Where defendants were alleged to have taken advantage of the allowances scheme designed to enable them to perform their important public duties as members of Parliament to commit crimes of dishonesty to which parliamentary immunity or privilege did not, had never and, the Court of Appeal believed, never would attach, those against whom those allegations were proved would have committed ordinary crimes.  R v David Chaytor, Elliot Morley, James Devine & Lord Hanningfield [2010] EWCA Crim 1910.  

Upholding the decision of Saunders J, the Lord Chief Justice said that even stretching language to its limits, the court was unable to envisage how dishonest claims by members of Parliament for their expenses or allowances began to involve the legislative or core functions of the relevant House, or the proper performance of their important public duties.  No question or privilege arose, and the ordinary process of the criminal justice system should take its normal course unaffected by any groundless anxiety that they might constitute an infringement of the principles of parliamentary privilege.

Each of the defendants is due to stand trial at the Crown Court at Southwark to face allegations of false accounting contrary to section 17(1)(b) of the Theft Act 1968 in relation to their claims for expenses as members of Parliament.  An essential ingredient common to all of them is that the defendant in question acted dishonestly.  Three of the defendants were members of the House of Commons and one was, and is, a member of the House of Lords.

The court considered the authorities of Prebble v Television New Zealand Limited [1995] 1 AC 321, quoted with approval in Buchanan v Jenkins [2005] 1 AC 115 at 124, Burdett v Abbott (1811) 14 East 1, Stockdale v Hansard  [1839] 9Ad and EI 1 at 134 and Bradlaugh v Gossett [1884] 12 QBD 271.  Properly analysed, those decisions addressed problems which were essential to the performance of Parliament’s functions.  They did not begin to come anywhere near judicial recognition that members of Parliament were immune from proceedings for criminal behaviour in Parliament.

From October 2011 alternative business structures (ABS) will be permitted in England and Wales.  But this major reform faces a challenge before the European Court of Justice because mainland bars suggest, with some force, that this is unethical.

The President of the Council of the Bars and Law Societies of Europe, Jose-Maria Davo-Fernandez forecasts that if a City firm with other European offices accepts external capital, as will be the case here when the scheme is effected, the issue will be taken up in Luxembourg at the European Court of Justice.  Article 11 of the Establishment Directive permits Member States to bar from their jurisdictions any law firm that is not completely run by lawyers if it is deemed contrary to public policy to permit them to operate.

Lawyers who are employed in organisations where they are managed by non-lawyers will be well aware of the pressures to which they are subjected when their managers wish to pursue a course when the lawyer advises it has no proper legal basis.  Injection of outside capital may well put lawyers under intolerable commercial pressure not to observe the rule of law.

The German bar authorities have already warned of the illegality of ABS in their country, and the American Bar Association is known to be decidedly cool towards the idea.

Dame Janet Smith recommended in the Shipman Report that the adjudication stage of the Fitness to Practise procedures of the General Medical Council should be undertaken by a body independent of the Council. The new body should appoint and train lay and medically qualified panellists and take on the task of appointing case managers, legal assessors (if they were still required) and any necessary specialist advisers as well as providing administrative support for the hearings.

That led, under the last government, to the creation of the Office of the Health Professions Adjudicator (OHPA) although it is not yet fully operational. Whilst it was expected to take over the role of adjudicating on fitness to practise cases from the GMC from April 2011, the coalition government has expressed a desire to get rid of it but has indicated it will consult on its future.

Anne Milton, The Ministerial Parliamentary Under Secretary of State for the Department of Health announced the government’s intention in a written statement. Having reviewed the case for OHPA the government is not persuaded that the creation of another body is necessarily the most appropriate and proportionate way forward in terms of adjudication. The government believes that steps can be taken to strengthen and modernise existing systems within the GMC to deliver substantially the same benefits as OHPA. The learning from these steps could then be reviewed and in due course applied to other health regulators.

