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

A regulatory tribunal with an inquisitorial function may ask questions to clarify evidence and assess credibility. The propriety of its interventions is assessed by overall fairness, viewed in context. The number of questions, their form, or their similarity to cross-examination is not decisive. A tribunal considering restoration following voluntary erasure is not bound by findings of an earlier panel and has a broad discretion, although it must act fairly and within the scope of the statutory procedure.

The claimant sought judicial review of a Fitness to Practise Panel’s refusal to restore her to the medical register following voluntary erasure. The panel questioned her extensively about her reasons for voluntary erasure, subsequent applications to practise overseas, and the dishonesty underlying falsified training records. The claimant alleged apparent unfairness because the panel descended into the arena, adopted a prosecutorial style, revisited matters dealt with by an earlier panel, and usurped the role of counsel. The central issue was whether the questioning and treatment of the claimant, considered overall, rendered the hearing unfair.

1. The claim was dismissed. The second panel’s decision refusing restoration and imposing a 24-month period before a further application was not quashed.
2. The panel had an inquisitorial function. It was entitled to ask questions in an inquisitorial manner and was not confined to holding the ring. It was also not bound by the findings of the first panel.
3. A restoration application differed from a misconduct hearing. It did not require a separate fact-finding stage or an opening submission. The panel nevertheless had to exercise its broad discretion fairly. It could either grant or refuse restoration and could not impose conditions on restoration.
4. Article 6 of the European Convention on Human Rights added nothing to the applicable common-law requirements. The relevant principles concerned overall fairness and the proper judicial role, as explained in Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44.
5. The correct assessment was fact-sensitive and required consideration of the nature and circumstances of the interventions as a whole. The six suggested features—number of questions, apparent closed minds, style, cross-examination, cumulative unfairness, and movement into counsel’s shoes—were not individually decisive.
6. The panel’s questions arose materially from the claimant’s own evidence, the documents later produced, and concerns about credibility and insight. The questioning did not amount to prosecutorial conduct, improper cross-examination, or usurpation of counsel’s role. The panel was entitled to explore the apparent tension between the claimant’s statements about not practising medicine and her applications abroad.

First instance judicial review proceedings. The judgment records no appeal from the second refusal decision and no statutory right of appeal from that decision.