2 Hare Court Professional Discipline Summer Newsletter
2 Hare Court Professional Discipline Newsletter
Welcome to the June newsletter! With the collapse of so many hearings, securing contributions has proved easier than usual.
Of particular note, Andrew Colman and Natasha Ricioppo from CMS set out a cogent analysis of the state and future of regulatory law in the wake of Covid-19 crisis. Remote hearings no doubt are here to stay in some form. Which regulator could resist the financial saving? But will regulators follow the suggestion from the family courts, and adopt hybrid hearings in appropriate cases?
Lewis Macdonald summarises the principles for remote hearings set out in One Blackfriars. He notes this case has been applied in a recent high profile SDT case – SRA v Baker McKenzie. He modestly omits to mention he was instructed as junior counsel in that case, and his client was cleared of all charges. This modesty must be catching. Ben Rich analyses the High Court decision of Awan but appears to have forgotten to mention he won that case also. It is particularly significant – the fact a practitioner may deny an allegation may be relevant to insight but does not in itself justify a weightier sanction. It serves to temper Nicholas-Pillai.
In the coronial world, a recent glut of Court of Appeal decisions requires attention. Hannah Thomas looks at when an inquest has to be revived after its conclusion to satisfy Article 2. I summarise the appeal of Maguire and the scope of Article 2 in cases concerning Deprivation of Liberty orders. Tom Day helpfully summarises the current guidance from the Chief Coroner regarding the Covid-19 crisis.
Finally, Peter Lownds considers NMC v Marshall – can the court prevent a vexatious litigant bringing professional complaints against the lawyers involved in her striking off?
A look into the remote future
Andrew Colman of 2 Hare Court and Natasha Ricioppo, Associate at CMS
It has now been some three months since the suspension of most regulatory hearings due to the Covid-19 pandemic. In that time interim order cases, pre-inquest reviews, some review hearings and a number of substantive cases have been heard remotely. The situation is, however, fluid and continually changing.
The purpose of this article is to consider which regulatory hearings might continue to be dealt with remotely in the future, once the current emergency has passed. How might remote hearings be adapted into an effective and beneficial long-term initiative?
Advantages and disadvantages of hearings – remotely and in-person
There are undoubtedly advantages of convenience and cost-saving to hearing cases remotely. Such factors have never outweighed the fair administration of justice in the past and it is important to ensure that they do not do so in the future. Nevertheless, the experience of having held some remote hearings effectively is bound to occasion a reconsideration of where the balance falls.
It is arguable, from a resource point of view, that such considerations should move from a starting point that all hearings should be held remotely where possible and fair to do so. Remote hearings are easier to arrange at short notice. The parties (and witnesses or supporters, if any) do not need to arrange travel and accommodation, saving time and expense and expanding availability.
But much may be lost in a remote hearing. The intervention of technology between viewers and the viewed sterilizes the exchange, removing a critical dimension of human interaction. The whole experience becomes literally and figuratively two dimensional. It is easier to lie to a machine than to someone’s face. The truth does not hit you in the same way through a screen. Thus the impact of evidence-in-chief and cross-examination can both be reduced. Nonetheless, advocates have become accustomed to dealing with vulnerable witnesses and sexual allegations via video link and some believe that the remorseless, close-up gaze of a camera is revealing.
Yet it remains difficult to pick up on subtle emotional cues at a distance. This is important not just for the assessment of witness testimony but for proper client care and the consideration of participant welfare by the tribunal. Signs of stress can be easily missed over a remote, and often muted, link. This should not be underestimated as a problem. Regulatory proceedings can and do have life-changing consequences. Too many professionals to ignore have,deprived of their professional identity, sunk into depression and suicide.
Remote hearings are also more suited to short cases. While most people can arrange private space at home for a limited period to engage in a remote link without interruption, few have the ability to do so for days on end. More can participate by attending lawyers’ offices or other dedicated spaces locally. That also allows full contact between lawyers and clients, facilitating the taking of instructions without additional remote links between them, which need to be kept private from the tribunal.
Of note, however, the Chancery Division in Re One Blackfriars Ltd (in Liquidation)  EWHC 845 (Ch), ruled that a five-week trial listed in June should proceed remotely. The judge noted that the case was extremely document heavy and did not involve allegations of dishonesty or fraud. That decision has been cited in favour of substantive remote proceedings in the Solicitors Disciplinary Tribunal and at the Royal Institution of Chartered Surveyors.
It is helpful to consider the lead given by the President of the Family Division of the High Court, impelled by the urgent need to dispense with matters involving the welfare of children. In Re P (A Child: Remote Hearing)  EWFC 32, at 28, he describes keeping “the postage stamp image” of a participant on the screen as a very poor substitute for seeing that person fully present before the court throughout the process in order to make a full judgment. It does not allow effective engagement either by the participant with the court or the court with the participant. There is a significant risk that the process as a whole would not be fair. A full real-time ability to instruct a legal team throughout the hearing of a complex matter may be a prerequisite to being able to take an effective part in a fair process.
The same “postage stamp” problem afflicts advocates attempting to engage with the tribunal. Gauging the reaction and receptiveness of a panel over a video link is difficult or impossible. The President of the Family Division has now also issued detailed guidance on 9 June 2020 – The Road Ahead. There he suggests a range of hybrid solutions between fully remote and fully present hearings.
