Failing to Call Witnesses: PSA v NMC & Ntow [2026] EWHC 637 (Admin)

Registrant and Person A were both nurses in the military. The charges against the Registrant concerned allegations of non-consensual sexual intercourse and activity on 16 August 2021 and 7 February 2022, and two allegations of non-consensual sexual activity with Person A on a further two occasions on 3 and 5 July 2022. With the exception of certain factual areas of dispute, the Registrant accepted that sexual acts had taken place between him and Person A, but claimed all such acts had been consensual.

The panel heard the evidence of Person A, who was cross-examined by Special Counsel, and subsequently heard applications by the NMC to admit the following hearsay evidence: (i) a forensic expert report on a sample of saliva to support the disputed charge relating to sexual activity on 5 July 2022, which concerned kissing/sucking Person A’s breast; and (ii) a witness statement by a police officer containing “first complaint” evidence from Person A’s friend, Person B. The panel refused the applications citing potential unfairness to the Registrant.

Following submissions of no case to answer, many of which found favour, and the Registrant’s evidence-in-chief, the limited number of charges found proven were all treated on the basis that the sexual acts were consensual. Ultimately, the panel agreed and concluded that the Registrant’s fitness to practise was not currently impaired.

The PSA contended that there had been serious procedural irregularities in that the NMC had failed to make timely arrangements to put appropriate evidence before the panel, namely to secure the attendance at the hearing of Person B and the author of the forensic report, and/or failed to obtain a more detailed expert report, and that not doing so had led to evidence that should have been put before the panel being excluded by the Panel. Whilst there was no criticism of the Panel’s decision not to admit the witnesses’ written evidence, Mr Justice Butcher was taken to the Council for the Regulation of HCP v GMC & Ruscillo [2004] EWCA Civ 1356, in which it was held that “the disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is put before it” [82]. In a line of post-Ruscillo authorities, the appellate court stressed the importance of examining the whole process of a hearing, not just procedural decisions, and agreed that under-prosecution is capable of constituting an irregularity permitting the quashing of a decision and/or its remission.

Mr Justice Butcher ruled that the failure of the NMC to secure the attendance of these two witnesses was a serious procedural irregularity and noted the lack of good reasons for this failure.  He emphasised the seriousness of the allegations and observed that the evidence might have made a “significant difference” to the panel’s conclusions on the events of 5 July 2022, especially given the civil standard of proof. As such, the failures were sufficiently serious to render the decision “unjust”, leading to a successful appeal for the PSA, which was supported by the NMC. Ground 2 of the PSA’s appeal relating to the Panel’s flawed approach to the half-time decision was also allowed. The decision was quashed and remitted for fresh consideration by a differently constituted panel.

This case is a timely reminder of the importance of regulators making sure key witnesses attend the hearing, especially where serious and sensitive allegations are concerned. It also underlines the duty of panels to take a proactive role in ensuring key evidence is available.