Phillips, R (on the application of) v General Medical Council

A professional disciplinary tribunal may investigate conduct which has resulted in a criminal acquittal. The criminal and professional inquiries address different questions, and no strict double-jeopardy rule prevents the disciplinary process. The professional body should determine whether the allegations are freestanding and whether the evidence satisfies the professional standard of proof.

The High Court will sparingly restrain proceedings before an independent specialist tribunal on abuse-of-process grounds. Such issues should ordinarily be decided by the tribunal itself unless weighty circumstances justify intervention. A procedural failure to provide an opportunity to respond is regrettable, but relief remains discretionary and depends on the circumstances.

The claimant, a doctor, had been acquitted of eight counts of indecent assault following a criminal trial. The Crown Court had stayed proceedings concerning other allegations after the prosecution selected a limited number of charges for trial.

The General Medical Council subsequently referred professional misconduct allegations to its Professional Conduct Committee, including five allegations arising from the criminal acquittals. The claimant sought judicial review of the decisions to proceed, relying on abuse of process, the acquittals, alleged screening decisions, and procedural unfairness under the Council’s rules. The central issues were whether the GMC could investigate acquitted conduct, whether the High Court should intervene before the Committee had ruled on abuse of process, and whether the five allegations had been validly added under Rule 11(2).

1. The application was dismissed. The five allegations arising from the criminal acquittals could proceed to the Professional Conduct Committee. The issue of abuse of process was to be considered first by that Committee, before any substantive inquiry.
2. A criminal trial concerning indecent assault and a professional disciplinary inquiry concerning professional standards address different issues. An acquittal therefore does not legally prevent the GMC from investigating whether professional standards were breached. The Committee must consider whether the professional allegations are capable of standing independently and must have regard to the guidance in R (Redgrave) v Commissioner of the Metropolis [2003] 1 WLR 1136.
3. Pre-emptive restraint of proceedings before another court or tribunal on abuse-of-process grounds is a jurisdiction exercised sparingly. The principles concerning concurrent jurisdiction and restraint were illustrated by R v Belmarsh Magistrates’ Court ex parte Watts [1999] 1 Cr.App.R. 188, R v Director of Public Prosecutions ex parte Kebilene and Ors [2000] 2 AC 326, and Hoar-Stevens v Richmond Magistrates’ Court [2003] EWHC 2660 Admin. In the case of an independent specialist tribunal, the tribunal should ordinarily decide whether its own procedures have been abused unless weighty circumstances require High Court intervention.
4. Rule 11(2) was capable of applying where further allegations were adduced after the reference to the Professional Conduct Committee. The solicitor’s letter confirmed that the complainants continued to maintain their allegations and wished them to be considered. That was capable of amounting to the later adduction of further allegations within the proviso, although other procedural matters could be considered by the Committee.
5. A failure to provide an opportunity to respond where the procedure requires one is a regrettable procedural failure. The decision-maker cannot proceed on the assumption that no serious prejudice resulted. In the present case, however, the claimant’s procedural rights could be protected through representation and the proposed preliminary abuse hearing.
6. The two-part hearing arrangement was tailored to the particular circumstances and was not a precedent for future cases. The claimant was ordered to pay 60 per cent of the GMC’s costs, excluding costs incurred in connection with the interested parties. The interested parties’ costs were to be subject to detailed assessment.

First-instance judicial review proceedings in the Administrative Court. The court refused permission to appeal on the Rule 11(2) issue.