Hybrid hearings – compromise
A hybrid hearing involves conducting all or part of the proceedings without all parties physically in attendance. It would encompass, for example, a situation where a registrant wishes to give evidence in person but then participates in the rest of the proceedings remotely. Hearings which involve receiving evidence from a mixture of expert and lay witnesses can be adapted to enable the professional evidence to be received via telephone or video conferencing platform whereas lay eyewitnesses could attend in person. Similarly, it may not be necessary for advocates or even tribunal members to be physically present for the entirety of the proceedings. Submissions, determinations and even the questioning of witnesses, where appropriate, can all be performed or delivered via alternative remote means.
Hybrid hearings introduce a greater element of flexibility, allowing the participation mode of various parties to be blended according to the circumstances of the particular case. They offer a compromise position which sits between the rigid choices of the hearing being conducted either fully remotely or fully attended. The adaptability of a hybrid format facilitates versatile case management in these uncertain times, where social distancing restrictions may be relaxed or tightened at short notice as the country tentatively awaits further intelligence about a potential second wave of Covid-19.
Objections must be taken into account, bearing in mind potential inequality between the parties and whether any injustice is likely to be suffered, but these can be balanced in a hybrid model, allowing for the idiosyncrasy of each case. Instances may also arise where it becomes unexpectedly apparent mid-hearing that participants will need to convene in person, which could present logistical difficulties and result in overall delays. Whilst such risks can never be entirely eliminated, careful pre-hearing case management can help to avoid such eventualities. A hybrid approach presents an adaptable solution that continues to promote fairness and proportionality in the manner in which hearings are conducted.
Suggested cases for remote / hybrid/ in-person hearing in the longer term
There are certain types of hearing that lend themselves more easily to either fully remote or full attended hearings. Cases that do not involve hearing or weighing live evidence or are, by their nature, short in duration are clearly more suitable for remote determination. Interim order hearings are, therefore, a natural contender for continuing to be heard remotely, as are directions hearings, case management hearings and pre-hearing reviews.
Interim orders, in particular, require urgent determination and are the hearings most obviously suited to be dealt with remotely. The cost savings of hearing interim order applications remotely benefit both regulators and defence organisations (as well as individual registrants). While it is perhaps fanciful to imagine that such savings would be passed on to registrants in lower annual retention fees or indemnity premiums, they should allow limited resources to be deployed more effectively in the preparation and hearing of substantive cases. To take a practical example, many hearing rooms no longer required for interim cases could be used for substantive hearings instead.
Similarly, some review hearings and less complex substantive cases, such as conviction, performance or health cases, where impairment is not contested can effectively be held without requiring attendance. Even where impairment is contested, it may still be possible to fairly and effectively hear cases entirely remotely in circumstances where the registrant does not intend to give evidence and all witnesses are professional witnesses.
Balanced against this, there are some types of hearings where full attendance of all parties would normally be required. Substantive misconduct hearings, particularly those involving contested allegations of dishonesty or sexual motivation, are frequently listed for several weeks and would historically have been attended by all parties in the absence of compelling justification. These are most likely to continue to be heard in person, at least in large part.
Cases considering particularly complex or sensitive subject matter are also more suited to full attendance, as vulnerable witnesses often need additional support and registrants are likely to have a greater need to liaise with their legal representatives. Similarly, hearings involving a large number of parties, with many witnesses or more than one registrant, are likely to be difficult to manage entirely remotely.
In almost all substantive cases, assessment of the insight and engagement of the registrant is of critical importance. The circumstances of the registrant, including whether they are represented and their ability to properly and fairly defend themselves against allegations, must be taken into account. Cases involving a registrant who does not have the ability to engage with and follow proceedings remotely due to, for example, health reasons, will need to be accommodated.
Between the extremes of the interim order hearing and the lengthy and contested misconduct hearing are a whole range of hearings, all of which call for separate consideration. Hybrid hearings can arguably be suitable for all the above cases where there is a requirement for attendance. Working from a starting point that is possible for proceedings to be held remotely, parts can then be ‘hived off’ into sections where attendance would be required or advantageous in the interests of justice. In the case of a registrant with health needs or who is unrepresented, it may not be necessary for them to be present for a day where the only material action is the reading or handing down of a determination. Attendance can be required for parts of a hearing requiring an interpreter with the remainder conducted via alternative means. It will be proportionate for some cases be conducted in-person until all witnesses, including the registrant, have given evidence and for the remainder to proceed remotely. Each case must be considered on its own factors but many are likely to lend themselves to some variation of a hybrid solution.
With events developing apace, the remote future may be more imminent than we thought. A proper legislative underpinning for remote hearings will be required, once the circumstances cease to be exceptional and become the ‘new normal’. Provision will have to be made for public attendance (or virtual observation) to comply with the requirement for open justice.
Such legislation should not be overly prescriptive. It should be sufficiently flexible to permit the adoption of different degrees of hybrid hearings, tailored to individual case management needs. Clear underpinning guidance must be issued by regulatory bodies to promote transparency and consistency in the process of determining which elements of a case are suitable to be heard remotely and which are not.
