Challenging a factual finding: Higgins v GMC [2024] EWHC 1906 (Admin)
Dr Higgins faced allegations of sexual misconduct in the workplace from four employees. Whilst numerous, these allegations were relatively low level. The most serious was Dr Higgins grabbing Ms A, the main complainant, and trying to kiss her against her will. After a lengthy trial, the charges were largely found proved and he was erased.
On appeal the principle challenge was to the Tribunal’s assessment of Ms A’s credibility. The Appellant alleged that the Tribunal had failed to have regard to relevant evidence, including messages Ms A sent the Appellant. Alternatively, it was said the Tribunal did not provide adequate reasons for its decision to believe her, not least in light of these messages.
None of these messages directly concerned the allegations. However, they spanned the time period of the harassment, leading up to Dr Higgins kissing her against her will on 9 October 2020. They were summarised in the judgment in this way:
“i) On 11 July 2020 a photograph of her face with love hearts added;
ii) On 19 July 2020 a photograph of her face blowing a kiss or pouting with love hearts on her face and an annotation “U cute”;
iii) On 29 July 2020 a photograph of part of her face, taken at her home and asking “You coming here tonight? Xxx”;
iv) On 6 September 2020 a photograph of her face blowing a kiss or pouting;
v) On 18 September 2020 a message containing a photograph of a bar at a party and the message “think you should come”;
vi) On 3 / 4 October 2020 images at home, one saying “Yeah, ok when you coming?? Xx”.”
In addition, the Appellant relied on messages and actions after the October 2020 incident:
“i) In around March and June 2021 Ms A approached the Appellant seeking medical advice / treatment for gynaecology related conditions when he was not her doctor;
ii) On an occasion in May 2021 Ms A telephoned the Appellant shortly after midnight;
iii) On 11 June 2021 Ms A sent a message to the Appellant, “Thanks for the crisps, have i done something to annoy you? As I feel as if you’ve been really off with me recently”;
iv) On 23 July 2021 Ms A sent a message to the Appellant whilst they were both in the Practice saying “I’m bored up here on my own:(“.”
The Appellant highlighted the unlikelihood that Ms A would have sent such messages and acted in such a manner had she genuinely been harassed or assaulted by Dr Higgins. Moreover, it was of note she had failed to disclose any of these messages to the GMC herself.
On appeal the Appellant maintained the Tribunal had failed to consider these points sufficiently when it determined Ms A was credible. The High Court rejected that argument. In doing so it dwelt on the extent of the advantage enjoyed by the Tribunal over the appellate court:
“… the Tribunal heard evidence from Ms A over a day and from Dr Higgins over three days (para 15 above). It also heard from the other complainants (para 4 above). The Tribunal had the opportunity to evaluate these witnesses. The points that Mr Williamson seeks to raise… were made by him in cross-examination and/or in his closing submissions and the Tribunal had the opportunity to consider them during their seven days of deliberations. There is no reason to believe that they did not do so conscientiously.
It follows that the Tribunal had the significant advantage over this Court of seeing and hearing the witnesses give their evidence. In these circumstances, the appeal Court should be very slow to interfere with its findings of primary fact”
The court observed that the Tribunal had not failed to consider these messages:
“The Tribunal referred to these messages at paras 25, 53 and 207 of its determination (paras 18, 23 and 42 above)… Furthermore, in so far as Ground 1 also asserts that Ms A failed to explain why she sent these messages to the Appellant, this is also inaccurate. The explanation that she gave is set out in the Tribunal’s para 25. It was open to the Tribunal to accept this explanation.
…
[The Appellant] said that [the Tribunal] had failed to analyse Ms A’s evidence with the necessary rigour, uncritically accepting it, including her explanation for sending these messages. I also reject this version of the submission. It is not borne out by the Tribunal’s determination. As I have set out at some length between paras 22 – 30 above, the Tribunal examined each of the allegations made by Ms A with care and in considerable detail. Prior to this, the Tribunal began its evaluation of her allegations by reminding itself at its paras 22 – 29 of some overarching points that had been made on Dr Higgins’ behalf (paras 18 – 19 above).”
It is worth considering the extent of the analysis in the Tribunal’s reasons. In its factual determination, this essentially comes down to these paragraphs:
“Overall, Ms A confirmed that she did send messages and photos on Snapchat and EMIS to Dr Higgins, ‘ nothing was inappropriate or in a sexual manner’ . Her position on his contact that the ‘ majority of it was unwanted. I shouldn’t have messaged him back…I was young and like I say, it shouldn’t have gone further but I shouldn’t have been put in that position ‘. Ms A accepted that she had sent photos of her ‘ face ‘ but not of anything inappropriate. She stated that ‘ there was nothing inappropriate from Dr Higgins for a year after I first started’ she said that they ‘ got on well before all of this started and I knew that in his position what he was doing was wrong. I didn’t take it seriously at the time and I played it as a joke, as my way of coping with it, and I didn’t want to offend or upset him as he was my boss ‘.
After having blocked him in October 2020, the Tribunal further noted Ms A’s position that from early 2021, she was once again communicating with Dr Higgins on Snapchat and EMIS. In this respect Ms A stated that ‘ I didn’t want anything completely inappropriate, I just wanted to get on with everyone at normal level as I had done when I first started…just wanted things to be normal again ‘. In respect of whether at this time, subsequent to the 9 October 2020 allegation, Ms A was comfortable seeing Dr Higgins, speaking to him and being around him, Ms A clarified her position, ‘ I used to see him every day and I got over it and didn’t think he would do anything more’ .”
The Tribunal later referred to Ms A’s acceptance that she had sent messages and pictures of her face to Dr Higgins and her explanation that “nothing was inappropriate or in a sexual manner like he would send to me, and I didn’t remember a lot of them as I used to go out a lot“.
The court considered there was no requirement that the Tribunal address each defence argument. This was all the more so when these messages did not directly relate to any of the allegations, and were therefore not central to the Tribunal’s focus. The decision had to be considered as a whole. The Tribunnal relied on considerable further evidence to find these allegations proved – not least the inconsistencies in the doctor’s account. Consequently, there was no basis for finding the decision was wrong, or inadequately reasoned. On that basis the appeal was dismissed.
Whilst there is force in the observation that a Tribunal must consider the evidence as a whole, it is nonetheless striking that the Tribunal’s reasons did not contain any meaningful analysis of these messages. The Tribunal summarised the evidence, and summarised the defence criticism of that evidence. It did not analyse to what extent such messages were consistent with Ms A’s account, or the extent to which any apparent inconsistency was significant or undermined her wider credibility. Whilst of course not every defence argument needs to be addressed, this was not a peripheral point. It was the key plank of the defence. It is frustrating that on such an important issue, the reasons should be silent.
This case illustrates the limited nature of the duty to give reasons, particularly where factual conflicts are concerned. This limitation is a frequent source of frustration. It does not serve justice. If a Tribunal dealing with a factually straightforward case needs to provide no real analysis for finding facts proved (as per Gupta), how is an appellate body to know that it has approached its task properly? What is to prevent the panel placing undue reliance on demeanour, for example, if its reasons need only indicate the Tribunal preferred one witness over another and are silent as to the why they formed this view?
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