Freeman v. GMC: how should Tribunals treat incomplete witness evidence?

Dr Freeman, formerly a doctor for Team Sky and British Cycling, has lost his appeal against a decision to remove him from the GMC's medical register following allegations that he ordered a banned substance, Testogel. At the heart of the appeal, was how the tribunal should have treated the evidence of a key witness who walked out during cross-examination.

The Medical Practitioner's Tribunal ("the Tribunal")

Following a referral from the UK Anti-Doping Agency in 2017, the GMC conducted a Fitness to Practise investigation into allegations that Dr Freeman ordered Testogel – a testosterone supplement banned by the World Anti-Doping Authority.

Dr Freeman's position in response to the allegations was that he had purchased the Testogel for Shane Sutton, the British Cycling and Team Sky Head Coach.

During cross examination, Mr Sutton walked out of the tribunal and refused to return. As a result, Mr Sutton was cross examined for just over an hour – the total tribunal lasted for 72 days.

The Tribunal found all allegations relating to Testogel to be proven and on 19 March 2021 directed that Dr Freeman's name be removed from the GMC's medical register.

Appeal against erasure

Dr Freeman appealed the Tribunal's decision of 19 March 2021, focussing on the Tribunal's decision to refuse an application on behalf of Dr Freeman to exclude Mr Sutton's evidence.

The Court considered that the Tribunal had correctly identified two key authorities - Al Khawaja v UK (2009) 49 EHRR 1 and R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin) - when deciding whether to exclude Mr Sutton's evidence. The Court noted three key questions arise from these authorities:

1. First, whether there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness's untested evidence;
2. Second, whether the evidence of the absent witness was the sole or decisive basis for the Tribunal's decision;
3. Third, whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair.

The Court observed that even in criminal proceedings the right conferred by Article 6(3)(d) to cross-examine is not absolute. It is subject to exceptions relating to the absence of the witness, whether by reason of death, or the impracticability of securing their attendance. 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 them are based.

The Court commented that there is a line to be drawn as to whether a cross-examiner needs, in fairness, to provide a sufficient explanation for a question fairly to be put. However, neither the Court nor the Tribunal considered that in this case that line had been crossed.

Ultimately, the Court refused Dr Freeman's appeal, finding that the Tribunal's application of the key questions in Al Khawaja and Bonhoffer was "unassailable". The Tribunal properly noted that all relevant factors had to be considered when deciding whether the admission of the evidence was fair. Notwithstanding Mr Sutton's cross-examination was brief, he had directly denied under affirmation a number of matters going to both his character and credibility and the Tribunal was justified in allowing his evidence to be admitted.

If you require advice on professional disciplinary proceedings or any of the issues in this blog, please do not hesitate to contact Niall McLean or Finlay Mackenzie.