A policy decision should be made, after consultation, on whether the starting position should be a remote hearing or an attended one. The legislation and guidance should allow appropriate discretion to manage any objections and ensure that the interests of justice are served in respect of the individual case at hand. It is also imperative that the new provisions allow for the agile adoption of new platforms and developing technological solutions as they arise. Regulators arguably have a duty to stay ahead of the curve in this respect whilst properly maintaining acceptable standards of security and data protection.
The way ahead will not be easy. Certain ways of working are entrenched in our courts and other legislative systems to a great extent, even forming part of our country’s historical identity. But as the saying goes, ‘We first make our habits, then our habits make us’. Amongst all of the adversity the current pandemic has brought, we also have an unexpected but unique opportunity to rejuvenate our current regulatory regime.
Keep calm and carry on – Re One Blackfriars Ltd
Prior to Re One Blackfriars Ltd (in Liquidation)  EWHC 845 (Ch), remote hearings involving the hearing of evidence were largely being conducted only where all parties agreed to it. That changed on 1 April 2020, when Mr John Kimbell QC sitting as a Deputy High Court Judge refused to adjourn a five week trial listed in June. His judgment, published on 6 April, has quickly become the leading authority in professional discipline proceedings and was relied upon just two days later at the Solicitors Disciplinary Tribunal.
In One Blackfriars, the liquidators applied to adjourn the trial as a result of government restrictions imposed by the Covid-19 pandemic. The former administrators wished the trial to go ahead, remotely. The reasons for proceeding with the case remotely are instructive:
- Having considered the Coronavirus Act 2020, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and the relevant guidance from the civil courts, “The message is that as many hearings as possible should continue and they should do so remotely as long as that can be done safely” (para 32).
- A remote trial must not endanger the health of anyone involved. But this trial could be prepared safely without doing so. If particular witnesses had difficulties giving evidence remotely, the parties should seek to cooperate and try the case without their involvement. Ultimately the trial might proceed on some issues and not others (for example one of the experts with difficulties went largely to quantum).
- Remote trials had been successfully conducted in the Court of Protection and the Business and Property Division. The technological challenges could be prepared for, and were not so great as to justify an adjournment.
- The challenges would apply to both sides equally and so there was no unfairness.
- This was not a case where it was essential to have the witness, judge and cross-examiner in the same room. There were no allegations of dishonesty or fraud, and there were vast amounts of contemporaneous records amounting to over 25 lever arch files.
One Blackfriars was endorsed in the further case of Muncipio de Mariana v BHP Group  EWHC 928 (TCC), which commented, “Regard must be had to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances.” (para 24)
As noted above, One Blackfriars, has then been relied upon by the Solicitors Disciplinary Tribunal in the substantial and paper heavy case of SRA v Senior, Baker, McKenzie and others, which was part-heard and due to resume in May. It proceeded with live evidence in May despite the objections of the Respondent who was yet to give evidence and be cross-examined. In deciding to proceed, the SDT interestingly rejected the suggestion that the Respondent yet to give evidence would be “disadvantaged in any way by the hearing proceeding remotely” (although as it transpired that may be right; all charges against him were found not proved earlier this month). The One Blackfriars line of authority has also been cited before the Royal Institution of Chartered Surveyors, who have proceeded with substantive hearings remotely.
There are of course limits to the application of One Blackfriars. It is an insolvency case, mainly involving an assessment of expert evidence and business records. Every case will turn on its own facts. In particular substantive hearings involving allegations of fraud or dishonesty (which the Senior case was not), or issues of truthfulness, remain unlikely to be suitable for remote resolution. But there does appear to be an increasing resolve across jurisdictions to proceed with as many cases as possible remotely. Practitioners will need to be alive to whether that is lawful within the constitution of a particular regulator, and whether it is in the interests of justice in a particular case where a professional’s entire career may be at stake.
The Impact of Coronavirus on Inquests
Since the beginning of the coronavirus pandemic the Chief Coroner has issued four guidance notes (34, 35, 36 and 37). This article will focus on the impact of these guidance notes on cases which have proceeded, or will proceed, to an inquest.
In Guidance No. 34 the Chief Coroner adopted the position expressed by the Lord Chief Justice that no physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place including the ability to ensure social distancing. Further, that all hearings that can possibly take place remotely should do so subject to the caveat that the coroner must be physically present.
Whether a hearing can continue or not, and in what form, is a matter for the senior coroner in terms of the jurisdiction as a whole, and the coroner dealing with that specific case. The Chief Coroner expected that perhaps a limited number of short Rule 23 type hearings would be heard in the months following the beginning of the pandemic. It is acknowledged by the guidance that there will be significant numbers of adjournments.
Although the Guidance note is silent on matters of case management the recognition from the Chief Coroner that PFDs may not be produced on time will be of assistance to interested persons that may be struggling to meet deadlines for disclosure in ongoing inquests.
It is important to note, however, that this guidance is now over two months old and the time will soon come when the Chief Coroner will have to issue new and updated guidance. I have recently attended an inquest where the representatives, witnesses, family and press all attended in person and expect that those coroners who have access to large venues such as Council Chambers will hold more hearings in person.
