EWJ FEB 59 2025 web - Flipbook - Page 69
was illegally obtained. in lifting the stay imposed at first
instance, Goldring J found that there was no state involvement in proceedings being brought by professional regulators under their governing legislation,
and emphasised that these processes exist to protect
the public, uphold professional standards and maintain public confidence in the profession. They are
therefore different to criminal proceedings and involve different considerations when deciding whether
a stay is appropriate. Stays on the second ground identified by Lord Dyson will therefore be all the more
rare in such cases.
particularly for original and contemporaneous
accounts from complainants, had not been substantively responded to and no original accounts had ever
been provided. Initially, all the people involved,
whether as complainants or identified by the complainants as being present when alleged incidents had
occurred, retained anonymity until 7 years after the
events, thereby denying the Registrant the ability to
identify and speak to potential defence witnesses. The
Registrant had therefore lost the opportunity to obtain evidence from possible witnesses. The delay in removing anonymity had meant that tracing and
contacting potential witnesses who might by now have
left the employment of the NHS Trust in question and
expecting them to recollect a conversation seven years
after the events was prejudicial to such an extent that
the hearing process could not cure it. The failure to
disclose the original accounts of the complainants had
also caused unfairness. Whilst that could potentially
be cured by adjourning the case to allow the HCPC
further time to obtain that information, the delay of
eight years was already manifestly excessive and it
would lead to even greater prejudice to the Registrant
in obtaining reliable and credible evidence. The case
was therefore stayed for abuse of process and is a
prime example of an investigation in which corners
were cut, such that the Registrant was precluded from
having a fair hearing.
The exceptional course of staying a case in
professional disciplinary proceedings was illustrated
in the more recent case of R (Clinton) v General Medical Council [2017] EWHC 3304 (Admin) in which the
High Court considered the application of the insurmountable prejudice ground. The case concerned alleged sexually motivated behaviour on the part of a
doctor. The complainants provided their original written accounts. Thereafter, and in contravention of the
GMC’s Rules they were wrongly provided with a
GMC case examiner’s decision and supporting material, including summaries of other allegations, critiques of the strengths and weaknesses of evidence and
critical expert evidence. It was argued that this crosscontamination of evidence meant that the case satisfied the test of insurmountable prejudice and should
be stayed. Both the Tribunal at first instance and the
High Court considered that whilst there might have
been a risk of prejudice in principle, the doctor had,
as a matter of fact, suffered no insurmountable prejudice that could not be cured in the normal hearing
process. When weighed against other considerations,
it was still not appropriate to impose a stay. Applying
the Wednesbury principles applicable in judicial reviews, the High Court found that the specialist professional panel’s decision was not so perverse or
unreasonable an exercise of its discretion that the
court should intervene.
The human cost for Registrants of having regulatory
proceedings hanging over them for years at a time is
not a factor that plays any real part in the test for
abuse. However, simply having proceedings outstanding, even if they ultimately end in acquittal, can
be ruinous for many.
Analysis
Whether in criminal, professional disciplinary or any
other type of case, stays for abuse of process should be
granted only in exceptional circumstances. However,
stays are an important measure available to safeguard
the accused’s right to a fair hearing, but also the
public’s faith in systems of justice more generally.
Notwithstanding the legal landscape outlined, it
would be an error to think that stays for abuse of process in professional disciplinary proceedings are unheard of. To the contrary, in recent times they are
occurring more often than might have been the case
5 years ago. This is for a number of different reasons.
In most cases, it is due to attempts by regulators to reduce up-front costs and thereby the under-resourcing of up front investigations. The obvious false
economy this presents is evident when cases are later
stayed or for other reasons the regulator’s case fails,
causing far more resource to be expended to try and
prop up a poorly investigated or processed investigation, which had it been properly resourced from
the outset might have come to a more equitable
conclusion for all involved.
The purpose served by professional regulators and
the scheme of fitness to practise is different to those in
the criminal justice system. In professional discipline
proceedings, acting in the pursuit of public protection
is paramount in all decisions made by regulators, their
tribunals and committees. This imperative is commonly relied upon by regulators as a reason for cases
continuing, notwithstanding the potential for unfairness to the registrant, and often there are good reasons to support this. However, the protection of the
public, like the public interest, is multi-faceted.
A balancing exercise needs to be undertaken and in
the right (if rare) circumstances, cogent countervailing arguments can be deployed to show that the guiding principle of the protection of the public is not a
one way street and is not always served in allowing
cases to continue.
In a recent unreported case, the HCPC had
investigated a senior Clinical Psychologist for what
amounted to alleged inappropriate comments made
in the workplace to professional colleagues. Eight
years had elapsed between the alleged conduct and
the hearing. Disclosure requests to the regulator,
EXPERT WITNESS JOURNAL
In summary, all the circumstances of any given case
are relevant to the consideration of a stay application,
but the presence of the following features will weigh
heavily in that decision:
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