Articles Criminal Defence 10th Jul 2015

New Evidence On Appeal – A More Relaxed Approach?

This recent appeal I conducted turned primarily on a novel point of procedure. Is a panel permitted to hear new evidence after it has disseminated its draft findings? In doing so, however, it also addressed the law regarding the use of new evidence on appeals. The court’s efforts to soften the old Ladd v Marshall prescriptive approach to this issue is bound to have wider repercussions in the future.

The Facts

Dr TZ allegedly performed an unnecessary and sexually motivated vaginal examination on Patient A whilst working in A&E. He faced earlier criminal proceedings relating to the same incident but was found not guilty. During the factual stage of the GMC proceedings Dr TZ was represented and Patient A’s evidence robustly challenged. Dr TZ maintained he had conducted an abdominal examination, which was not in dispute, but he strongly denied he had then moved on to any kind of intimate examination.

The case went part heard with the panel still in camera deliberating on the facts. After the panel had come to its decision, however, it decided to email its draft determination to the parties prior to the case reconvening so that both sides could prepare accordingly. The draft decision made clear that it had found the charges proved. Dr TZ then contacted the GMC stating he wished to adduce further evidence, namely the transcripts of two witnesses who gave evidence in the Crown Court proceedings. When the case reconvened he represented himself and repeated this application to the panel.

The panel refused to consider it. Following the legal assessor’s advice, it considered itself functus officio and without any power to reopen a factual determination once made. In due course Dr TZ was found impaired and erased from the register.

The New Evidence

The new evidence Dr TZ had attempted to adduce included that of a Health Care Assistant who was present in A&E at the time. The CCTV, which the panel saw and relied on heavily, indicated that Dr TZ was in A’s room on his own for 19 minutes. He then left to fetch the HCA from the nursing station. Based on this footage, the HCA could then only have been present in A’s room for 30 seconds or so following which Dr TZ was left alone with the patient for another couple of minutes. The panel considered the assault must have occurred in the 19 minute window prior to the HCA’s involvement. Her evidence given in the Crown Court challenged this. She maintained she was had seen Dr TZ do the abdominal examination. Since it was A’s case that the assault had only happened after this abdominal examination, it followed from her evidence that the assault could not have occurred in the 19 minute window relied on by the panel.

The Appeal

On appeal Gilbart J disagreed that the emailed factual determination prevented the panel from reconsidering its decision. The rules require that once a decision is “announced” the panel moves on to consider impairment. At the stage Dr TZ addressed the panel no such decision had been “announced”. It was well established that prior to a judgment being perfected, a court had the right to change its mind (Prudential Assurance Company Ltd v McBains Cooper & Ors [2000] EWCA Civ 172 [2000]).

The court considered that the GMC’s rules must give panels an implied discretion to admit further evidence at any point before a final decision is announced. The purpose of such hearings is to do justice. Gilbart J postulated the situation where new DNA evidence emerges in a sex case which significantly undermined the draft findings against a practitioner. It could not be just to say the panel was unable to consider it. Finality is important. Equally, it is plainly undesirable for such a case to have to go to appeal and then for a possible re-hearing.

In considering how the panel should have exercised this discretion, the court drew some guidance from the cases governing the admissibility of new evidence on appeals. The principle case remains Ladd v Marshall (1954) 1 WLR 1489 in which Denning LJ considered such evidence had to satisfy three requirements: “first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed or in other words, it must be apparently credible although it need not be incontrovertible.”

As I argued, however, this approach has softened somewhat since the introduction of the Civil Procedure Rules and no longer constitutes an absolute or definitive test. Citing the case of Muscat v Health Professions Council [2009] EWCA Civ 1090, Gilbart J commented: “it is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register, and that that is a factor which, in an appropriate case, can justify departure from what Smith LJ pithily described as “the old Ladd v Marshall straightjacket.”

In Jasinarachchi v General Medical Council [2014] EWHC 3570 (Admin) the High Court allowed the appellant to adduce further evidence to demonstrate why the panel’s sanction was disproportionate. It did so even though the first requirement in Ladd v Marshall was not made out. On the facts of TZ’s case, if the HCA’s evidence was accepted, it undermined Patient A’s account and challenged the rationale for the panel’s findings. Refusing to admit the evidence caused “a real risk of injustice”.

Gilbart J came to this view notwithstanding the fact no good reason had been provided for the defence failing to call the witness in the first place. He took account of the fact the GMC was also aware of this witness from the outset of proceedings and should itself have called “so obviously relevant a witness”. Even if this evidence had first been adduced on appeal, Gilbart J still considered the appeal should succeed, given its potential significance. He quashed the findings against Dr TZ and remitted the matter back for a new hearing.

This last point marks a significant departure from Ladd v Marshall and goes significantly further than the previous post-CPR case law. The evidence adduced in Jasinarachchi, for example, was not the subject of challenge by the GMC. It did not go to any fundamental factual issue in the case and was relevant only to the narrow issue of proportionality. In the instant case, however, the new evidence was highly contentious. Its relevance was stark and no explanation was provided for why the defence did not use it previously. Nonetheless, the public interest in allowing a practitioner to continue to serve the public went a long way to mitigate against the old Ladd v Marshall “straightjacket”, and whilst certainty in litigation is all well and good, justice is better.

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