Freeman v General Medical Council  EWHC 45 (Admin) 16th January 2023
Absent witnesses: how the former British Cycling and Team Sky Doctor lost the appeal against his doping erasure:
Cycling has for many years been a sport marred by doping accusations, many of which have subsequently been proved or admitted. The latest chapter in this story concerns Dr Richard Freeman, formerly Team Doctor for both British Cycling and Team Sky. Dr Freeman was struck off in 2021 after an MPTS tribunal lasting 72 days. Now his appeal against that decision has been rejected by the High Court.
The UK Anti-Doping Agency referred Dr Freeman to the GMC in 2017, following an investigation into allegations that, in 2011, he had ordered a banned testosterone supplement – Testogel – with the intention that it should be used by some of his athletes as a performance enhancing drug. Dr Freeman claimed he had ordered the Testogel for Shane Sutton, the British Cycling and Team Sky Head Coach, to help him with erectile dysfunction
The appeal revolved around how the Tribunal should have dealt with the fact that, in the middle of his evidence, Mr Sutton stormed out of the hearing and refused to attend for the remainder of his cross-examination. Mary O’Rourke KC, for the doctor, contended that his evidence should have been excluded, but that application was rejected by the Tribunal. It was also argued on his behalf that the Tribunal erred in treating his evidence as “credible and consistent”.
The walk out followed just over an hour of a rather bad-tempered cross-examination during which Mr Sutton complained about having been kept waiting two days to give his evidence, objected to comments made in his absence by Ms O’Rourke KC referring to him as a liar and a doper (which he had read about on a Twitter live feed of the hearing), denied he suffered from erectile dysfunction and suggested that some of the questions asked by Ms O’Rourke KC were irrelevant and defamatory. It should be said Fordham J who sat on the appeal had no complaints about the conduct of the questioning.
The most controversial finding by the Tribunal on the application to exclude was that there was an objective basis to a perception held by Mr Sutton that he was being bullied and treated unfairly. This finding was made as part of the analysis of whether he had a “good reason” for not attending the hearing further, or whether he was displaying a “predisposition not to cooperate”. On appeal the Learned Judge rejected the suggestion that “good reason” could be found only if he was in fact being bullied etc, and not if he had a perception of it, which was grounded in the objective facts of his experience of the Tribunal (even if those facts did not actually amount to bullying etc).
A further point of importance arose from Mr Sutton’s objection that during cross-examination propositions were put to him about evidence that might exist to undermine his account, without the actual evidence being revealed. For example, Ms O’Rourke KC cross-examined Mr Sutton to the effect that someone had told the defence that they had seen testosterone phials in the fridge at Mr Sutton’s home, but she declined to name the person. At one point the GMC complained that the material behind some of these questions had not been disclosed.
Fordham J accepted [at para 59] that this was a legitimate strategy by defending counsel. This is a point not always accepted by GMC prosecutors. Defending counsel can put questions on instruction and say to the witness that they have evidence (apart from the instruction) to back the question up without being obliged to disclose the material in advance of the hearing, or to the witness (or anyone else) even at the point the questions are being asked. It is then a matter for counsel whether that material is ever produced during the defence case. If they cannot or do not adduce the evidence (in this case it would have meant persuading the person to reveal their identity by attending) they are bound by the answers the witness gave, but should not be criticised.
The Court also rejected arguments that Mr Sutton’s evidence should have been excluded as “sole and decisive” on the issue of why the Testogel had been ordered (there was a wealth of other evidence to found an inference that Dr Freeman’s explanation was false – including the many lies he had admitted telling) and it was also held that the Tribunal was fully entitled to find his evidence (which included his witness statement as well as the hour or so of cross-examination) credible and consistent.
Freeman v GMC provides an entertaining and instructive account of what was clearly a challenging cross-examination of an aggressive and difficult witness. It repays reading for that alone, but in my view the more important point relates to material for cross-examination. There may be no place in courts any more for an “ambush” defence, but there is still scope to spring a few surprises.