Yusuf v The Royal Pharmaceutical Society of Great Britain [2009] EWHC 867 (Admin)

[2009] EWHC 867 (Admin)Case No CO/7703/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 April 2009
Before
MR JUSTICE MUNBY
Between
JAWID AHMED YUSUFAppellantTHE ROYAL PHARMACEUTICAL SOCIETY OF GREAT BRITAINRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
The Appellant appeared in person for in personMr Kenneth Hamer (instructed by Field Fisher Waterhouse) for RespondentHearing Hearing date: 1 April 2009
JudgmentMr Justice Munby :
[1]This is an appeal by a pharmacist, Jawid Ahmed Yusuf, against a determination on 16 May 2008 of the Disciplinary Committee of The Royal Pharmaceutical Society of Great Britain (Mr Patrick Milmo QC, Chairman, Dr Sarah Cockbill FRPharmS, pharmacist, and Mrs Judith Way, lay member) finding that the appellant had rendered himself unfit to have his name on the register of pharmacists and directing that his name be removed from the register.[2]The Disciplinary Committee found the appellant guilty of what it called “the consistent, one might almost say systematic, alteration of prescription forms and the forging of doctors’ signatures to authenticate the alterations.” It said that “his conduct involved dishonesty, abuse of trust, loss to the NHS and the signing of FP34C forms certifying that the drugs ordered on prescriptions had been supplied to patients, when [he] must have known that that was untrue.” His conduct, they added, “amounted to fundamental breaches of the Code of Ethics.”[3]Nothing turns on the precise detail of the relevant statutory scheme, for it is common ground that, subject only to the matters specifically raised by the appellant, the Committee was acting properly in accordance with what was, at the time, the relevant primary and secondary legislation: the Pharmacy Act 1954 and the Pharmaceutical Society (Statutory Committee) Order of Council 1978, SI 1978 No 20. All I need observe is that section 10 of the Act confers an unlimited right of appeal to the High Court against a direction of the Committee that a pharmacist’s name be removed from the register and gives the High Court power on appeal to “make such order as the court thinks fit.”

The background

[4]The appellant is a pharmacist who at all material times was employed by a Mr Cristal as a pharmacist to manage a pharmacy owned by Mr Cristal in Cheshunt.[5]The Committee had before it two ‘Notices of Inquiry’, each dated 1 April 2008.[6]One, which it is convenient to refer to as “the conviction case”, was based upon the fact that on 15 January 2004 the appellant, having pleaded not guilty, had nonetheless been convicted at East Hertfordshire Magistrates’ Court of five offences of dishonestly falsifying accounting records (NHS prescriptions) contrary to section 17(1)(A) of the Theft Act 1968. He was fined and ordered to pay costs.[7]The prescriptions were dated 26 June 2000, 17 April 2001, 8 May 2001, 10 August 2001 and 6 March 2002 respectively. In relation to each prescription the Crown led evidence from the relevant doctor that the signature attesting the alterations was not theirs and from the relevant patient that they had not received the relevant drug. There was also evidence from a handwriting expert, a Mr Michael Allen, whose evidence, set out in a written statement dated 25 May 2003, was directed to the question of whether the appellant had written the disputed entries in the prescriptions: the ‘Dispenser’s endorsement’ in the left-hand margin, the additions/alterations in the main body of the prescription and the signatures purportedly authenticating the additions/alterations. As to the first, Mr Allen expressed the opinion that the appellant wrote them:
“the possibility that some other person was responsible can be discounted.”
As to the second, he said that “no opinion as to whether or not [the appellant] wrote these entries can be expressed.” As to the third, he said that “it is not possible to determine whether or not [the appellant] wrote any of the endorsing signatures.”[8]The other Notice of Inquiry, which it is convenient to refer to as “the non-conviction case”, was based upon allegations that the appellant had altered a further sixty-two prescriptions on various dates between 2 August 2000 and 3 January 2002. In relation to these prescriptions, the case against the appellant was that(i) he had altered the prescription and forged the doctor’s signature,(ii) by these actions he had put Mr Cristal and patients at risk of investigation by the police and other regulatory bodies,(iii) his conduct was contrary to the Society’s Code of Ethics and Standards and, in relation to most (though not) all of the prescriptions, that(iv) he had falsified the prescription dishonestly knowing that it would attract a higher payment than if it had not been altered and(v) as a result Cristal Chemists received a greater amount than was due. In the event (see below) the Committee found (i), (ii) and (iii) proved but (iv) and (v) not proved.[9]I need to add this. It is now over five years since he was convicted but it is a fact that – whatever his explanations – the appellant has never sought to appeal against his conviction. He told me that he has, very recently as I understand it, applied to the Criminal Cases Review Commission, but he did not produce for my consideration any of the materials he has sent to the Commission. Nor did he provide a copy of another handwriting expert’s report which he claims to have obtained; I do not know what it says.[10]Authorities to which Mr Kenneth Hamer on behalf of the respondent directed my attention have long established the requirement of public policy that, save in exceptional circumstances – and none, in my judgment, exist here – a challenge to a criminal conviction should not be entertained by a disciplinary tribunal: see, for example, Jeyaretnam v Law Society of Singapore [1989] 1 AC 608 and Shepherd v Law Society (CA – unreported; 15 November 1996).

