Rumbold v The General Medical Council [2007] EWHC 2569 (Admin)

[2007] EWHC 2569 (Admin)Case No CO/2052/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/11/2007
Before
THE HONOURABLE MR JUSTICE WYN WILLIAMS
Between
DR JOHN RUMBOLDAppellantTHE GENERAL MEDICAL COUNCILRespondent
Mr David Morris (instructed by Messrs Radcliffes Le Brasseur) for AppellantMr Martin Chamberlain (instructed by Ms Toni Smerdon, General Medical Council) for RespondentHearing Hearing date: 26 th October 2007
Judgment
[1]This is an appeal brought by Dr John Rumbold, the Appellant, against a decision taken on 12 February 2007 by the Fitness to Practise Panel of the General Medical Council. The appeal is brought pursuant to section 40 Medical Act 1983.[2]The decision made by the Fitness to Practise Panel was to suspend the Appellant from the Medical Register “for a further period of 12 months”. In order to understand the context in which this decision was made, however, it is necessary to begin the recitation of the relevant history from 2002.[3]In July 2002 police officers searched the Appellant’s home and discovered 77 indecent images of children, predominantly female, aged between 4 and about 14. The images had been downloaded from the internet; they were all pornographic and some of the images showed penetrative activity between the child in question and an adult.[4]Following this discovery the Appellant was interviewed under caution and during the course of that interview he admitted having access to approximately six websites and having viewed between one and two hundred images. This conduct began in 1998 and ended in 2000.[5]On 23 October 2002 the Appellant’s medical registration was suspended by the relevant committee of the Respondent. The Committee imposed what is called an “interim suspension”.[6]On 15 November 2002, the Appellant pleaded guilty at the Birmingham Crown Court to an indictment containing 12 counts of making indecent photographs of children. On that date, as I understand it, an order was made that the Appellant should become subject to the notification requirements of the Sex Offenders Act 1997 for a period of 5 years. No further order was made on that date.[7]On 23 December 2002 H.H. Judge Stanley sentenced the Appellant to a Community Rehabilitation Order for a period of 3 years subject to a special condition that he should complete a Sex Offenders’ Treatment Programme. He imposed that sentence in respect of each count to which the Appellant had pleaded guilty.[8]On 27 August 2003 the Appellant appeared before the Professional Conduct Committee of the Respondent. This committee was the predecessor of the Fitness to Practise Panel. The Committee found that he had been guilty of serious professional misconduct. It decided to suspend the Appellant’s registration for a period of 9 months and, apparently, in fixing upon that period it took into account the fact that there had been an interim suspension order in place for approximately 12 months.[9]In June 2004 the Professional Conduct Committee further suspended the Appellant’s registration for a period of 8 months. On 10 February 2005 the Fitness to Practise Panel (which by then had come into existence) imposed a further suspension for 12 months.[10]Prior to the expiry of that suspension and on 23 December 2005 the Community Rehabilitation Order which had been imposed at the Birmingham Crown Court expired. Additionally, just after the expiry of that order, the Appellant completed the Sex Offenders Treatment Programme. It seems very likely that the Programme had been completed by 13 February 2006.[11]On 13 February 2006 the Respondent’s Fitness to Practise Panel imposed a further suspension for 12 months. On 14 June 2006 a “Post-treatment Report” was produced by those responsible for supervising the Appellant’s participation in the Sex Offenders’ Treatment Programme.[12]It is against this factual background that the Appellant appeared before the Fitness to Practise Panel (hereinafter referred to as “the Panel”) on 12 February 2007. As I indicated above the Panel decided to further suspend the Appellant’s registration for a period of 12 months. It did so, of course, in the knowledge that he had been suspended since August 2002 and that he had served the sentence imposed upon him by the Criminal Court. The Hearing on 12 February 2007[13]The first task which faced the Panel was to determine whether the Appellant’s fitness to practise was impaired. It concluded that the Appellant’s fitness was so impaired and the transcript of the proceedings demonstrates that this was conceded on behalf of the Appellant. Prior to this decision being made the Panel had heard an opening statement from Counsel acting for the Respondent.[14]The Panel then went on to consider what sanction, if any, should be imposed. In relation to sanction the Panel heard evidence from the Appellant himself, from the Appellant’s wife and it also heard evidence from Dr Richard John Badcock, a consultant forensic psychiatrist. It also had before it a number of documents, one of which was the Post-Treatment Report referred to in paragraph 11 above. Another important document was a document produced by the Respondent and entitled “Indicative Sanctions Guidance” April 2005 Edition.[15]Following the receipt of evidence the Panel heard submissions made by Counsel representing the Appellant and the Respondent. It should be noted that Counsel for the Respondent submitted that the appropriate sanction was a further suspension for a period of 12 months while Mr. Morris argued that the Appellant should be permitted to return to medical practise but subject to conditions. Following a period of deliberation the Panel announced its decision upon the appropriate sanction and gave reasons for reaching that decision. Thereafter a written decision was issued. That is a faithful record of what transpired at the hearing. That part of the letter which deals with the reasons why the Panel decided to suspend the Appellant for a further period begins at page 21 of the Trial Bundle and ends on page 23. I will refer to that part of the letter more fully later in this judgment.