In the matter of a reference under Section 29(4) of the National Health Service Reform and Health Care Professions Act 2002 v THE COUNCIL FOR THE REGULATION OF HEALTH CARE PROFESSIONALS [2005] EWHC 87 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2005] EWHC 87 (Admin)Case No Case No: CO/3616/2004Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
In the matter of a reference under Section 29(4) of the National Health Service Reform and Health Care Professions Act 2002THE COUNCIL FOR THE REGULATION OF HEALTH CARE PROFESSIONALSAppellantGENERAL DENTAL COUNCIL Mr Alexander FleischmannFirst Respondent SecondRespondent
Before
Mr Justice NewmanMr Robert Jay QC and Ms Kristina Stern (instructed by Weightmans) for the AppellantMr Neil Garnham QC (instructed by Capsticks) for the First RespondentMr David Fisher QC (instructed by Bankside Law) for the Second RespondentHearing dates: 8th and 9th December 2004Date 3 February 2005
[1]MR JUSTICE NEWMAN : The facts On 11 th December 2002 a search warrant was issued out of the Horseferry Road Magistrates' Court under section 42 of the Protection of Children Act 1978 (as amended) authorising an entry and search at the home of Mr Alexander Fleischmann, a practising dentist.[2]On 17 th December 2002 police officers went to the address and Mr Fleischmann was arrested for inciting the distribution of indecent photographs of children. The search warrant was executed and a number of items were seized. They included a computer tower unit and a quantity of zip disks. Mr Fleischmann was interviewed, but made no comment. He was bailed pending examination of the material seized.[3]Shortly before these events, namely on 21 st November 2002, a judgment of the Court of Appeal in the case of R v Oliver [2003] 1 Cr. App. R. 463 was handed down. Rose LJ, in giving the judgment of the court, adopted, with only minor alterations, the Sentencing Advisory Panel's method for analysing material in order to determine the seriousness of offences involving downloading child pornography from the internet. Analysis takes place according to five levels of description, in ascending degree of seriousness. Level 1 covers "images depicting erotic posing with no sexual activity". Level 2, "sexual activity between children, or solo masturbation by a child". Level 3, "non-penetrative sexual activity between adults and children". Level 4, "penetrative sexual activity between children and adults". Level 5, "sadism or bestiality".[4]Examination of the material seized from Mr Fleischmann's property proceeded by reference to these levels. Examination of the computer showed that it contained one movie file and in the file a directory of a film. The film contained indecent photographs of children to Level 4. Two other files were found in the directory which contained one indecent image at Level 4 and one indecent image at Level 5. In a further directory there were four indecent images at Level 1. Contained in another directory were 3,696 graphic images. 2,592 were indecent images of children: 651 were at Level 1, 384 were at Level 2, 474 at Level 3, 1,065 at Level 4 and 18 at Level 5.[5]As to the quantity of zip discs which were examined, two were found to contain indecent images of children. One contained two movie files, one at Level 4 and one at Level 5. Two deleted movie files at Level 4 were also identified. Out of a further 258 files, 184 contained indecent images of children. These were categorised as 50 at Level 1, 26 at Level 2, 32 at Level 3, 74 at Level 4 and 2 at Level 5.[6]A detailed examination of the seized computer components disclosed that the movie film located in the directory was also to be found in the loose media material which had been seized. On the computer hard drive it was shown as having been created on 7 th December 2002 and last accessed on 7 th December 2002. In the zip directory it was shown to have been created on 7 th December 2002 and last accessed on 16 th December 2002, namely the day before the police arrested Mr Fleischmann. Further investigations showed a record within the file headed 'Quick Time Favourites' and the movie film was contained in that file. 'Quick Time' is a popular computer program used to view such movie files. According to the expert examiner, the conclusion was that the file copy found in the temporary directory of the hard drive was created whilst the movie was being accessed from the zip disk.[7]Examination of the computer also showed that there were a number of text files called 'Mr Double'. These were not the subject of charges. The expert examining the computer, acquainted as he was with this material, recognised the stories as ones which are available on the internet from a particular website. The stories commonly relate to illicit child sex. In the zip a number of these stories were found saved as text files. A number of emails relating to paid subscriptions to the site were also discovered.[8]Additionally a number of deleted files relating to a number of 'newsgroups', known by the expert to regularly offer indecent photographs of children, were located. He was able to confirm a subscription for the provision of this material.[9]The computer had, as part of its program, a program known as 'Ixla Explorer' which is used to view mainly graphic and movie films. This is a program which can speed up the viewing procedure by producing thumbnail images on the screen, which are smaller versions of the original picture being viewed, thereby enabling the user to have a number of different pictures on view at the same time. Thumbnail images created during this process are then stored in the Ixla data file. It was in this file that the 3,696 images were found.[10]A further examination of the temporary internet files on the computer indicated that a number of files had been viewed on 16 th December 2002, the file names relating to a series of indecent photographs involving a particular young girl. Further examination also showed a large number of visits to the 'Mr Double' website.[11]The material disclosed that the subscription to the 'Mr Double' website was paid on 3 rd October 2001 and a further subscription to newsfeeds.com was taken out on 7 th October 2001.