EL KAROUT and NMC, [2019] EWHC 28 (Admin)
The Critical Distinction Between Weight and Admissibility of Hearsay Evidence
In a recent judgment, the High Court firmly denounced the practice of ushering through hearsay evidence in regulatory proceedings under the premise of scrutinising it later by reference to weight.
The Background
The Nursing and Midwifery Council (‘the NMC’) had brought a number of charges against the registrant, Ms. El Karout, alleging that she had stolen controlled drugs on multiple occasions and falsified records. Having found the majority of charges proved, the Panel found her impaired and struck off her off. She appealed against these decisions.
The appeal was upheld on the basis that the proceedings were rendered unfair through a “serious procedural irregularity”.
The focus of the judgment and the basis for allowing the appeal was the admissibility and treatment of hearsay evidence. Out of seven allegations of stealing dihydrocodeine, four had depended entirely on hearsay.
The Critical Distinction Between Weight and Admissibility
In a carefully reasoned judgment, Mr Justice Spencer reiterated there are two distinct stages to assessing fairness when considering hearsay in regulatory proceedings:
Stage 1: Admissibility
Stage 2: Weight
Mr Justice Spencer deemed it “extremely regrettable” that “no consideration” had been given to admissibility at the original hearing by the NMC, the Legal Assessor or counsel. Submissions and advice had focussed entirely on weight.
Citing the leading case of NMC v Ogbonna [2010] EWCA Civ 1216, Mr Justice Spencer emphasised the “critical distinction” between the two concepts and upheld the appeal.
The decision may bring a welcome end to what many will have observed as a growing tendency in regulatory proceedings to ignore the question of admissibility altogether, treating hearsay as admissible per se tempered only by considerations of weight.
The High Court declined to set out a prescriptive approach to assessing hearsay evidence, noting it will always be a context specific exercise. In this case, Mr Justice Spencer found the Panel would have “obliged” to find the hearsay was inadmissible. In support of this finding he referred to the poor quality of the hearsay records, the circumstances in which the accounts had been gathered, the sole and decisive nature of the hearsay evidence and the knock-on effect on other charges.
Other Key Takeaways: Criminal Proceedings and the Enhanced Burden of Proof
While the focus was squarely hearsay, the judgment also provides useful guidance for regulatory practitioners in a number of other respects.
Firstly, the Court ruled that all charges should fall, even those not founded on hearsay. Reasoning that the cumulative effect of numerous examples of the same allegation may have unfairly influenced the Panel’s determination on each charge, Mr Justice Spencer ruled:
“… I am also satisfied that the findings as a whole cannot stand, because it cannot safely be assumed that the Panel would necessarily have found the other allegations of misconduct proved…”.
Secondly, Ms. El Karout had been acquitted of the same allegations in criminal proceedings. Whilst accepting that the different standard of proof allowed the Panel to reach a different conclusion, Mr Justice Spencer described the jury’s verdict as “not altogether irrelevant” to the regulatory proceedings. He found that the Panel were “obliged to proceed with greater caution in differing from the jury’s conclusion…particularly in view of the serious consequences…for the appellant’s career”.
Thirdly, the decision emphasised the need for Panels to apply what is often referred to as an “enhanced standard of proof” to such allegations. Whilst the standard of proof remains the balance of probabilities, Mr Justice Spencer noted that it is “well established that the more serious the charge alleged, the more cogent is the evidence needed to prove it”, expressing surprise that the Panel here had not expressly referred to that in their reasoning.
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