[16]At the hearing, as I have said, the Appellant gave evidence; he not only gave evidence but he was cross-examined by counsel appearing for the Respondent and questioned by the members of the Panel. As is obvious that placed the Panel at a distinct advantage compared with this court in assessing the Appellant and reaching conclusions about important aspects of this case. I will elaborate on these aspects more fully below. The Law[17]In advance of the hearing I was provided with a number of authorities upon the proper approach I should adopt at this appeal. For a significant time during the oral submissions it seemed to me that I need quote only from the most recent decision in point. That is the decision of the Court of Appeal in Raschid and Fatnani v The General Medical Council [2007] 1 WLR 1460. However, during the course of the oral submissions Mr Morris drew my attention to the decision of the Court of Appeal in General Medical Council v Meadow [2006] EWCA Civ. 1390. He did so because, as it seemed to him, its reasoning was not consistent with Raschid.[18]Mr Chamberlain, for the Respondent, had no real opportunity to deal with Meadow. Accordingly, at the conclusion of the oral hearing I told Counsel that they had my permission to make written submissions about the differences of approach, if any, between Meadow and Raschid. Mr Morris decided to make no further representations. Mr Chamberlain did make written submissions; the thrust of which was to seek to show that any differences between Raschid and Meadow were illusory rather than real.[19]I deal firstly with the decision in Meadowsince that is the first decision in time. The case reached the Court of Appeal on an appeal from Collins J. He had allowed an appeal by Professor Sir Roy Meadow against a finding of serious professional misconduct by the Fitness to Practise Panel of the Respondent in this case. The appeal had been brought under section 40 Medical Act 1983. Collins J had allowed Professor Meadow’s appeal on two discrete bases only one of which is relevant to the issues before me.[20]In considering whether or not to allow the appeal under section 40 Collins J had formulated a test to be applied. He said that an appeal under section 40 was not limited to a review but he also concluded that a court would not interfere with the decision of the Fitness to Practise Panel unless persuaded that the decision in question was “clearly wrong”. Collins J then applied that test to the facts before him and, as I have said, allowed Professor Meadow’s appeal against the finding of serious professional misconduct.[21]The formulation of the appropriate test by Collins J was considered by the Court of Appeal. Auld LJ gave a reasoned judgment in respect of this issue and, in short, Sir Anthony Clarke MR and Thorpe LJ agreed with his views. In paragraph 125 of his judgment Auld LJ said this: - “For the following reasons, I can see no basis for faulting Collins J’s simple expression of the test, save that I doubt whether the adverbial emphasis of “clearly” adds anything logically or legally to an appellate court’s characterisation of the decision below as “wrong”. In paragraph 126 to 128 Auld LJ gave the reasons which led him to that conclusion and in order to understand them fully it is also necessary to read paragraphs 117 to 124 of his judgment. As Mr Chamberlain points out, however, in his supplementary written submissions, Auld LJ returns to the issue of the appropriate test to be applied in paragraph 197 of his judgment under the heading “Conclusions.” Paragraph 197 reads as follows:- “On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the Court must have in mind and give such weight as appropriate in the circumstances to the following factors: [ in his judgment the phrase “as is appropriate in the circumstances” is highlighted] i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expect of its members in matters of medical practise deserve respect; ii) The tribunal has the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; iii) The questions of primary and secondary facts and the overall value judgment to be made by a tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.” i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expect of its members in matters of medical practise deserve respect; ii) The tribunal has the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; iii) The questions of primary and secondary facts and the overall value judgment to be made by a tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”[22]I agree with Mr Chamberlain that in order to derive the applicable principles from the judgment of Auld LJ one has to read paragraph 125 together with paragraph 197.[23]As its name suggests the decision in Raschid and Fatnani involved appeals brought by two doctors against sanctions imposed by the Fitness to Practise Panel of the Respondent. Collins J, at first instance, had allowed both appeals and the Respondent appealed against his decision to the Court of Appeal. During the course of his judgment (with which the other members of the Court agreed) Laws LJ defined the issue under consideration as being “the proper reach of the High Court’s discretion on a section 40 appeal to vary a sanction imposed upon a doctor by the Panel.” Laws LJ described that issue as being of some importance because the High Court jurisdiction under section 40 dates only from 1 April 2003. Before that date appeals of this kind had been brought in the Privy Council.