The hearing before the Disciplinary Committee

[11]The hearing before the Committee began on 14 May 2008 (a Wednesday) and concluded on 16 May 2008.[12]On 12 May 2008 the appellant’s representative, a Mr Edwards, wrote seeking an adjournment on the following grounds as set out by the appellant:
“I will not be attending the above inquiry owing to the extenuating nature of my current circumstances. I have effectively been rendered homeless owing to the recent eviction and I am physically and mentally exhausted. I am not in a position to give an effective performance at this inquiry.”
The appellant also said:
“I am in a terrible predicament & cannot attend the inquiry. My wife is also unwell owing to all this stress.”
No medical evidence was produced in support of any of these assertions.[13]The hearing remained listed, the Chairman having on 13 May 2008 refused the appellant’s application on paper. The appellant was informed of the Chairman’s decision by email the same day.[14]The hearing started, as I have said, on 14 May 2008. The appellant was neither present nor represented. The Committee first considered whether or not to proceed in the absence of the appellant. The Society’s counsel, Ms Fenella Morris, referred to the decision of the House of Lords in R v Jones (Anthony) [2002] UKHL 5, [2003] 1 AC 1 (see below). The Chairman then explained why the Committee had decided to proceed in the appellant’s absence; the reasons run to some three pages of transcript. Having cited from the speech of Lord Bingham of Cornhill in R v Jones (Anthony), the Chairman posed the question as being:
“has [the appellant] voluntarily chosen not to attend this inquiry?”
He then proceeded to rehearse in rather greater detail the facts relating to the application for the adjournment which I have already summarised.[15]The Chairman set out the Committee’s decision and reasoning as follows:
“Mr Edwards informed the Society that he has asked his client … whether he was going to provide medical evidence as to his state of health and he had informed his solicitor that he did not propose to do so. Thus we have no medical evidence that [the appellant] is unfit to attend or that the illness of his wife was such as to prevent him from attending. In all these circumstances we have reached the finding that [the appellant] has voluntarily chosen not to attend. Furthermore, the Committee has been informed that [the appellant] has instructed Mr Edwards not to attend. Accordingly, not only has [the appellant] voluntarily chosen not to attend, he has voluntarily chosen not to be represented before the Committee today. We recognise that the discretion to proceed in his absence is one which must be exercised with the utmost caution, but in this particular instance, having considered all the circumstances, we think it is proper for us to proceed in [the appellant’s] absence.”
[16]The Committee then turned to consider whether to proceed first, as the Society wished, with the conviction case. It decided to deal first with the non-conviction case. Following opening submissions from Ms Morris, the Committee then heard evidence from a number of witnesses, including Mr Cristal. The following day, 15 May 2008, it heard evidence from further witnesses, before retiring and then returning to announce its ‘Determination’ on the facts of the non-conviction case:
“We should say that in some aspects the Society’s evidence lacks compelling cogency and completeness. Had we been required to find the facts proved beyond all reasonable doubt, we may have had difficulty in deciding that the burden had been satisfied. Applying the lower level of proof, and bearing in mind that the evidence of Mr Cristal was uncontradicted by any evidence given to the Committee and the content of the memorandum of convictions, we are satisfied that the Society has proved its case to our satisfaction on the balance of probabilities. That applies to the principal charges, but it does not apply to every fact which is alleged in the Notice of Inquiry.”
