Musonza v Nursing and Midwifery Council [2012] EWHC 1440 (Admin)

Case No CO/3014/2011[2012] EWHC 1440 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 June 2012
Before
HIS HONOUR JUDGE ANTHONY THORNTON QC
Between
Florence MusonzaAppellantNursing and Midwifery CouncilRespondent
The claimant represented herselfMr Kristian Garsed (instructed by The Nursing and Midwifery Council) for Defendant
JUDGMENTHis Honour Judge Anthony Thornton QC:Introduction
[1]This is an appeal brought by Ms Florence Musonza (“FM”) against the decision of a panel of the Conduct and Competence Committee (“CCC”) of the Nursing Midwifery Council (“NMC”) that was promulgated on 4 March 2011. FM had qualified and been registered as a nurse in April 2007 following her graduation from the University of Luton with a Diploma in Adult Nursing in March 2007. The CCC at a meeting had decided that FM’s fitness to practice was impaired and, by a decision promulgated on 4 March 2007 imposed a striking-off order whose effect was to remove FMs name from the register of nurses maintained by the NMC.[2]The allegation that had been referred to the CCC had charged FM with having been convicted on two separate occasions in July and November 2009 of separate and serious incidents involving fraud and that, by reason of those convictions, her fitness to practice was impaired. This appeal is brought to the High Court under article 38 of the 2001 Nursing and Midwifery Order 2001 and, by virtue of CPR 52.11, the appeal may be allowed where the decision of the CCC was wrong or unjust because of a serious procedural or other irregularity in the proceedings. FM brings this appeal on the grounds that the sanction striking her name off the register, thereby preventing her from practising as a nurse, was imposed following serious procedural error and unfairness that had led the CCC into taking no or insufficient account of her extensive mitigation and as a result was unduly harsh and disproportionate and was in conflict with the NMC’s published Indicative Sanctions Guidelines.[3]By way of preliminary procedural background, it is helpful to explain that FM is a Zimbabwean national and a Shona who was born in October 1974 in Marondera, Zimbabwe which is situated close to Harare and who, since September 2009, has indefinite leave to remain in the United Kingdom. She left Zimbabwe as a refugee in August 2001 and she has lived in England ever since and is now settled here.[4]The two convictions on which the CCC’s order was based were not related and the underlying offences had been committed nearly four years apart and before she had qualified as a nurse. However, both were only discovered after she had qualified and the discovery in March 2009 of the second offence in time led to enquiries that revealed the first offence in time. Since these offences were charged separately, she was sentenced for each offence in a different London crown court in the reverse order to the order in which they were committed. She was sentenced for the second offence in July 2009 at Snaresbrook Crown Court and for the first offence at Wood Green Crown Court in November 2009 after she had pleaded guilty in each case See paragraphs 18 – 24, 25 - 26and 58 below. . FM received a twelve-month sentence for the second offence and a six-month consecutive sentence for the first offence.[5]On her release, FM was subject to mandatory deportation which would have taken effect unless she successfully claimed asylum or a right to remain on human rights grounds. She therefore lodged with the Home Office an application for her deportation to be set aside on both grounds. The Home Office refused her asylum and human rights applications on 22 January 2010 at about the time she was released from her sentence but she successfully appealed that decision to the First Tier Tribunal (Immigration and Asylum Chamber) whose decision was handed down on 7 September 2010. The effect of the First Tier Tribunal’s decision was that she was granted leave to remain by the Home Office although that grant and its length were not in evidence. Meanwhile, the two convictions had been reported to the NMC by the NHS Counter Fraud Service in December 2009 who charged her with being unfit to practice by virtue of these convictions in March 2010. This led to her case being considered by a meeting of the CCC on 28 February 2011 and to its decision being promulgated on 4 March 2011. In order to consider properly FM’s grounds of appeal, it is necessary to consider carefully the factual and procedural background of her case since these formed the basis of all her grounds of appeal.