In a recent interview Dame Janet Smith told BBC One’s Inside Out North West that not enough changes had been made since her inquiry. But those in the health sector will applaud the decision not to waste more public money, time and upheaval on the creation of what will be, in effect, just another QUANGO. The GMC has learned many lessons in the years that have passed since Shipman. It is now the premier healthcare regulator, a fact recognised by the Council for Healthcare Regulatory Excellence, which commented in its recent Review of Health Professional Regulatory Bodies: The public can be reassured that the GMC has achieved … high standards despite the particular challenges arising from the nature and work of the profession which it regulates.

Antisocial behaviour orders (ASBOs), a headline grabbing shoot-from-the-hip policy introduced by the Labour government in a desperate attempt to demonstrate that it could control unruly behaviour, are to be removed. Home Secretary, Theresa May, has indicated that instead police will be given powers to make offenders repair community damage.

Former Home Secretary, Jack Straw, has defended the ASBO and is quoted as saying that they had made a huge contribution to cutting crime and removing them would be a blow to communities blighted by yobs. But criminal practitioners know differently. So often the ASBO “badge” is worn with pride by the young offender who gains credibility among his peers, and when he reoffends – as he usually does – the courts are very slow to mete out the severe punishment he was promised at the time of its imposition.

But the ASBO is a civil remedy, and the main criticism is reserved for its ability to criminalise individuals merely because they had breached the order which had been imposed because the perceived offender was merely a nuisance in his community. It is the sort of order one has come to expect from a totalitarian regime, not one which professes to prize justice.

The type of social problem the ASBO was meant to cure is much better dealt with by education, discipline and example. Let the criminal law deal with punishment, retribution and rehabilitation where appropriate.

Health Secretary, Andrew Lansley, has announced that the Health Professions Council is to regulate social workers from April 2012 as part of a shake up of the Department of Health’s arm’s length bodies.  The General Social Care Council will be abolished.

Only a few months ago the Council for Healthcare Regulatory Excellence (CHRE) published recommendations for improving the troubled social care regulator. The Secretary of State acknowledged that the GSCC had made good progress in recent months but in reality the costs of maintaining an independent regulator for social workers were prohibitive. The Department’s arm’s length bodies will be reduced from 18 to 10 resulting in a saving of £180 million.

The Health Professions Council is an independent UK-wide multi-profession regulator which currently regulates fifteen professions including dietitians, educational psychologists, occupational therapists, paramedics and physiotherapists. Regulating social workers will add enormously to its caseload and its title will be altered to reflect its changing role. It will need to beef up its in-house expertise to begin to understand and regulate efficiently the diverse nature of the social work profession.

The CHRE is itself to be removed from the sector and it is proposed that it will become a self-funding body by charging a levy on regulators. Just why professionals should be called upon to pay not only for their own regulation but for a regulator to regulate their regulator, beggars belief. It appears that a wonderful opportunity to remove a superfluous layer of bureaucracy has been lost.

As part of the clear out the Human Fertilisation & Embryology Authority and the Human Tissue Authority are to go. They are to be retained as separate arm’s length bodies for the time being with the aim of transferring their functions by the end of the current parliament. It will be remembered that the last government attempted to merge these bodies but deep seated divisions between them prevented a successful liaison.

The boundaries of misconduct and how closely it must be linked to the professional’s calling were examined recently by the Court of Appeal in The Queen (on the application of Remedy UK Limited) v The General Medical Council [2010] EWHC 1245 (Admin).

As part of a policy called Modernising Medical Careers the Department of Health and others devised and introduced a new scheme for recruitment of junior doctors, and a new computerised system of making appointments for junior doctors’ training posts.  It was later generally recognised that the scheme was deeply flawed.   A Select Committee Report referred to the introduction of the new speciality training arrangements as “disastrous”.  Another report said that it had sparked the biggest crisis in the medical profession in a generation.