[24]Having identified the issue for consideration Laws LJ dealt with it in the following passage of his judgment:- “16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003. First, the Privy Council is of course a source of high authority; but, secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands of relevant learning before 1 April 2003. One differentiates the function of the panel or committee on imposing sanctions from that of a Court imposing retributive punishment. The other emphasises the special expertise of the panel or committee to make the required judgment. 17. The first of these strands may be gleaned from the Privy Council decision in Gupta v The General Medical Council [2002] 1 WLR 1691, para 21. In the judgment of their Lordships delivered by Lord Rodger of Earlsferry:
“It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for example, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practise when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded at p519: ‘The reputation of the profession is more important than the fortunes of an individual member. Membership of a profession brings many benefits, but that is a part of the price.’ Mutatis Mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.” 18. The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of a doctor. This, as it seems to me, engages the second strand to which I have referred ……… 19. ………As it seems to me the fact that a principal purpose of the panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millet’s observations in Ghosh v The General Medical Council [2001] 1 WLR 1915, 1923, para 34: “the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amounts to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the Committee’s judgment more than is warranted by the circumstances.” 20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 Appeal. The approach they commend does not emasculate the High Court role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case. 21. Now I may return to the decisions of Collins J. In my judgment the test which he applied, namely whether the decision of the panel was clearly wrong, is with respect not helpful or adequate, at least unless it is very clearly understood in the context of the two principles or strands, which I have described, which emerge from the Privy Council cases. Although Collins J in both of these cases acknowledge in one way or another the need for a degree of deference to the panel ………………still the exercise he undertook came very close, if it did not constitute, an exercise in re-sentencing” “the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amounts to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the Committee’s judgment more than is warranted by the circumstances.”
[25]The hearing in Rashid and Fatnani took place shortly after the decision in Meadow had been given. However Meadow was not cited to the Court in Raschid and Fatnani.[26]In the submissions before me there was no dispute about what Laws LJ refers to as the first strand in the jurisprudence; in choosing sanctions, a principal object is the preservation and maintenance of public confidence in doctors and the maintenance of the reputation and standing, generally, of the profession.[27]In his oral submissions, however, Mr Morris was not disposed to accept that “special respect” should be paid to the view of a Panel in the event of an appeal or that the role of the Administrative Court on an appeal under section 40 of the 1993 Act was to exercise a judgment as to the application of the relevant principles to the facts but one which was “distinctly and firmly a secondary judgment” to that of the judgment of the panel.[28]Having set out the material parts of the judgments in Meadow and Raschid and Fatnani it seems to me that it is possible, at least, to discern a difference of emphasis in the way that Auld LJ formulates the test to be applied under section 40 compared to the formulation of Laws LJ. That said, it is probable that in most cases the result will be the same whichever formulation is adopted. I can envisage cases on the margins, however, where that may not be the case.[29]Having identified at least the possibility of some conflict between the two decisions it is not for me in this judgment to seek to resolve it. No argument was advanced to me about which approach I should adopt in the event that I found that there was some conflict or, indeed, whether I was bound to follow one approach as opposed to the other.[30]In any event, it seems to me that my decision in this case will be the same whichever formulation I apply. So that the Appellant is clear, however, I have considered this case on the basis set out in Meadow as well as the basis set out in Raschid since the formulation of the appropriate test set out by Auld LJ is, of the two formulations, the one which is more likely to produce a favourable outcome for the Appellant.[31]Before leaving the issues of law of which this case throws up I should deal with a submission which was, at least originally, advanced on behalf of the Appellant. That submission was to the effect that the nature and seriousness of the criminal offences to which the Appellant pleaded guilty and the fact that his name still remained on the Sex Offenders Register were not factors which the panel was entitled to take into account when deciding upon whether to “further suspend” the Appellant. To be fair to Mr Morris, during the course of his oral submissions he resiled from this submission in such stark form. However, for the avoidance of doubt, I should say that nothing in the decisions in Taylor v The GMC [1990] 2AC 539 nor Council for the Regulation of Healthcare Professionals v General Dental Council and Alexander Fleischmann [2005] EWHC 87 (Admin) could possibly lead to such a conclusion. In my judgment both factors are material factors for the panel to take into account when confronted with a decision about whether or not it should further suspend an individual who has been the subject of an order of suspension.