[17]The Chairman then turned to identify precisely which allegations had been, and which had not been proved (see paragraph [8] above). Earlier, in the course of giving its reasons, the Committee had set out certain facts which it found to have been “clearly established”, including that the appellant was working at the pharmacy “during the period and on many of the days when the alterations and forgeries apparently took place” – though adding that “it has not been shown that in every case the prescriptions were date stamped on days when [the appellant] was normally working” – and that “there was no other pharmacist dispensing at Cristal’s Chemist in the period between July 2000 to January 2002 other than [the appellant] and Mr Cristal.”[18]The Committee recorded that in “assessing and evaluating the evidence” it had also noted that no evidence had been put before the Committee that the alterations were in the appellant’s handwriting, that there was no direct evidence that he had altered any prescriptions (there was no evidence that anyone had seen him making alterations), that the appellant had obtained no monetary gain or other financial advantage as a result of the alterations (this being, as they said, the strongest point that could be made on his behalf), and that some of the date stamps on the prescriptions were on days that he was not normally working.[19]Finally the Committee found that the appellant was unfit to have his name on the register, relying in particular on the following matters: that the facts involved a finding of dishonesty, such dishonesty being an abuse of the trust placed in pharmacists; that the offending was repeated over a period of time; and that the falsification of the prescriptions potentially led to the dispensing of prescription only medicines otherwise than in accordance with a prescription from a medical practitioner and to the creation of false patient records.[20]Ms Morris then opened the conviction case and called Mr Allen to give evidence. He did not depart from the evidence which he had given in his witness statement dated 25 May 2003.[21]On the final day, 16 May 2008, Ms Morris elaborated the conviction case, taking the Committee though the relevant documents. The Committee then retired before returning to announce its ‘Decision’ on the facts of the conviction case:
“We cannot, of course, go behind the convictions or in any way seek to enquire as to whether the convictions were justified. We must accept the convictions for what they are. Accordingly, we must find that [the appellant] has been convicted of offences of dishonesty.”
The Committee went on to find that, in the circumstances, the convictions were such as to render the appellant unfit to have his name on the register.[22]Finally, so far as is material for present purposes, the Committee turned to consider the appropriate sanction, given their findings both on the non-conviction case and on the conviction case. I have already set out in paragraph [2] above the Committee’s characterisation of the appellant’s conduct. The Chairman continued:
“It must be mentioned that there is no evidence that [the appellant] in any way benefited himself or obtained any financial gain from his misconduct. That must be a major mitigating factor, albeit the only mitigating factor, as he has chosen not to appear or to be represented at either inquiry. However, his misconduct must be regarded as serious. It has put patients at risk, and is potentially disruptive of confidence that should exist between doctors and pharmacists, the former relying on the latter to prescribe drugs in accordance with their prescriptions. We find the need to protect the public is engaged. So too is the requirement that public confidence in the profession has to be maintained and the maintenance of proper standards of behaviour. In the circumstances, we consider that the sanction which is appropriate and proportionate is that [the appellant’s] name be removed from the register of pharmacists.”

