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.