Newsletters Professional Discipline 5th Dec 2023

Are the medical regulators waking up to the nightmare of taking oral evidence from witnesses abroad?

  1. As a witness faced with giving oral evidence to a court or tribunal you will be told how long you may have to make yourself available for, and the unpredictability of the time, sometimes even the day, on which you will be called. What could be better then, than to carry on your normal activities and wait to be summoned to your laptop to join the hearing remotely? Some will go further and seek to join from abroad, either because they are on holiday or perhaps have family or other connections outside the UK.
  2. Remote and hybrid hearings have become commonplace since Covid, accelerating a trend for taking evidence by video-link or phone that was well established even before the virus struck. As the quality of internet connections improves around the world, the physical location of the witness matters less and less. Now, it seems, the medical regulators are waking up to a significant problem which arises when witnesses want to give oral evidence from abroad – is it lawful?
  3. This is something of a late awakening, as the first decision on this issue was as long ago as 2011 [Nare (evidence by electronic means) Zimbabwe][1] and was reaffirmed in 2021 [SS for the Home Department v Agbabiaka][2]. However, the restrictions these cases appear to impose are not widely appreciated. Between them, over the last few months, the authors of this article have three times been before tribunals where a regulator has wanted to call a witness who is abroad, but has not jumped through the required hoops.
  4. Case One: Vivienne faced this issue at a fitness to practice hearing before the MPTS in July of this year. It was not until shortly before the hearing that the GMC disclosed that one of their witnesses was intending to give evidence from Jordan. The matter came to light as part of an application for the witness to give evidence via a video link. It was apparent that the GMC had not even turned its mind to the issue of location.
  5. Vivienne opposed the application for the remote link on the basis that the witness could not give evidence from Jordan unless permission had been sought and obtained from the Jordanian authorities. The arguments advanced were predicated on the fact that the rules applied to MPTS hearings notwithstanding that they were not part of the UK Courts and Tribunal Service because MPTS hearings involved giving evidence on oath and those who perjured themselves could be prosecuted for the same. Furthermore, the Fitness to Practice Rules allowed for witness summonses to be issued in respect of MPTS hearings, as such there was no substantive difference between a court/tribunal and the MPTS. The Tribunal agreed and the GMC abandoned the witness.
  6. Case Two: Shortly thereafter, Vivienne was in a fitness to practice hearing at the GDC. The same issue arose, and similar submissions were advanced. The GDC relied on the case of R (Bailey and Another) v Secretary of State for Justice[3] in support of a proposition that the Committee of the GDC was not a “court” and therefore evidence heard by a Committee was not subject to the rules relating to evidence from abroad. In answering this the Committee’s attention was drawn to the reason why the rules existed and the risk to the UK’s diplomatic relations. The Committee however decided that as it was not a “court” the rules did not apply and the evidence could be heard.
  7. Case three: Ben faced this at a GDC substantive hearing which concluded in November. One key GDC witness turned out, much to everyone’s surprise, to be in Turkey. It came equally as a surprise to the GDC that this might be a problem. It was raised by the Chair of the Committee as, by sheer coincidence, she had been on a training day the previous week where the topic had been covered. It turned out the GDC were about to publish guidance on the topic (although at the time of writing that has not happened) and in the meantime had issued its Chairs with some MPTS Guidance dated 18th October 2023.
  8. To put it briefly, the GDC argued that (i) the restrictions do not cover the GDC at all as the Professional Conduct Committee is not part of the judicial system of the state; (ii) alternatively, if it was, it could be inferred that Turkey (which does not allow Turkish nationals or residents to give oral evidence to a foreign court from its soil) would not object because the witness was a British tourist.
  9. It was argued on behalf of the Registrant that the witness could not lawfully be called because (i) it was not for a GDC Committee to decide if the GDC was covered as Agbabiaka says that is a matter for the foreign state and (ii) Turkey’s approval could not be inferred from its silence on tourists. The Committee ruled in favour of the GDC and the witness was called.

