News Professional Discipline 6th Nov 2020

2 Hare Court Professional Discipline Autumn Newsletter

Welcome to the Autumn edition of the Professional Discipline Newsletter.

 

Christopher Geering
Editor

 

Foreword

Welcome to the Autumn edition of the 2 Hare Court Professional Discipline Newsletter.

Michael Rawlinson considers the recent Court of Appeal decision in W80 – in the context of regulatory proceedings, does the criminal or civil law of self-defence apply to an officer who uses lethal force? It turns out neither.

In the world of healthcare, I look at the decision in Haris where the High Court criticised the concept of “sexual motivation” as a basis for an allegation. Regulators will no doubt be reconsidering their approach to such cases. In addition, Ben Rich reflects on the decision in R (Dutta). It is to be hoped this latest case will succeed where cases like Suddock v NMC, SS (Sri Lanka) and Gestmin v Credit Suisse have clearly failed and encourage panels to stop placing over reliance on demeanour.

In the coronial context, Paul Renteurs looks at Article 2 again and the case of R (Skelton) – this time in the context of arguable failures in a police investigation culminating in the tragic murder of Ms Nicholson by her abusive partner. How should the High Court approach the issue of Article 2 on review?

 

Christopher Geering


 

Police officers and the use of force – are we really all missing the point?: R (Officer W80) v Director General of the Independent Officer for Police Conduct [2020] EWCA Civ 1301

Michael Rawlinson

Introduction

The Court of Appeal has recently delivered an interesting and potentially very significant judgment in the case of Officer W80. The case concerned the use of force by a police officer and whether misconduct proceedings could subsequently be instituted against him on the basis of his honestly held but mistaken belief.

Facts

The facts of this case relate to the fatal shooting of Jermaine Baker in 2015 by a specialist firearms officer known as W80.

Police had received intelligence that there was a plot to snatch two men from custody whilst in transit from the prison using a stolen vehicle. Further intelligence indicated that the men were in possession of firearms and intended to use them to free the prisoners from the van.

The firearms officers, including W80, were instructed to intervene when the prison van had left for court. They approached the stolen car but could not see inside it as the windows were steamed up. Officer W80 opened the front passenger door and Mr Baker was sitting in the front passenger seat. The officer’s account was that despite instructions to put his hands on the dashboard, Mr Baker’s hands moved quickly up towards his chest where he was wearing a shoulder bag. W80 “believed at that time that this male was reaching for a firearm and I feared for the safety of my life and the lives of my colleagues. I discharged my weapon firing one shot”. No firearm was found subsequently in Mr Baker’s possession but police recovered an imitation Uzi machine gun in the rear of the car.

The officer relied upon the criminal law definition of self-defence in terms of relying upon an honestly held but mistaken belief. The IPCC (predecessor to the IOPC) reviewed the case and found a case to answer in relation to gross misconduct. In doing so the investigator applied the civil law test for self defence – that any mistake of fact could only be relied upon if it was a reasonable mistake to have made – which the IPCC considered the appropriate test for police disciplinary proceedings. The Metropolitan Police however….

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A non-sexually motivated sexual assault?: GMC v Haris [2020] EWHC 2518 (Admin)

Christopher Geering

Dr Haris faced allegations from two patients that he had conducted non-clinically indicated, intimate examinations without consent. He asserted forcefully that the alleged conduct simply never happened – and also called additional evidence to support his position that he was asexual.

The MPT accepted the evidence of the two patients and found the majority of the factual particulars proved. It then turned to the issue of sexual motivation. It considered the acts could reasonably be considered to be “overtly” sexual. It went on:

“The second question for the Tribunal to consider is “was the act carried out for the doctor’s own sexual gratification”? The Tribunal has found that the GMC has proved that the doctor’s actions were able to be perceived as such but the doctor has put forward a potential explanation that, if he did such actions, they were not for his own sexual gratification, since he had, and has, no interest in sexual matters at all. The Tribunal concludes that the weight of evidence on this point is in the doctor’s favour… Looking at all this evidence in the round and balancing it against the inferences that can be drawn from his actions in relation to Patients A and B, the Tribunal is led to the conclusion that the doctor was not sexually motivated when carrying out these actions.”

In due course the MPT found impairment and imposed conditions of practice.

Perhaps unsurprisingly, on appeal, the GMC’s principle ground of appeal focused on this issue of sexual motivation. Foster J as unequivocal in her assessment:

In the present case it is in my judgement clear beyond argument that the intimate touching of Patients A and B was sexual and that answering a question as to the motivation of the toucher, the only available answer, is yes, the motivation must have been….

