IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW v JULIUS LEWIS [2001] EWCA Civ 837

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(Mr Justice Hunt)
[2001] EWCA Civ 837Case No C/2000/3841Venue Royal Courts of Justice, Strand, London WC2
Between
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEWJULIUS LEWISClaimant/AppellantTHE PROSTHETISTS AND ORTHOTISTS BOARDDefendant/Respondent
Before
Lord Justice WallerLord Justice ClarkeLord Justice LawsMr C Gibson QC (instructed by Messrs Willcox Lane Clutterbuck, Birmingham) appeared on behalf of the Appellant Claimant.Mr D Perry and Miss I Dakyns (instructed by Messrs Kingsley Napley, London EC1) appeared on behalf of the Respondent Defendant.Date 22 May 2001

LORD JUSTICE WALLER:

The

[1]appellant, Mr Julius Lewis, is an orthotist. Orthotics are the provision and use of artificial and mechanical aids, such as braces or insoles, to prevent or assist movement of weak or injured muscles or joints. In 1997 the Prosthetists and Orthotists established a Board under the Professions Supplementary to Medicine Act 1960 ("the 1960 Act"). All members of the British Association of Prosthetists and Orthotists, of which Mr Lewis was a member, were registered by the Board in October 1998.[2]The 1960 Act has the following preamble:
"An Act to provide for the establishment of a Council, boards and disciplinary committees for certain professions supplementary to medicine; to provide for the registration of members of those professions, for regulating their professional education and professional conduct and for cancelling registration in cases of misconduct; and for purposes connected with the matters aforesaid."
[3]Under the 1960 Act, Boards of Professions Supplementary to Medicine had certain functions. For example, under section 1(2) the function was:
"... the general function of promoting high standards of professional education and professional conduct among members of the relevant profession, and the additional functions assigned to it by this Act."
[4]Section 2 contained the function of registering the names, addresses and qualifications of all persons who were entitled, in accordance with the provisions of the Act, to be registered by the Board. Section 3 set out the qualifications necessary for registration.[5]Under section 8 of the Act the Board had the obligation to set up two committees: one to be known as the "investigating committee" and the other to be known as the "disciplinary committee". As the section provides, the investigating committee was to be:
"... charged with the duty of conducting a preliminary investigation into any case where it is alleged that a person registered by the board is liable to have his name removed from the register, and of deciding whether the case should be referred to the disciplinary committee."
[6]The disciplinary committee was to be: "... charged with the duty of considering and determining any case referred to it by the investigating committee and any other case of which the disciplinary committee has cognisance under subsection (5) of the next following section." (Subsection (5) is not relevant for today's purposes. It relates to somebody who has been removed from the register and who then applies to be re-registered.)[7]Section 9 is the important section so far as this appeal is concerned. Section 9(1) provides:
"Where - (a)a person who is registered by a board is convicted by any court in the United Kingdom of a criminal offence which, in the opinion of the disciplinary committee set up by the board, renders him unfit to be registered; or (b)such a person is judged by the disciplinary committee to be guilty of infamous conduct in any professional respect; or (c)the disciplinary committee is satisfied that the name of such a person has been fraudulently entered on the register maintained by the board, the committee may, if it thinks fit, direct that the person's name shall be removed from the register."
[8]It is then only necessary to refer to section 9(6), which provides:
"It shall be the duty of each disciplinary committee to prepare and from time to time revise, in consultation with its board and the Council, a statement as to the kind of conduct which the committee considers to be infamous conduct in a professional respect, and the board shall send by post to each registered member of the relevant profession, at his address on the register, a copy of the statement as for the time being revised; ..."
[9]Then there are these important words:
"... but the fact that any matters are not mentioned in such a statement shall not preclude the disciplinary committee from judging a person to be guilty of infamous conduct in a professional respect by reference to such matters."
[10]On 8th December 1999 Kingsley Napley, on behalf of the Prosthetists and Orthotists Board, gave notice to Mr Lewis that an inquiry was to be held into charges that he had been guilty of infamous conduct in a professional respect. The details of the conduct alleged were that:
"... in respect of patient EW you did: Between February 1997 and April 1998 undertake an inappropriate relationship with her whilst she was your patient, particulars of which are as follows: 1.You had sexual intercourse with her; 2.You had sexual intercourse with her without her consent; 3.You maintained telephone contact beyond that necessary for clinical needs; 4.You maintained a social relationship inconsistent with your professional role."
