Minor Crime; Major Problem
Last month, the Privy Council handed down judgment in an appeal from the Disciplinary Committee [‘DC’] of the Royal College of Veterinary Surgeons [’the College’]. The DC had found dishonesty allegations proved against the Appellant, Dr Schulze Allen, and directed that his name be removed from the register of veterinary surgeons.
Dr Gerhard Schulze Allen is German and lives mainly in California. He had registered with the College in 2010 and then was removed from the register the following year for non-payment of his renewal fee, after he had left the UK to go to work in California.
In September 2013, Dr Schulze Allen pleaded guilty in the Superior Court of California to “petty theft under $50 without prior”, in relation to the theft of a tube of superglue worth $1.48. He was ordered to pay a fine. This conviction was the basis for the first charge before the DC, which alleged that Dr Schulze Allen had been convicted in the UK or elsewhere of “a criminal offence” as set out in section 16 of the Veterinary Surgeons Act 1966 [’the Act’].
Later in 2013, Dr Schulze Allen applied for restoration to the College’s register. The application form required him to state whether he had any cautions or convictions, including absolute and conditional discharges and spent convictions, or any adverse findings against him in the UK or overseas including professional disciplinary proceedings. Dr Schulze Allen checked ’no’. This representation was the basis for the second charge before the DC.
As part of the application, Dr Schulze Allen swore an affidavit in which he stated that he had never been convicted of any criminal offence in the UK or elsewhere. This representation was the basis for the third charge before the DC. Dr Schulze Allen was restored to the register.
Early in 2016, Dr Schulze Allen worked as a locum for a vet who complained to the College about his performance, and reported that he had discovered that Dr Schulze Allen had been convicted of petty theft. An investigation began, and Dr Schulze Allen was asked to respond to an allegation that he had failed to disclose to the College a conviction or adverse finding for dishonesty. Dr Schulze Allen responded, stating that he had “no criminal record whatsoever”. This representation was the basis for the fourth charge before the DC.
Dr Schulze Allen initially accepted in written correspondence with the College that he had been wrong to believe that he had no criminal record or conviction. His position had shifted somewhat by the time of the hearing, where he relied on the court record, which described the conviction as relating to an “infraction”; on screenshots of an online consultation with a Californian criminal defence attorney, who stated that “infractions are not considered ‘crime’ but minor transgressions… A traffic citation is one such example”; and on a screenshot from a website which stated that, “An infraction is less serious than a misdemeanour and does not go on your criminal record”.
The DC found that Dr Schulze Allen had been convicted of a “criminal” offence within the meaning of section 16 of the Act and that he had been dishonest in representing otherwise.
Dr Schulze Allen adduced further evidence before the Privy Council, with the College’s agreement. He relied on the judgment in his own appeal against the Californian Veterinary Medical Board’s refusal to grant him a veterinarian licence. The judge hearing the appeal noted that the question of whether an infraction is a crime is “open to interpretation”, that there was some appellate authority for the proposition that infractions are not crimes, and that Dr Schulze Allen had “at least a colorable argument” that he had never been convicted of a criminal offence.
On the basis of this new evidence, the Board held that the College had not discharged the burden of providing beyond reasonable doubt (that being the standard of proof before the DC) that Dr Schulze Allen had been convicted of a criminal offence under Californian law.
The College argued that Dr Schulze Allen nonetheless had a duty to disclose his infraction if he was in any doubt about its status. The Board held that the representations by Dr Schulze Allen that he had no criminal convictions were not, strictly speaking, false. The Board, however, held that for the purposes of the second charge Dr Schulze Allen’s conviction for an infraction did amount to an “adverse finding” that ought to have been disclosed. His denial of the existence of an adverse finding was dishonest.
Dr Schulze Allen’s appeal was therefore allowed for the purposes of the first, third and fourth charges, but dismissed in relation to the second charge. The question of sanction was remitted to the DC.
The judgment is a useful reminder that in cases reliant on criminal proceedings overseas the question of what amounts to a “criminal conviction” may not be as straightforward as it first appears. The presumption that foreign law is the same as English law applied only in the absence of evidence about the foreign law, and even screenshots from websites and nebulous legal advice were sufficient for the appellant in this case to raise a doubt as to whether his conviction was criminal in nature.