Vinyagamoorthy, R (on the application of) v The National Health Service [2013] EWCA Civ 299

Case No C1/2012/3313[2013] EWCA Civ 299
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE CRANSTON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: Tuesday 19 th February 2013
Before
LORD JUSTICE JACKSONLORD JUSTICE LEWISONLORD JUSTICE BEATSON
Between
The Queen on the Application of VinyagamoorthyAppellantthe National Health ServiceRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Applicant appeared in person for in personMs Fenella Morris (instructed by Capsticks Solicitors LLP) appeared for Respondent.
Judgment
[1]Dr Vinyagamoorthy and his wife were GPs in Edmonton. I will call him “the doctor” and her “the claimant”, although they are in fact both doctors. They originally came from Sri Lanka. In 2004 they contracted with the Enfield PCT for the provision of primary healthcare. The contract included the terms required by the National Health Service (Personal Medical Services Agreements) Regulations 2004. Paragraph 105 of Schedule 5 to those regulations, which is one of the terms required, provides so far as material: 105. —(1) The relevant body may serve notice in writing on the contractor terminating the agreement forthwith, or from such date as may be specified in the notice if— (a) in the case of an agreement with an individual as a party, that individual… falls within sub-paragraph (3) during the existence of the agreement. Subparagraph (3), provides so far as material:
" A person falls within this sub-paragraph if— (a) he or it (in the case of a qualifying body) is the subject of a national disqualification… (f) he has been convicted in the United Kingdom of a criminal offence and has been sentenced to a term of imprisonment of over six months; (g) subject to sub-paragraph (6), he has been convicted elsewhere of an offence— (i) which would, if committed in England and Wales, constitute murder, or (ii) which would, if committed in England and Wales, constitute a criminal offence other than murder, and been sentenced to a term of imprisonment of over six months… "
Sub paragraph (6) says, so far as material:
"A relevant body shall not terminate the agreement pursuant to sub paragraph 3 G where the relevant body is satisfied that the conviction does not make the person unsuitable to be a) a party to the agreement "
[2]The doctor has been involved in Sri Lanka with the activities of the Liberation Tigers of Tamil Eelam (“the LTTE"). Those activities included money-laundering. In August 2006, while on a visit to the United States of America, he was arrested by the FBI and incarcerated on terrorism charges. In June 2009 he pleaded guilty in court in New York to charges of conspiring to provide material support to the LTTE. The PCT was notified of his guilty plea on the following day.[3]The claimant has told us this morning that prosecutors indicated that the sentence would be in the range of zero to ten years.[4]On 28 September 2010 the PCT gave notice under paragraph 105 terminating the contract. The grounds of the termination were stated as follows :
"In June 2009 Dr Vinyagamoorthy pleaded guilty in the US to charges including conspiracy to provide material support to the Liberation Tigers of Tamil Elan (‘LTTE’), a designated terrorist organisation in the US which has a long-standing involvement in illegal arms dealing. The PCT understands that the charges relate to Dr Vinyagamoorthy's attempt to drive a State Department official to downgrade the LTTE as a terrorist organisation under US law and laundering LTTE funds through Switzerland to fund a US congressman's visit to LTTE controlled territory in Sri Lanka. Dr Vinyagamoorthy is still awaiting sentence, but the PCT understands that he will remain imprisoned for a period of at least ten years. As a result the PCT considers that regulation 105(3)(g) applies. Given the seriousness of the offence and its obvious implications as to Dr Vinyagamoorthy's probity, the PCT is also satisfied that the conviction makes him unsuitable to be a party to the agreement, such that it may terminate the Contract under regulation 105."
[5]The doctor did not appeal against the termination, but the claimant did. On 7 February 2011 the NHS Litigation Authority dismissed her appeal. Paragraph 3.12 of the decision letter stated:
"I am therefore satisfied that the Contractor has been convicted of an offence and, if convicted in the UK, would constitute a criminal offence other than murder and would attract a term of imprisonment of over six months and therefore the PCT was entitled to exercise its discretion to terminate the Agreement under paragraph 105(3)(g) of the Regulations."
[6]On 27 April 2011 the doctor's sentencing hearing took place in New York.

The judge said, with the correction of one slip of the tongue:

"I think we have to be very careful before we throw out the word ‘terrorism’ and ‘terrorist’ or ‘support for terrorism’ lest we fail to take into account the full picture of the individual such as this defendant here who, from what I can see and is documented in great detail by Mr Marinaccio, has spent his life from the moment he fled [from] Sri Lanka on the eve of gaining his medical license until probably the moment of his arrest endeavouring to serve other people and in his zeal and, I think, perhaps an element of naivete, it is my impression at least inevitably fell in with people sympathetic to LTTE. It is hard to do business in that part of Sri Lanka without dealing with the LTTE as we all know including foreign governments. And for that misjudgement he has been punished severely for the better part of five years in a foreign jail, isolated from his family, in poor health, having forfeited his license to practice [medicine], something he worked for and studied for all his life and which he used to help other people, whether it be low income patients of his in London or whether it be victims of the tsunami. He abandoned his practice literally overnight to go to the aid of victims, be they Sinhalese or Tamil. I just think this man has suffered enough. He’s been punished enough and it is time to bring it to an end. So, I am going to impose the sentence of time served, three years supervised release, no fine and $100 special assessment."
[7]The claimant issued her claim for judicial review on 4 May 2011. Collins J refused permission on the papers and Cranston J refused permission on the renewed application. On a renewed application for permission to appeal, Longmore LJ adjourned the application to a full court with the appeal to follow if permission were granted. I must also record that on 19 February 2012 the General Medical Council decided to erase the doctor from the medical register following its finding that his fitness to practise was impaired by his conviction. This would, of course, enable the PCT to terminate the contract under paragraph 105(3)(a) and it would be astonishing if it did not exercise that power.[8]The point taken by the claimant is that paragraph 105(3)(g) is only engaged when a person has actually been sentenced to a term of imprisonment of over six months. It is not therefore open to a PCT to terminate a contract where it anticipates that a sentence of more than six months will be imposed even if the person concerned has been on remand for a period exceeding six months. It is not entirely clear to me that Cranston J reached a decision on this point one way or the other. What he said was that, even if the point was a good one, it was inevitable that, if the PCT were to remake the decision, it would be inevitable that the same result would follow. Now that the doctor has been struck off, in my judgment the outcome is beyond doubt.[9]The court does not quash a decision if no useful purpose would be served by so doing. That is why judicial review remedies are discretionary. In my judgment there is no prospect that the court would exercise its undoubted discretion in the claimant's favour. In those circumstances, whether the legal point is right or wrong, is academic. I would refuse permission to appeal.[10]I agree.[11]I agree.

Order

Application refused