[12]The total of the material examined was categorised as follow: Level 1 672 images Level 2 416 images Level 3 517 images Level 4 1,176 images Level 5 22 images The charges were, as is common in these cases, specimen charges. Again, as is common, the judge at the Crown Court was provided with a document being a descriptive schedule of the images, the subject matter of the counts on the indictment. No proper consideration of the gravity of offences such as this can take place without a schedule of this sort and/or viewing of the images themselves. For present purposes I shall refer only to the ages of the children involved as they appear from the schedule. On count 1, the girl was aged 6. On count 2, aged 3. On count 3, two children – one aged 10 and the other aged 12. On count 4, a baby aged 18 months. On count 5, a girl aged 5 years. Count 6, a child aged 2 years. On count 7, a child aged 10 years. On count 8, a girl aged 6 years. On count 9, boys and girls including a girl aged 10 years. On count 10, a girl aged 4 years. On count 11, a girl aged 6 years. And on count 12, a girl aged 4 years.[13]On 15 th August 2003 Mr Fleischmann was interviewed for the second time at Harrow Police Station by child protection offers in the presence of his solicitor. He explained how he had commenced watching pornography, "normal pornography" as he described it, in 1994 and thereafter there had been many occasions when, for various personal reasons including family illness and such like pressures, he watched pornography. Later, after 1998, there were many reasons why he became very depressed. He became more depressed and would go back and have a look because he was looking for more and more extreme pornography. He found more and more extreme cases and eventually found that if he went to an uncensored newsgroup he could get any kind of pornography. He added that he could honestly say that he did not get any great pleasure or any pleasure out of it. It had what he regarded as a "numbing" effect upon him; it helped him to cope. He explained how he did not believe he was in a normal frame of mind. He believed he was using pornography as an escape route to a fantasy world to get away from reality. By the time of the second interview he had been to see a psychiatrist, Dr Lloyd. The Crown Court hearing[14]Having entered his guilty pleas to the charges at an early stage, he was sent for sentence to the Crown Court. On 19 th December 2003 he came before HHJ Matheson QC. In a pre-sentence report prepared for the court, the author, a probation officer, having had two interviews with Mr Fleischmann, recorded that Mr Fleischmann, consistently with his interview to the police, maintained that, although he was initially excited by the material, he had later become shocked by it and that he used the material as an escape route. The opinion of the experienced probation officer was: "In my opinion Mr Fleischmann's thoughts and feelings underpinning his offending behaviour are greatly distorted".[15]So far as the course of conduct was concerned, he told the probation officer that he would normally spend up to 3 hours between midnight and 3.00 am viewing the material when, because of the depression from which he was suffering, he was unable to sleep. The probation officer carried out an approved assessment test (Risk Matrix 2000), according to which Mr Fleischmann was at medium risk of committing a similar offence within the next 20 years. In order to properly assess the level of his deviance, the probation officer believed there would need to be "a battery of psychometric tests". This form of testing could be carried out or would need to be carried out before Mr Fleischmann undertook any community sex offender treatment programme.[16]Paragraph 4.3 of the report stated as follows:
"In my opinion, Mr Fleischmann's level of risk is likely to be lowered if his knowledge and understanding of the thoughts and feelings that underpin his offending behaviour can be increased. This I believe would improve his ability to devise effective relapse prevention strategies. It is my view that these objectives are most likely to be achieved by him being subjected to a lengthy period of statutory supervision."
[17]The recommendation of the officer was that there should be a three-year Community Rehabilitation Order with conditions attached.[18]The defence called Dr T L McClintock, a consultant in forensic psychiatry, who gave evidence in accordance with a report dated 25 th November 2003. Dr McClintock concluded, so far as the depressive episode is concerned, as follows:
"I am satisfied that he was suffering from a depressive episode at the time these offences took place but I find it difficult to relate his mental state to the offending behaviour in the absence of any admission from him that the pornographic images were sexually arousing"
. He also concluded, in connection with a suggestion that Mr Fleischmann had, in truth, been engaged in punishing himself rather than obtaining any measure of sexual pleasure from the material:
"I find it difficult to accept that he would have looked at such a large number of images, over a significant period of time, simply as a way of punishing himself for his failings in other areas"
. Dr McClintock considered whether Mr Fleischmann posed a direct risk to children. He concluded as follows:
"I find it challenging to comment on the risk of direct harm to any child which Mr Fleischmann may encounter as psychiatry is very poor at identifying those individuals who will translate their fantasy life into behaviour in terms of contact with children"
. He then summarised the absence of any identifiable particular factors which would indicate such a risk and concluded as follows:
"In the absence of any such pointers I conclude, tentatively, that Mr Fleischmann probably poses a low risk of direct harm to children. Given the difficulties with risk assessment in general, I would see this as being the most sympathetic view which could be given in a case such as this"
. The judge's sentencing remarks[19]The judge considered the case of Oliver and reflected upon Mr Fleischmann's case with a view to assessing the degree of aggravation it presented. A considerable amount of material was put forward in mitigation. The depression was advanced to explain the conduct and to demonstrate the way in which the defendant had come to offend. He was also addressed upon the catastrophic impact a prison sentence would be likely to have upon the defendant's mother and mother-in-law, who were totally dependent upon him. He heard a number of character witnesses speaking to the positive good character of the defendant prior to the commission of these offences.

