Virdee v The General Pharmaceutical Council

An appeal from a professional disciplinary determination may succeed only where the decision was wrong or unjust because of a serious procedural or other irregularity. The appellate court must respect the specialist tribunal’s advantages, particularly where it heard and saw the witnesses and made a credibility assessment. There is no heightened standard of proof in such proceedings. In applying the balance of probabilities, the inherent probability or improbability of the alleged events is relevant, but a tribunal must avoid logical reasoning that treats an improbable allegation as more likely to be true merely because it is improbable. Properly understood, special measures for vulnerable witnesses promote equality of arms and do not ordinarily infringe Article 6. A rehearing is exceptional and requires a proper justification.

The appellant, a registered pharmacist, appealed under article 58 of the Pharmacy Order 2010 against a determination of the respondent’s Fitness to Practise Committee. The Committee found proved four sexually motivated incidents involving a pharmacy student and ordered removal from the register. The appellant challenged the procedure, alleging unfairness and bias because the complainant gave evidence behind a screen and did not read her witness statement aloud. He also argued that the Committee’s reasoning on credibility and probability was defective and that removal was inadequately reasoned. An application to adjourn the appeal for a five-day rehearing was refused. The central issues were whether the appeal should be reheard, whether the hearing had been unfair, whether the factual findings were legally or irrationally flawed, and whether the sanction was inadequately reasoned.

1. Rehearing. The application for an adjournment and complete rehearing was refused. Appeals of this nature are not normally conducted as fresh hearings. A rehearing requires a specific issue of fact which the original tribunal did not decide and which can properly be resolved only by hearing evidence afresh. No such issue arose. The application was therefore without proper justification and appeared to be an abuse of process. The position was consistent with Gupta v General Medical Council [2002] 1 WLR 1691.
2. Procedural fairness and special measures. The Committee was entitled to permit the complainant to give evidence behind a screen and to treat her written statement as her evidence in chief when she became distressed. Special measures are not confined to criminal proceedings. Their purpose is to enable the tribunal to receive the best evidence available and, in an appropriate case, secure equality of arms. There was no infringement of Article 6, no bias, and no procedural unfairness. It was the responsibility of cross-examination, not the Committee, to test the complainant’s evidence.
3. Appellate review and proof. Under Civil Procedure Rules 1998, rule 52.11(3), the court could interfere only if the decision was wrong or unjust because of a serious procedural or other irregularity. Respect was required for the Committee’s advantage in hearing and seeing the witnesses and assessing credibility, in accordance with General Medical Council v Meadow [2007] QB 462 at [197]. There was no heightened standard of proof. The inherent probability or improbability of the alleged conduct was relevant to the balance of probabilities, applying Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586–587, cited with approval in Re B (A Child) [2008] UKHL 35.
4. The Committee’s reasoning contained some infelicitous passages, including possible confusion between fabrication and honest mistake. Nevertheless, viewed in the round, its reasons adequately explained why it accepted the complainant’s account and rejected the appellant’s. The factual findings were open to it and could not be disturbed.
5. The removal sanction was adequately reasoned and consistent with the Indicative Sanctions Guidance, particularly its treatment of sexual misconduct. The appeal was dismissed.

• High Court (Administrative Court): appeal under article 58 of the Pharmacy Order 2010 dismissed. The application for an adjournment and full rehearing was refused.
• Fitness to Practise Committee: on 12 December 2013, found four sexually motivated incidents proved and ordered removal from the register.