[11]The letter gave notice of a meeting of the disciplinary committee which was to be held on 8th February 2000, but that date was later postponed.[12]Mr Lewis denies those allegations. It seems that criminal proceedings were at one time contemplated, but they were not proceeded with. A civil action is in being in which the complainant sues Mr Lewis. In those proceedings she asserts rape and claims damages. Mr Lewis is defending those proceedings and no decision has been reached.[13]When the disciplinary proceedings ultimately came on, Mr Lewis took a preliminary point. The allegations relate to events said to have taken place between February 1997 and April 1998. Mr Lewis was not registered until 1998. Thus it was submitted on Mr Lewis's behalf that the disciplinary committee had no jurisdiction over him in relation to those events. Section 9(1)(b), it is submitted, can only apply to infamous conduct that occurred after registration.[14]It would not seem that a second point was taken, again relating to jurisdiction, which has been argued in this court. Putting it shortly, that point is that Mr Gibson QC submits that, on the proper construction of section 9(1), if conduct which is alleged against a person registered by the Board would amount to a criminal offence, then the appropriate forum where that matter should be dealt with is a criminal court. He submits that a disciplinary committee would have no jurisdiction under section 9(1)(b) to consider the matter even if the criminal conduct were never the subject of criminal proceedings or a conviction.[15]The disciplinary committee ruled against Mr Lewis in October 2000, holding that they did have jurisdiction. Mr Lewis brought proceedings to challenge that ruling which failed before Mr Justice Hunt, his judgment being delivered on 18th December 2000. He in fact refused permission to appeal, as did Lord Justice Simon Brown initially on paper, but permission to appeal was granted by Lord Justice Simon Brown and Lord Justice Mance. This is the appeal by virtue of that permission.[16]The points are short. On behalf of the appellant reliance is placed on the language of section 9(1)(b). Reliance is also placed on what is suggested must have been Parliament's intention. It is submitted that it would be unfair to allow a disciplinary committee to "trawl back" over the years prior to the formation of a new professional body and the registration of a new member in order to examine the conduct of that new member over many years. It is suggested that Parliament must have intended that persons, however badly they had behaved until their membership, should be entitled to become and thereafter continue to be members of the profession of orthotists. Reliance in that regard is placed on the fact - as, indeed, it is the fact - that there is no provision in this statute for the Board being entitled to refuse registration because someone is not a fit and proper person. What is submitted is that, whatever else it intended, Parliament cannot have intended that the disciplinary committee should be entitled to delve back in history in order to see whether someone has been guilty of infamous conduct many years ago. It is suggested that to hold otherwise would be to give the statute retrospective effect.[17]The second point - and it is a separate point, as already indicated - is that it is suggested that, in relation to a matter that could be the subject of a criminal charge, a disciplinary committee is an inappropriate forum. What is submitted is that there is machinery for investigating very serious offences which are more naturally the subject of criminal proceedings. The suggestion thus is that, if conduct could be the subject of a criminal charge, then section 9(1)(a) is the only applicable subsection. What is submitted is that it should not also be the subject of an inquiry before a disciplinary subcommittee.[18]Mr Gibson, when he commenced his submissions, was inclined to draw a distinction between one type of criminal charge and another type of criminal charge. But, under some questioning from the court, he ultimately appreciated that it was impossible to have some vague definition of the type of criminal charge to which his submission would apply. Ultimately, he persisted in the submission that any conduct which could be the subject of a criminal charge was conduct over which a disciplinary committee would have no jurisdiction under section 9(1)(b).[19]I deal with that second point first. For my part, I see no warrant for the submission that, if conduct could amount to criminal conduct, a disciplinary committee would have no jurisdiction to consider that conduct. There clearly may be many occasions where something might technically be a criminal offence, but a decision is made not to prosecute. It would be absurd if that position deprived a disciplinary committee of the jurisdiction to look into the matter.[20]The main thrust of Mr Gibson's argument on this point depended on section 9(6). He showed us the statement that had been produced by the Board. He said that the Board had stated that they were not including criminal offences in their statement because that matter would be the subject of 9(1)(a). He submitted that, if one examines the relevant matters of conduct, one could see that no criminal offences are brought within it.[21]There are really a number of answers to that submission. The first is a matter of construction of the statute. Section 9(1)(a) is concerned with convictions in a court in the United Kingdom. What is more, 9(6) makes it clear that matters other than those included in the statement can be reviewed by a disciplinary committee considering whether there has been infamous conduct. The fact that the statement talks in terms of criminal offences rather than convictions cannot alter the construction of the statute.[22]The second point is that, if one reads through the matters contained in the statement, in a number of instances - and certainly if one looks at (a) or (i), which were debated during Mr Gibson's submissions - it is quite clear that conduct that would fall within one or other of those items in the statement could also amount to criminal conduct.