The judge assessed the seriousness of the offence, in summary, as follows:

"All of these are factors [being a reference to the circumstances of the offence] which are of some considerable seriousness and gravity and there is no doubt in my mind that this is a case which, on those grounds, would ordinarily justify a custodial sentence and the guideline case suggests that for this sort of matter, it is something in the order of anything between twelve months and three years' imprisonment"
. The judge went on to consider the "other side of the coin". He referred to the mitigation, namely the evidence that the defendant was suffering from depression at the material time, and the serious financial losses which he had sustained. He concluded: "I accept what I have been told; that that is the case and that is, I emphasise, stress which occurred and which had a cause and effect in making you commit this offence, not stress which has arisen because of the fact that you have been detected and are now facing the consequences. It is important perhaps to make that particular distinction".[21]Next, in a critically important passage, he stated:
"All of this would have given me serious pause for consideration. I think, however, that what I am going to find to be decisive, the deciding factor, which I treat as being most important is the fact that both your mother and your mother in law are in a very poor state of health. They are, I am told, very substantially personally dependent upon you and by that I mean that you are the person who is actually looking after them and I am told and I am prepared to accept, and I have heard evidence from your wife in this respect, that she is also suffering from ill health. There is nobody else but you who can fill the role"
. The judge declined to pass a sentence of imprisonment (immediate or suspended) and concluded, so far as the risk to children or the public:
"I do not believe although I bear in mind what Dr McClintock says about the limits of psychiatry being predictive, but I do not believe that there is any reason to suppose that you are likely to pose a danger to children. And to that extent I do not think that the public is at risk"
. However, in relation to the risk of offences of the same nature being repeated, he concluded:
"I think there is a risk and the probation officer who wrote the pre-sentence report has said that there is a risk, in her opinion, of your committing further offences of the type for which you are in front of the court at the moment"
. The judge acknowledged that since the depression might have been a factor which caused him to offend, if it had passed, the position may be different, but went on to conclude: "… but I think that the public is better served, in these circumstances, by my accepting the recommendation in the pre-sentence report, of making a community rehabilitation order with a requirement that you undergo the course which is suggested and just so that there should be no misunderstandings about it, the requirement is that you are to participate in a programme of therapeutic work in order to address your offending behaviour, in compliance with instructions given by your supervising officer as required by the London Probation Area Community Sex Offender Group Programme for the duration of the Order".[22]Thereafter there was some discussion as to whether or not there should be, as the probation officer had suggested, a requirement by way of restraint upon the defendant having unsupervised access to children under 16 which, after discussion, the judge imposed.[23]Mr Fleischmann was sentenced to a Community Rehabilitation Order for three years concurrent on each of the twelve counts. He was ordered to remain on the Sex Offenders' Register for five years and was prohibited from unsupervised access to children under sixteen years. Further, it was a condition of the order that he participate in a sex offenders' treatment programme. The hearing before the Professional Conduct Committee ("the Committee") of the General Dental Council ("the GDC")[24]The Committee was addressed by Ms Vaughan Jones, counsel on behalf of the GDC. She surveyed the legal approach to be adopted to the proceedings, pointing out the need for the Committee to judge the extent to which the nature and gravity of the offence was likely to bring the profession into disrepute. She also referred to the "Guidance: Maintaining Standards", which states that "a dentist must adhere to the appropriate standards of personal as well as professional conduct" and that "behaviour which reflects adversely on the profession … may also lead to a charge of serious professional misconduct even if such behaviour is not directly connected with the dentist's professional practice".[25]The Committee's attention was drawn to the relevant parts of the judgment of Rose LJ, including the descriptive levels, namely Levels 1 to 5, which I have already described. They were shown the summary to which I have referred, disclosing the ages of some of the children and the images involved in the offences on the indictment. They were taken through the interviews. They were shown in detail the expert reports disclosing how the material had been found. The probation officer's views about the defendant's views and thoughts underpinning his offending behaviour and the risk assessment were placed before the Committee. The Committee also had its attention drawn to the psychiatric evidence of Dr McClintock, as well as being shown two reports and hearing oral evidence from Dr Jonathan Vince, a consultant forensic psychiatrist and Honorary Senior Lecturer and Co-Director of the Sex Offender Service.[26]Ms Vaughan Jones was asked by the legal assessor to explain to the Committee what it means to be put on the Sex Offenders' Register. Ms Vaughan Jones replied:
"It is a five year order, as I understand it, and the purpose essentially, and there may be others who are better equipped than me to explain, is so that there is a public record of the fact that a dentist has been convicted of a particular type of offence"
. She went on to add that it enables records to be kept and a track to be kept of offenders. So far as it went, this was an accurate reply to the question, but the purpose of the requirement is to secure public protection from those who have committed serious offences. (See 14 Hansard March 10, 1997 and Attorney General's Reference No. 50 1997 [1998] 2 Cr App R (S) 155, 157 ).[27]Mr Fisher QC, for Mr Fleischmann, outlined his basic submissions as follows: (1) That there was no realistic risk of further offending, either by repeat offences or by Mr Fleischmann becoming involved in any contact with children in an inappropriate way. So far as the high standards and reputation of the profession were concerned and the importance that they be maintained, he submitted that those could be safeguarded by a suspension, if need be, for the maximum period of twelve months. He emphasised that:
"Mr Fleischmann embarked upon this behaviour which resulted in his criminal conviction as a result of depression…. I suggest that he is of low risk with regard to re-offending"
. Mr Fisher submitted that Mr Fleischmann was as "of low risk ….." as low as anybody is ever likely to present and that "every single person in this Committee room is at some risk of embarking upon this type of behaviour….". (2) When developing his case on assessment of risk, he submitted to the Committee that the particular test adopted by the probation service was 'notoriously unreliable'. Dr McClintock did not think great reliance could be placed upon it and nor would Dr Vince say anything to the contrary. (3) Mr Fisher drew the attention of the Committee to the case of Oliver , but said that he was not going to go into the detail of it because he did not think it was something which was going to help the Committee a great deal. First of all, it was a guideline case. Secondly, the guidelines related to appropriate sentences after a contested hearing and guidelines were not straitjackets.[28]It became clear at an early stage of his address to the Committee that there was to be a measure of departure from the case which Dr McClintock had made to the Crown Court, namely that "there must have been some sexual motive in what Mr Fleischmann did". That certainly was put in issue. The position before the Committee, supported by Dr Vince's evidence, was:
"There is insufficient data really to suggest, as seems to be suggested by some people, that it must inevitably mean that if you look at this type of material, there can only be one reason and one reason only, namely some form of sexual gratification. Dr Vince suggests that in the instance of Mr Fleischmann, having actually seen him, there may well be another reason, and he believes that there is, and that it is not of a sexual nature"
. Mr Fisher then added that if that was so then it was a matter for the Committee to consider because, "… the risk to the public and to the maintenance of the standards of the profession, are greatly affected by that view expressed by Dr Vince". In my judgment, according to whether the view was accepted, if accepted, it was capable of affecting risk, but was incapable of having any significant effect on the judgment to be made of the nature and gravity of the offences and their likelihood of bringing the profession into disrepute. Dr Vince[29]The salient features of Dr Vince's evidence were as follows:(1) That there had been error in the assessment made according to the Matrix Risk 2000 assessment. His own view, formed after the application of dynamic risk factors, namely psychological personality factors, was that only one dynamic risk factor was present in Mr Fleischmann's case, namely a sense of inadequacy.(2) He emphasised that the facility and ease with which individuals can access child pornography on the internet had given rise to a number of offenders who could not be assessed for risk, according to the standard tenets which had applied to those, for example, who, prior to the availability on the internet, would have, perhaps, had to travel abroad and take other very much more positive steps to obtain the information. He therefore concluded that in these cases it could not automatically be taken that there is a sexual interest in children and that the chances of going on to escalate into contact abuse were much higher.(3) In his view cases of denial did not necessarily give rise to an increased risk of offending, but:
"Denial does elicit rather negative responses in those dealing with an individual"
. He emphasised that what was important was that people should be able to admit to themselves whether there was sexual intention or not. Therefore:
"We do not attempt to extract an admission or confession from individuals. It does not mean anything in terms of future risks". (4) In his view the risk of re-offending had to be considered in the context of the opportunity for re-offending. He could not exclude the risk of contact abuse but asked: "
How is this actually going to happen in real life?" (5) He said that he, initially, did not expect this to be a case in which the intent behind the offending behaviour was not or certainly was not principally that of deriving sexual stimulation or arousal from the material. But he went on to add:
"There were a number of factors that really led me away from the commonsense inference, or assumption, that this necessarily involves, primarily a sexual interest in children and the other material". (6) The factors or details, including the onset of depression and Mr Fleischmann's denials that he gained sexual pleasure led him to conclude, although a lot more work would have to be done, that for Mr Fleischmann "… it is not necessarily about having a sexual interest in children"
. He added that Mr Fleischmann was, at the material time, suffering from a major depressive episode which was moderate, if not moderate to severe, and, in answer to the question "How you conclude that there may well be a motive other than sexual interest?", he stated: "Yes. I think that that is a very real possibility in this case, and that partly arises again from the range of unpleasantness and repulsive material that was viewed, and which Mr Fleischmann says repulses him, and if one believes that, I think it certainly does suggest an alternative motive".[30]In cross-examination, Ms Vaughan Jones drew Dr Vince's attention to a paragraph in his report as follows:
"As stated above denial does not indicate that the individual is an increased risk although I agree that it does greatly impede the process by which the individual can be worked with to manage their own risks."
When pressed as to why this had been included, he emphasised that, as a psychiatrist, he did not wish Mr Fleischmann to read it and to conclude "Okay, it is not sexual deviance, just that I was depressed….". His attention was then drawn to another passage in his report which was:
"I accept that it is inevitably the case that Mr Fleischmann must have gained some kind of sexual gratification or arousal from some of the images of children."
[31]He was also drawn to a paragraph in the second report to the following effect: "It was difficult to get Mr Fleischmann to articulate why he had been viewing this type of material".[32]As a result of the cross examination he was asked the question:
"You are not excluding, are you, a sexual motive; just not the primary one?" to which his answer was "
Certainly not the primary one. On this level of assessment, and this amount of information, I would be fool-hardy to say that I can confidently say there was no sexual motivation at all". Question :
"It is a mixed picture at best"
. Answer: "I do not know if there is a mixed picture there. It is very likely that there is something sexual involved here, but whether it is about children and sex, or more about repulsive images, is a question. It is a very important question and the information available to me at the moment does not impress me with the fact that a sexual interest in children is likely to be, certainly not the primary motive, if it is there at all".[33]In answer to a question from Miss Vaughan-Jones he referred to the treatment which would be available under the sex offenders' treatment programme and expressed doubts as to whether Mr Fleischmann was going to benefit from the standard type of intervention. He was asked:
"Looking at it from the converse, if you are wrong, but he continues to believe that it is all depression and does not gain insight into sexual motive, that does not bode very well for this treatment either, does it?"
He answered: "If I am wrong, then I would expect probation to eventually be able to make some headway, because they normally do. I would stick by my statement that this is still a relatively early in the whole process into the probation order. It is still very young".[34]Mr Fisher then made eleven final submissions in connection with the offences, which can be summarised as follows:(1) That the offences were totally out of character with the exemplary life Mr Fleischmann had lived up until then.(2) That the conduct was borne from clinical depression.(3) That there was not a substantial quantity of material when compared with the experience in other cases, for example in Oliver where there were 20,000 images.(4) That a significant point was that one can download an enormous number of images with ease.(5) That downloading images can be totally at random and will not of itself indicate that the particular level of material has been sought.(6) That Mr Fleischmann commenced viewing "normal" pornographic material.(7) That a great number, referred to by Mr Fisher as "the vast majority of the material" which had been received, had been deleted.(8) Very little was saved.(9) That there was one and only one aggravating feature when one looked at the case of Oliver and that is the age of some of the children in the material.(10) That there had been no direct effect on his ability to practise as a dentist or to get on with patients.(11) That arguably one of the most important points was that it all began, not with a search for pornography, but with the use of his computer in a legitimate manner.[35]So far as the protection of the public was concerned, Mr Fisher made five points, which can be summarised as follows:(1) That no direct harm had been caused to the public.(2) That Mr Fleischmann had not viewed any of this material or type of material since his arrest.(3) The core reason for his offending was depression. The potential for re-offending had therefore gone.(4) There was no history of actual abuse.(5) That under the heading of future risk, Dr Vince had established a case, which was not undermined, that physical abuse and the risk of that was negligible, absolutely negligible, and the risk of repeat offences by viewing more material, was low. By way of general conclusion, he submitted: "the public are protected".