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

In professional disciplinary proceedings, hearsay is not automatically unfair merely because it is the sole or decisive evidence, and there is no unqualified right to cross-examine. Fairness under Rule 34 and Article 6 is fact-sensitive. The seriousness of the allegations, their consequences, the criticality of the evidence, conflicts of testimony, witness availability and available safeguards must be assessed together. Where a professional faces grave, effectively criminal allegations and the critical accuser is willing and available to testify, compelling reasons are ordinarily needed before cross-examination is denied. Public interest in investigating allegations cannot by itself outweigh procedural fairness. On the unusual facts, admitting the hearsay evidence was irrational and breached the claimant’s right to a fair hearing.

The claimant sought judicial review of a decision by a General Medical Council Fitness to Practise Panel to admit hearsay evidence from Witness A in disciplinary proceedings alleging serious sexual misconduct. Witness A lived in Kenya but repeatedly stated that he was willing to travel to the United Kingdom or give evidence by video link. The GMC relied instead on police advice that live testimony exposed him to general and specific risks of harm.

The Panel concluded that the evidence would not satisfy the criminal-law gateways in sections 114 or 116 of the Criminal Justice Act 2003, but admitted it under Rule 34 of the applicable Fitness to Practise Rules. The central issue was whether that decision was irrational or incompatible with common-law fairness and Article 6(1), particularly where the principal accuser was available and willing to testify.

1. Disposition. The application for judicial review succeeded. The Panel’s decision to admit Witness A’s hearsay evidence was quashed.
2. Applicable principles. There is no absolute common-law or Article 6 rule requiring cross-examination in every disciplinary case. The fact that hearsay is the sole or decisive evidence does not automatically make it inadmissible. Nor does failure to satisfy the hearsay gateways in sections 114 and 116 of the Criminal Justice Act 2003 automatically make admission unfair under Rule 34.
3. Fact-sensitive fairness. Fairness must be assessed in the round. Relevant factors include the nature and seriousness of the allegations, the gravity of the consequences, whether the evidence is critical or uncorroborated, conflicts of evidence, the availability of the accuser, obstacles to securing attendance, and the safeguards available to test the evidence. In serious disciplinary proceedings involving allegations amounting in effect to criminal conduct, grave consequences and a critical conflict of evidence, compelling reasons are ordinarily required before a willing and available accuser is not tendered for cross-examination. The approach was consistent with Bushell v Secretary of State for the Environment [1981] AC 75, Ogbonna v NMC [2010] EWHC 272 (Admin), and R (SS) v Knowsley NHS Primary Care Trust [2006] Lloyd’s Med Rep 123.
4. Application. Witness A’s evidence was the only evidence supporting most allegations. He was willing to give live evidence, the recordings of his interviews had been lost, and the claimant had little practical means of challenging the allegations. The Panel made no positive finding that live testimony exposed Witness A to a materially greater risk than hearsay. Its analysis showed substantial scepticism about the asserted risks. The public interest in investigating serious allegations and protecting patients could not outweigh the claimant’s procedural safeguards. There is no public interest in a wrong result.
5. Rule 34(2). Rule 34(1) permits admission only of evidence that is relevant and fair to admit. Rule 34(2) cannot authorise admission of unfair evidence. Accordingly, once admission under Rule 34(1) was irrational, the separate question whether admission was desirable under Rule 34(2) did not arise.