The appeal

[23]The notice of appeal was filed in the Administrative Court on 14 August 2008. The grounds of appeal attached to the appellant’s notice identify four grounds of challenge: i) First, that the Committee was wrong to refuse the appellant the adjournment he had sought on grounds of ill-health. ii) Secondly, that the Committee was wrong to proceed to hear the matter in the appellant’s absence. iii) Thirdly, that the Committee failed adequately to protect the appellant’s interests by failing to ensure that Mr Cristal was adequately and thoroughly examined / cross-examined by the Committee. iv) Finally, that in what the appellant alleges were “the most unusual circumstances of this case” the Committee was wrong and acted disproportionately in directing that his name be removed from the register.[24]I shall deal with these in turn.[25]First, however, I should record that on 3 March 2009 Beatson J refused an application by the appellant, issued on 18 February 2009, seeking an adjournment until further notice of the hearing of the appeal, then listed for 1 April 2009. He said:
“It is the public interest for the appeal … , made nine months ago, to be heard because, until the appeal has been heard, the appellant’s name remains on the register without restriction and he is entitled to practice as a registered pharmacist. The application to adjourn is made in a general and unparticularised way. It is utterly without merit”
I respectfully agree with every word of that. Nothing which emerged before me even began to suggest that there had been any merit whatever in the application.[26]The appeal came on for hearing before me on 1 April 2009. The appellant appeared in person. The respondent was represented by Mr Hamer. Both had filed helpful skeleton arguments. At the end of the hearing I announced that I was going to dismiss the appeal for reasons which I would give in due course. This I now do.

The appeal: ground (1)

[27]The first ground of appeal is that the Chairman was wrong to refuse to adjourn on being informed that the appellant was too ill to attend. The appellant submits that if the Chairman was not satisfied as to the existence or degree of the appellant’s illness he should have requested that medical evidence be supplied. He should not simply have refused the application.[28]Mr Hamer understandably gives this complaint short shrift. The application was made very late (notice of the date of the hearing having been sent to the appellant on 12 March 2008) and was not supported by any medical evidence. Indeed, the appellant had made it clear through Mr Edwards that he did not propose to rely on any medical evidence. Quite apart from that, Mr Hamer says, it was not in any event the duty of the Chairman to request that medical evidence be supplied. The Chairman was not wrong to refuse the application, not least because some 20 witnesses had been summoned or warned to attend the hearing, many of them being medical professionals.[29]I agree with Mr Hamer, and for all the reasons he gives. The Chairman acted perfectly properly in refusing an application which, as formulated, verged on the impudent and, if that is too harsh an assessment, was as devoid of merit as the not dissimilar application made to Beatson J to vacate this hearing.[30]I reject this ground of appeal.

The appeal: ground (2)

