Joseph v General Medical Council [2022] EWHC 3345
Corroboration, Credibility and Demeanour: High Court rejects appeal in erasure case concerning serious sexual abuse by a doctor
The rather appalling facts of this case concern the double rape and sexual harassment (over a period of a year) of a female doctor by another male doctor. A particularly harrowing aspect of the case was that the Complainant had been given a ‘date rape drug’ and was unconscious at the time of the sexual assault in her home and had no memory of it.
The complainant gave evidence to the MPT that on the evening in question, whilst she had drunk no more than half a glass of wine when in the company of Dr Joseph, she suddenly felt very ill (nauseous, dizzy and faint) and then lost consciousness. Her evidence was that when she regained consciousness, she was naked and immediately aware of numerous signs and injuries resulting from a double rape. Dr Joseph’s account was the complainant had abruptly left and gone to her bedroom without explanation and that he had left 10 minutes later.
The MPT found the complainant’s evidence “consistent, credible and reliable” whereas Dr Joseph’s was found to be inconsistent and less compelling as to the events. It concluded Dr Joseph had drugged the complainant’s wine and that he had raped her whilst unconscious.
It was the MPT’s decision in relation to the rape allegation that was the subject of the appeal (and notably not the sexual harassment allegation). The Appellant argued that the MPT was wrong to accept the complainant’s evidence having regard to (a) the lack of physical evidence for the administration of a drug or an assault; (b) the limits of the contemporaneous documentary evidence in the form of emails and texts; (c) the lack of contemporaneous witness evidence; (d) the fact the complainant had no memory of the sexual assault; (e) the fact that the complainant did not report it until many years later and (f) alleged deficiencies and inconsistencies in the complainant’s own evidence.
The High Court provided some helpful reminders in relation to how such cases should be approached in relation to issues concerning corroboration, credibility and demeanour. It considered the case of R (Dutta) v GMC [2020] Med L R 426 and what is said (at paragraphs 38-39) about fact finding based on an assessment of a witness’s credibility when that is uncorroborated and involves recall of events many years earlier. The court observed: “Where memory is concerned, strength and vividness are not a reliable indicator of accuracy, the process of litigation itself creates biases, emotion and rationalisation must be allowed for, and demeanour is not a sure guide to truthfulness”. The court also considered the case of Byrne v GMC [2021] EWHC 2237 (Admin) (in which Dutta and a number of other authorities were cited) which confirmed that the best evidence on which to base fact finding will always be objective matters shown by contemporaneous documentation. The court went on to observe, however, that this is not always required and may not always be available. In such circumstances, “substantial reliance may be properly placed on the oral evidence of a complainant, including in preference to that of a respondent”. It was stated that: “Where reliance has to be placed on witness recollection, demeanour may in an appropriate case be a significant factor and the lower tribunal has the advantage there. And in a case where the complainant provides an oral account, and there is a flat denial from the other person concerned, and little or no independent evidence, it is commonplace for there to be inconsistency and confusion in some of the detail. Nevertheless, the task of the court below is to consider whether the core allegations are true (citing Mubarak v GMC [2008] EWHC 2830 (Admin) at [20]).
The High Court accordingly rejected the appeal, holding that the MPT had approached the evidence in this case correctly and that it had directed itself with care and by reference to Dutta on the issues of memory and demeanour.
In a case where there is nothing to distinguish or corroborate one account over another save for the demeanour of the witness – how should a tribunal proceed? Is a complainant who gives evidence in a distressed and emotional manner more credible than one who is aggressive or shows no emotions at all? The Judicial College guidance to Crown Court Judges when Summing Up to a jury in a sexual offences case explicitly warns against the dangers of assumptions to counter the risk of stereotypes and assumptions about sexual behaviour and reactions to non-consensual sexual conduct (Chapter 20-1). The guidance states as follows: “(1) experience shows that people react differently to the trauma of a serious sexual assault, that there is no one classic response; (ii) some may complain immediately whilst others feel shame and shock and not complain for some time; and (iii) a late complaint does not necessarily mean it is a false complaint”. Such explicit guidance to a MPT would clearly be of benefit when considering cases where the evidence comes down to a battle of accounts in the absence of corroboration and/or physical evidence.
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