Remedy UK Limited was founded to represent doctors who had lost confidence in these training and employment reforms.  It sought to subject the Chief Medical Officer of Health, Sir Liam Donaldson, and Professor Sarah Thomas, who chaired the MTAS recruitment and selection steering group, to the GMC’s disciplinary processes to hold them accountable for what it perceived to be their responsibility in allowing the MTAS scheme to be adopted and implemented in circumstances which caused damage to doctors, patients and the standing of the profession.

The leading case on the meaning of misconduct was the judgment of the Privy Council in Roylance v GMC [2001] 1 AC 311 where Lord Clyde said that misconduct was a word of general effect, involving some act or omission which fell short of what would be proper in the circumstances.  Such misconduct (in the case of a doctor) was not limited to clinical misconduct but there must be a link with the profession of medicine.  Precisely what that link may be and how it may occur was a matter of circumstances.  But certain behaviour may constitute professional misconduct even although it did not occur within the actual course of the carrying on of the person’s professional practice, such as the abuse of a patient’s confidence, or the making of some dishonest private financial gain.  Another category of case where the professional misconduct complained about was removed altogether from the practice of medicine was where the doctor was guilty of immoral, outrageous or disgraceful conduct.

In Preiss v General Dental Council [2001] 1 WLR 1926 it was said that serious professional misconduct may take the form not only of acts of bad faith or other moral turpitude but also of incompetence or negligence of a high degree.  It may also be professional misconduct where a medical practitioner purporting to act or speak in such expert capacity went outside his expertise.  It was settled that serious professional misconduct did not require moral turpitude.  Gross professional negligence could fall within it.  Something more was required than a degree of negligence enough to give rise to civil liability but not calling for the degree of opprobrium that inevitably attached to the disciplinary offence.

In the present case Elias LJ derived the following principles from these cases:  (1) Misconduct was of two principal kinds:  First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it could properly be described as misconduct going to fitness to practise.  Second, it could involve conduct of a morally culpable or otherwise disgraceful kind which may, and often would, occur outwith the course of professional practice itself, but which brought disgrace upon the doctor and thereby prejudiced the reputation of the profession.  Misconduct falling within that limb need not arise in the context of a doctor exercising his clinical practice, but it must be in the exercise of the doctor’s medical calling.  (2)  Conduct could properly be described as linked to the practice of medicine, even though it involved the exercise of administrative or managerial functions, where it was part of the day to day practice of a professional doctor.  Those functions included proper record keeping, adequate patient communication, proper courtesy shown to patients and so forth.  Usually a failure adequately to perform these functions would fall within the scope of deficient professional performance rather than misconduct, but in a sufficiently grave case, where the negligence was gross, there was no reason in principle why a misconduct charge should not be sustained.  (3) Misconduct may also fall within the scope of a medical calling where it had no direct link with clinical practice at all.  Meadow v GMC [2007] QB 462 provided an example, where the activity concerned acting as an expert witness where the doctor’s error was to fail to recognise the limit of his skill and expertise.

Poor judgment could not of itself constitute gross negligence or negligence of a high degree but it may in an appropriate case, and particularly if exercised over a period of time, constitute seriously deficient performance.

Action taken in good faith and for legitimate reasons, however inefficient or ill-judged, was not capable of constituting misconduct merely because it might damage the reputation of the profession.

In the present case the essential skills the medical practitioners brought to bear were not medical.  The making and implementation of government health policy was not a medical function, even where the policies in issue directly related to doctors and closely affected the medical profession.  The conduct must be of a kind which justified some kind of moral censure or involved conduct which would be considered disreputable for a doctor.  Bad judgment did not justify moral censure.  The conduct complained of was too remote from consideration of fitness to practise.  That was so whether cast in misconduct or deficient performance terms.

Judges appear to be distancing themselves from the dicta of Davis J in Shiek v General Dental [2007] EWHC 2972 (Admin) when he said “… if the public interest is to be invoked … then that to my mind, does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability.”  He felt it would be a relatively rare case where a suspension order would be made on an interim basis on the ground that it was in the public interest.

