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

In professional disciplinary proceedings, the criminal law governing submissions of no case to answer applies where the governing rules require the criminal burden and standard of proof. A tribunal may withdraw an allegation where there is no evidence, or where the evidence is so unsatisfactory that no properly directed tribunal could safely find it proved. Where the issue depends on witness reliability, the tribunal may assess whether the evidence is capable of supporting a finding, while recognising that it may ultimately accept all, none or only part of a witness’s evidence. Judicial review is approached with caution where an experienced tribunal was properly directed and its decision involves an assessment of the evidence as a whole.

A general medical practitioner challenged a Fitness to Practise Panel’s refusal to uphold submissions of no case to answer in professional misconduct proceedings involving allegations by one patient. The Panel had accepted some submissions but rejected others. The claimant argued that the witness’s evidence was intrinsically unreliable and that the Panel had misapplied the applicable test in one of its formulations. The central issues were whether the Panel had applied the correct no-case test and whether its assessment of the witness’s reliability disclosed an error of law.

1. Application refused. The Panel was required to apply the criminal law relating to submissions of no case to answer, including the principles in R v Galbraith 73 Cr.App.R 12 and R v Shippey [1988] Crim LR 767.
2. The Panel correctly identified the applicable alternatives: it should allow the submission where there was no evidence on which the allegation could be proved, or where the evidence was so unsatisfactory that a properly directed tribunal could not safely find it proved. Where the strength of the evidence depended on witness reliability, the Panel was entitled to consider that issue at the no-case stage.
3. The Panel’s isolated reference to the witness’s evidence being sufficiently clear to avoid discounting it entirely was an unfortunate formulation, not an error of law. Its ruling read as a whole showed that it understood and applied the correct burden and standard of proof.
4. A tribunal of fact may accept all, none or only some of a witness’s evidence. The court was not entitled to interfere merely because the claimant’s criticisms of the witness were forceful. The experienced Panel had heard the evidence as a whole, had been properly advised, and was entitled to conclude that the witness’s reliability was not so undermined that no case remained to answer.
5. The claimant was ordered to pay the defendant’s assessed costs.