Hearsay evidence in disciplinary proceedings

The importance of assessing fairness before allowing hearsay evidence in professional disciplinary proceedings was underlined by the High Court in the recent case of Bonhoeffer v General Medical Council [2011] EWHC 1585. At a hearing on 21 June 2011 the High Court found the decision of the FTPP to allow hearsay evidence to be irrational and a breach of the right to a fair hearing, enshrined in Article 6 of the European Convention on Human Rights.

Background

Professor Bonhoeffer (the Claimant) is a consultant paediatric cardiologist. He was charged by the General Medical Council (GMC) with impairment of his fitness to practise arising from alleged serious sexual misconduct towards boys and young men in Kenya. The GMC Fitness To Practise Panel (FTPP) heard an application from the GMC to admit the hearsay evidence of a witness known as Witness A in the case against the Claimant. Witness A was the single source of evidence against the Claimant in respect of the majority of the charges, and was willing to come to London to give evidence against the Claimant. The GMC, on the advice of the Metropolitan Police, decided not to call Witness A on the basis he may be at risk of harm, due to the potential for reprisals from homophobic elements in Kenya, if he gave evidence about the alleged misconduct. After a 10-day hearing the FTPP allowed the admission of Witness A's hearsay evidence in the form of transcripts of statements Witness A had previously given. The corollary of the decision to allow the hearsay evidence was that the Claimant would be denied the right to cross examine Witness A at the full hearing on evidence.

At a hearing on 21 June 2011 the High Court found the decision of the FTPP to allow the hearsay evidence to be irrational and a breach of the right to a fair hearing, as enshrined in Article 6 of the ECHR.

Admission of hearsay evidence

Hearsay evidence is allowed in criminal proceedings in England and Wales in certain circumstances. The FTPP is allowed to admit hearsay evidence if it would be admissible under certain provisions of the criminal law. The FTPP also has a general power to admit evidence even if it does not satisfy the criminal standard (Rule 34 of the GMC rules). Similar rules apply in Scots criminal law and are found in the rules of a number of Scottish professional disciplinary bodies - although there exist some examples of rules in which admissibility is decided by reference to the Civil Evidence (Scotland) Act 1988.

The decision by the FTPP to allow the hearsay evidence flowed from a three-stage argument made by the GMC:

That it was not reasonably practicable for the GMC to call Witness A and that the provision in criminal law which allowed hearsay evidence in those circumstances applied.
That it would be "in the interests of justice" for the hearsay evidence to be admitted, meaning that the provisions in criminal law which allowed hearsay evidence applied in the circumstances of this case.
That even if the evidence was inadmissible in criminal proceedings, the FTPP's duty to inquire into the allegations against the Claimant made admission of the evidence desirable; and that the FTPP should exercise its discretion to admit the evidence since it would be fair to do so under its general power.

The GMC failed in arguing 1 and 2 above. The FTPP rejected the "contradictory and incomplete nature of some of the evidence of the threat to Witness A, as well as the absence of a 'meaningful risk assessment'".

However, the FTPP decided to admit the hearsay evidence under the GMC's own rules, determining that it was fair to do so after considering "its duty to the public interest which includes protection of patients, maintenance of public confidence in the profession, and declaring and upholding proper standards of behaviour".

Fairness and Article 6

In dealing with the Claimant's right to a fair trial Stadlen J, who gave the leading judgement in the case, set out eight propositions to be considered when dealing with the right to a fair trial in professional disciplinary proceedings:

The right to cross-examine is not absolute. It is subject to exceptions which apply in the absence of the witness, whether by reason of death, absence abroad or the impracticability of securing his attendance.
In criminal proceedings there is no "sole or decisive" rule prohibiting in all circumstances the admissibility of hearsay evidence where the evidence sought to be admitted is the sole or decisive evidence relied on against the defendant.
In proceedings other than criminal proceedings there is no absolute entitlement to the right to cross-examine.
However, disciplinary proceedings against a professional man or woman, although not classified as criminal, may still bring into play some of the requirements of a fair trial, including the right to cross-examine witnesses whose evidence is relied on against them.
The issue of what is entailed by the requirement of a fair trial in disciplinary proceedings is one that must be considered throughly, having regard to all relevant factors.
Relevant factors to which particular weight should be attached in the ordinary course include the seriousness and nature of the allegations, and the gravity of the adverse consequences to the accused party in the event of the allegations being found to be true. The principal driver of the reach of the rights which Article 6 confers is the gravity of the issue in the case rather than the classification of the case as civil or criminal.
The ultimate question is: what protections are required for a fair trial? Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.
In disciplinary proceedings which raise serious charges amounting in effect to criminal offences which, if proved, are likely to have grave adverse effects on the career and reputation of the accused party, and if there are no problems associated with securing the attendance of the accuser, there need to be compelling reasons why the requirement of fairness and the right to a fair hearing do not entitle the accused party to cross-examine the accuser.

In relation to the FTPP decision to admit the hearsay evidence under the GMC rules, Stadlen J considered that, whilst the rejection of hearsay evidence under criminal procedure did not necessarily lead to its rejection under the GMC's rules, the reasons for rejection identified by the FTPP were such that acceptance of the evidence through the GMC's rules was irrational. As a result, the FTPP decision to allow the hearsay was quashed.

Implications for professional regulators

This decision highlights a number of practical considerations for professional regulators when faced with hearsay evidence, notably:

All reasonable attempts should be made to ensure that witnesses attend hearings in which their evidence is to be relied on.
Where a witness is unable or unwilling to attend, the efforts made to contact the witness and secure their attendance should be carefully recorded to allow it to be easily presented to the relevant disciplinary panel.
The decision not to call a witness, where the witness is available and his/her evidence is crucial in relation to proof of the charges, should be transparent and based on sound principles.
If hearsay evidence is not admissible under the regulators criminal evidence "gateway" provisions, then great care should be taken by a panel in exercising its wider discretion to allow hearsay evidence.

As Stadlen J concludes:

"The more serious the allegation, the greater the importance of ensuring that the accused doctor is afforded fair and proper procedural safeguards. There is no public interest in a wrong result."