[36]Next Mr Fisher turned to the heading of ensuring the high standards and reputation of the profession and he made eight points, which can be summarised as follows:(1) That this was an offence which was totally out of character.(2) Mr Fleischmann was of positive good character.(3) There had been no direct harm caused to the public as a "dentist" or "in any other capacity".(4) No direct effect on his ability as a dentist.(5) No direct effect on his patients.(6) "Very importantly" he is an able, likeable dentist who has "represented your profession in an extremely able and satisfactory way".(7) That he was "able and likeable as far as his patients are concerned".(8) That twelve months' suspension is going to mark the gravity of these matters and ensure that the high standard and reputation of the profession was maintained. That will be a sufficient indication to Mr Fleischmann that he was going to be punished and punished firmly and it would be for the public to know that in the circumstances of this offence this body will take appropriate firm action.[37]In the light of some of those submissions, the legal assessor was correct to point out (as he did) that it was not for the Committee to punish the respondent for a second time for the same offences. It was for the Committee to protect the public who came to him as patients and maintain the high standards of the profession and maintain the good reputation of and public confidence in the dental profession.[38]The Committee stated its reasons in the following terms:
"Mr Fleischmann, the Committee has taken account of the conviction found proved against you, as well as the medical evidence, further explanations and the oral and written testimonials which have been produced on your behalf. It has listened very carefully to all the representations made by your counsel. The Committee recognises that directions imposed under Rule 11 do not have any punitive purposes. That is the responsibility of a court of law. The purpose of our directions is to protect the public, maintain public confidence in the profession, and maintain proper standards of behaviour by dental practitioners. It is on this basis that the Committee has made its determination. The Committee has considered each of the options available to it in turn. It has borne in mind the need for proportionality in its decision, and has balanced your interests against the need to protect the public, maintain public confidence in the dental profession, and to maintain high standards of behaviour by dental practitioners. In this respect you should be in no doubt of the gravity of the offence of which you have been convicted, and the fact that your actions could not fail to cause grave concern to members of the public and seriously harm the reputation of the profession. This behaviour is unacceptable and cannot be tolerated. We have listened carefully to the evidence which has been adduced regarding your state of mind and accept that you have suffered from a depressive illness. Nevertheless, we remain concerned that you should accept and face up to your personal responsibility and culpability in this matter. Bearing in mind the purpose set out above, the Committee has determined that it will be sufficient in this case to suspend your registration for a period of 12 months. The Committee has therefore directed the Registrar to suspend the registration in the Dentists Register of Alexander Emmanuel Mark Fleischmann for a period of 12 months. The effect of the foregoing direction is that, unless you exercise your right of appeal, your registration will be suspended from the Dentists Register 28 days from this date, for a period of 12 months. It is the view of this Committee that the gravity and nature of these offences, together with the public interest and the need to maintain public confidence in the profession, require no lesser sanction than suspension for the maximum period permitted under the Rules"
. The statutory framework[39]The role of the General Dental Council is prescribed by the Dentists Act 1984 and rules made thereunder. The functions and duties of the Council are governed by the 2002 Act. The Dentists Act and the Rules[40]Section 27(1) of the Dentists Act 1984 provides as follows: "Where the Professional Conduct Committee are satisfied that a registered dentist (whether before or after registration)—(a) has been convicted in the United Kingdom of a criminal offence or has been convicted elsewhere of an offence which, if committed in England and Wales, would constitute a criminal offence, or(b) has been guilty of serious professional misconduct they may, if they think fit, determine that his name shall be erased from the register or that his registration in it shall be suspended for such period not exceeding twelve months as may be specified in their determination".[41]Section 34 of the Dentists Act, as amended, provides: "(1) Where a person's name has been erased from the register in consequence of a determination under section 27 above, the name of that person shall not again be entered in the register except by direction of the Council; and the Council may, subject to subsections (2) and (4) below, direct that the name of that person shall be restored to the register. (2) An application for the restoration of a name to the register shall not be made to the Council—(a) within ten months from the date of erasure, or(b) within ten months from a previous application. (3) The Council shall refer any application under this section to the Professional Conduct Committee for determination by them. (4) A person whose name has been erased from the register under section 27 above shall not be entitled to have his name restored to the register until he has satisfied the Professional Conduct Committee as to the matters specified in paragraphs (a) to(c) of section 15(3) above and as to his meeting the requirements specified in rules made under section 34B(1) below in relation to his case or circumstances".[42]Section 15(3) provides:
"(3) A person shall not be entitled to be registered in the Dentists Register under paragraph (a) or (b) of subsection (1) above unless he satisfies the Registrar as to the following matters, namely – (a) his identity; (b) that he is of good character; and (c) that he is in good health, both physically and mentally."
[43]The General Dental Council Professional Conduct Committee (Procedure) Rules 1984 ("the Procedure Rules") were made pursuant to paragraph 2 of Schedule 3 to the 1984 Act. Rule 11 sets out the procedure to be adopted upon proof of conviction and provides as follows:
"(1) Where the Committee have found that a conviction has been proved the chairman shall invite the complainant or the solicitor, as the case may be, to address the Committee, and to adduce evidence as to the circumstances leading up to the conviction and as to the character and previous history of the respondent. The chairman shall then invite the respondent to address the Committee by way of mitigation and to adduce evidence as aforesaid…. (3) Except where (in a case relating to conduct) the respondent has been found not guilty on all charges the Committee shall next consider and determine whether it shall be sufficient to conclude the case. If the Committee determine not to conclude the case, they shall next consider and determine whether to postpone judgment. (4) If the Committee determine to postpone judgment, the judgment of the Committee shall stand postponed until such future meeting of the Committee as they may determine. (5) If the Committee determine not to postpone judgment, they shall consider and determine whether by reason of the convictions proved against the respondent … it shall be sufficient to direct the Registrar in accordance with section 27(1) of the Act to suspend the respondent's registration for a specified period not exceeding twelve months. (6) If the Committee do not determine to direct suspension in accordance with the foregoing paragraph the Committee shall thereupon direct the Registrar to erase the name of the respondent from the Register"
