By Melanie McDonald

Let me nail my colours to the mast right at the outset. I am a civil practitioner. That’s what I do. I can navigate my way round the CPR pretty much blindfold. I think that the overriding objective with all those cards on the table and level playing fields has much to commend it as an open and transparent way of doing business that strives to be fair to everyone. I had a brief flirtation with crime at the start of my career and then wandered, almost by accident, in to civil pastures and stayed there.

Healthcare professional regulatory proceedings are not criminal proceedings, if anything they are civil proceedings. We know this because the Court of Appeal told us so in R v Securities and Futures Authority ex parte Fleurose(2002) IRLR 297 and that was before 2008 when the civil standard of proof was introduced to all healthcare professional regulation; one of the recommendations emanating from the Shipman enquiry that was actually implemented.

So why in Fitness to Practise proceedings when at the close of the regulator’s case, the registrant wants to make a half time submission of no case to answer does everyone reach for Galbraith (1981) 1 WLR 1039, the leading criminal authority, and start talking about plums and duff (R v Shippey (1988) Crim LR 767), when civil procedure has its own perfectly sensible case law on the point in the form of Benham v Kythira Investments (2003) EWCA Civ 1794?

It is true that, in part, Benham addresses the issue of whether, faced with a submission of no case, the judge in civil proceedings should put the defence to its election. That is the rather quaint procedure which has always seemed to me to have striking similarities with a certain type of television quiz. In essence you can have a go at persuading the judge that the claimant’s case cannot succeed, but if you fail you are not allowed to call any evidence yourself. When faced with that choice most advocates sit down quickly. In the absence of a clear steer from the judge, the prospect of having to explain to a client who has just had judgement entered against him why it was that he was not allowed to give evidence usually has a powerful deterrent effect.

The Court of Appeal thought that was the way to go. Simon Brown LJ held that in most cases the defence should be put to its election but it did nevertheless go on to consider how a judge in civil proceedings should approach a submission of no case to answer and, in doing so, summarised the relevant case law and identified the underlying problem that making a submission of no case throws up. In particular he cited extensively passages from the judgement of Mance LJ in Boyce v Watt Engineering (2001) EWCA Civ 692.

“[t]he judge is required to make up his mind as to the facts on the basis of one side’s case, and then, if he is against the defendant, to hear further evidence and to retain and apply an open mind in relation to all the facts at the end of the trial. That is an inherently difficult exercise. Hence the difference in normal practice between criminal cases (where submissions of no case are common but are determined by a different test and by the judge rather than the jury) and civil cases (where the practice has been for the judge to put the defendant to his election).

…there remains force in my view, in the general observation made by this Court in Alexander v Rayson (1936) 1.KB 169 at 178 that it is not right that the judge of fact should be asked to express an opinion upon the evidence until the evidence is completed.”

Simon Brown LJ then went on to cite the judgement in Alexander v Rayson:

“…no one would ever dream of asking a jury at the end of a plaintiff’s case to say what verdict they would be prepared to give if the defendant called no evidence, and we fail to see why a judge should be asked such a question in cases where he and not a jury is the judge that has to determine the facts”.

These observations become even more pertinent when applied not to a civil judge, used to the kind of mental acrobatics that are sometime required in performing the dual role of arbiter both of fact and law, but to a lay panel whose remit embraces both ruling on a half time submission of no case and making findings of fact as well as findings on misconduct, impairment and sanction.

The second line of authority which interested Simon Brown LJ in Benham was that flowing from the judgement of Brooke LJ in Wisniwski v Central Manchester Health Authority (1987) PIQR P324 (1998) Lloyds Rep Med 223, which he summarised as follows:

1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue.
2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference; in other words there must be a case to answer on that issue

Simon Brown LJ drawing on these lines of authority then went on to formulate the correct approach to a submission of no case in civil proceedings

“The judge entertaining a no case submission should in my opinion clearly recognize and bear in mind the real possibility that the defendant, were his submissions to fail, might choose to call no evidence (or, indeed, call evidence which in the event proves helpful to the claimant, something in the experience of all of us) thereby entitling the court to draw adverse inferences which go to strengthen the claimant’s case. Of course such inferences can only be drawn when the claimant own evidence itself establishes a case to answer. A case to answer, however, as the third Wisniewski principle indicates, is established by “some evidence however weak” (“only a scintilla of evidence…to support the (relevant) inference” as May LJ put it in one of the earlier authorities, Hughes v Liverpool City Council).”

Given the importance of the public interest considerations that healthcare professional regulation engages; given the fact that any case making it to a full FTP hearing will already have been scrutinised by a whole raft of screeners, investigating committees and lawyers to ascertain precisely whether there is a case to answer; and given the fact that an FTP panel, although it will receive advice, does not possess specialist legal expertise (with the exception of the pharmacists) and that it is thus in the unsatisfactory position consistently recognized by the courts of having to form a view on the facts when only part of the evidence has been called, it seems me that the case for importing this approach to fitness to practise proceedings is unanswerable.

It is certainly true that Benham establishes a lower threshold than Galbraith but for the reasons touched on above that seems to me to be wholly appropriate. It is also true that the procedural rules for regulators such as the GMC and NMC make specific provision for the registrant to have an opportunity to make a half time submission, but I would argue that those rules predate the introduction of the civil standard of proof and that anyway they do not in themselves provide any guidance as to the test to be applied. 

Nor am I impressed by the argument that professional regulatory proceedings fall in to a special quasi criminal category by virtue of the devastating effect they may have on the registrant’s career. Unsuccessful litigants in the civil courts may also face the loss of home, children or livelihood but neither they nor registrants subject to FTP proceedings are generally at risk of losing their liberty and it is that aspect of criminal proceedings which justifies the more onerous burden placed on the prosecution.

In Tutin v GMC (2009) EWHC 553 the High Court considered how an FTP panel had exercised its judgment on a half time submission. However that case predated the introduction of the civil standard of proof and it was common ground between the parties that “the Panel was…obliged to apply the law as to the burden and standard of proof that would be applicable in criminal cases and that the criminal law relating to ‘submissions of no case to answer applied’.” 
If criminal law applies to cases where the standard of proof is the same as in criminal proceedings, I fail to see why the converse should not be true so that in cases where the civil standard of proof is used the principles formulated by Simon Brown LJ are followed. 

Of course there will still be cases where a half time submission is appropriate and may succeed. A crucial witness may not come up to proof or fail to turn up. There may also be occasions where the wording of the charge when matched against the evidence given will support a more technical challenge. 

I would certainly accept that if Benham is routinely applied in regulatory proceedings, the scope for a registrant to make a half time submission will be limited – as it is in any other species of civil proceedings. However, I don’t see that as a problem. Half time submissions can add significantly to the length of the hearing and inevitably involve focussing the panel’s attention on both the strengths and weakness of the evidence called by the regulatory body which – as the appellate courts have recognized – may well impact adversely on the panel’s ability to weigh the totality of the evidence it receives if the submission fails and it goes on to receive further evidence from the registrant. 

The resistance to using the civil test for deciding whether or not a submission of no case to answer should succeed, often seems to me to be founded more on a reluctance by panels and their legal advisers to move out of the comfort zone that criminal procedure seems to continue to provide. The standard of proof may have changed in 2008 but it is often difficult to detect a commensurate shift in attitude or understanding by those charged with implementing that change. Too often FTP proceedings seem more to owe more to old style magistrates’ proceedings rather than the modern civil forum which, I would argue, is where they properly belong.