Abrahaem, R (on the application of) v General Medical Council [2004] EWHC 279 (Admin)

Case No CO/5111/2003[2004] EWHC 279 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 26 January 2004
Strand
London WC2
B E F O R E:
MR JUSTICE NEWMAN
Between
THE QUEEN ON THE APPLICATION OF DR ABRAHAEMClaimant-v-
Between
GENERAL MEDICAL COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR ROBERT KELLAR (instructed by The Bar Pro Bono Unit) appeared for CLAIMANTMS LYDIA BARNFATHER (instructed by Legal Department of the General Medical Council) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE NEWMAN: This is an appeal by Dr Abrahaem. He appeals against his erasure from the Registrar of Medical Practitioners; such erasure being ordered by the Professional Conduct Committee of the General Medical Council on 2nd September 2003.[2]The appellant admitted the offences, to which I must turn by way of summary. He seeks to appeal the sentence of erasure on the grounds that it was excessive and disproportionate. It is also said, in addition, that the PCC took into account irrelevant considerations.[3]The legal background can be stated shortly, since it is not in contention. The court's jurisdiction to entertain the appeal arises under section 40 of the Medical Act 1983, as amended by section 30 of the National Health Service Reform and Health Care Professions Act 2002. This court now has the jurisdiction which was previously exercised by the Privy Council.[4]The present appeal is by way of rehearing. It is open to this court to substitute its own decision for that of the Professional Conduct Committee. Certain cases can be mentioned as seminal in this respect: Ghosh v General Medical Council [2001] UKPC 29, [2002] 1 WLR 1691; Preiss v General Dental Council [2001] 1 WLR 1926, as well as Bolton v Law Society [1994] 1 WLR page 512.[5]There is no dispute that the appellant's rights as enshrined in Article 1 Protocol 1 of the European Convention are in play, for erasure from the Registrar means that he looses his right to practise as a doctor and thereby his rights under that Article are affected.[6]The position so far as the substantive ground of appeal is concerned, namely proportionality, has moved to a certain extent from that which used to be the position at common law, namely that a high degree of deference was given to the PCC's assessment in disciplinary cases. The position is now more accurately stated as requiring appropriate respect to be given to the opinion of the professional tribunal. It is likely that the degree of deference will be higher in technical cases where, for example, a knowledge of the procedures and medical practices which are in issue, are more within the sphere of expertise of the professional body than the position which can arise in other cases (one might say as this), where the underlying substance of the allegations which the appellant faced, and which he admitted, involve issues of dishonesty and dishonesty in the broadest sense. With such matters these courts are familiar: the fraudulent use of documents in order to obtain an advantage and, as it happens, the possession, as here, of a Class A drug.[7]The approach of the PCC in its most material part is set out in the Indicative Sanctions Guidance, produced for the Professional Conduct Committee, by the General Medical Council, dated July 2003. With great clarity and accuracy the purpose of the PCC sanctions are described as follows:
"9. The purpose of the sanctions is not to be punitive, but to protect the public interest, although they may have a punitive effect. The Public Interest 10. There is clear judicial authority that the public interest includes: a. The protection of members of the public. b. The maintenance of public confidence in the profession. c. Declaring and upholding proper standards of conduct. 11. The public interest may also include the doctor's return to work if he or she possesses certain skills, competencies or knowledge, for example expertise in a particular area, or language skills."