. The National Health Service Reform and Health Care Professions Act 2002 ("the 2002 Act")[44]By section 29(2) of the 2002 Act, the general functions of the Council are identified as follows: "(a) to promote the interests of patients and other members of the public in relation to the performance of their functions by the bodies mentioned in subsection (3) (in this group of sections referred to as "regulatory bodies"), and by their committees and officers, (b) to promote best practice in the performance of those functions, (c) to formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to them, and (d) to promote co-operation between regulatory bodies; and between them, or any of them, and other bodies performing corresponding functions".[45]Section 29(4), so far as is material, provides that: "If the Council considers that— (a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or … and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court".[46]The Court's powers are set out in section 29(8) of the 2002 Act which provides that the Court may: "(a) dismiss the appeal, (b) allow the appeal and quash the relevant decision, (c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or (d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court, and may make such order as to costs as it thinks fit".[47]The appeal is governed by the procedures normally applicable to civil appeals by virtue of Part 52 CPR 1998. For the purposes of Part 52 CPR 1998, the High Court is "the appeal court". Part 52.11 provides that "(1) Every appeal will be limited to a review of the decision of the lower court unless –(a) a practice direction makes different provision for a particular category of appeal; or(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise, the appeal court will not receive– (a) oral evidence; or (b) evidence which was not before the lower court. (3) The appeal court will allow an appeal where the decision of the lower court was– (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court". Appeals under section 29 of the 2002 Act[48]In a recent judgment the Court of Appeal considered the approach to be adopted under section 29 of the 2002 Act (see The Council for the Regulation of Health Care Professionals v(i) GMC and Ruscillo and(ii) NMC and Truscott 20 th October 2004 EWCA Civ 1356 ). In the light of that decision it has not been in dispute that the position in connection with this appeal can be summarised as follows: (1) The Council properly exercised its powers to refer the case to this court under section 29(4) of the 2002 Act. (2) The appeal, ensuing from the reference, involves a review of the merits of the decision and is not confined to a consideration of any point of law. (3) The powers of the Court are governed by both CPR 52.11 and section 29(7) of the 2002 Act. (4) The correctness of the decision under appeal concerns the fitness of Mr Fleischmann to practise as a dentist and the penalty imposed in connection with the finding reached by the Committee in that regard. (5) If the decision is unduly lenient, either as to the finding of fitness to practise or penalty or both, it is "wrong" and the appeal must be allowed and the decision quashed. (6) The test of undue leniency involves considering whether, on the material facts, the decision reached has due regard to the safety of the public and the reputation of the profession. The test of "whether a penalty is unduly lenient in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of disciplinary proceedings, could reasonably have imposed" (paragraph 76 of the case of Ruscillo ). The issue "is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public" (paragraph 77 of the case of Ruscillo ). (7) The nature or gravity of the offence and its likelihood to bring the profession into disrepute or to undermine public confidence in the profession is primarily one for the Committee, but a decision deriving from a conviction is more readily reviewable than a professional misconduct-based decision (see Dad v GDC [2000] 1 WLR 1538 ). (8) Inadequacy of reasons should not lead to remission if the court may confidently reach its own decision on the merits. Analysis[49]Since it was accepted that Mr Fleischmann had to be suspended, the Committee had to decide whether a period of suspension, of no more than twelve months, was sufficient to protect the public, to maintain public confidence in the dental professional and to maintain high standards of behaviour by dental practitioners. Each aspect of this threefold purpose must be properly considered for each secures the protection of the public. Protection does not simply mean protection from a direct risk to a member of the public, who is a patient. The Committee found that his actions "… could not fail to cause grave concern to members of the public and seriously harm the reputation of the profession". The Committee described the behaviour as "unacceptable" and stated that it "… cannot be tolerated" but, since the Committee decided to suspend him for twelve months, it must have concluded that, after the expiry of twelve months, the adverse consequences of his conduct would be spent, public protection would be secured and Mr Fleischmann would be fit to practise. Why should a period of twelve months' suspension secure the protection of the public and render him fit to practise?[50]Mr Fisher submitted, in effect, that the public required no more protection from Mr Fleischmann than it needed in order to be protected from anyone else (including the Committee members). Throughout his submissions Mr Fisher addressed "protection", principally, by reference to a narrow meaning of direct harm to a patient. Even narrowly understood, it was a bold contention which will require examination later when I consider the issue of the risk of future offending.[51]In order to properly apply the threefold test the Committee had to undertake an assessment of the gravity of the offending. In so doing, it should have looked to the Protection of Children Act 1978, the penalties set by Parliament for offences under the Act, the rationale for the creation of the offences, the guidance from the Court of Appeal and the proceedings in the Crown Court, including the sentence imposed.[52]Since Mr Fleischmann had been sentenced to a Community Rehabilitation Order for a period of three years from December 2003 (with conditions), it followed that, if he was suspended for the maximum period of twelve months, he would be able to resume his practice before he had satisfied his sentence. In the words of Sir Thomas Bingham in Bolton v Law Society (1994) 1 WLR 512 , 518 F-G , this would be before he had "… paid his debt to society".[53]Because of the conditions attached to the order, in particular the requirement to participate in a sex offenders' treatment programme, the decision to suspend is the more surprising. The Committee could not know what the outcome of the sex offenders' treatment programme would be, even at the end of three years, let alone what the record would show after twelve months. There was a body of material which strongly suggested that, unless he accepted responsibility for his offending, the treatment programme was unlikely to be successful. In its reasons the Committee had stated that it "remained concerned" that he should accept and face up to his responsibility and culpability in the matter. In the light of this conclusion it seems the Committee must have assumed that he would face up to his responsibility, that the programme would be a success within twelve months and that a continuing need to attend until the expiry of the three year term would give rise to no concern on the part of the public, including his patients. Beyond that, the Committee must have assumed that the obligatory requirement, which Parliament considered necessary for the protection of the public, that he should remain on the Sex Offenders' Register for five years, would give rise to no concern to the public, including his patients. Yet beyond that, it is to be assumed that the Committee must have concluded that the public, including his patients, would have no concern that the resumption of practice involved a special requirement that he should not be allowed unsupervised access to children under sixteen years.