[32]In the light of the relevant legal principles, as set out above, I turn to consider the decision made by the Panel. Discussion[33]It seems to me that an appropriate starting point for consideration of the Panel’s decision in this case is the guidance provided to them in the document entitled “Indicative Sanctions Guidance”. I say that since in its introduction the document itself describes how it has been developed by the Respondent as “an authoritative statement of the GMC’s approach to sanctions issues”. The document also has the twin aims of promoting consistency and transparency in decision making. Paragraph 41 of the Guidance deals specifically with sexual misconduct. It has this to say:- “This encompasses a wide range of conduct from criminal convictions for sexual assault, sexual abuse of children (including child pornography) to sexual misconduct with patients, colleagues or patients’ relatives. The misconduct is particularly serious, however, where there is an abuse of the special position of trust, which a doctor occupies, or where a doctor has been required to register as a sex offender. The risk to patients is important. In such cases erasure has therefore been judged the appropriate sanction:”[34]In section 2 of the document under the heading “Supplementary Guidance” there are a number of paragraphs dealing, specifically, with cases involving child pornography. The relevant paragraphs reads as follows: - “8. Child pornography involves the exploitation or abuse of a child. Accessing, storing or distributing such material is illegal and regarded in society as morally unacceptable. For these reasons any involvement in child pornography by a registered medical practitioner raises the question whether the public interest demands that his or her registration be affected. 9. The Court of Appeal in the case of Oliver heard in November 2002, identified, five levels of seriousness. This makes clear that for the lower grade offences a fine or conditional discharge may be appropriate. Custodial sentences are appropriate where more serious offences are involved. 10. Whilst the Courts properly distinguished between the degrees of seriousness, the Council considers that any conviction for child pornography against a registered medical practitioner to be a matter of grave concern because it involves such a fundamental breach of patients’ trust in doctors and inevitably brings the profession into disrepute. It is therefore highly likely that in such a case the only proportionate sanction will be erasure but the panel should bear in mind paragraphs 12-16 in section 1 (page S1-3) of its Guidance, which deals with the options available to the Panel, and the issue of proportionality. If the Panel decides to impose a sanction other than erasure, they must take particular care to explain fully the reasons and thinking that has led them to impose this lesser sanction so that it is clear to those who have not heard the evidence in the case. 11. The Panel should be aware that any conviction relating to child pornography will lead to registration as a sex offender and possibly to court ordered disqualification from working with children. The Council has made it clear that no doctor registered as a sex offender should have unrestricted registration. The Panel will therefore need to ensure that, in cases where it imposes a period of suspension, the case should be resumed before the end of the period of suspension to consider whether a further period of suspension is appropriate or whether the doctor should be permitted to resume practise subject to conditions. 12 The Council has also expressed the view that, in order to protect the public interest the Panel should consider whether any such conditions ought to include no direct contact with any patients during the period the doctor is registered as a sex offender. (Doctors may of course be registered as sex offenders following other sex offences not related to child pornography.) 13. The Panel should also consider where doctors registered as sex offender should be required to undergo assessment, for example, by a clinical psychologist, to assess the potential risks to patients before they may be permitted to resume any form of practise”. 14 In the case of CHRP v(1) GDC and(2) Mr. Fleischmann [2005] EWHC 87 (Admin) the Court has given guidance on the handling of cases involving Internet pornography.” The extracts from the Indicative Sanctions Guidance set out above make it plain that the Respondent views convictions for internet child pornography as being extremely serious and, in my judgment, it is completely justified in so doing. They also make it clear, in addition, that a doctor’s registration on the Sex Offenders Register is a highly material consideration in any decision upon sanctions.[35]In announcing its decision at the hearing and in the decision letter the Panel expressly referred to the fact that it had taken into account the principles contained in the Indicative Sanctions Guidance.