Factual findings made by the criminal court: Achina v General Pharmaceutical Council  EWHC 415 (Admin)
Cases involving a criminal conviction are superficially straightforward, but the process of admitting the fact of the conviction and skipping blithely on to misconduct/impairment can result in uncertainty as to the factual matrix.
In Achina v General Pharmaceutical Council  EWHC 415 (Admin), Lane J considered a case where the registrant had been convicted of theft from his employer and subsequently came before the FTP Committee of the GPhC. The facts are unimportant but the case provides a helpful analysis of the philosophical basis for the approach to conviction cases, and to some extent resolves the position as to the basis on which an FTP committee should approach stage 1.
The matter was dealt with as a conviction case under rule 24(4)(5) of the GPhC’s FTP Rules. The certificate of conviction was therefore admissible “as conclusive proof of that conviction and the findings of fact on which it was based”. A registrant may only rebut the conviction by adducing evidence proving that he or she is not the person referred to in the certificate.
The Administrative Court considered what “the findings of fact” meant in this context. Lane J referred to Wray v General Osteopathic Council  EWHC 3409 (QB), in which Collins Rice J made the following obiter observations about the principles applicable to conviction cases:
“The authorities have consistently held that where statutory provision is made for disciplinary bodies to attach professional consequences to a criminal conviction, the effect of the statute has been to preclude the practitioner from deny the truth of any facts necessarily implied in the conviction. In such cases, the decision of the disciplinary body is properly based on the fact of the conviction, and the practitioner cannot go behind it and endeavour to show that he was innocent of the charge and should have been acquitted… That includes cases where conviction is based on a guilty plea… Additional evidence about the underlying facts on which the conviction is based may be adduced and relied on in relation to the disciplinary consequences, provided the facts are not inconsistent with the finding that the practitioner was guilty of the offence. What the practitioner cannot do is to relitigate the conviction as to the facts….
That is why regulatory regimes… make special provision for conviction cases. It is both unnecessary and undesirable to re-try a criminal case – unnecessary where the facts have already been pleaded and established to the criminal standard, and undesirable because of the public interest in the finality of criminal procedure. The only issue left for a disciplinary body is the relevance of conviction and sentence to the professional standard of the participant”
Lane J found that these public policy considerations informed the correct construction of rule 24(4), and that the certificate of conviction is conclusive proof of “not only the ‘bare’ facts to be found in the certificate of conviction, but also the broader factual matrix on which the convicted person has been sentenced”. He clarified that the factual matrix is to be found in the sentencing remarks of the judge.
This is an important decision, which underlines the point that the facts found proved at Stage 1 should now be determined not by the contents of a police case summary or the prosecution’s witness statements, but by the factual basis on which the judge sentenced.
This is an important distinction. A police case summary is liable to be regarded by committee members as a document of infallible reliability. In fact it is drafted at the very outset of a criminal case, as a summary for the Crown Prosecution Service lawyer considering whether to authorise charge, and may be incomplete, inaccurate, or refer to evidence later abandoned or found inadmissible. It may contain information that is not relevant to the offence charged. The document may for a host of reasons be wholly prejudicial to the registrant, but the general approach to conviction cases has caused difficulties in challenging its admissibility.
The clear statement in Achina that regulators ought instead to rely on a transcript of the judge’s sentencing remarks would see an end to difficult litigation as to exactly which facts a conviction implies, but for one problem. Crown Court proceedings are recorded and it is easy to obtain a transcript. Magistrates’ court proceedings, on the other hand, are not routinely recorded. Nor, with the exception of the occasional case of public importance, do district judges or magistrates generally produce written sentencing remarks. Instead the only records of the sentencing hearing will be the note kept by the justices’ clerk and by counsel or solicitors involved in the hearing.
It is submitted that the burden remains on the regulator to establish the basis on which the registrant was sentenced. it is plainly no longer appropriate to put a selection of CPS documents before the FTP committee and leave it to the defence to object if those do not fairly represent the basis on which the registrant was sentenced. Where the regulator has advance notice of criminal proceedings, it would be prudent to send an observer to take a full note of the proceedings and send it immediately to the criminal defence solicitors and the professional defence organisation to be agreed by the registrant. Where the regulator becomes aware of criminal proceedings after they have concluded, the best course would be to request the clerk’s notes from the court and then liaise with the defence organisation to reach an agreed statement of the facts on which the magistrates’ court proceeded to sentence.