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

Criminal and professional disciplinary proceedings serve different purposes and may properly involve different prosecutorial considerations. The abandonment of a criminal prosecution, including for reasons arising from investigative failures, does not automatically prevent subsequent disciplinary proceedings on the same or substantially the same evidence.

The decisive question is whether a fair disciplinary hearing remains possible. Concerns about witness collusion or contamination, and incomplete investigative records, do not themselves make a hearing unfair where the issue can be examined on the available evidence. A litigant generally cannot challenge the outcome because legal representatives failed to make a coherent application or adduce material evidence. Article 6 protects the fundamental attributes of the legal system, not every tactical decision made by an advocate.

Dr Sinha appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel determination that his fitness to practise was impaired by misconduct and that his name should be erased from the medical register.

The allegations concerned inappropriate sexual conduct towards female patients. Earlier criminal proceedings had been abandoned after a lengthy hearing concerning deficiencies in the police investigation, including possible witness contact, collusion and contamination, and failures in note-taking and disclosure.

The central issue was whether the GMC disciplinary proceedings should have been stayed, discontinued or treated as unfair because the criminal proceedings had ended in those circumstances, and whether the appellant’s representatives, the GMC prosecutor, the Panel or its legal assessor had failed to address that issue.

1. The appeal was dismissed. The Panel’s determination, including erasure from the medical register, stood. The GMC was awarded costs assessed at £16,000 plus VAT. Permission to appeal was refused.
2. Criminal proceedings and disciplinary proceedings before a Fitness to Practise Panel involve different considerations. The GMC’s statutory objective of protecting, promoting and maintaining public health and safety supports a distinction between the two jurisdictions. There is no strict rule of double jeopardy preventing disciplinary proceedings after criminal proceedings have been abandoned.
3. The abandonment of the criminal case did not establish that a fair disciplinary hearing was impossible. It was unclear whether the criminal prosecution had been stopped because the evidence was unreliable or because the prosecuting lawyers and police officer might have had to become witnesses, making the presentation of the criminal case difficult.
4. The Panel knew of the concerns about collusion, contamination and missing investigative material. Relevant information was available to the appellant, and relevant parts of the Crown Court transcript could have been placed before the Panel. There was no actual evidence of collusion or contamination, although limited material raised suspicion concerning two women. The Panel assessed the witnesses who gave evidence and largely acquitted on allegations involving a complainant who did not give live evidence.
5. No coherent application for a stay had been made. Even if such an application had been made, it would properly have failed because the available material permitted a fair hearing. The prosecutor and Panel therefore had no obligation on these facts to stop the proceedings.
6. The principle in R v Secretary of State for the Home Department ex parte Al-Mehdawi applied. A party ordinarily cannot found an appeal on the default of his own legal advisers. Article 6 did not alter that conclusion: its relevant protections concern fundamental features such as access to an independent and impartial tribunal, not tactical or strategic decisions made by advocates.
7. The legal assessor’s duty under rule 2 of the General Medical Council (Legal Assessors) Rules 2004 included active intervention where a material mistake of law or procedural irregularity appeared. That duty might arise in a clear case involving serious abuse of process or an evidential problem of such scale that no reasonable Panel could find the charges proved. Those circumstances were absent here.

The judgment records no earlier judicial decision. The appeal was brought directly against the Fitness to Practise Panel’s determination of 12 December 2006 under section 40 of the Medical Act 1983.