[36]The Panel also confirmed that it had borne in mind that any sanction imposed must be proportionate and that its purpose was not to be punitive but to protect the members of the public and the public interest. It defined the public interest as including not only the protection of patients but also the maintenance of public confidence in the profession, upholding proper standards of conduct and maintaining the reputation of the profession. In expressing itself in this way, obviously, it had very much in mind the “first strand” of relevant learning to which reference was made by Laws LJ in Raschid.[37]The panel next turned its attention to the case of Fleischmann. It carried out an assessment of the seriousness of the offences of which the Appellant had been convicted and it related them to the decision of the Court of Appeal in Oliver [2002] EWCA Crim 2766 (that being the case mentioned in the Indicative Sanctions Guidance). In making an assessment of the seriousness of the offence in relation to the criteria in Oliver the Panel noted that two of the images which the Appellant had in its possession fell within the second highest category.[38]Finding, as I have, that the seriousness of the offence was a material consideration for the Panel it seems to me that they correctly identified just how serious the Appellant’s offence had been. In that context, further, I note that when Counsel for the Respondent opened the case before the Panel he said this:- “Passing sentence in December 2002, the Judge said that he had considered a custodial sentence but he had decided it was just possible to pass a different form of sentence. He went on to describe in his sentencing remarks how one of the images showed “a young child abused in the most despicable and disgusting fashion.”[39]In the light of the information before the Panel, in my judgment, there could be no doubt but that the Appellant had engaged in and had been convicted of very serious offending. He cannot possibly complain that the Panel’s view of its seriousness was in any way erroneous.[40]The next factor specifically mentioned as material by the Panel was the fact that the Appellant was subject to the notification requirements imposed upon him as a sex offender until 14 November 2007. As I have found, the Panel was perfectly entitled to take this into account in reaching a view about sanctions.[41]It was against the background of the reasoning process just described that the Panel turned to consider whether or not the Appellant could be permitted to practise subject to conditions. Quite correctly, in my judgment, the Panel also considered this issue in the context of matters which were personal to the Appellant.[42]What the Panel said was as follows:- “The Panel have had regard to all the documents provided to it today and have noted that you have made significant progress in some areas of your rehabilitation as noted in the Sexual Offending Groupwork Programme – post treatment report dated 14 June 2006, in particular the relationship with your wife. It is also encouraged by the role your wife now has in providing you with support and your acknowledgement of the importance of her support. The Panel did, however, note your evidence that you disagreed with the post-treatment report in which it is suggested that a level of sexual preoccupation was present in your offending. The Panel found the contents of the report compelling. The Panel has also taken into consideration the report dated 9 February 2007 from Dr Badcock. He stated that you have insight into your motivation for the offences and have learned sufficiently from the SOTP groups to continue working on the relevant personal issues without risks to patients or the general public should you return to work. The Panel has also taken into consideration the numerous certificates from Doctors. Net UK confirming the various on-line courses that you have completed in an effort to keep your medical knowledge up to date. The Panel has further noted the letter from professor David Wall, the Deputy Regional Postgraduate Dean of the West Midlands Deanery dated 9 February 2007. Professor Wall states you have discussed with him career in medicine and in particular specialities where there is no direct doctor to patients contacts, such as pathology and public health medicine. However, you made clear to Professor Wall that you would prefer to return to a medical career where you can deal with patients. The Panel also noted the letter from West Midland Police dated 19 January 2007. They confirmed that you are currently registered as a sex offender. Your risk of re-convictions has been assessed as low and that you have not come to notice of the police since your conviction. However, the Panel has concluded that it would be insufficient to impose conditions at this stage. In reaching this conclusion it is taken into account the following factors 1. The seriousness of the offences of which you were convicted; 2. Public confidence in the profession in light of your being subject to the statutory Sex Offender Notification Requirements until November 2007; 3. Although you have shown some degree of insight in psychological terms as to how your offences occurred, it believes that you still do not have sufficient understanding of your behaviour to permit a return to any form of medical practise at this stage; 4. Whilst you have discussed your future career with the Postgraduate Dean you have not made any specific enquiries as to the availability or feasibility of training or employment opportunities and your expressed intentions are unspecified. Therefore, in all of the circumstances of your case the Panel has determined that it would not be in the public interest or in the interests of the profession or in your own best interests to allow you to return to medical practise at this present time. It is therefore determined that a further period of suspension for 12 months would be appropriate and proportionate.”