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High Court gives timely reminder that demeanour is not everything: R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin)

Ben Rich

Most practitioners will have had cases where the reasoning of a tribunal as to why they believed a complainant against a professional amounted to little more than “we found him/her to be a credible and convincing witness”. In the absence of any other way of deciding between two competing accounts a tribunal may be forced to rely on demeanour, but in R (Dutta) v GMC, the High Court gave a stern reminder of just how low modern legal thinking places demeanour among the reliable ways of making judicial decisions.

Dr Dutta was a cosmetic surgeon. He faced 23 allegations relating to four patients. By the time the evidence at the factual stage was complete, Dr Dutta had admitted some of the charges, and others had been dismissed on a ‘no-case’ submission.

What remained included a number of allegations relating to Patient A. One group alleged that, for financial gain, he pressured her into undergoing a breast augmentation by offering her a time-limited discount. He was also accused of having failed to get informed consent to the surgery, and lying to her about the type of implant to be used. Another group of allegations related to failing to deal properly with some allegations Patient A had made against another doctor that he had touched her inappropriately.

Dr Dutta provided some contemporaneous documentary evidence which he said contradicted patient A’s account. She said these were faked, but that was never alleged by the GMC. There were other provable inaccuracies in her account.

The tribunal went on to find the key allegations relating to her proved. Dr Dutta was later found to be impaired and suspended but it was the tribunal’s reasoning at the factual stage which the Court attacked. In essence the tribunal said “We have Patient A’s account. We believe her. Do the documents show she must be wrong? No. The documents cannot be the complete answer”. Counsel for the GMC in the High Court submitted that it was legitimate for the tribunal to say that….

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The vexed question of Article 2: R (Peter Skelton and Elizabeth Skelton) v. The Senior Coroner for West Sussex and Others [2020] EWHC 2813 Admin

Paul Renteurs

In R (Skelton) v The Senior Coroner for West Sussex and Others [2020] EWHC 2813 Admin the High Court again grappled with the vexed question of the engagement of Article 2 in coronial proceedings.

The factual background is as extraordinary as it is disturbing. The claimants in the case were the parents of Susan Nicholson, who was murdered by her partner, Robert Trigg, in 2011. The police investigation that followed, however, concluded that Miss Nicholson’s death was non-suspicious. Thanks largely to the determination and campaigning of the claimants, that investigation was reopened and, finally, in 2017, Trigg was convicted not only of the murder of Miss Nicholson, but of the manslaughter of another of his former partners, Caroline Devlin, in 2006. Like Miss Nicholson, at the time, Miss Devlin’s death was treated as non-suspicious, despite what appears to have been a history of domestic abuse on the part of Trigg, not only against her, but against two other previous partners, dating back to at least 2003.

In the reopened inquest proceedings that followed, the claimants submitted that the inquest should include an examination of potential breaches by Sussex Police of their duties under Article 2 ECHR. Those breaches, the claimants maintained, arose out of both Sussex Police’s failure to properly investigate the death of Miss Devlin in 2006, and the failure to take reasonable steps to protect Miss Nicholson in the months leading up to her death from the real and immediate risk to her life posed by Trigg at that time. The Coroner ultimately rejected those submissions, and the claimants judicially reviewed that decision.

The Court, having been invited by the claimants to determine for itself whether Article 2 was engaged in this case, was confronted with a surprising paucity of authorities that directly addressed that crucial issue. Was a court limited to traditional grounds of review, along the lines of Wednesbury unreasonableness, or, rather, was it entitled to make its own decision on that point?

Some authorities referred to in the judgment appear to indicate that the threshold question – whether there has been an arguable (i.e. more than fanciful) breach of Article 2 substantive obligations by agents of the state – was one for the court to consider itself. In AP, Hickinbottom J stated that the question was one “which I have to reconsider afresh”. Other authorities, by contrast, seem to emphasise the more traditional Wednesbury approach. In R (on the application of Medihani) v. HM Coroner for Inner London District of Greater London [2012] EWHC 1104 (Admin), Silber J, found that the reasons relied upon by the Coroner “reach[ed] the threshold of being unreasonable and [constituted] an unlawful decision”.

After a lengthy review of the authorities, the court appears to have charted a course between the two extremes – a rationality approach on the one hand, and a purely merits-based review on the other. The court noted that….

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