[8]The facts of this case are unusual in that, as I observed in the course of the hearing, the appellant was guilty of a consistent, devious and calculated course of dishonesty and misconduct in relation to prescriptions in a manner and to a degree which in itself could be described as disproportionate to the objective he sought to achieve. His objective, so far as the fraudulent use of prescriptions was concerned, was to provide himself with a range of prescribed medication (one might say almost the "run of the mill" prescribed medication) for example will regularly be prescribed for people who suffer from chest infections from time to time, or suffer discomfort and require analgesics in respect of some pain; and, in respect of others, the medication could have been purchased across the counter of a pharmacy, for example items such as Calpol for children. But nothing I should say should be taken as an indication that I underestimate the seriousness of what he did. My purpose in highlighting these factors is that the nature of the drugs, which he obtained by fraudulent means, are consistent with the purpose for which he has always maintained he sought them, namely to provide his wife and two children, who at the material time, when he used the prescriptions, were in Egypt and, according to the evidence, suffering from a range of complaints which, but for the quantities in which they were sought, and perhaps the dosages to which there may have been recommendations, would have been normal run of the mill medication for people suffering in his family from those conditions.[9]His case has always been, and in the absence of his evidence being rejected because he was lying, there is no evidence to contradict the case that he engaged in this sophisticated and totally dishonest conduct, for anything other than the purpose which I have just summarised. It is, therefore, necessary just to draw in some outline what it is that he did. It is right to have in mind when dealing with this summary of events, that his wife and children did not depart for Egypt until October 2000. The misconduct commenced in a period of some nine days between 21st and 30th September 1999, when he was working as a locum specialist registrar at the Bedford Hospital NHS. In the period of nine days, he removed from Bedford Hospital a total of nine prescription forms, carrying serial numbers. It was perfectly apparent from the way in which he had removed them that he had not done it sequentially.[10]At that particular time his wife and children were not in Egypt, they were in England, living in their home in Windsor. His explanation for having taken the nine prescription forms, at that date, was that he took them in case an emergency or urgency arose in connection with his family's interests and needs. That was the sole reason.[11]As I say, the circumstances are unusual because he did not use them for that or for any other purpose for some time. The occasion when he did come to use them was after his wife and family had gone to Egypt. When the need arose, according to the evidence, because there was an inadequate supply of drugs, considered by the family to be suitable and more efficient available to them whilst they were in Egypt. It ought to be said that he was not only a doctor, and a qualified consultant, but his wife, whom he met whilst employed here between 1992 and the events in question, is a registered nurse who is qualified here. So the facts became more and more circumscribed. We are dealing with a potentiality for their use within a family, of what one can describe as "routine" drugs where not only the appellant but his wife, the mother of the children, are medically qualified.[12]The position gets worse so far as the history is concerned, and to a certain extent the more inexplicable, in that he then removed whilst he was at the Medway Maritime Hospital two further prescription forms of a particular serial number. In relation to those, he maintained that he had done that for a particular reason, which the Professional Conduct Committee did not accept. But, again, whatever the reason is he did do it, in terms of character or category, the conduct is of a very similar nature to that which I now come in a little more detail.[13]It was between February and March 2001 that he used three of the Bedford Hospital prescription forms, which it will be remembered he had had in his possession since September 1999. He presented them for medication to Boots, the Chemist, in Gillingham, for a list of drugs -- Betnovate, Augmentin, Clarithomycin, Calpol and Clarityn -- in a false patient's name with a false address, and signed in the name of a doctor who was false. He then used another prescription to present to Boots, the Chemist, in Chatham, for drugs, again in false names of a patient and signed in a doctor's name other than his own. Then finally, and as it happened halting the course of conduct, he used a prescription at Boots, the Chemist, in the Bluewater Shopping Centre, for various drugs, including Coproximal, in another patient's name, which was false, and signed in a false name of a doctor. The significance in relation to each of these, which was in fact picked up in the pharmacist in Boots in Bluewater, was that he was on these occasions requesting drugs in quantities sufficient for some three months. Thus it was that the pharmacist in Bluewater was sufficiently suspicious that he told him that he would have to come back. He did come back and was arrested.