In Shiek the judge, perhaps surprisingly, allowed an appeal against an interim suspension order in a case where a dentist had been convicted of offences where there was sustained dishonesty and conspiracy to defraud resulting in a suspended 12 month prison sentence.  It is to be remembered that Davis J was the very same judge who allowed the appeal of a doctor against an interim suspension order in Sosanya v General Medical Council [2009] EWHC 2814 (Admin), a case which concerned serious allegations of money laundering.

But in more recent cases other judges have drawn back from those decisions.  Martin Sandler v General Medical Council [2010] EWHC 1029 (Admin) concerned a doctor who failed to see the bodies of patients for whom he gave medical certificates of death;  failed to examine the bodies;  failed to meet with, question or speak to [the relevant] medical practitioner, and received £4,549.50 for cremation duties which he had not carried out.

At the hearing of the appeal against an interim suspension order made on public interest grounds, counsel sought to rely on the dicta of Davis J in Shiek and Sosanya whilst praying in aid a 9 month delay by the General Medical Council in seeking the order.  But Nicol J upheld the suspension.  The signing of 116 certificates took place over a number of years, and the lack of probity took place in the course of the doctor’s clinical duties.  As to the delay, the GMC had been entitled to wait for the outcome of the police investigation.

Whilst accepting that a doctor could not be the subject of an interim suspension order unless it was at least desirable in the public interest, and such order would need to be proportionate – perhaps departing from the remarks of Davis J – the judge added, “but I do, with respect, think that the Court must be cautious about superimposing additional tests over and above those which parliament has set.”

This judgment of Nicol J was followed by Judge Kaye QC in Steven Bradshaw v General Medical Council [2010] EWHC 1296 (Admin).  Dr Bradshaw, employed by the Civil Aviation Authority, was said to have made allegations against another doctor knowing them to be false and so lied to the Civil Aviation Authority, lied to that other doctor on numerous occasions and in numerous respects with the intention of perverting the course of an investigation;  fabricated and altered original documents in order to discredit the other doctor and undermine the doctor’s testimony;  abused sickness absence procedures, and offered to procure the Civil Aviation Authority’s endorsement of a product for reward.

The Interim Orders Panel, said the judge, had properly balanced the key factors.  It was aware that the allegations did not involve the doctor’s clinical competence but identified correctly that the allegations amounted to one of those relatively rare cases in which an interim order of suspension was necessary in the public interest.

The case of Bradshaw v General Medical Council [2010] EWHC 1296 (Admin) (04 June 2010) demonstrates the difficult balancing act regulators find themselves in when deciding whether to apply for an interim suspension order on public interest grounds.

Dr Bradshaw was employed as a medical officer by the Civil Aviation Authority (“CAA”).  He was suspended by the CAA pending investigation into a number of allegations of misconduct.  During that investigation he resigned.  The investigation concluded that had Dr Bradshaw still been employed by the CAA he would have been dismissed without notice.  He declined the offer of an appeal.

On 17 December 2009 the CAA notified the Fitness to Practise Directorate of the GMC of the conclusions of the Disciplinary Hearings Manager and specified matters of particular concern.

The matter was referred to the Interim Orders Panel (“IOP”).  The main allegations against Dr Bradshaw were:  that he had made allegations of misconduct against a Dr J (with whom he was said to be having a relationship) knowing them to be false and in doing so lied to the CAA;  that he had lied to Dr J on numerous occasions and in numerous respects with the intention of perverting the course of the investigation;  that he had fabricated and altered original documents in order to discredit Dr J and another so as to undermine their testimony against him;  that he had abused CAA’s sickness absence procedures by claiming he was sick when he was in fact fit for work;  that he had breached the CAA’s code of conduct by offering or promising to take steps to procure CAA’s endorsements for glasses in return for a substantial share in the venture.