In reaching this conclusion it is taken into account the following factors

[43]In his Skeleton Argument and, orally, Mr Morris made a number of detailed points essentially tending to show either that the Panel had misunderstood aspects of the evidence, failed to take into account aspects of the evidence or failed to give any or any sufficient weight to aspects of the evidence. In particular, those points related to the Appellant’s own evidence and the unchallenged evidence of Dr Badcock, the consultant forensic psychiatrist.[44]That said, it seems to me that at the heart of Mr Morris’ attack upon the Panel is his submission that there was no basis in fact for the conclusion reached by the Panel that the Appellant “still [does] not have sufficient understanding of [his] behaviour to permit a return to any form of medical practise at this stage.” It seems to me that if, indeed, there was no such factual basis Mr Morris has identified an error of approach on the part of the Panel such that it would be permissible for this Court to intervene. Alternatively, if Mr Morris has failed to persuade me that this conclusion of the Panel was unjustified it seems to me that there would be no proper basis for this Court to interfere with the decision reached by the Panel.[45]During the course of the submissions I was taken to various passages in the evidence given by the Appellant. It is necessary to set out in this judgment the extracts to which I was referred.[46]During the Appellants’ examination-in-chief there was a sequence of the following questions and answers:- “Q: I am going to take you, please, to Dr Badcock’s latest report, which we have at D2. I want your assistance with this, please. I think you saw him quite recently on 6 February this year. Is that correct? A: Yes, that is correct. Q: I am going to take you, first of all, to his examination of offence motivation, which we have at page 5 of this report? A: Yes Q: We see there, Dr Badcock saying: - “In view of the continuing importance of this question some time spent reviewing Dr Rumbold’s level of insight. Three separate motivational processes were identified.” I am going to read this out in detail. I hope I can fairly summarise these. First was a motive that arose out your mother telling you about her own experience of abuse at the hands of an uncle when she was a young girl? A: Yes Q: What was it about that communication from her that prompted you to seek out this material? A: For me, because of the environment that I was brought up in, which retrospectively I attribute a lot to this abuse that mum suffered, it was very difficult for me to talk about these sort of things, and I did not want to make things worse for my mother really, by asking her the details. It was a desire to exercise my own feelings about it really, by knowing more about what might have happened to my mother. Q: The second motivational area identified by Dr Badcock is at paragraph 2, where he talked about some of the images also giving you a sense of getting back at girls. You described to him your relationship with girls at your school arising out of poor background, bookish manner and failure to shine at sports. In the third paragraph there, Dr Badcock says this:
“He does not recall” - that is talking of you – “consciously sadistic masturbatory fantasies, but recognises that the sense of ‘ getting back’ at seeing some images of abuse is sadistic in nature.”
Do you accept that comment, by Dr Badcock? A: Yes, qualified but what he says later – I mean, I am certainly not a sadist by nature. Q: Are you referring to what he says in his conclusion at page 8? A: Yes Q: Where he says that:
“Although the index offences involved use of child pornography and some of his motivation included sadistic thinking, he is neither a paedophile not a sadist”? A: Yes, that is correct. Q: Adding that to his view, you accept those views of Dr Badcock as being a correct assessment of an element of motivation? A: Yes Q: I think the third element of motivation identified by Dr Badcock is under paragraph 3, a sense of rebelling against the constraints of your mother’s religious views, particular arising out of her own religion, against a feeling of externally imposed personal inhibition. You talked about what you disclosed to Dr Badcock, about your mother’s inhibitions. Is that right? A: Yes that is correct Q: Over the page, slightly mixed views about your decision to get married and using the images in an attempt to explore or mitigate some aspects of your own inhibitions, although not with the intention to explore abuse. Again, do you accept that as another strand of what motivated you to commit these offences? A: Yes I do.”
Later in the sequence of the questions and answers the Appellant was asked to consider the Post-Treatment Report which had been written following the completion by him of the Sex Offenders Treatment Programme. “Q: I am just going to pick up a few points please. Under the first domain, Sexual Interest, progress so far:
“There is no evidence available to suggest that [you have] a sexual preference for children. However the commission of this offence demonstrates a capacity to respond sexually to children. Mr Rumbold although maintaining his view that he looked at the images primarily as a result of his mother disclosing that she was abused was able to recognise that he found the images sexually arousing.”
Is that correct assessment? A: No, I would not say this is correct, no. Q: In what sense is it not correct? A: I did not find it sexually arousing as such. I agree that there was a preoccupation, I did not actually find them sexually arousing. Q: She says:
“He was also able to recognise compulsive nature of this type of offending describing himself as being ‘morbidly fascinated’ and ‘obsessed’ with the images. This suggests that a level of sexual preoccupation was also present in this offence.”