The impact of the pandemic on the operation of inquests may mean that interested parties will have to deal with less than thorough investigations into deaths when inquests are held in the near future. The Chief Coroner explicitly addressed this and advised: “We may all have to accept that the unprecedented situation we are in may mean it may not be possible to perform the sort of detailed death investigation process we are used to.” Specific examples are given of cases where it may not be feasible to order a post-mortem examination “on many (or indeed most) of the deaths where COVID-19 is either suspected as the cause, or where it may simply be present, or indeed where it cannot be ruled out.” Inevitably as the pressure on pathology services has been significantly higher than usual (as is evidenced by the excess deaths figures) it may also not be possible for post-mortem examinations to be carried out for all non-COVID-19 deaths where they might otherwise have been. Participants will have to be prepared for some considerable time in the future to deal with inquests in which there is no post-mortem examination or provisional cause of death expressed by a pathologist. There will, no doubt, be cases where interested persons hold different, and conflicting, views as to the medical cause of death. In these cases, without the assistance of a post-mortem examination report, the importance of careful preparation with a focus on the medical cause of death will be ever greater.
Normally a death caused by a notifiable disease, such as COVID-19, requires an inquest with a jury by virtue of section 7(2)(c) of the CJA 2009. Section 30 of the Coronavirus Act 2000 removes this requirement if the coroner has reason to suspect the death was caused by COVID-19. Coroners will no doubt have let out a collective sigh of relief.
Has a deluge of jury inquests been avoided? Where the death has occurred in prison or otherwise in state detention, while section 1 CJA 2009 requires coroners to open an inquest, there is no requirement to hold an inquest with a jury when the death is from natural causes, and this could include COVID-19. However, in reality it is likely that deaths in prison as a result of COVID-19 will involve at least the suspicion that a failure in care may have contributed to death from natural disease, thus necessitating a jury inquest. It is not difficult to imagine concerns being raised about a failure to isolate sick prisoners or in the care received by prisoners for COVID-19 symptoms. There is clearly a real risk that if there is a surge of such cases, the courts will be unlikely to be able to cope with the number of jury inquests required. Given the remarkable difficulty HMCTS has had trying to enable jury trials to take place in Crown Courts the prospects of coroner’s courts achieving that same outcome (given the varying nature of coroner’s courts real estate) is very slim indeed.
It may be that further legislation, designed to ease the burden on coroner’s court in terms of the practicalities of holding inquests, will be forthcoming.
Personal Protective Equipment (PPE)
The press widely reported the contents of Guidance No.37 when it was published on 28 April 2020 because of how it addressed the question of PPE. The Guidance is, as usual, keen to make clear that individual Coroners make judicial decisions on a case by case basis.
The Guidance notes, in relation to an otherwise natural death from the progression of COVID-19, that Regulation 3(1)(a) of the Notification of Deaths Regulations 2019 provides that there must be a report to the coroner if the disease was attributable to employment held by the deceased. As such, there may be some instances in which an otherwise natural COVID-19 death may be reported to the coroner where the virus may have been contracted in the workplace. This obviously includes many frontline NHS staff as well as other key workers.
Following such a report, a death must be investigated and will usually be the subject of an inquest if the coroner has reason to suspect that it resulted from the effects of a naturally occurring disease process but where some human error, for example inadequate or nonexistent PPE in a workplace, contributed to death.
The particular controversy over Guidance No. 37 arose from a passage reminding Coroners that inquests are not the right forum for addressing general government or public policy regarding PPE. The guidance relies heavily upon the speech of Lord Phillips in R (Smith) v Oxfordshire Asst. Deputy Coroner  1 AC 1 at  to the effect that an inquest could properly consider whether a soldier had died because a flak jacket had been pierced by a sniper’s bullet, but would not “be a satisfactory tribunal for investigating whether more effective flak jackets could and should have been supplied by the Ministry of Defence.” By analogy the Chief Coroner’s guidance advises that an inquest would not be the right forum for deciding whether adequate general policies and arrangements were in place for the provision of PPE.
The Guidance does, however, go on to say that a proper investigation may require that evidence is obtained in relation to matters of policy or resourcing in a particular hospital or department (or presumably NHS trust). It follows that the provision of PPE will likely be investigated in inquests into the death of frontline healthcare workers when they are eventually held (the Guidance acknowledges that the ability to pursue such an investigation in a timely fashion may be seriously hampered by the effects of the pandemic and that coroners should be sensitive to the additional demands placed on hospitals in the meantime). It seems likely, therefore, that the investigation of these matters in an inquest may focus upon the degree to which the local hospital complied with higher level government policy on the provision of PPE.
In reality coroners will no doubt face serious challenge to attempts to limit the scope of any enquiries into the provision of PPE to a truly local (trust or hospital) level as opposed to higher level government policy and actions. There is, of course, some truth in the contention that it is impossible to consider the performance or policies of a local hospital without wider consideration of the national/governmental picture. The dividing line between local/clinical decisions and higher level policy/guidance is not a clear one (as the controversy over the discharge of COVID-19 positive patients from hospitals to care homes has revealed). As with all of the Chief Coroner’s guidance it is subject to an individual coroner’s wide discretion in the conduct of inquests. One can reasonably expect that the High Court will be reluctant to interfere with the decision of a coroner to limit the scope of an investigation in relation to PPE in line with Guidance No. 37. Accordingly, while higher level government performance and policy is unlikely to be explored in future inquests the performance and policy of local healthcare providers in relation to the provision of PPE will be the subject of serious enquiry.
