Craig v Farriers’ Registration Council [2017] EWHC 707 (Admin)
The public interest must be considered in light of the purpose of the particular regulatory regime
The Farriers’ Registration Council is the regulator for individuals engaged in the shoeing of horses. Farriers generally qualify following an advanced apprenticeship. In this case, Mr Craig (‘C’) was a very experienced farrier and an approved trainer. He was accused of misconduct towards one of his apprentices, JH. Principally, this related to allegations of bullying and harassing JH. They were found partially proved. The committee was satisfied that there had been misconduct, and it erased C from the register.
Both at the facts and the sanction stage regard was had to the fact in 2003 C had been found guilty of serious misconduct in relation to his behaviour towards four other apprentices. Ultimately no sanction was imposed on that occasion.
C appealed on the basis the factual findings were wrong and the sanction was disproportionate.
In considering this case Morris J held that the following principles applied:
- Under s. 15 Farriers (Registration) Act 1975, an appeal is by way of review and not rehearing. However, there will be little difference where the court is asked to reverse findings of fact based on oral evidence.
- While the lower court or tribunal is the primary decision-maker, the High Court will correct material errors of fact on various grounds, including insufficient evidence or mistake. The degree of deference to the decision at first instance depends on the issue in question. Greater deference will be shown to conclusions based on an assessment of oral evidence than those involving analysis of documents or inference. The question is really whether the judge below had an advantage over the appellate court.
- He did not embark on a detailed analysis but proceeded on the basis that although the starting point is that the lower court is in a better position than the appeal court to assess credibility and reliability of witnesses and demeanour is a significant factor, it is not conclusive and may not be sufficient to explain or justify the conclusions of the court below.
- A professional disciplinary committee is not a judicial body and is not required to make a record of everything, only to give “sufficient explanation of reasons”.
- In relation to sanction and the need to accord special and appropriate respect to the judgment of the disciplinary body, that judgment should not be deferred to more than is warranted in the circumstances. It is the committee’s judgment in matters specific to the profession it is regulating that warrants respect.
JH was the principle witness. Certain allegations he had advanced were found not proved. C argued that this was inconsistent with a finding that he was a reliable witness. Morris J dismissed this argument. It is not wrong for a committee to accept the evidence of a witness on one charge but not another unless there is an overall finding that the witness cannot be relied upon. This is why charges are considered separately. The committee were applying the criminal standard of proof and it was open to them to be sure about some charges and not sure about others.
A further ground of appeal turned on the use of the 2003 bad character evidence. This evidence was adduced after C had adduced evidence of his good character. Morris J considered it was open to the Council to introduce as bad character a finding of misconduct made in previous proceedings even though no sanction had been imposed. Moreover, the findings of fact made at that previous hearing were conclusive evidence of those underlying facts.
In relation to sanction, however, Morris J was more critical. The disciplinary committee did not have a direct power to remove C from the list of approved trainers, or regulate this aspect of his conduct through conditions. However, it did have the power to make recommendations that would result in that status being reviewed. In considering sanction it failed to have regard to this possibility as a lesser sanction than erasure.
Morris J was critical of the committee’s assessment of the public interest. In looking at the public interest the committee ought to have borne in mind that the purpose of regulating farriers is to protect horses from harm:
“Integrity and standards of good conduct are important, but… these will raise considerations of a different kind to those required of those acting, say, in the medical professions, the teaching profession or the legal or accounting profession… [T]he protection and confidence which the public require is not of the same order”
As to the deference due to a specialist committee, he noted:
“the particular specialist expertise of the disciplinary committee relates to matters concerning the shoeing of horses and the profession of being a farrier… whilst the committee will have particular knowledge of the impact of deterrence on [Approved Training Farriers], I am not persuaded that it has a particular expertise in appropriate standards of conduct to be shown towards employees or trainees.”
Erasure was set aside and the case was remitted back for reconsideration.
Comment
The observation that deference is due primarily where the matter under consideration relates to the specialism of the professional body is perhaps the point of most interest to practitioners in this area. Where, as is often the case, the panel or committee have based their findings on an assessment of matters that are general and not specialist – matters that might be assessed by any responsible layman – then they will be far more susceptible to appeal.
Morris J’s comment that “what the public interest requires is likely to differ as between different professions” is also of significance. Rather than talk of the “public interest” in a general – often platitudinous way – parties should address how that interest should be understood in light of the statutory objective of the particular regulator.
Sarah Przybylska
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