[14]As a consequence of his arrest, his accommodation within the doctor's residence at the Medway Maritime Hospital was searched. The police then found the six remaining Bedford Hospital prescription forms; two unused Medway Maritime Hospital prescription forms; 110 morphine sulphate capsules; 43 temazepam tablets; quantities of dihydrocodeine, and various quantities of other prescription and non-prescription medications, including out-of-date medications. By reason of the possession of morphine, he was in possession of a Class A drug. As to this episode whatever the suspicions, and it has been emphasised to me that suspicions and concerns prevailed in the PCC -- the drugs were in an unsecure, disordered state of affairs in his accommodation (I understand in plastic bags, unsecured otherwise in his room) and his explanation was that at an earlier date he had been a member of a charitable committee, established for the purposes of gathering drugs in this country to obtain donations of medications for medical aid for Palestinian charities. The evidence was that he had been asked by Geoffrey Clarke, who is a deputy leader of the Muslim Parliament in the United Kingdom, to assist in such a scheme. Thus it was that donations were to be collected via collection bins in the local shop and mosque. It was envisaged that the drugs would be brought to Dr Abrahaem, who would then look through them in order to decide which drugs could usefully be donated to the charity. Some drugs were eventually deposited with Dr Abrahaem, but nevertheless the charitable exercise was abandoned, owing to the coming into force of new anti-terrorism legislation in the year 2000. Thus it was decided that it would not be proper to engage in any exercise which might be tainted with perceived links to terrorism. As it happens, Dr Abrahaem had also concluded that a significant quantity of the drugs were out-of-date and were not fit for human consumption. The drugs which I have described and which were found in his premises at the Medway Hospital consisted of these various medications, which he had nevertheless left in his room, knowing that the purpose for which they were collected was no longer extant, but doing nothing about it. He was, in my judgment, rightly criticised for the irresponsible way which he had kept these drugs in his room, for having not taken steps to dispose of them, when even the purpose for which they had been acquired was no longer relevant, and for keeping them in the manner in which he did, namely insecure, where they could have been easily open to abuse and exploitation.[15]I have probably said enough to indicate why, in my judgment, these facts are unusual. As one picks one's way through the detail, whatever the suspicions and concerns which the Professional Conduct Committee had, when one analyses the situation, he had these prescription forms, which he acquired long in advance of any then known emergency or urgency, for the purpose of using them, in the way in which they were ultimately used. Had there been another purpose one would have expected some use of them to be made between 1991 and the date when they were actually used.[16]However unusual and somewhat bizarre, he had an over supply of prescription forms in his possession for a long period of time, for a purpose which was not then settled or firm but which, in general terms, went no further than assisting his family when events required. Those events did not occur until the family was in Egypt.[17]In respect of that explanation, as indeed in respect of the explanation for the miscellany of drugs, it was for the Professional Conduct Committee -- who heard evidence upon it, including cross-examination -- to decide whether they totally rejected these explanations, because they disbelieved his evidence, or whether they were to proceed upon the basis that he was to be sentenced and dealt with upon the basis that, whatever their concerns, the explanations had to be accepted.[18]Although we have had some preliminary excursions around this issue in the course of argument today, the fact of the matter is that so far as this court is concerned he must be dealt with, in fairness, upon the basis of those explanations being correct.[19]I turn to the issues which, having regard to the facts of this case, I have not considered entirely straightforward. The submission made by Mr Kellar falls into these parts. He submits that his record as a practitioner in this country can be described as "exemplary". Miss Barnfather, with understandable restraint, does not accept that as an appropriate description. Nor do I. It does not seem to me that anything that I have heard about his practice in this country, which is highly spoken of, really calls for any form of special commendation, nor to be marked out as deserving any particular imitation, which is what "exemplary" means. But that said, I have a body (of what can be described) as testimonials which come from a range of patients. As to those, without disregarding them, I would, with respect, not place a great deal of weight upon them. They demonstrate that in a period of eight years in this country he has very successfully dealt with the medical needs and requirements of a number of people who have expressed their gratitude. That one would expect of a practitioner. But, more than that, there are testimonials which have spoken of his particular contribution to hospital work, from those who are in the National Health Service rather than simply patients of it. He is someone, who it is fair to say, has quite plainly been not only a competent physician, but he is someone who has been particularly liked and has been particularly successful. Some have described him as extremely kind and compassionate. Others have described his ability as one in which he has shown care over the years. That he is kind, sensitive and humorous. He will be missed by his colleagues. These are the sort of commendations which put at least some flesh, one might say, upon his skills as a practitioner. He is described as having a very caring, sympathetic manner; respect, admiration and gratitude has been expressed to him. He has appeared to be dedicated and someone who demands a high standard from others with whom he is working; that is in the particular area of expertise to which he has turned. He is well thought of and highly liked.[20]In terms of qualifications, I ought to say that he qualified in Egypt in 1988 and commenced practice in the United Kingdom in December 1992. Thus he has been here for some eight years working in some five different hospitals. In March 1994 he was elected a member of the Royal College of Physicians. He then obtained a certificate in the completion of specialist training in the Thoracic and General Internal Medicine in November 1999. He has also contributed to research in his areas of expertise.