It should also be noted that the Chief Coroner has made clear in Guidance No. 37 that if there were reason to suspect that some failure of clinical care of the person in their final illness contributed to death, it may be necessary to have an inquest and consider the clinical care. We do not yet know how many deaths from COVID-19 will fall within that broad category of “some failure of clinical care.” Some failure of clinical care will presumably include such matters as decisions from clinicians as to admission to hospital from care homes or the community, clinical decisions as to the discharge of patients from hospital to care homes when potentially infected, the provision of care in hospitals which have had their standard operating procedures subject to upheaval, and the provision of care in intensive care units from staff who were not formally qualified in the provision of that care.
The approach taken in inquests touching upon COVID-19 deaths (when they are eventually heard) where there is a suspicion of some failure of clinical care remains unclear and will require careful planning, preparation and advocacy from those representing interested persons. For those cases decisions made by the coroner at the pre-inquest review, particularly as to scope or jury inquests, will have an extraordinary impact upon the conduct of those inquests.
In what circumstances can Article 2 require a fresh investigation? Dalton, Re Judicial Review  NICA 26
We all know that sometimes an enhanced inquest is needed to satisfy Article 2. But what if additional information comes to light after an ordinary inquest has concluded, which indicates Article 2 is in fact engaged?
Mr Dalton died 32 years ago in Northern Ireland in what is locally dubbed the ‘Good Samaritan’s Bomb’. He was neighbours with ‘Person A’, and on 31 August 1988 he went around to his flat with two others to check on his welfare. He entered the flat through a window in the kitchen and in doing so he set off a hidden explosive device. He and one other were killed on site and the third victim succumbed to their injuries a few months later.
The IRA released a statement taking ownership of the bomb, stating that it was intended as a ‘booby trap’ for law enforcement officers. Nobody was ever charged in relation to the deaths.
On 07 December 1989 an inquest was held into the death of Mr Dalton. The Coroner found that he “died from injuries received when an explosive device was detonated at number 38 Kildrum Gardens, Londonderry, around 11:50am on 31 August 1988.”
Mr Dalton’s family were not satisfied with how the police had handled the events leading up to his death and in September 2005 they complained to the Police Ombudsman for Northern Ireland (‘PONI’). The PONI took some 8 years to complete his investigation, and in a report dated 10 July 2013 he found that there was sufficient intelligence known to the police at the time to have identified the general location of the bomb and even its specific location in Person A’s flat. The police should have taken steps to locate the bomb and warn the local community. The report concluded that the police had failed in their duty to protect the public. The PONI also noted that he had been “significantly hampered” in his investigation by a large quantity of lost documents and senior retired police officers who had refused to cooperate.
In light of the PONI report the family asked the Attorney General of Northern Ireland (‘AGNI’) to conduct a fresh inquest into Mr Dalton’s death. The AGNI refused and the family sought judicial review of this decision. The family relied on the principle in Brecknell v The United Kingdom  ECHR 989 where the court observed that the procedural obligation under Article 2 could be ‘revived’ after an initial investigation had completed where “… a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing” subsequently came to light.
At first instance Deeny J dismisssed the application. He held that Brecknell applied to cases where the purpose of a further investigation was to seek to identify / punish perpetrators of crime and did not apply to the present case. He also found that it was speculative what any further inquest would yield and noted the ongoing civil proceedings between the family and the police.
Mr Dalton’s family appealed to the Court of Appeal of Northern Ireland seeking a mandatory order that the AGNI order a fresh inquest.
The questions posed by the court were:
- Can the doctrine of revival apply to a case where the purpose of the investigation is not to identify the perpetrators of the unlawful killing?
- If yes, has there been a revival in this case?
- If there has been a revival, did the PONI report discharge the State’s obligation under Article 2?
- If no, should the court direct that the AGNI order a fresh inquest?
Per Brecknell, the essential purpose of the procedural obligation of Article 2 is to “secure the effective implementation of the domestic laws which protect the right to life”. This includes laws requiring the State to safeguard the lives of its citizens. This applied to Dalton where the investigation could uncover that the police potentially failed to safeguard lives.
Article 2 has previously been applied in cases where the State has a positive obligation to take steps to safeguard lives, beyond where the State is implicated directly in the death. For example, death in custody cases where the State itself holds no responsibility other than potential negligence (e.g. a prisoner stabs his cell mate).
The court held that if Article 2 applied in this category of case, it would not be a “substantial jump” to accept that where relevant evidence emerges after an investigation has concluded, the procedural obligation under Article 2 can be revived.
In relation to whether the procedural obligation had been revived in Dalton’s case, the court had to consider its age. The death occurred in 1988, 12 years prior to the enactment of the HRA in the UK. The court essentially set out a test for establishing whether Article 2 obligations had been revived in a historic case:
- The Brecknell test: is there a triggering event, “a plausible, or credible, allegation, piece of evidence or item of information” that has come to light? In Dalton, this was held to be the 2005 complaint to the PONI.
- The Janowiec and Others v Russia  ECHR 1003 and Silih v Slovenia  ECHR 571 tests: for a historic case, to fall within the scope of Article 2, the case must meet either the “genuine connection” or the “Convention values” test.
