Schulze Allen v Royal College of Veterinary Surgeons

For the purpose of section 16(1)(a) of the Veterinary Surgeons Act 1966, whether a foreign conviction is for a criminal offence is ordinarily determined by the law of the convicting state. The regulator must prove that characterisation beyond reasonable doubt. Where the evidence leaves the foreign classification uncertain, the charge fails, and the presumption that foreign law mirrors English law cannot fill the gap where evidence of foreign law exists.

Dishonesty in answering a disclosure question depends on the question’s precise wording. A general duty to volunteer information cannot replace a properly framed question. However, a conviction may still be an adverse finding within a broader questionnaire. A sanction materially based on charges that fail must be reconsidered.

The Royal College brought four disciplinary charges after Dr Schulze Allen had been convicted in California of petty theft involving an infraction and later applied for restoration to the UK register. Three charges concerned whether the infraction was a criminal offence and whether his denials of a criminal conviction or record were dishonest. The fourth concerned his denial of any adverse finding.

The Disciplinary Committee found all charges proved and directed removal of his name from the register. On appeal under section 17(1) of the Veterinary Surgeons Act 1966, the central issues were the meaning of criminal offence in relation to a foreign conviction, the construction of the disclosure questions, and the appropriate sanction.

Disposition. The Board allowed the appeal against the first, third and fourth charges, dismissed it against the second charge, set aside the sanction of removal, and remitted sanction to the Committee.

1. Foreign conviction and standard of proof. The Board proceeded on the accepted basis that whether a conviction in California was for a criminal offence was a question of Californian law, and that foreign-law questions were questions of fact. Following Royal College of Veterinary Surgeons v Samuel [2014] UKPC 13, the Committee and the Board had to be sure beyond reasonable doubt that the infraction was criminal. New evidence could be admitted under section 8 of the Judicial Committee Act 1833, applied through section 17(1) of the Veterinary Surgeons Act 1966.
2. Californian classification. The later decision of the Californian administrative judge and People v Sava (1987) 190 Cal App 3d 935 supported the view that an infraction was not a crime, or at least that criminal classification was not clearly established. The evidence therefore did not satisfy the required standard. The presumption that foreign law is the same as English law applied only where there was no evidence of foreign law.
3. Disclosure questions. Afsar v Solicitors Regulation Authority [2009] EWCA Civ 842 and R v Patel (Rupal) [2007] 1 Cr App R 12 were reconciled on the basis that each depended on the wording of the questionnaire. The Board generally preferred the approach in Patel: employers must frame wider disclosure questions clearly. The third and fourth charges were, however, particularised as dishonest denials of a criminal conviction or record. Those denials were not false on the evidence and could not sustain findings of disgraceful professional conduct.
4. Adverse finding. The phrase adverse finding was vague but, read in context, operated as a broader alternative to cautions and criminal convictions and was illustrated by professional disciplinary proceedings. The petty-theft conviction was plainly an adverse finding. The denial was untrue and dishonest, so the second charge was upheld.
5. Sanction. Because three of the four charges failed, and the Committee had relied on repeated dishonesty and an alleged criminal conviction when fixing sanction, it might have imposed a less severe sanction. Removal was therefore set aside and sanction was remitted for reconsideration on the second charge.

• Privy Council: on appeal under section 17(1) of the Veterinary Surgeons Act 1966, allowed the appeal on the first, third and fourth charges, dismissed it on the second charge, and remitted sanction.
• Disciplinary Committee of the Royal College of Veterinary Surgeons: found all four charges proved and directed removal of the appellant’s name from the register.