(i) , that provides that:

"No prosthetist-orthotist shall in any way exploit or abuse his/her relationship with a patient/user."
[23]One can see immediately that, for example, something that might otherwise amount to an indecent assault, or even a common assault, could well fall within that subparagraph. It would be extraordinary if, because criminal proceedings were not taken, the disciplinary committee had no jurisdiction to consider the matter.[24]The third point to make is that Mr Gibson sought to rely on the fact that there is no provision in the statute relating to "fit and proper person". In that regard he relied on the fact that it must thus have been the intention of the Board to allow persons, even if they had been convicted of criminal offences prior to registration, to be registered on the Board and be allowed to continue to practise. His argument would be that such conduct which had been the result of that conviction could not then be examined under 9(1)(b) by a disciplinary committee: it must have been the intention of Parliament that that should be so.[25]In my view, one gets no indication from the provisions in the section that that was the view of Parliament. Indeed, as it would seem to me, the fact that there is no "fit and proper person" provision allowing for a person to be refused registration does not assist Mr Gibson at all, in that, once somebody is registered, there is then a fair machinery via a disciplinary committee which can decide whether somebody is guilty of infamous conduct in a professional capacity.[26]That brings me to the argument on retrospectivity. As regards the language of section 9(1)(b), it seems to me that it is important to have regard to the language of the whole subsection. Mr Gibson accepted, and it is not in dispute, that section 9(1)(a) covers a criminal conviction post-registration, albeit the conduct had taken place before registration. That suggests that it was not Parliament's intention to exclude all conduct, however serious, if it took place before the member was registered. It further demonstrates that the fact that conduct may have taken place many years ago will not prevent that conduct being placed under scrutiny both by a criminal court and thereafter by the disciplinary committee when it considers, under section 9(1)(a), whether that conviction renders the person unfit to be registered and when it considers whether it is right to direct that a person's name should be removed from the register. There is no limitation period so far as criminal conduct is concerned, and thus a conviction could in theory relate to happenings many years ago.[27]The judge thought that section 9(1)(a) would not relate to a conviction prior to registration, and it would appear that before the judge that was relied on by counsel for the Board as being an important pointer as to why 9(1)(b) should be able to deal with conduct which had taken place some time ago. I, for my part, am not sure that the judge is necessarily right, but in my view the point does not need to be decided in this case.[28]But the point on the two subsections is that, when one looks at 9(1)(a), what is required is the conviction by any court in the United Kingdom of a criminal offence. The conviction is the triggering factor. One assumes that that conviction must be after registration, but the conduct can relate to matters prior to registration. It would be somewhat strange if, when one then comes to 9(1)(b) where the triggering event is a finding by the disciplinary committee, the disciplinary committee was not entitled itself to look at conduct prior to registration.[29]I sought to give an example to Mr Gibson of the absurdity that would be reached if that were so. Imagine someone who had practised experimental orthotics in some terrible way in a concentration camp in the 1940s. If they were convicted by a court in the United Kingdom of a war crime under section 9(1)(a) and that conviction took place after registration, then he accepts that the disciplinary committee could consider whether that conduct and conviction rendered the orthotist unfit to be registered. But if for some reason criminal proceedings had never been brought, or if, as I understand it, the conviction was in some court other than in the United Kingdom, the suggestion would be that a disciplinary committee would not be allowed to consider whether the orthotist had been guilty of infamous conduct in a professional respect.