[54]I am satisfied the Committee did not sufficiently consider the significance of the sentence which had been imposed by the Crown Court. His duty of disclosure to his patients would require that patients were informed of the sentence and the conditions attached to it. I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained. Erasure and registration[55]Section 27(1) of the Dentist Act 1984, notably, confers a discretion in the case of a criminal conviction being proved; erasure is not automatic. Further, rule 11(1) of the Procedure Rules requires the circumstances leading up to the conviction and the character and the previous history of the dentist to be considered. This requirement is not laid down because the proceedings are aimed at punishing the practitioner. The rule reflects the need for fairness to be accorded to a duly qualified practitioner where his livelihood is at stake. The graduated approach to the penalty, which the Rules require, is designated to secure proportionality. Thus the disciplining of a registered dentist involves subtly different considerations from those which apply to an applicant for registration. That said, I have no doubt that the differences should not be allowed to give rise to the existence of a double standard in connection with those who are entitled to be in practice. The requirement that an applicant for registration be of "good character" secures the need for the public to be protected by the maintenance of high standards and the high reputation of the profession which has to be served at the stage of an application for registration as well as in disciplinary proceedings. The protection of the public will not be served by the application of a different standard at erasure from that which is applied when considering registration.[56]I recognise that the variety of circumstances presented by individual cases must be weighed but, where grave and serious offences are under consideration, personal factors, such as character, previous history and the practitioner's livelihood as a dentist, will invariably be insufficient to produce a result different from that which would have applied had the individual been an applicant for registration. Had an application been received from Mr Fleischmann during the currency of his Community Rehabilitation Order, only six months after its imposition, it is inconceivable it would have been accepted. The Protection of Children Act 1978[57]The need for Parliament to legislate in connection with the downloading of child pornography from the internet was driven by the ease with which the material can be downloaded, the corruption and harm caused to children in the creation of the material and the need to deter and punish those who participate in the corruption and harm to children by downloading in the privacy of their home. The extent and growth of the problem led Parliament to increase the maximum penalty from three years to ten years. In my judgment the touchstone of the Committee's assessment of its responsibility for protecting the public was to be found in the Act, namely in the assessment Parliament had made in connection with the conduct in question. As Rose LJ observed in Oliver (paragraph 12): "… Parliament increas[ed] the maximum permissible sentence, to mark society's abhorrence of child sexual abuse and child pornography by the use of custody".[58]In the criminal law a person's motives, save where culpability is by law reduced, can have little or no bearing on the objective assessment of the gravity of the offending. A man who participates in conduct which corrupts children and causes them harm, for example, in order to alleviate his depression, causes the same harm as the man who derives pleasure from it. The Act penalises the conduct, not the motive. On one view, a failure to seek medical assistance in connection with depression and to choose to find relief in child pornography instead could be said to exacerbate rather than diminish the offending. In general, offending is and can be explained, but the gravity of it will not be reduced by the asserted motive for it. It is an everyday explanation for a variety of offending that a defendant is a drug addict, an alcoholic or in financial difficulty. To that the response is that not all those under similar circumstances resort to offending, but legitimately work to overcome them. The guidance from the Court of Appeal in Oliver[59]The extent and nature of the offending, tested by the guideline case of Oliver, established to the satisfaction of the sentencing judge that ordinarily it would justify a sentence of imprisonment of between twelve months and three years. This conclusion which reflected the gravity of the case was not open to doubt and constituted a central feature in the case.[60]It is clear that "the decisive factor" leading to Mr Fleischmann not being sent to prison had little or nothing to do with the gravity of his offending and everything to do with the health of his dependants, a consideration which was irrelevant to the Committee's deliberations. As a result, I have been drawn to the conclusion that, because he was not sent to prison, the Committee lost sight of the true gravity of what he had done.[61]The case of Oliver was not, as Mr Fisher submitted, a relevant guide to the meaning of a "substantial" quantity of material. The judgment actually refers to "large" and "small" (see paragraphs 16, 17 and 20). Nor could it be said that the amount of material downloaded by Mr Fleischmann was anything other than large or, for that matter, "substantial". The fact that in many cases coming before the courts more is downloaded illustrates the higher level of offending in those cases. The relevant task was to assess the gravity of these offences.[62]The ease of downloading large quantities of material, to which Mr Fisher referred, was one of the factors which underpinned the need for the legislation. It was not the case in the Crown Court that the downloading had occurred accidentally. Nor could it have been, having regard to the evidence of the ancillary computer equipment designed for ease of viewing and the evidence of sustained viewing on the part of Mr Fleischmann, continuing right up to the night before he was arrested. For similar reasons, the fact that some material had been deleted or that little had been saved was of marginal significance.[63]Mr Fisher informed the Committee in opening the case that he would not be going into the detail of the case of Oliver :
"because I do not think that it is something that is going to help the Committee a great deal. What is important about that is that it provides guidelines"
. This was unfortunate. Contrary to the submission, the case provided a wealth of guidance in assessing the gravity of this type of offending. It required close attention to the case. Closer attention would have assisted the Committee in assessing the gravity of Mr Fleischmann's offending. Rose LJ agreed with the Sentencing Advisory Panel's conclusion:
"… that the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it"
. Closer attention would have shown that, contrary to Mr Fisher's submission, it was open to the Committee to conclude that there was more than one aggravating feature. The judgment in Oliver was not just a guideline case on the sentence to be imposed, but a guide to assessing the gravity of the offending.[64]Detailed consideration of the case would have shown that it gave a clear and comprehensive examination of the relevant factors to be used for assessing the gravity of particular cases. Consideration of paragraph 16 would have shown that the:
"… custody threshold will usually be passed … in cases of possession, where there is a large amount of material at Level 2, or a small amount at Level 3 or above"