[21]The next area to which Mr Kellar drew the court's attention was to the "post-incident history". Great emphasis has been made upon the consequences which this has had upon his family and himself. It has been, it is said, lengthy and stressful. I have no doubt that it has. In particular, he had to face criminal prosecution for possession of a Class A drug, namely the morphine. He was convicted at Crown Court, and in respect of that was fined £500. It is relevant to note that the fine of £500, in respect of possession of a Class A drug, is a very clear indication of the level of gravity which the Crown Court judge attached to the particular offence with which he was charged. He sought to defend those proceedings broadly on the basis -- I do not pretend now to present the argument with any great legal clarity -- that being a doctor he could not be charged with possession of a Class A drug because he was authorised to have it. It would seem that the Crown Court judge, if I may say so, rightly did not think much of that defence, but he went too far and directed the jury to convict, which meant that in the Court of Appeal the conviction was set aside.[22]Undoubtedly that was stressful and, undoubtedly, as I would be prepared to accept, must have gone some way to bringing home to the appellant that what he had done was not something which could be treated lightly, but something which, so far as conduct is concerned, let alone what he had to face from the professional body governing his activities here, called for prosecution and to be made subject to court process in this country. He must have realised that he needed, in future, to bring his conduct into line. As it happened, he was then subject to an interim order by the conduct committee.[23]The Interim Orders Committee on 16th October 2002, was onerous in the conditions it imposed and, in my judgment, rightly so. The conditions were such that they, in effect, prevented him from practising. That was absolutely right in my judgment, in the light of the circumstances which then prevailed, and in the light of the fact that this was an interim order which had to be taken in the public interest before the facts had been adequately and fully investigated. At that stage, everything pointed to the order in the terms in which it was made. That, of course, has given rise to some hardship. But again, that is, in my judgment, a natural consequence which will flow to someone in a professional position, who behaves in a way such as this. The financial and personal consequences are the sort of financial and personal consequences one would expect in any family which had had a relatively high income from a professional occupation which was then effectively stopped. They now have debts of some thousands of pounds and, for reasons peculiar to the fact that he is by training and by background an Egyptian, he presently is in Egypt and his wife and children are in this country. But despite the effort to place particular weight upon those factors, in my judgment they do not do other than illustrate exactly what one would expect to occur in cases such as this, when circumstances such as this are under investigation.[24]Mr Kellar put at the heart of his submissions, observations such as this: "an innocent motive", he said, insofar as the prescriptions are concerned. I do not regard that as a particularly helpful adjectival description of a motive. The motive itself was to assist his family. It is a far better motive, that can be said, than the motive to assist somebody who is not a member of his family, and certainly a far better motive -- insofar as one is looking for worse cases -- of assisting somebody else for the purposes of gaining financial reward. That has not been part of the case. The case, as I have emphasised, is one which has proceeded upon the basis that his motive was as I summarised at the outset.[25]It is emphasised that there is an absence of harm to anybody. That has proved to be the case and probably, as I have indicated, was likely always to be the case, having regard to his medical qualifications and the qualifications of his wife, who would be responsible for administering the drugs which had been obtained. It has been said that the quantities in which the drugs could have been used was sufficient to give rise to some concern. One cannot eliminate all sorts of risks in a case such as this, but in my judgment that does not rate as a particularly high one.[26]I have said enough to cover the other points which Mr Kellar raised in relation to the prescription offences, the nature of the drugs and the absence of financial gain.[27]So far as the drugs in his accommodation are concerned, of course Mr Kellar relied upon the charitable reason for possession. They were there, and obviously had not been put to any other use.[28]The critical points by way of development which, in my judgment, really do give rise to the central features of this case which have to be weighed, stem from Miss Barnfather's submissions before the Professional Conduct Committee, which rightly centre on the extent to which the appellant at the time, and subsequently at the professional hearing, demonstrated that he had an insight into the gravity of the conduct of which he had been found guilty, and to which he had admitted. Something of the flavour of the position, which Miss Barnfather emphasised to me, and which was no doubt present rather more strongly in the sustained period of time in which he was giving evidence before the Committee, can be demonstrated from the most recent statement which was put in by Mr Kellar before this court, after some objection from Miss Barnfather, but nevertheless allowed by me, subject to ensuring that no prejudice was done to the Professional Conduct Committee as a result.[29]In the statement which is now before the court, he says:
"The events of the last two and a half years have been a most devastating ordeal. I know that I have done wrong and severely regret my actions which have caused tremendous psychological, social and financial suffering for me and my family. The scale of my regret and the consequences of my actions cannot be overstated."