To meet the ‘genuine connection’ test, there must be a reasonably short period (usually around 10 years) between the death and the enshrining of the Convention in domestic law, and a major part of the investigation must have been carried out after the enshrining of that law.
To meet the ‘Convention values’ test the issues must be so extraordinary that the underlying values of the Convention are at risk without further investigation. The types of case that fit this test will be rare.
In Dalton’s case the genuine connection test was satisfied as the HRA was enacted 12 years after Mr Dalton’s death and the major part of the investigation by the PONI took place after 2005. It was noted that the Convention values test would likely not have been met.
Questions 3 and 4
The PONI report was insufficient to satisfy the State’s Article 2 obligation given that there had been significant lost documentation and cooperation absent from his investigation. However, the court did not wish to fetter the AGNI’s discretion and noted that there were various factors of importance for him to consider, such as: the ongoing civil proceedings, what a fresh inquest might achieve and whether an inquest could now satisfy the requirements of Article 2 given the passage of time and lost documentation.
Impact of the decision
Dalton has had the effect of broadening the scope of the State’s procedural obligations under Article 2 to cover circumstances not only where an investigation would lead to the identification of the perpetrators of an unlawful killing, but where the State’s duty to safeguard lives is more broadly involved.
However, both in Dalton and the recent Supreme Court case of Finucane’s Application for Judicial Review  UKSC 7 the courts have declined to order that a fresh investigation must take place to satisfy Article 2, showing a reluctance to fetter the discretion of the relevant decision-making authorities.
Article 2 – again
R (Maguire) v Senior Coroner for Blackpool  EWCA Civ 738
The Court of Appeal provided some much-needed guidance to the thorny issue of Article 2 in coronial proceedings. As it makes clear, the focus of analysis should not simply be on whether a duty arises under Article 2, but the scope of that duty.
The case concerned Jackie, a 52-year-old resident living in a care home under a Deprivation of Liberty Safeguards authorisation. She suffered from Down’s syndrome, learning disabilities and behavioural difficulties and, consequently, lacked capacity to make decisions about her living arrangements or welfare.
Jackie fell ill some days before her death. On 21 February 2013 her condition worsened and an ambulance was called. The paramedics wanted to take her to hospital but she refused. On the advice of a GP she was allowed to stay in the home overnight. However, by the next day her condition had worsened and she was rushed to hospital where she sadly died. The Appellant criticised the conduct of the care home staff, the GP and the paramedics, asserting in particular that a protocol should have been in place to admit her to hospital despite her refusal.
The coroner initially conducted the inquest on the basis that Article 2 was engaged. However, in the light of R. (on the application of Parkinson) v HM Senior Coroner for Kent  EWHC 1501 (Admin), he changed his position. The Divisional Court endorsed his decision and the Appellant took the case to the Court of Appeal.
The Appellant’s underlying argument was that Jackie’s undeniable vulnerability, coupled with the fact of a DoLS authorisation, meant the operational duty under Article 2 applied. As a result, the jury should have been able to comment on the quality of medical care provided to Jackie and the absence of any plan for emergency admission. However, this approach was overly simplistic. As the court noted,
“It is important, however, to focus on the scope of any such duty and why it might be owed…
Both the prison cases and those concerning conditions within an institution where vulnerable people are cared for demonstrate that the article 2 substantive obligation is tailored to harms from which the authorities have a responsibility to protect those under its care. It cannot be supposed that if a child in a care home… suffered an isolated medical emergency that the substantive obligation would have applied to the manner in which that was dealt with.
The fact that an operational duty to protect life exists does not lead to the conclusion that for all purposes the death of a person owed that duty is to be judged by article 2 standards.” (emphasis added)
Consequently, whether an operational duty was owed to Jackie was not simply an abstract question which required a “yes” or “no” answer in all circumstances. The operational duty under Article 2 was owed to vulnerable people under the care of the state “for some purposes” only. It would apply, for example, if vulnerable residents were exposed to life threatening conditions or neglect within a home. Equally, it would also be engaged if the state was aware of such shortcomings through its regulatory inspections and did not act on them. Neither position applied here.
The Appellant attempted to argue that Jackie’s position as similar to that of R (Rabone) v Pennine Care  UKSC 2 – where the deceased was admitted to a psychiatric facility due to a risk of suicide and nonetheless managed to commit suicide. In that case the State’s duty to protect him from this known risk – which was the reason for his admission in the first place – engaged Article 2. Whilst Jackie was also acutely vulnerable, there was no parallel between the two cases:
“Jackie’s circumstances were not analogous with a psychiatric patient who is in hospital to guard against the risk of suicide. She was accommodated by United Response to provide a home in which she could be looked after by carers, because she was unable to look after herself and it was not possible for her to live with her family. She was not there for medical treatment. If she needed medical treatment it was sought, in the usual way, from the NHS. Her position would not have been different had she been able to continue to live with her family with social services input”.
The scope of the operational duty under Article 2 did not extend to the circumstances of her death.
In the alternative, applying Parkinson, the Appellant attempted to argue that the systemic dysfunction in the provision of medical services nonetheless should have engaged Article 2. It will be remembered that Parkinson had distinguished between “ordinary” negligence cases by medical practitioners, and these wider systemic issues.
