Newsletters Professional Discipline 28th Oct 2021

Complainant Bad Character in Disciplinary Proceedings

Arowojolu v General Medical Council [2021] WL 04751428

It is commonplace, especially in cases involving sexual misconduct, for the accused registrant to assert that the complainant made the whole thing up – either for specific reasons, or because that is the sort of thing they do.

In that context evidence that the complainant has previously made a similar false accusation would clearly be of the utmost importance to the defence. The difficulty is, absent the complainant having a conviction for perverting the course of justice or similar, how is a tribunal to deal with such evidence, without in effect trying the previous allegation?

In Arowojolu v General Medical Council [2021] WL 04751428, the High Court has provided guidance as to the correct approach. The court held that it is necessary firstly for the Tribunal to decide whether it is satisfied (on the balance of probabilities) that the previous complaint was false, before then deciding how this impacts on the credibility or character of the witness. If the tribunal is simply unable to decide whether the previous allegations were true or fabricated, the evidence is disregarded and plays no further part in the proceedings.

This case concerned an appeal by Dr Arowojolu (“The Appellant”) under section 40 of the Medical Act 1983. Both the Appellant and the complainant, Ms A, worked at a health centre in Essex. Both were working during the night on the evening of 21-22 July 2013. Ms A was concerned about the weight she had gained around her stomach after having her two children. Ms A and the Appellant discussed this. The Appellant offered to examine Ms A’s and Ms A alleged that during this examination the Appellant sexually assaulted her by touching her genitals. The Appellant flatly denied anything improper had taken place.

During protracted Crown Court proceedings, in which the Appellant was finally acquitted, the prosecution disclosed evidence relating to Ms A’s claim that when she was younger her grandfather had, over a two-year period, sexually assaulted her and attempted to rape her (“the historical allegation”). The grandfather denied the allegations and was not charged.

Fitness to practise proceedings followed. The key allegations were found proved at a hearing, but the determination was quashed on appeal, on the grounds that the Tribunal had failed to properly consider or address the evidence of the historic allegation, which was central to the Appellant’s case. The chair during this first hearing directed the panel that there was no need for them to determine the truth or otherwise of the historic allegations. Mr Justice Knowles held that to be a misdirection and quashed the Tribunal’s factual determination and the sanction of erasure. He held that the direction did not assist the Tribunal on the issue to which the evidence was relevant, namely Ms A’s credibility, and the tribunal of fact should first have tried to determine the truth or otherwise of the historical allegations.

A rehearing was ordered which took place in 2020. The Tribunal were unable to reach a conclusion as to the truth of the historic allegation. The Tribunal found Ms A’s evidence to be both credible and reliable. Furthermore, the Tribunal did not consider that evidence of the historical allegation helped on the issue of Ms A’s credibility with regards to the current allegation against the Appellant as the two cases were insufficiently similar. The Tribunal found the facts proved and directed erasure.

The Appellant mounted a second appeal in the High Court. The main ground advanced was, in effect, the tribunal should have been directed that they had to decide whether the historic allegations were true or false. It was also contended that they should have been directed that the GMC had to prove on the balance of probabilities that the historical allegations were true, if the complainant was not to be treated as having lied about them.

The court rejected both those submissions. It was open to the tribunal to say they simply could not decide if the historical allegations were true or false. Further the GMC had no burden on it to prove the historical allegations were true, as they formed no part of its case. It was open to the Tribunal to find that the allegations did not impact upon its assessment of Ms A’s credibility, even where they could not determine the truth or otherwise of the historic allegation.


Ben Rich and Kenniesha Stephens


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