The panel found that it is necessary for the protection of members of the public, in the public interest and your own interests to suspend Dr Bradshaw.  The panel was satisfied that there may be impairment of your fitness to practise which poses a real risk to members of the public or which may adversely affect the public interest.  The panel particularly noted that the allegation against him related to his honesty and probity.  The panel considered the issue of proportionality and balanced the interests of the doctor and the risk to the public but concluded that this is a case which involves allegations that you made false allegations against a colleague, lied to an investigation and fabricated evidence, and is one of the relatively rare cases in which an order of interim suspension is necessary.

On appeal the Administrative Court considered the relevant yardstick to apply in the case of suspension on public interest grounds.  It was common ground that suspension to protect members of the public could be done only if it was necessary.  There was no such qualification on the public interest limb.  In Shiekh v GDC [2007] GDC EWHC 2972 (Admin) Davis J thought that if the public interest was to be invoked in this context under the statute then that to his mind did at least carry some implication of necessity and certainly at least carried with it the implication of desirability..  He felt that in the ordinary case at least necessity was an appropriate yardstick and that was so because of reasons of proportionality.  The panel must consider very carefully the proportionality of their measure (weighing the significance of any harm to the public interest in not suspending the doctor against the damage to him by preventing him from practising).  It was the view of Davis J that it was likely to be a relatively rare case where a suspension order would be made on an interim basis on the ground that it was in the public interest.

His Honour Judge Kaye (sitting as a Judge of the High Court), however, found that Dr Bradshaw’s case was just such a rare case.  The allegations went much further than accusation and counter-accusation against and by the persons involved in an intimate relationship.  They included the very serious allegations of false accusations, fabricating and altering original documents and lying to the investigator.  These allegations struck at the core duties and responsibilities of a doctor of honesty and integrity.

It is to be recalled that in Shiekh the dentist engaged in what the judge referred to as a sustained fraud over a lengthy period of time, and it is also of importance that the fraud related to the conduct of his dental practice.  One would be inclined to the view that also struck at the core duties and responsibilities of a dentist but Davis J thought it appropriate to allow the dentist’s appeal against suspension.  It will be remembered that the same judge also declined to uphold an interim suspension order in the case of Sosanya v General Medical Council, [2009] EWHC 2814 (Admin), a doctor charged with money laundering and committed to the Crown Court to stand trial.

This case, therefore, further muddies the murky area of interim suspension on public interest grounds.  It would seem that we shall have to continue to proceed on a case by case basis until a Court of Appeal decisions lays down firmer guidelines.

Article 6(3) of the European Convention on Human Rights provides:  

…everyone charged with a criminal offence has the following minimum rights … (d) to examine or have examined witnesses against him …

Albert and Le Compte v Belgium (1983) 5 EHRR 533 held that this provision is equally applicable in disciplinary proceedings.

But the power to admit hearsay evidence in disciplinary proceedings Is not necessarily incompatible with the European Convention on Human rights.  Luca v Haly (2003) EHRR 46 held: …the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national court to assess the evidence before them.  The court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.  The evidence must normally be produced at a public hearing in the presence of the accused, with a view to adversarial argument.  There are exceptions to this rule, but they must not infringe the rights of the defence.  As a general rule, Art. 6(1)and 3(d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage.

The essential criterion is fairness to the defence.

Regulators often provide in their rules for the admission of hearsay evidence subject to the overriding principle of fairness which is all too readily overlooked.

This is well illustrated by the recent case of Ogbonna v Nursing & Midwifery Council [2010] EWHC 72 (Admin).  In this case a registered midwife appealed against a finding of impairment of fitness to practice on a number of different grounds, only one of which is relevant to this note.

At the conclusion of its oral evidence, an application was made on behalf of the NMC to read the statement of B.  The application was made pursuant to Rule 31 of the Nursing & Midwifery Council (Fitness to Practise) Rules Order of Council 2004, as amended:  Upon receiving the advice of the Legal Assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place).

The NMC’s reason for making the application was that the witness did not live in this country any more.  In January 2009 the registrant was told that the NMC relied on the written statement and on 10 February 2009 she objected to its admissibility.

