the evidence of the witness in question is the sole or decisive basis of the evidence against him. Nor, so far as Rule 34 is concerned, does it follow automatically from a conclusion that hearsay evidence would be inadmissible under the gateways of section 114 and/or 116 of the 2003 Act that it would be unfair for the FTPP to admit it under the Rule”

However, Stadlen J stressed that this was a case with unusual facts; “in my judgment the Claimant’s challenge to the decision of the FTPP in this case is not dependent on the assertion of the existence of any such absolute rules. Rather, it is 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”.

At paragraph 108 Stadlen J derives the following propositions from his review of the authorities which included such cases as R v Horncastle [2009]UKSC 14,[2010] 2 AC 373, Albert and Le Compte v Belgium 5 EHRR 533 and R v Securities and Futures Authority Ltd ex parte Fleurose [2002] IRIR 297:

“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 circum-stances 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 wit-nesses whose evidence is relied on against them.

v) The issue of what is entailed by the requirement of a fair trial in disciplinary proceed-ings 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 con-sequences 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 speak-ing, 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 crimi-nal 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 consti-tuted a critical part of the evidence against the accused party and if there were no prob-lems associated with securing the attendance of the accuser , need to be compelling rea-sons 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 not persuaded by the argument made on behalf of the FTPP that the gravity of the al-legations is a factor arguing in favour of admissibility of the hearsay evidence. He states “In my judgment that submission is misconceived……it is of course self-evidently correct that the greater is the gravity of allegations, the greater is the risk to the public if there is no or no effective investiga-tion by a professional body such as the FTPP into them. However, that factor on its own does not in my view diminish the weight which must be attached to the procedural safeguards to which a person accused of such allegations is entitled both at common law and under Article 6. To the contrary, the authorities to which I have referred suggest the reverse to be the case. The more serious the allega-tion, the greater the importance of ensuring that the accused doctor is afforded fair and proper pro-cedural safeguards. There is no public interest in a wrong result.” 

This case highlights the fact-sensitive nature of disciplinary cases and the complexity of tempering justice with fairness is sometimes easier said than done!