He then goes into details about the financial position and the familiar problems which arise in his present position. He then concludes:
"Over the past two and a half years, there has not been a single day passed without regrets for what I have done. I am so sad and I can only express my sorrow and regrets in my statement. I have had a lot of time to reflect on all the events since I was first suspended from the Medway hospital two and a half years ago. I do deeply regret my actions and with hindsight realise that I could have been more circumspect and vigilant when handling and storing the medicines which were in my home. I also cannot believe my own foolishness at removing the prescriptions from the hospital and using them especially as I could have obtained the medicines by lawful means. It is something that I shall forever regret."
I should observe as a matter of detail that it does seem to have been common ground, although the precise basis for it is not something which is entirely clear to the court, that had he wished to obtain medicines for the purpose of sending them to his wife and children in Egypt at the material time, he could have done so by lawful procedures; but he did not.[30]In my judgment, perfectly fairly, Miss Barnfather emphasises that the position at the hearing was that he was not showing any insight into the gravity of his misconduct. She says when you look at this statement which has been put in before the court that same picture is present. This is, although she did not use these words, I think I am probably articulating the underlying submission, the expression by way of a statement of deep regrets, are all deep regrets for the position into which he has got himself. There is nowhere in his statement anything to the effect, she submits, that he deeply regrets having brought the profession into the state in which he did bring it by his misconduct; accepting that he realises that he has done a serious professional wrong in behaving in the way that he did. In fact it is a self-serving, self-pitying statement about the difficulties which his conduct has thrown up, as opposed to that which was really important for this court to be informed about. I put it in that way because I think that fairly reflects what the restrained advocacy of Miss Barnfather was seeking to get across.[31]There was, in my judgment, justification for the Professional Conduct Committee to have reservations about the insight that this doctor has into the gravity of his conduct at the time, certainly at the time when he committed this chain of conduct, and at the time he was appearing before the Committee. I agree that so far as this statement is concerned, it contains some hint, or indication, that he might now realise how serious his conduct was. But it does not extend beyond more than the expression, "I could have been more circumspect and vigilant when handling and storing the medicines", and to regard his conduct in relation to the prescriptions as something which was "foolish", because he could have achieved his end by lawful means.[32]As the Committee, through Miss Barnfather, are entitled to submit, it is a central core standard of the medical profession in this country that in relation to drugs and prescriptions in relation to drugs, a doctor's conduct is thorough, rigorous and to the letter. The reasons for that are obvious: the potentiality for abuse if anything other than the higher standards of conduct are not followed, are obvious. So it is that I come back to what I regard as the critical balancing exercise which this case throws into focus.[33]The penalty of erasure is, of course, the final and ultimate sanction which can be imposed. In the guidance, to which I have already referred, there are helpful main points which are identified. It says under the heading "Erasure":
"This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a doctor and involves any of the following (this list is not exhaustive): - Serious departure from the relevant professional standards as set out in Good Medical Practice."
In my judgment, there can be no doubt that there was a serious departure from the relevant professional standards as set out in the Good Medical Practice, I might say by way of inclusion in that, the medical practice that exists in connection with the way in which doctors should behave, vis-a-vis their family and their medical care for their family. The next criteria is:
"- Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients."
That does not arise. "- Dishonesty (especially where persistent and covered up)." The next point:
"- Persistent lack of insight into seriousness of actions or consequences."