The court rejected this argument in short order. It quoted the Grand Chamber ‘s observation in Lopes de Sousa Fernandez:
“…the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the state authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly…The dysfunction at issue must have resulted from the failure of the state to meet its obligations to provide a regulatory framework in the broader sense indicated above.”
There was nothing in the papers to suggest there was a widespread difficulty in taking individuals with learning disabilities (or elderly dementia patients) to hospital when it is in their interests to do so.
Whilst this ground of appeal was secondary, its brusque treatment is refreshing. Inquests frequently see lengthy submissions from families, arguing that particular failings by medical practitioners constitute evidence of systemic failings. It is hoped that the Court of Appeal’s reiteration of the high threshold needed for such medical failings to engage Article 2 will dampen this enthusiasm.
Is denial at the hearing a separate aggravating feature?
GMC v Awan  EWHC 1553 (Admin)
The High Court has said that professionals who deny charges which are then proved should not be subject to enhanced sanctions because of the denial.
Mostyn J set out this principle last week in his judgment on the case of Dr Awan, a GP who had faced a Tribunal over a conversation he had online with a person purporting to be a 13-year-old girl. The person was in fact an undercover police officer. Dr Awan mounted a vigorous denial of the allegations, which included an allegation that the two conversations he had with the officer were sexually motivated. Contrary to his denials, the Tribunal found that Dr Awan believed she was 13 years old, and that he intended some sort of (sexual) relationship with her, although possibly not until she was 16. It imposed a 9-month suspension. The GMC thought that was insufficient to protect the public and mounted an appeal under Section 40A of the Medical Act 1983.
One of the grounds of appeal was that the Tribunal, which had not just disbelieved Dr Awan but had described nine separate explanations he gave as “implausible”, “not credible” or “inconsistent”, had not considered this feature of the case in its decision at sanction. It had not even mentioned it at that stage. It was argued on behalf of Dr Awan that the Tribunal plainly had this in mind in their finding that he had only limited insight, which was the right place for it to be considered. It was also pointed out that the only mention in the Sanctions Guidance of not telling the truth in the hearing comes as the fourth and final factor in the section on insight [GMC Sanctions Guidance Para 52(d)].
Mostyn J described Dr Awan’s defence as “ridiculous’ and “ludicrous” but stated in robust terms the attitude that a Tribunal should take to that [at para 38]:
“It seems to me that an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of … enhanced sanctions.”
He went on to consider what implications this had for the impairment and sanction stages. It explained, he stated, why explicit admissions to previously denied facts are uncommon at the later stages. Submissions at impairment or sanction on behalf of the registrant rarely go further than acknowledgement that “what has been found proved” is serious or deplorable. Discussing the case of GMC v X  EWHC 493, on which both counsel in Awan had made submissions, he noted that a formula of that kind had been used in X, and that while it was “…some distance away from admitting explicitly the truth of what the Tribunal had found proved” it was “…as much as can reasonably be expected of an accused professional who has defended the case on the ground that he did not do what was alleged” [paras 39-40].
To expect some sort of “Damascene conversion” would, Mostyn J said, compromise the registrant’s right to appeal against the factual findings [Para 37].
This brings the professional discipline jurisdiction closer to the principle in criminal cases, where denial deprives the defendant of the mitigating effect of a guilty plea, but is not an aggravating factor in sentencing.
There might appear to be some tension between Mostyn J’s approach and the cases of Misra v GMC  UKPC 7 and Nicholas-Pillai v GMC  EWHC 1048. In Misra the court was critical of a decision to add dishonesty charges to the allegations essentially on the ground that the doctor had pursued, in his statements prior to the hearing, the denials he made also at the hearing. He even faced an allegation of dishonesty relating to informing the GMC of his case during the pre-hearing process. In the key passage, the court said that the additional charges were unnecessary as, were Dr Misra to be disbelieved, the Tribunal would have to consider his conduct “on the footing also that he had lied on oath …” [at 17].
This part of Misra was cited in Nicholas-Pillai where the court held that the doctor’s denials were “a fact which the panel was entitled to take into account [re impairment and sanction] even though it did not form a separate allegation against him” [at 18]. Neither case subsumes this consideration under the wider consideration of insight.
The GMC relied on both these cases in Awan, but so did Dr Awan. In the first place, Nicholas-Pillai only says that denials at the hearing are “in principle” something which can be taken into account. The GMC was suggesting that a failure explicitly to deal with the denials as a separate factor was a material irregularity sufficient in itself to undermine the Tribunal’s findings. Also Misra does helpfully (albeit in relation to denials prior to the hearing) criticise the idea that a doctor should face extra charges for having had “the temerity to deny any of the factual allegations”.
In the author’s view, the decision in Awan is consistent with Misra and Nicholas-Pillai although it is expressed in a way that is perhaps more helpful to defence practitioners. It helps put denials back in the place they belong – as part of the assessment of the professional’s insight into the misconduct, and not as a separate character flaw. Denials are only one factor relevant to insight and Mostyn J’s view on the “what was found proved” formula reminds us that insight is not synonymous with confession. The approach in Awan avoids the danger that almost every case where the Tribunal finds facts proved in the face of a denial turns into a dishonesty case, and it allows Tribunal’s to take a common sense and realistic view of the human psychology at play in the hearing.