. A sentence of up to six months would generally be appropriate in such a case. Mr Fleischmann's offending was clearly outside and well beyond this category of offending, which category, notably, normally merited a sentence of imprisonment and commensurately represented what the courts and the public would regard as serious offending.[65]It was accepted that his offending fell into the category set out in paragraph 17 of the judgment. By definition, it therefore comprised "more serious offences" or offending than that referred to in the previous paragraph.[66]To this analysis had to be added any aggravating features of the offending. A full examination of paragraph 20 of the judgment (specific aggravating factors) would have shown the facts to be capable of including three aggravating features. First, a large number of images, of whatever category, is in itself, an aggravating factor. This factor differs from the brackets of seriousness to which the judgment refers which depend upon a large number of images at particular levels. The total number of images in the instant case was large and the Committee should have considered the issue and made their own assessment.[67]The images were organised on the computer and collected and used by Mr Fleischmann in such a way as to show "a higher level of personal interest in the material". Again, the Committee should have considered the impact of the special computer equipment, which disclosed material in "Quick Time Favourites" and the program called "Ixla Explorer".[68]Mr Fisher did draw the attention of the Committee to the ages of the children. The range, from eighteen months to ten years, with many aged between four to six years, required specific attention from the Committee. The age of the children in these cases is a pointer to the level of depravity involved and the extent of deviance involved in the conduct. The submissions of the GDC[69]Mr Garnham QC, for the GDC, emphasised to the court that the Committee had stated in the reasons for its decision that its purpose was "to protect the public, maintain public confidence in the profession and maintain proper standards of behaviour by dental practitioners". Further, that the Committee added: "It is on this basis that the Committee has made its determination".[70]In many cases where a tribunal or court has stated that it has applied the correct test to the facts as found, on any appeal the accuracy of the statement will be demonstrable from the course of the proceedings. But that cannot be said to be so in this case. For the reasons I have set out above, I have concluded that the principal submissions on behalf of the Council for the Regulation of Health Care Professionals are correct. The Committee's decision to suspend for twelve months is wrong because it is plain that it could not have properly appraised the nature and gravity of the conduct involved in the criminal proceedings. In my judgment the decision is manifestly inappropriate having regard to the conduct and the interests of the public.[71]It also follows from what I have already observed that the Committee did not state in sufficiently clear terms why it had concluded that twelve months' suspension was sufficient to mark the gravity of the offending and to protect the public. So far as the gravity of the offending is concerned, it stated only an oblique view by admonishing Mr Fleischmann and stating that, he "… should be in no doubt of the gravity of the offence …". This expression casts no light on how grave the Committee regarded the conduct. Its recognition that his actions "could not fail to cause grave concern to members of the public and seriously harm the reputation of the profession" was a material finding, but if, in the view of the Committee, twelve months' suspension was sufficient to mark the gravity and protect the profession, I have been unable to see why they reached that conclusion. I have reached the following overall conclusions. Conclusions on the Committee's decision on the protection of the reputation of the profession and standards of conduct by practitioners[72]The Committee gave insufficient weight to the need to maintain the reputation of the profession and to maintain public confidence in the profession. "The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price". Bolton v Law Society (1994) 1 WLR 512 The Committee referred to the need for proportionality, stating, it had "… balanced your [Mr Fleischmann's] interests against the need to protect the public …". I can only conclude that it must have been drawn by Mr Fisher's submissions to give Mr Fleischmann's interests equal weight or too much weight when carrying out the balance. For the reasons I have given, it is manifest that twelve months' suspension could not protect the reputation of the profession nor maintain standards of behaviour by practitioners.[73]I have concluded that the section of the public to which it did give consideration, namely patients, operated on its deliberations so as to lead it to fail to give proper consideration to the general public. Because of the volume of material directed to the risk to patients the Committee's perception and consideration of the risk to the wider public interests involved was flawed and inadequate.[74]Further, the Committee's attention to patients' interests must have caused it to erroneously assess the gravity of the offending by taking account of Mr Fleischmann as a dentist including the asserted lack of connection between the offending and his profession. As the summary of Mr Fisher's submissions discloses, under each of the three headings upon which he addressed them, he emphasised that there had been no direct effect on Mr Fleischmann's ability to practise as a dentist or to get on with patients (para 34(11) above), that no direct harm had been caused to "the public" (para 36(1) above). As to this, I have construed his reference to the "public", as "the patients", for otherwise the submission ignores the corruption of and damage to children, which Mr Fisher could not have intended. Thirdly, at paragraph 36(3), (4), (5), (6) and (7) the absence of harm to the profession was said to be absent, because of his good character as a dentist. It was not his behaviour as a dentist which was said to reflect adversely on the profession (see Guidance: Maintaining Standards). The risk to the public to which his offending gave rise[75]The Committee should have had in mind the starting point from which Parliament viewed offending of this nature: "One must remember that registration [on the sex offenders' register] is not a punishment but a measure to secure public protection from those who have committed serious offences" (Baroness Blatch, Minister of State, Home Office Hansard March 10, 1997 column 547).[76]That is not to require an assumption of risk to be made in cases where there is evidence to the contrary, nor for a measure to be decided upon which gives disproportionate weight to the risk to the public. That said, the public was at risk not just from direct harm to patients, but from the risk of reoffending in the same manner. There was medical evidence which suggested that the risk of direct harm to patients could be very slight, if non-existent, but the evidence was not unconditional. At the very least, according to how impressed the Committee was by the opinion of Dr Vince, there was cogent material pointing to sexual deviance and the need for treatment.[77]The condition that Mr Fleischmann attend for treatment required due recognition to be given to the risks normally consequent on the presence of sexual deviance and a proper assessment of the outcome which could flow from the treatment he would receive. The question, to which much of the expert evidence was directed, namely whether he obtained any pleasure from the viewing of the material, was unresolved by the evidence and should have been seen as a matter to be resolved in the course of the treatment programme. Mr Fisher's submission involving a comparison between the risk presented by Mr Fleischmann and anyone else was extravagant and wrong.[78]Further, all the circumstances pointed to some degree of risk of repeat offending. There being opinions which supported this conclusion, if the Committee departed from them, it should have stated why it did so. In truth, the Committee was in no position to come to a different conclusion because:(1) the risk depended on the outcome of the treatment programme; and(2) even on the most favourable view that depression played a key part in the offending, there was no adequate evidence to guide the Committee to a conclusion in this regard. Overall Conclusion[79]The court received submissions on the relief which should follow in the event that it concluded the appeal succeeded. For the reasons I have given above, had the appeal raised no failings with regard to the Committee's conclusion on the issue of risk to the public, I would have concluded that the order for twelve months' suspension was unduly lenient and wrong and that, for these offences, erasure was the only appropriate order. The matters which I have set out in paragraphs 75-78 above serve to confirm my conclusion that this appeal must be allowed and that the case should not be remitted because the court has been able to reach its own decision on the merits.[80]In my judgment the circumstances of this case leave the court in no doubt that erasure is the only penalty. There will be judgment accordingly.

Cited in 8 later judgments