What do you say to that? A: Yes, I agree with that” A: Yes “In view of the continuing importance of this question some time spent reviewing Dr Rumbold’s level of insight. Three separate motivational processes were identified.” I am going to read this out in detail. I hope I can fairly summarise these. First was a motive that arose out your mother telling you about her own experience of abuse at the hands of an uncle when she was a young girl? In the third paragraph there, Dr Badcock says this: - that is talking of you – “consciously sadistic masturbatory fantasies, but recognises that the sense of ‘ getting back’ at seeing some images of abuse is sadistic in nature.” Do you accept that comment, by Dr Badcock? Q: Are you referring to what he says in his conclusion at page 8? A: Yes “Although the index offences involved use of child pornography and some of his motivation included sadistic thinking, he is neither a paedophile not a sadist”? A: Yes A: Yes that is correct A: Yes I do.” “There is no evidence available to suggest that [you have] a sexual preference for children. However the commission of this offence demonstrates a capacity to respond sexually to children. Mr Rumbold although maintaining his view that he looked at the images primarily as a result of his mother disclosing that she was abused was able to recognise that he found the images sexually arousing.” Is that correct assessment? Q: In what sense is it not correct? “He was also able to recognise compulsive nature of this type of offending describing himself as being ‘morbidly fascinated’ and ‘obsessed’ with the images. This suggests that a level of sexual preoccupation was also present in this offence.” What do you say to that?

Q: In what sense is it not correct?

[47]In cross-examination the Appellant was asked specific questions about the motivation for his offending. “Q: Moving on from that, I am not going into the original offending in any great detail and so on, can I just ask, do you accept there was any sexual element to the offences you committed at all? A: Yes. Q: Can you tell us what the sexual element was, as far as you are concerned? A: As detailed in Dr Badcock’s report, that detail was motivation. There were feelings of sexual inadequacy involved when I was younger, I think that was one of the main things. I would say that was the main component of that. Q: Do you accept that there was any element of sexual gratification in the offences, at all? A: I would not describe it as gratification, no. Q: Can I clarify, in my own mind, what was the time frame over which you were downloading the images? A: Six weeks it has been noted in previous hearings. There then followed a series of questions designed to show that the period had been longer. There then followed this exchange:
“Q: Can I just ask you, you actually printed some of the images off and they were found during the course of the police search? A: That is correct. Q: Why did you retain those images in that form? A: Initially my justification to myself was to take them to the police, then I actually forgot about them, which is why they were still there. Q: Forgot about them A: Yes, because they were hidden away, under the bed.”
Q: Why did you retain those images in that form? Q: Forgot about them A: Yes, because they were hidden away, under the bed.”

Q: Forgot about them

[48]That latter point was taken up in questioning by the Panel. In answer to a question about why the material had been printed off and whether it was to taken it to the police the Appellant answered:
“That is what I thought at the time, that was my justification, and that is what I told myself at the time. There is obviously more to it than that, as Dr Badcock says, there is a series of motives basically.”
[49]Finally, I should record that the Panel also asked questions related to the Appellant’s ability to ensure that he did not re-offend. “Q: Dr Rumbold, if I can take you to page 118 of the bundle again. In particular it says “Further work needed in this Domain”. I think this in a way is the opinion of the Probation Service. Can you explain how you have been vigilant so that you do not relapse? A: I think the most important thing is self awareness, you have to be honest with yourself. Also, a large amount of it is down to my wife as well, I think. Once you are aware – and obviously you are aware once you have offended – of the potential of these things to happen, then that is obviously a cautionary thing. Q: Do you dispute their analysis in this case? A: I think it is wise. The thing is I dispute this, I am not sure how much they are saying I have to be aware that I am going to re-offend, because I do not believe that I will. The way my life has changed and the particular circumstances in which I offended, but then the fact is I have offended, so therefore I am at risk of re-offending, so I completely take their advice on board. I guess where I am coming from is, when I was on the programme, they would have people there that would say, if I go on the bus and there is a young girl at the bottom of the bus, I go to the top of the bus. Personally, I do not feel that is necessary, I feel that is ostracising myself too much, because I do not find that an issue for me. I think it depends on the degree. There are some people that who will go to immense degrees to avoid any risky situations. My risky situations are more confined to myself and how I am feeling, rather than any sort of physical situation. Yes, I have to be careful about how I am feeling, but like I say this is the whole thing of keeping busy, and I certainly acknowledge that I have got to make sure that I am not ruminating about things, it is the “poor me” thing really that is very much a problem, the situation, at the time of the offending. Q: You did not identify yourself with any of the offenders on the programme at all? A: Yes, there were people in very similar situations, but some of them were at a far more serious end of the spectrum and they are persistent offenders, so their situations were not as similar. There were people in exactly the same situation as myself, so I could certainly relate to their situation.” Q: Do you dispute their analysis in this case? I guess where I am coming from is, when I was on the programme, they would have people there that would say, if I go on the bus and there is a young girl at the bottom of the bus, I go to the top of the bus. Personally, I do not feel that is necessary, I feel that is ostracising myself too much, because I do not find that an issue for me. I think it depends on the degree. There are some people that who will go to immense degrees to avoid any risky situations. My risky situations are more confined to myself and how I am feeling, rather than any sort of physical situation. Yes, I have to be careful about how I am feeling, but like I say this is the whole thing of keeping busy, and I certainly acknowledge that I have got to make sure that I am not ruminating about things, it is the “poor me” thing really that is very much a problem, the situation, at the time of the offending.