[31]The second ground of appeal is that the Committee was wrong to decide to proceed in the absence of the appellant, who it was aware maintained that he was unable to attend through illness and who, it must have known, disputed the non-conviction case. The allegations, he says, were ones which the Committee must have been aware carried with them a serious risk of a finding of misconduct and a very real risk of a direction that his name be removed from the register. He submits that(i) in the light of his assertion that he was ill and(ii) given his known (or obvious) dispute with the non-conviction case, the interests of justice and fairness to him required that the proceedings were delayed until he could attend.[32]It is convenient at this point to refer to the relevant authorities: R v Hayward [2001] EWCA Crim 168, [2001] 1 QB 862, approved on appeal by the House of Lords, sub nom R v Jones (Anthony) [2002] UKHL 5, [2003] 1 AC 1, and applied to the disciplinary proceedings of professional bodies by the Privy Council in Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34.[33]In R v Hayward, referring to the discretion to proceed in a defendant’s absence, Rose LJ said this at para [22]:
“(4) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented. (5) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular: (i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear; (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.”
[34]In the House of Lords, in R v Jones (Anthony), Lord Bingham of Cornhill stressed (at para [13]) that “the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution”, adding that “If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin.” However, as he had earlier pointed out at (para [9]), “the European Court of Human Rights has never found a breach of the Convention where a defendant, fully informed of a forthcoming trial, has voluntarily chosen not to attend and the trial has continued”, adding the comment (at para [10]) that:
“If a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial, voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended.”
[35]At the end of the day, as Lord Hoffmann pointed out (at para [20]), and this is a principle repeatedly emphasised in the Strasbourg jurisprudence, “The question … is not whether the defendants waived the right to a fair trial but whether in all the circumstances they got one. It is whether on the particular facts of the case the proceedings, taken as a whole and including the appellate process, satisfied the requirements of the Convention.”[36]That jurisprudence, as I have said, was applied to the disciplinary proceedings of professional bodies by the Privy Council in Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34.[37]As we have seen, the Committee was referred to and purported to apply R v Jones (Anthony). The appellant complains that it should also have referred to Tait, which, he says, was highly relevant given his assertion that he was ill. The Committee’s failure to consider Tait was, he says, a fundamental flaw in the decision-making process, which led to the hearing continuing in his absence. In this connection he also referred me to the approach adopted by another Disciplinary Committee in August 2006 in the case of Royal Pharmaceutical Society of Great Britain v Adekaiyaoja where, he said, the Chairman, Lord Fraser QC, had treated the factor of illness (present in Tait but absent in Adekaiyaoja)as distinguishing that case from Tait.[38]This last point does not, in my judgment, assist the appellant at all. The decisive point in Tait was not the defendant’s assertion that he was ill but rather, as the Privy Council found, the fact that the legal assessor had failed to direct the tribunal properly in accordance with R v Jones (Anthony). Here, in contrast, the Committee, in my judgment, directed itself impeccably in accordance with R v Jones (Anthony). Its approach in law cannot be faulted, whether one has regard to R v Jones (Anthony) or to Tait. And the mere fact that a defendant claims to be ill plainly cannot, of itself and without more ado, require an adjournment. Absent medical evidence, and a fortiori where, as here, a defendant explicitly disavows reliance on any medical evidence, a tribunal is entitled in an appropriate case to find, as the Committee found here, that the defendant has voluntarily chosen not to attend. Moreover, the Committee here properly went on to find that the appellant, having instructed Mr Edwards not to attend, had accordingly not only voluntarily chosen not to attend but had voluntarily chosen not to be represented. Those were findings that were plainly open to the Committee, and on the basis of those findings the Committee, proceeding as it said with the “utmost caution”, was entitled to conclude, and for the reasons it gave, that it was proper for it to proceed in the absence of the appellant.[39]Mr Hamer says that the Chairman correctly identified the key issue as being, in this particular case, whether the appellant had voluntarily chosen not to attend. I agree. Moreover, as Mr Hamer points out, the Committee was properly alert to the need to exercise its discretion to proceed in the appellant’s absence with the utmost caution. He submits that the Committee’s decision was fair, measured and unassailable. I agree. The Committee was entitled to find, as it did, that the appellant had voluntarily chosen neither to appear nor to be represented. It then proceeded to exercise its discretion, having, in my judgment, directed itself impeccably in law. And, to repeat, it was entitled, proceeding as it said with the “utmost caution”, to conclude, and for the reasons it gave, that it was proper for it to proceed in the absence of the appellant.[40]At one point during the argument I did wonder whether the Committee was possibly to be criticised, not so much for embarking upon the hearing in the appellant’s absence as for continuing with the hearing once it had got to the point when the concerns which in the outcome were articulated in its findings (see paragraph [16] above) first began to form. I had in mind, in particular, its observation that the evidence of Mr Cristal had been uncontradicted by any evidence given to the Committee. On reflection I am satisfied that my concerns were misplaced. Not merely was this not a matter raised by the appellant in his notice of appeal. Given its findings as to the reasons for the appellant’s absence, the Committee, in my judgment, was not merely entitled to embark upon the hearing; it was entitled to continue with the hearing as it did.[41]This ground of appeal accordingly fails.

The appeal: ground (3)