The rubric to these matters is that erasure is likely to be appropriate when it involves any of the following.[34]In my judgment, there was a serious departure from the relevant professional standards set out in Good Medical Practice. There was dishonesty and there is an area of concern as to the degree of insight that exists into the seriousness of his actions.[35]One should consider, therefore, in my judgment, since no other penalty could properly be under consideration, what the guidance says in relation to immediate suspension, namely 1 to 12 months being available. "This sanction may be appropriate when some or all of the following factors are apparent (this list is not exhaustive). - A serious instance of misconduct but where a lesser sanction is not sufficient. - Not fundamentally incompatible with continuing to be a registered doctor. - No evidence of harmful deep-seated personality or attitudinal problems. - No evidence of repetition of behaviour since the incident. - Committee satisfied doctor has insight and does not pose a significant risk of repeating behaviour."[36]Those are very useful guidelines and they form a framework which enables any tribunal, including this court, to focus its attention on the relevant issues. But one has to come back to the essential exercise which the law now requires in what lies behind the purpose of sanctions, which, as I have already pointed out, is not to be punitive but to protect the public interest; public interest is a label which gives rise to separate areas of consideration. The first is the protection of members of the public. I ask myself in connection with the facts of this case whether the conduct is such as to give rise to a concern in this court as to whether the public need protection from a doctor who has behaved in this particular way? I find my consideration of that issue leads me to a clear conclusion. I cannot see, on what I regard as the very unusual facts of this case, that the public need protection from this doctor. When I weigh this issue in the scales, so far as the public is concerned, all the evidence points the other way. He has, to all accounts, acquitted himself perfectly adequately as a doctor, served members of the public well, been regarded well by his colleagues and done a good job.[37]What about the maintenance, therefore, of public confidence in the profession and declaring and upholding proper standards of conduct? So far as his conduct is concerned, the public, I am sure, would be very concerned to know that a doctor of his qualification and his experience should think it right that he should be able to abuse the procedures of the National Health Service in order to provide for his family in the way that he did. But I am bound to say the factors which are reflected, as I indicated earlier quite conveniently, in the response of the Crown Court to the offence so far as the possession of morphine is concerned, would not have been made significantly worse by the facts, as we know now they are, so far as the roundabout, devious, dishonest way in which he sought to make drugs available to his family, as and when he thought they might need them, and in particular when they were in Egypt.[38]The proper standards and conduct of a doctor's behaviour can be declared and made plain by any number of means. There is no reason to assume that erasure is the only way in which to declare and uphold proper standards. But all that said, I come now to what I regard as Miss Barnfather's critical point, for which she had some foundation for submission.[39]The problem that doctor poses is that because of what might be described as his less than penitential approach to the gravity of what he did, one has a lingering consideration that his insight is less than that which it should be to qualify for consideration within the frame of a lesser penalty. As to that, in my judgment, I have to ask: how far does the ultimate sanction of erasure remain in play when the real position is that what is at risk is that the individual has just not got sufficient insight into the gravity of that which he did. It seems to me that one is entering into areas of excessive and disproportionate penalty if what one does is, in effect, assume that this doctor is quite incapable of having sufficient insight into the gravity of that which he did so as to lead to the risk that he would commit an offence such as this again. In my judgment, it is asking or inferring too much, from what I regard as his less than satisfactory evidence to the court in his statement, to conclude that he will not develop from this experience, and from what I would regard as an appropriate continuing penalty proportionate to the situation, sufficient and overall insight. If, as may be the case, he has not now learnt, in the period of time which he has had since these troubles broke out, that he offended a core aspect of professional conduct in this country as a doctor, then he should have some further time to think about it.[40]It seems to me that in a case of someone who is in every other respect capable of being a good and useful doctor, the public interest does not require he should for ever be foreclosed from being in such practice. There is a means which is available by way of suspension which can give rise to the measured and staged progress which is necessary here. If he is disqualified for 12 months from today, as Miss Barnfather told the court was possible, the Council are able to reconsider the position if they consider it necessary, because of a lack of progress or insight into the position, and he can be suspended for another 12 months. Further they have sanctions available by way of condition, which can bring home to him the limitations on his practice which can be imposed if necessary.[41]Although it is strictly unnecessary for me, in the light of my expressed criticism, to say anything more about the PCC's decision, I am bound to say that I have harboured through the argument a strong sense that the difficulty presented by this case stemmed from concerns about the legitimacy and truthfulness of the explanations he had given. As a result, whilst I recognise the difficulties which sentencing bodies have when dealing with cases such as this, I have to say that fairness does require that you either accept or reject the explanation and if it is accepted you sentence in accordance with the explanation. You cannot be seen to accept the explanation but then sentence, in effect, upon the basis that, in your heart of hearts, you do not actually believe that that was the explanation. The intellectual exercise is familiar to the courts but it can be a very difficult thing for people to do. I do not say that the error has occurred here, but it might have led to what I regard as an unnecessarily excessive penalty. I believe the public interest can be protected in the way I have indicated.[42]Therefore, to that extent the appeal is allowed.[43]MR KELLAR: My Lord, I have no application for costs.

MR JUSTICE NEWMAN: Miss Barnfather, anything you ask for?

[45]MISS BARNFATHER: No, thank you.

MR JUSTICE NEWMAN: Thank you both very much indeed.

Cited in 10 later judgments

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