Q: Do you dispute their analysis in this case?

[50]In the light of those extracts from the evidence and, to repeat, the unchallenged evidence of Dr Badcock that the Appellant had insight into his offending was the Panel justified in reaching the conclusion :- “Although you have shown some degree of insight in psychological term as to how your offences occurred, it believes that you still do not have sufficient understanding of your behaviour to permit a return of any form of medical practise at this stage.”[51]During the course of submissions there was considerable debate about this issue in the context of an earlier sentence in the decision letter. The sentence in question was:- “The Panel did, however, note your evidence that you disagreed with the post treatment report in which it is suggested that a level of sexual preoccupation was present in your offending.” If the conclusion that the Appellant had insufficient understanding was solely linked to that earlier sentence I would have considerable doubt about whether the same could be justified. Strictly, the Panel’s recording of the evidence given by the Appellant is not accurate since his disagreement related not to the question of preoccupation but to the question of arousal or gratification. In my judgment, however, to focus on this one sentence is an unduly narrow view of the Panel’s approach. There is nothing in the oral pronouncement or decision letter to suggest that the only reason that the Panel concluded that the Appellant had insufficient understanding was the disagreement to which they refer. In my judgment the probability is that in reaching its conclusion as to an insufficiency of understanding the Panel relied upon the whole of the evidence taken in the round which, of course, included the extracts which I have set out above, the Post-Treatment Report which the Panel described as compelling, Dr Badcock’s evidence and, of course, its own assessment of the Appellant.[52]In reaching a conclusion that this Doctor still had an insufficient understanding of his offending behaviour so as to make it permissible to allow him to return to practise the Panel was engaged in making a very important judgment in the context of the case. It was a judgment which it was by a large measure in the best position to make and this Court would only interfere with its judgment if it was convinced that there was no proper basis for it. I am clear that the evidence, taken as a whole, when evaluated by this specialist Tribunal was capable of justifying the conclusions that the Panel reached.[53]Accordingly, in my judgment, the main attack upon the Panel’s decision fails.[54]Finding, as I do, that the Respondent was justified in reaching the conclusion that the Defendant lacked sufficient understanding of his offending behaviour to permit a return to any form of medical practise it seems to me to be the inevitable consequence that I must also find that the Panel was justified in imposing a further period of suspension. It may be that a further period of suspension was justified on that ground alone. However it seems to me that the level of understanding of the Appellant is inextricably bound up with the seriousness of his offending. In reality the first and third reasons given by the Panel for the imposition of a further period of suspension go hand in hand.[55]I turn finally and, very briefly, to deal with the fourth reason expressly advanced by the Panel. Factually it is completely accurate. I recognise, of course, that the Appellant faces the difficulty of making suitable inquiries about work in the future when uncertainty surrounding his future exists. Nonetheless, to repeat, the Panel’s view of this aspect of the case is factually accurate.[56]I do not consider that the taking of this fourth factor into account was impermissible. Further, no doubt, this factor taken together with all the others pointed towards a further period of suspension.[57]On any view of the recent authorities in the Court of Appeal cited above the following principles must be applied in any appeal from the Panel. This court must have in mind and give such weight as is appropriate in the circumstances to the fact that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practise and general standards of conduct and behaviour deserves respect. It must also have regard to the fact that the Panel has the benefit of hearing and seeing the relevant witness. Finally, the questions of primary and secondary fact to be resolved and the overall value judgment to be made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers. Bearing those factors clearly in mind and having analysed the evidence before the Panel to the extent which I regard as being necessary in this case I have reached the clear conclusion that the decision of this Panel was wholly justified. Accordingly this appeal is dismissed.

Cited in 3 later judgments