[42]The appellant’s third complaint is that, even if the Committee was correct in proceeding with the inquiry is his absence, it erred in failing to either examine or examine adequately Mr Cristal, the very person, according to the appellant, who stood to gain from the incorrect endorsements, prescription alterations and over-payments and whose evidence, obviously crucial to the finding against him in the non-conviction case, it appears, he says, simply to have accepted without challenge.[43]The transcript of the proceedings on 14 May 2008 shows that at the conclusion of his evidence in chief Mr Cristal was questioned by the Committee, first by Mrs Way and then, at greater length, by the Chairman, the transcript of the latter questioning running to about 1½ pages and being introduced by the following question:
“Mr Cristal, I am sure this will not come as new knowledge to you. Did you know, at any rate in 2004, that [the appellant] accused you of a frame up in respect of these altered prescriptions?”
The Chairman then put to Mr Cristal a letter written by the appellant in which he had accused him in terms of “a very elaborate frame up”, asking him “What do you say about that?” and again “Can I have your observation or comment on that?” before putting to him the point that “you were the person who received, if there were alterations which were … profitable to the pharmacy, then that profit was received by you?”[44]In its Determination in relation to the facts of the non-conviction case the Committee referred to this matter, the Chairman observing:
“It was suggested by Counsel for the Society that we could have cross-examined Mr Cristal ourselves. In the course of questions which were asked by the Committee, the general charge made by [the appellant], that he was responsible for the alterations and forgeries was put to him (and denied), but we did not regard it as our role or responsibility to cross-examine the Society’s witnesses and Mr Cristal was not cross-examined to any greater extent.”
[45]Mr Hamer submits that it was not the function of the Committee to ensure that Mr Cristal was “adequately and thoroughly examined / cross-examined by the Committee,” though in fact the Committee did ask Mr Cristal some questions and, as Mr Hamer puts it, took proper and sufficient steps to ensure that the appellant’s case was put to him. Mr Hamer submits that this was all that was required. He points out, taking me to various passages in the Determination which there is no need for me to quote, though I have referred to some of them already, that the Committee had well in mind a number of matters which favoured the appellant or which might have been relied upon by him. Mr Hamer also points out that, as we have seen, the Committee did not find all the Society’s allegations proved. And, as he observes, this complaint in any event goes only to the non-conviction case; so that even if there were any merit in it (which he disputes) it could not affect the Committee’s findings in relation to the conviction case.[46]I agree with Mr Hamer, and essentially for the reasons he gives. The Committee did all that could appropriately be expected of it. It tested to an appropriate extent Mr Cristal’s account. The fact that its probing of his evidence may have been less vigorous or searching than might have been expected if Mr Cristal had been cross-examined either by the appellant or by some advocate instructed on his behalf is, in my judgment, neither here nor there. That, as Mr Hamer correctly submits, was not the function of the Committee. The Committee had very well in mind the factors that weighed in the appellant’s favour, but the simple fact is that it believed Mr Cristal and accepted his account, as it was entitled to. There was no unfairness in the process adopted by the Committee.[47]This ground of appeal therefore fails.

The appeal: ground (4)

[48]The appellant’s final complaint is that the decision to direct the removal of his name from the register was “manifestly excessive and unnecessary in the interests of protecting the public and the image of the profession.” He points out that he stood to gain nothing from his acts and that no motive for his actions has ever been established. In what he calls “these most unusual circumstances” he submits that he should only have been subject to a reprimand. In support of this latter proposition he mentioned a case in which, apparently, the Committee merely reprimanded a pharmacist who had been convicted of shop-lifting – an offence of dishonesty. So, he says, dishonesty per se did not warrant removal from the register.[49]Mr Hamer submits that the Committee was entitled to decide as it did and for the reasons it gave. And it was, he says, eminently placed to come to this view. Both of the cases against the appellant were, as the Committee correctly recognised, serious. Both cases involved the falsification of prescriptions and the forgery of doctors’ signatures carried out, as Mr Hamer says, in a professional context. And the convictions were of offences of dishonesty. The Committee was well aware of, and took into account, what the appellant refers to as the “most unusual circumstances”, but was entitled, he says, to put in the balance on the other side, as it did, factors such as the risk to patients and the damage to doctor/pharmacist confidence and, not least, the fact that, as it correctly found, the appellant’s conduct “amounted to fundamental breaches of the Code of Ethics.”[50]I agree with Mr Hamer. The Committee gave clear and compelling reasons for deciding to impose the ultimate sanction. It was, in my judgment, entitled to decide as it did and for all the reasons it gave. I might add that, given the gravity of these acts of misconduct, committed, it is to be emphasised, in a professional context, and given the number of such acts that were found proved – this was, as the Committee said, “the consistent, one might almost say systematic, alteration of prescription forms and the forging of doctors’ signatures”, conduct involving “dishonesty, abuse of trust [and] loss to the NHS” – it is hardly surprising that the Committee felt it appropriate to impose the ultimate sanction. Indeed, one might rather have been surprised if it had not.[51]I should add two points. Regarding the other case mentioned by the appellant, assuming his account of it to be accurate, I would only observe that I can see there may be cases of misconduct – even dishonesty – in a non-professional context where a disciplinary tribunal could, in appropriate circumstances, conclude that some penalty short of the ultimate penalty suffices. A trivial act of shoplifting in a ‘moment of madness’ by a professional person of otherwise blameless character is very different indeed from the wholesale misconduct and dishonesty in a professional context of which the appellant was here found guilty. So that other case does not assist him.[52]The other point is this. I very much doubt that the Committee would – indeed, could – have come to any other conclusion when considering penalty even if it had had only the conviction case before it.[53]This ground of appeal also must be rejected.