[30]The only answer that Mr Gibson can provide on behalf of Mr Lewis, as I see it, is that someone should not be held guilty of infamous conduct in a professional respect if the conduct occurs while they are not a registered member of the profession. That, as it seems to me, cannot be right, and in my view is inconsistent with the approach that the court has taken to similar legislation relating to other professions. It cannot depend on registration whether a person is practising a profession. Orthotists were practising their profession long before a board was formed and, indeed, are not compelled to be registered even now, and the absence of registration does not mean they are not practising their profession. All professions formed themselves into bodies because they were practising professionally. They did not start to practise professionally only once they had formed their professional body.[31]This was, as I see it, recognised as long ago as 1861 so far as registered medical practitioners were concerned. Section 29 of the Medical Act 1858 provided:
"If any registered medical practitioner ... shall after due inquiry be judged by the general council to have been guilty of infamous conduct in any professional respect, the general council may, if they see fit, direct the registrar to erase the name of such medical practitioner from the register."
[32]In dealing with that section, Crompton J observed in The Queen v General Council of Medical Education (1861) 3 E & E 525:
"Medical practitioners are not amenable to the jurisdiction of the council, under [section 29], until they have been registered. But if, at the time of their ... adjudication by the council to have been guilty of infamous professional conduct, they are registered, the section applies, and it is immaterial at what time the ... misconduct ... may have been committed. It is said that this construction makes the Act retrospective. It does so to a certain extent, but not in the general sense in which the rule against giving a retrospective operation to statutes is understood."
[33]In the skeleton arguments with which we have been provided references have been made to many other legislative provisions dealing with professions and many authorities. All seem to me to support the view that legislation such as the 1960 Act is intended to raise the standards of the profession for the protection of the public. It would be absurd if conduct committed the week before registration had to be ignored, whereas conduct during the week after would lead to a striking-off from the register. In my view, it is not in truth to construe the legislation as having retrospective effect to hold that the decision of the disciplinary committee in the future, albeit considering past conduct, can lead to registration being cancelled for the future.[34]There is a dictum of Lord Goddard in In re a Solicitor's Clerk [1957] 1 WLR 1219 at p.1222, dealing with a somewhat similar provision. He said:
"... this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect."
[35]Thus it seems to me that simply pointing to the time at which it is suggested the conduct complained of took place cannot lead to the conclusion that the disciplinary committee has no jurisdiction to consider whether Mr Lewis had been guilty of infamous conduct in a professional respect. Obviously those last words are important. If the allegations were of criminal conduct which could not be said to be connected with the practise of a profession, then the committee would have no power to examine them. But merely pointing to a date does not, in my view, exclude their jurisdiction.[36]I would dismiss the appeal.

LORD JUSTICE CLARKE: I agree.

LORD JUSTICE LAWS: I also agree.

Order

appeal dismissed; public funded costs assessment for the appellant.

Cited in 1 later judgment