Secretary of State for the Home Department v Mudsurudeen Agbabiaka [2021] UKUT 00286 (IAC)

  1. Mr Agbabiaka was a Nigerian who applied for entry clearance to the UK. He gave his oral evidence at first instance from Nigeria, against the objections of the Home Office’s advocate. The court distilled the following principles governing the issue:
    1. There is an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other state.
    2. The government position is that this applies only to oral evidence, not written evidence or oral submissions.
    3. Whether the taking of evidence from abroad is lawful “is a question of law for that country” [at para 19].
    4. In future, parties in the First-Tier Tribunal will have to consult the Taking of Evidence Unit [“ToE”] in the Foreign Commonwealth and Development Office to see if the foreign state might object.
    5. “It is not for an immigration judge to interfere with [diplomatic] relations by not ensuring that enquiries … have been made” [para 3d citing Nare].
    6. The Tribunal may have to consider alternatives to oral evidence in order to fulfil the requirements of the overriding objective.
  2. One of the problems is said to be that getting an answer out of the ToE can take weeks or even months, although in recent experience, Vivienne received very prompt replies from ToE, who made all efforts to assist expeditiously. Nevertheless if agreement is needed from a foreign state, it would be wise to start the process a long time in advance of any court hearing.
  3. It was envisaged in Agbabiaka that there could be a form of pre-approval, where ToE has asked the country recently, and has no reason to think it has changed its mind. That concept appears to have evolved into a list kept by ToE recording the views of some countries. The idea is that where the country has a known stance it is on the list. If a country is not on the list, or its entry suggests cases will be considered as they arise, the full ToE process would still have to be gone through.

Are the Committees and Tribunals of statutory regulators bound to follow this process?

  1. In the authors’ GDC cases, the GDC position was that its Professional Conduct Committee is not bound. Ben’s opponent relied on General Medical Council v BBC [1998][4] where it was held that despite the PCC being a creature of statute exercising a recognisable judicial function “it is not part of the judicial system of the state” [at 1580]. This was relied on as a general proposition as it was not decided in the context of evidence from abroad.
  2. The GDC’s position appeared to be contradictory. It argued that the process simply did not apply to the GDC, while issuing to its Chairs the recent MPTS Guidance (which explains how tribunals can meet the issue) and planning to issue similar guidance itself.

The MPTS Guidance

  1. On 18th October 2023 the MPTS issued a Tribunal Circular[5] which appears to concede that whether permission is needed or not is a matter for the foreign country to decide. It refers tribunals to updated guidance on taking evidence generally which contains more detail advice about oral evidence from abroad.[6]
  2. It explains the ToE process, cautions tribunals that it is not for them to decide if taking the evidence will damage diplomatic relations and asserts that the ToE will not help with questions relating to tourists [Paras 44-48]. At para 61 it suggests that where tourists are concerned the tribunal will have to decide if diplomatic relations might be damaged, and sets out factors to be considered including the country’s stance on oral evidence from its own citizens or residents. There is no authority provided for saying that with tourists it is up to the tribunal, but it is correct that the ToE country list set appears to deal only with citizens and residents.[7] Further only 36 countries appear on the ToE list (not including France, Germany, Italy and another 17 of the 27 EU states) so frequent recourse to the ToE process is likely to be required.

Conclusions

  1. This issue is not going away. Whether defending or prosecuting, whether it is the Registrant who wants to give evidence from abroad or just a witness, the issue has to be thought about well in advance, and the proper enquiries made. Nor is it just a rubber-stamp exercise: there are nearly 200 countries in the world, of which 36 are on the ToE list and only 30 of them allow citizens/residents to give evidence from their soil. Seven of the top ten countries by population are not on the ToE list at all, including India, China, Pakistan, and Bangladesh. Time, perhaps, to return to the simpler days of in-person hearings?

 

Vivienne Tanchel & Ben Rich

[1] Nare (evidence by electronic means) Zimbabwe [2011]UKUT 00443 (IAC)

[2] Secretary of State for the Home Department v Agbabiaka [2021] UKUT 00286 (IAC)

[3] R (Bailey and Another) v Secretary of State for Justice [2023] EWHC (Admin)

[4] General Medical Council v BBC [1998] 1 W.L.R. 1573

[5] https://www.mpts-uk.org/-/media/mpts-documents/tribunal-circular—witness-evidence-from-abroad_pdf-103634779.pdf

[6] https://www.mpts-uk.org/-/media/mpts-documents/dc4252—receiving-witness-evidence-at-mpt-hearings_pdf-64084732.pdf

[7] https://www.gov.uk/guidance/taking-and-giving-evidence-by-video-link-from-abroad#a

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