Conclusion

[54]For all these reasons, each of the appellant’s grounds of appeal fails and must be rejected. The appeal must be and is dismissed.

Costs

[55]The respondent seeks its costs, summarily assessed, in the sum (inclusive of VAT) of £14,871.13, counsel’s fees (inclusive of VAT) amounting to £6,368.75 and the balance of £8,502.38 being the solicitors fees, charged at the partner’s rate of £210 per hour and thus representing a little under 35 hours’ work.[56]On 11 September 2008 the respondent’s solicitors wrote to the appellant inviting him to withdraw his appeal and saying that, if he did so within 21 days, the respondent would be prepared to consent to an order for dismissal of the appeal with no order as to costs. As recently as 13 March 2009 – this being after Beatson J had refused the appellant’s application for an adjournment – the respondent’s solicitors indicated that if the appellant was prepared to withdraw his appeal the respondent would be prepared to accept costs in the reduced sum of £4,000. As will be apparent, the appellant rejected that proposal and pursued his appeal.[57]I can see no reason why, in all the circumstances, costs should not follow the event. The appellant has comprehensively lost, having failed on each and every ground of appeal. In principle he must pay the costs. The case, in my judgment, is appropriately one for summary assessment. Neither the aggregate amounts claimed, nor the hours worked nor the charging rates, are excessive, though I think I should assume that on a detailed assessment the appellant might succeed in achieving some modest reduction.[58]In all the circumstances I propose to order the appellant to pay the respondent’s costs of the appeal summarily assessed in the sum of £12,500 (inclusive of VAT).[59]The appellant asks me to be lenient in respect of the costs, telling me that he is unemployed and in significant arrears with his rent. But he does not seek otherwise to challenge the costs being sought by the respondent. While one can sympathise with the appellant for the predicament in which he now finds himself, that is not, in the circumstances, any reason for denying the respondent the order to which, in my judgment, it is entitled. The appellant was given every opportunity to withdraw without financial penalty. He decided to proceed. He failed. There is, in the circumstances, no reason why costs should not follow the event.

Postscript

[60]Both following the hearing before me on 1 April 2009, and again following my sending him the draft judgment on 15 April 2009, the appellant has sought to raise various further matters in support of his appeal. I do not propose to deal with this save to observe that, as I have said, I had already announced my decision dismissing the appeal at the end of the hearing on 1 April 2009, that some of the matters which the appellant now sought to canvass travelled well outside his grounds of appeal, and that nothing he told me gave me the slightest reason to pause.[61]Finally, the appellant, in his most recent communication, asked whether, if I was nonetheless still minded to dismiss his appeal, it would be possible for me to “instruct” the respondent that he be allowed an early restoration of his name to the register, for example, in 6 to 12 months. I absolutely decline to take any such step. It must be for the appellant to decide when, consistently with the relevant procedures, he applies for his name to be restored, just as it must be for the respondent to take such steps as it thinks appropriate as and when any such application is made to it. It would not be appropriate in the circumstances for me to express any views on the matter, one way or the other.

Cited in 1 later judgment