Vexatious litigants: NMC v Harold
In circumstances where a vexatious litigant restrained by the court then directs their focus onto making complaints against the legal representatives of the other parties, does the court have the power to broaden the scope of the restraining order to prevent them from making such complaints? The issue was recently addressed in NMC v Harold  EWHC 1108 (QB).
Mrs Harold had been employed by North Bristol NHS Trust until her dismissal in December 2005. Sometime after her dismissal, the Trust referred Mrs Harold to the NMC, which in 2009 struck her off its register. She had been litigating or attempting to litigate about these matters ever since. Her actions included bringing a series of claims against the Trust and the NMC.
In 2016, on the grounds that most of Mrs Harold’s claims were totally without merit, the Trust and the NMC (the “applicants”) successfully applied to the High Court for a general civil restraint order (“GCRO”) restraining her from making any further claims against them in the Employment Tribunal, the County Court or the High Court. The order was subsequently extended, initially by Foskett J for six months and then by Warby J on 6 November 2018 for a further 18 months. It was to remain in place until 6 May 2020.
The further application
In the period since the making of the extension order Mrs Harold had made further concerted attempts to litigate. As well as litigation, however, Mrs Harold had made multiple complaints, both to courts and tribunals and to the Bar Standards Board and Solicitors Regulatory Authority, about the legal representatives of the NMC and the Trust. The complaints have included allegations of dishonesty.
At the hearing held on 30 April 2020 Chamberlain J was required to consider a joint application by the applicants to not only extend the GCRO for a further two years but also to broaden its scope to prevent Mrs Harold from making complaints to legal regulators against their legal teams. Mrs Harold represented herself at the hearing.
In the light of the extent of evidence of Mrs Harold’s continuing litigiousness, including admissions she made during the course of her own submissions, the obtaining of the further extension proved a relatively straightforward affair. However the application to broaden the scope of the order that was the much more challenging and interesting matter.
The legal basis of the application to broaden the scope of the Order
The applicants argued that the persistent making of meritless complaints against legal professionals imposed a substantial burden on those professionals, particularly where the complaints alleged dishonesty. They submitted that Mrs Harold was using the complaints as an alternative means of relitigating the matters which the GCPO prevented her from litigating in court. They argued that her complaints to the legal regulators constituted an abuse of process which the Court had the power to prevent either through its inherent jurisdiction or under s.37 Senior Courts Act 1981 to grant an injunction “in all cases in which it appears to the court to be just and convenient to do so.” In support of its argument they sought to draw analogies with the court’s inherent jurisdiction over solicitors as officers of the court, and with the inherent jurisdiction to grant anti-suit injunctions, to restrain an individual over whom the court has jurisdiction from bringing proceedings in another forum over which it lacks jurisdiction.
The application was a second attempt by the applicants to persuade the Court. At the first extension application hearing an application to the same effect had been refused by Foskett J who stated that “… whilst I cannot say that the inherent jurisdiction might not be extended to embrace the kind of order he suggests should be made, I would want to hear full argument on it …The difficulty I see is that what is really being sought is some kind of court-imposed filter on the access that someone has to the complaints system for the relevant professionals. I do not consider that the inherent jurisdiction goes as far as to permit that. It is essentially there to protect the court’s processes from being abused. I would add that most professional disciplinary systems have a sifting arrangement which ought to be capable of weeding out obviously unsustainable allegations.”
Also unhelpfully, the fresh application was made in circumstances in which the BSB had indicated that it did not support the application as considered it would be inconsistent with its duty and contrary to its regulatory objectives to “outsource or delegate our initial assessment function to the courts” and that it considered the receipt of “hopeless complaints” was an inevitable aspect of any regulatory disciplinary process.
The decision of the Court
Although Chamberlain J recognised that dealing with enquiries from a legal regulator represents a significant burden on legal professionals, and accepted that Mrs Harold was using complaints to the legal regulators to do what the GCRO prevented her from doing in legal proceedings, he refused the application to broaden the terms of the order. He did not consider that the court was empowered to make the order either in the exercise of its inherent jurisdiction or under s.37 Senior Courts Act 1981. His reasons can be summarised as follows:
- It was necessary for an applicant to show that the order sought under the Court’s powers falls within an established head of jurisdiction or the compellingly established development of one.
- There was an absence of any caselaw in which the inherent jurisdiction or s.37 of the 1981 Act was held to empower the making of such an order.
- The order sought was not directly concerned with preventing an abuse of the process of the High Court or any inferior court.
- The analogy with anti-suit injunctions was not an exact one as proceedings before professional regulators are not capable of binding courts and therefore do not involve an interference with the due course of justice within a jurisdiction.
- There was no evidence that in practice the processes of the relevant legal regulators are unable to deal with vexatious complaints.
- A remedy exists for a legal professional who is the subject of repeated, meritless complaints of a potential action under the Protection from Harassment Act 1997.
This was an interesting point but an entirely unsurprising decision given the legal hurdles to be cleared and the history of the case. However many practitioners will no doubt have great sympathy with the ongoing burden, in terms of time and psychologically, faced by legal practitioners who are the target of false and repetitive professional complaints.
Categories: News | Newsletters