Unprecedented: Adverse Inferences in Regulatory Proceedings
R (Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin)
In a dramatic new development, the Divisional Court has ruled that a tribunal is entitled to draw an adverse inference from a registrant’s refusal to give evidence.
Dr Kuzmin is accused of dishonestly failing to tell his employer of certain interim conditions. He provided a witness statement, which provided a full explanation for his conduct. Following the failure of a half time submission, his counsel applied to withdraw the witness statement and indicated he did not intend to give evidence. The GMC invited the tribunal to draw an adverse inference – namely “that the failure of the Claimant to give evidence was capable of giving, and did in fact give, rise to the inference that the Claimant has no innocent explanation for his failure to disclose the conditions or at least no innocent explanation that would withstand the scrutiny of questioning.”
It was the first time a tribunal had been invited to find it had such a power. After legal argument it agreed it did – a position then challenged by the doctor by way of judicial review.
In civil proceedings courts have long been entitled to draw adverse inferences from the silence of a witness who could reasonably be expected to have material evidence to give – Wisniewski v Central Manchester Health Authority [1998] PIQR P324, recently approved in Manzi v King’s College Hospital NHS Foundation Trust [2018] EWCA Civ 1882 at [28]). Nonetheless, the claimant relied on the quasi-criminal nature of disciplinary procedures to distinguish this line of authority.
The court roundly rejected such an interpretation. It reiterated, disciplinary procedures are civil, not criminal.
“Where a person has a case to answer, if he remains silent, then, as a matter of normal processes of reasoning and common sense, it may be reasonable to draw the inference that he is unable to answer that case in whole or in part. However, for criminal cases, the common law attached to the other rights of an accused person (including the right not to self-incriminate), the right not to have adverse inferences drawn from his silence which he had the right to maintain. That was an exception to the general rule that a fact-finder is entitled to draw inferences from facts he finds to be true, including adverse inferences from silence.”
The criminal exception simply did not apply to disciplinary, civil proceedings. The fact tribunals had not historically drawn such inferences before was no bar from them doing so now. Their refusal to do so had been “a matter of practice, rather than as a result of a common law rule”. They were entitled to change that practice. The court was reinforced in this view by the shift in recent years, in which tribunals have become more confident “in their civil nature”. The standard of proof, and the rules of evidence, no longer bear any similarity to criminal proceedings.
In addition, as the court observed in Iqbal v Solicitors Regulatory Authority [2012] EWHC 3251 (Admin), where a professional man faced grave allegations, “Ordinarily the public would expect a professional man to give an account of his actions”. Sir Brian Leveson observed in Adeogba:
“… [T]here is a burden on medical practitioners, as there is with all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”
Indeed paragraph 73 of Good Medical Practice includes:
“You must cooperate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance in Confidentiality”.
Such comments supported the proposition that, not only does the tribunal have the power to draw adverse inferences from silence, but it is in the public interest that it should have that power.
Of course, proceedings must still be fair, and disciplinary proceedings often require important procedural safeguards. Whilst emphasising that whether an adverse inference is drawn will be highly dependent upon the facts of the particular case, the court indicated that generally no adverse inference would be appropriate unless:
“i) a prima facie case to answer has been established;
ii) the individual has been given appropriate notice and an appropriate warning that, if he does not give evidence, then such an inference may be drawn; and an opportunity to explain why it would not be reasonable for him to give evidence and, if it is found that he has no reasonable explanation, an opportunity to give evidence;
iii) there is no reasonable explanation for his not giving evidence; and
iv) there are no other circumstances in the particular case which would make it unfair to draw such an inference.”
In light of this decision, the court noted the GMC and other regulators may consider it helpful to issue guidance on this issue.
Christopher Geering
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