Articles Professional Discipline 27th Feb 2020

The poison pen letter

Soni v General Pharmaceutical Council [2020] EWHC 348 (Admin)

Patient A attended a pharmacy, seeking the morning after pill. She alleged Mr Soni, an experienced pharmacist of many years, discussed the medication with her but then physically examined her breasts. Prior to the hearing it emerged that Patient A had instructed solicitors with a view to making a civil claim. At the substantive hearing, the panel found the allegation proved and removed Mr Soni from the register.

Subsequently, the Appellant received an anonymous letter. The author purported to have known Patient A for many years and alleged she “made up the story of the harassment as she and her boyfriend knew they could make money and another pharmacist he knows… told them so.” It also alleged she had been coached in her evidence by her lawyers and told to fake emotions. This letter formed the principle basis for the appeal.

In advance of the substantive hearing, the Appellant made a preliminary application before Swift J for permission to be able to rely on the letter at the appeal. The court considered the questions posed in Ladd v Marshall [1954 1 WLR 1489 – namely could the new evidence have been obtained with reasonable diligence at trial; would it “probably have an important influence on the result of the case”; and was it “apparently credible”. The GPhC contended the second and third questions were not satisfied. The court disagreed – the fact it was anonymous reduced its evidential value but there were steps which could be taken to test its veracity. In particular, the letter referred to the author having spoken to staff at a particular pharmacy store who could be questioned. Overall, Swift J concluded:

I do not consider the anonymous letter can be dismissed quite so summarily as the GPC seems to suggest. This is so, in particular given the public interest at the heart of this type of regulatory disciplinary procedure – i.e. the public interest that the profession is regulated fairly, [and] properly

At the substantive appeal before Freedman J, the GPhC renewed its attack on the reliability of this letter. By this stage no further evidence had been uncovered to strengthen the reliability of the letter. The court was directed to the law surrounding hearsay evidence in disciplinary proceedingd, including the observations in White v Nursing and Midwifery Council [2014] EWHC 520 (Admin):

it is difficult to conceive of circumstances, in which the admission of potentially significant evidence about the attitude and conduct of a registrant which is both anonymous and hearsay will not infringe the requirement of fairness.”

In making these submissions, the GPhC – on one view – was inviting the court to go behind the decision of Swift J, which had not been appealed, and in particular his assessment of the significance of this letter. However, the court rejected this characterisation. As it noted:

the satisfaction of Ladd v Marshall simply provides an ability of the appellate court to consider the material: it is then necessary to consider the impact of the evidence and whether it should lead to an order to remit”.

Ultimately, it is for the court which hears the substantive appeal to decide what impact the evidence in question has. It is in a better position to do so, having considered the case a whole. In such cases the court observed that particular caution is required in relying on new evidence if doing so would require a case to be remitted for a re-hearing. This should only be permitted if it is “imperative in the interests of justice” [Transview Property Ltd v City Site Properties Ltd [2009] EWCA Civ 1255].

The court made another important observation. This was not a case where the new evidence showed the decision was “wrong” or that there had been a “serious procedural or other irregularity”. The issue was then, what threshold should new evidence reach in order to justify re-considering a case at a rehearing in such circumstances? The court was prepared to apply a low threshold to the instant appeal – “there must be a real prospect that the Committee might come to a different conclusion.” Applying this question to the facts, even this threshold was not met. Little weight could be attached to the letter. The reason for the author’s anonymity – namely a fear of revenge – rang hollow. If the author was genuine, Patient A would know who that person is, unless she had routinely been confessing to perjury with numerous old acquaintances. The evidence was not only hearsay but also on the face of it unreliable. The suggestion that Patient A’s lawyers coached her evidence stretches credibility. The impact of the letter should be set against the panel’s coherent and compelling analysis of the case. It had strongly preferred Patient A’s evidence to the Appellant’s. Realistically, cross-examining Patient A, without any other material other than the anonymous letter, was unlikely to change that.

The Appellant brought several other grounds of appeal, which were dealt with shortly and likewise rejected. It remains to be seen if he will pursue his case any further.

Christopher Geering


 


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