B was an important witness to the material facts.  There was bad feeling between B and the registrant and they had a difficult working relationship.  The registrant complained that the NMC had made no plans for the witness to attend, that she had the right to ask questions and would be prejudiced if she could not.

It was clear the NMC had made no plans for the witness to attend the hearing in person or by video link.  Surprisingly, it said it had no facilities for providing video link facilities.

The appeal was allowed.  B was the sole witness of fact and a critical witness.  That, together with the evidence of bad feeling between the two women, meant that every effort should have been made to secure B’s attendance.  Fairness required that the registrant was entitled to test B’s evidence by way of cross-examination unless good and cogent reasons could be given for non-attendance.  It was difficult to see what those reasons could be, given that her attendance had never been sought.

The important lesson must be to rely on direct evidence wherever possible and make every effort to secure the attendance of the desired witness.  If the witness is abroad or unwell, endeavour to obtain the evidence by video link.  If the witness feels threatened or intimidated, try to obtain special measures such as video link or giving evidence behind screens.  If the witness is unwilling and cannot be persuaded to give evidence, consider issuing a witness summons.  Only when all these measures have been exhausted should you think about hearsay evidence.  Even then there is no guarantee of fairness to the defence and each case must be weighed carefully upon its own merits.

Lord Devlin, one of the greatest English judges of the last century, wrote:  Each jury is a little parliament.  The jury sense is the parliamentary sense.  I cannot see the one dying and the other surviving.  The first object of any tyranny in Whitehall would be to make Parliament utterly subservient to his will;  and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen.  So that trial by jury is more than an instrument of justice and more than one wheel of the constitution:  it is the lamp that shows that freedom lives.

In 1985 I wrote:  The concept of jury trial is under siege.  In recent times attacks have been made upon its efficiency by eminent people, and the present Lord Chancellor, Lord Hailsham, would like to see the right to jury trial abolished in cases involving only small amounts of money and in complicated cases involving commercial frauds.  When, as a result of a recommendation from the James Committee, the government attempted recently to include a provision in a Criminal Justice Bill to limit trial by jury for what they termed “small” cases, a sufficiently large number of Members of Parliament were scandalised and the government was forced to withdraw it.  So they have tried a different tack.  At the end of 1983 they appointed a Committee to consider if juries were appropriate to consider the facts.  One of the chief aims must have been to get a recommendation to abolish jury trials in such cases.  It made sense, therefore, for the Lord Chancellor to appoint as its chairman Lord Roskill who had earlier in 1983 publicly voiced his opinion that trial by jury should be restricted.  Lord Hailsham, too, in his 1983 Hamlyn Lecture let his view be clearly heard:  “Personally, I would welcome an experiment on these lines limited … to the longer type of contested commercial fraud.”

… Lord Roskill restated his views in the guise of the Fraud Tribunals Committee Report and the government has pledged itself to introduce legislation during the next session to implement the Committee’s proposals.

Opposition was such that it did not take place.  But gradually politicians are chipping away at our liberties and we stand idly by and watch it happen.  It seems that governments, spurred on by the media, are more concerned with a scapegoat than with justice;  better to be seen to do something and risk an innocent person being convicted.   Incessantly we see attacks on our basic rights:  a suspected person no longer has the right to remain silent without risking an adverse inference;  bad character may be used by the prosecution to assist its case;  hearsay evidence may be adduced in criminal trials, and so it goes on.

Last week for the first time in hundreds of years, a judge sitting alone in a criminal trial convicted four men of serious criminal offences.  His verdicts may well have been right but it is the thin end of the wedge.  What next?  Any government, properly advised, can construct arguments in individual cases to support its oppressive measures.  This government has shown contempt for its people and for its laws.  If this is allowed to continue, how much longer will it be before someone expressing these views is locked up for daring to show dissent?   It may sound ludicrous now, but who a few years ago would have dreamed that in this country people could be convicted by a judge sitting without a jury and then face heavy sentences of imprisonment at the hands of the very same judge.

It seems that every day the lamp which showed that freedom lives grows progressively dimmer.