Background facts

[6]I take this factual background from the documents placed before the CCC at its meeting on 28 February 2011. It is highly significant to this appeal that FM was not present at that hearing, although she did submit brief details of her mitigation to the CCC. The difficulty of CCC’s task in fully identifying FM’s mitigation was greatly increased by the factual basis of FM’s mitigation not being summarised and, instead, largely having to be extracted by the CCC at their meeting from the documents that they had been provided with including the transcripts of two sentencing hearings, a detailed decision of the First Tier Tribunal and other documents without the benefit of any written guidance from FM or a case presenter of what was relevant.[7]FM had been brought up within a family comprising her parents, herself and her two brothers and three sisters. Her father was in the medical profession. She lived throughout her life until 2001 in Zimbabwe in the family home in Marondera. In about 1993 she became pregnant with her son but her relationship with his father did not last and she and her son lost contact with the father when her son was still very young. FM and her parents and siblings had, until 1999, been staunch supporters of Robert Mugabe and active members of his Zanu-PF party and FM’s mother held a position within that party. However, the family became active members of the MDC party after it broke away from the Zanu-PF party in 1999. This change of political allegiance was caused by their firm objection to the Mugabe Government’s policy of seizing white farms which it was then implementing. As a result of this change of allegiance, and in the aftermath of the election in 2000, they were targeted by members of the Zanu-PF party and one of FM’s brothers was killed in the ensuing violent political campaign and her other brother also died. Life became very difficult for her parents and for FM and her son and her three sisters. FM’s parents were sufficiently threatened that they were forced to hide with friends and family away from their home for a year. Meanwhile two of FM’s sisters went to South Africa as refugees where they still live. Her other sister came to England and, initially, that sister obtained leave to remain as a student. She subsequently married and had a child and obtained indefinite leave to remain and is now British national. FM’s son also came to live in England whilst FM remained in Zimbabwe but it was not in evidence as to when or in what circumstances he came to England. It is to be presumed that he went to live with his aunt. Although life was hard and dangerous, FM stayed in Zimbabwe with her parents.[8]In about July 2001, FM’s father died suddenly in Zimbabwe and the family, including FM’s sister living in England, met up for the funeral. After her father had been buried, FM was persuaded by her sister to return to England with her for a holiday to help her get over the death of their father. She accompanied her sister to England and entered on a visitor’s visa in August 2001. FM decided that she wished to stay in England given her circumstances in Zimbabwe and because her son was already living here. She therefore applied for a student visa for herself and a dependent’s visa for her son and enrolled in a college to undertake a course in social and care work.[9]She had to submit both her and her son’s original Zimbabwean passports to the Home Office with the application but the Home Office only returned her son’s passport when granting her leave to remain as a student on 26 November 2001. She made a number of inquiries to the Home Office seeking her passport and a solicitor wrote to the Home Office on her behalf. She also asked her member of parliament to assist. However, the Home Office was adamant that it had sent back her passport to her at the same time as it had returned her son’s passport. Her solicitor who acted for her when she was sentenced in 2009 for the first offence attempted to obtain from FM’s previous solicitors and the Home Office for use in the sentencing hearing copies of the 2001 correspondence about FM’s passport. The solicitor found that her previous solicitors had ceased to practise and the Home Office did not reply to that solicitor’s letters and, since FM had not kept copies of the correspondence herself, it was no longer available. However, FM’s evidence about her passport was, to some extent, supported by the fact that her son’s passport had been returned to him by the Home Office. FM made no attempt to obtain a duplicate passport from the Zimbabwean authorities between 2001 and 2006 given the difficulties of doing so as a refugee and since she was in a settled relationship and did not contemplate leaving England. It is pertinent, however, to record that the two immigration judges who heard FM’s immigration appeal in September 2010 found, having heard her evidence, that FM was a creditable witness and, having accepted her evidence, also found that the Home Office had lost her passport in 2001. Their judgment stated that as judges in the immigration jurisdiction, they had judicial knowledge of the fact that the Home Office loses passports submitted to it for immigration purposes by their passport holders.[10]FM met her partner soon after she had arrived in England. He had been born in Stepney of Nigerian parents and had become a British national in 1996. He was studying to be a plumber when they met and he did not complete his studies until 2003. By the time that FM applied for a student visa, she had decided that she would never return with her son to Zimbabwe. No doubt, that decision was influenced by her experiences in Zimbabwe and by her feelings at having arrived in England, at being close to her sister who was already settled here and at having met and moved in with her son to live with the man who had become her partner.[11]Partly as a result of her father having been in the medical profession in Zimbabwe, it had been FM’s ambition from a young age to be a nurse. This ambition was reinforced by two of her sisters also then working in the medical profession On her arrival in England, she had no financial resources, her partner was not working, her son was dependent on her, her sister had just given birth to a son and also had limited financial resources and both sisters were trying to help their destitute mother who was still living in Zimbabwe by sending her money.[12]FM’s situation was, therefore, in 2002, that she was living with her partner and her son with very limited resources and with the need and desire to train as a nurse so as to be able to help provide for the whole family group and to fulfil her longstanding ambition to practise nursing. Her burdens were further increased when, in August 2002, FM’s daughter was born. Her only source of income was her earnings as a care assistant and her partner’s limited means.[13]That history was the background to FM committing her first offence in March 2003. FE had applied and been accepted for the Diploma in Adult Nursing degree course at the University of Luton which, when satisfactorily completed, enabled her to be registered as a nurse with the NMC. Her application form was dated September 2003 and was submitted through the Nursing and Midwifery Admissions System. The course she had applied for was a three-year course starting in February 2004.[14]She then applied for an NHS Student bursary which is a means tested bursary available for student health professionals and is awarded by the NHS Student Grant Unit. The bursary is open to both British and non-British nationals. However, it was subject to a means test and a settled status requirement. FM was eligible on financial grounds but had not yet become eligible on settled status grounds since, to be eligible, she had to have been ordinarily resident or otherwise to have had settled status under immigration laws in England throughout the three-year period preceding the first day of her academic course. In her case, having been granted leave to enter as a visitor in August 2001 and having had that leave extended on 26 November 2001 to enable her to remain as a student on 26 November 2001, she would not have been eligible to apply for a bursary until August 2004. To get over that difficulty, and with the Home Office having lost her Zimbabwean passport, FM acquired a forged British passport which purported to show that she was a British citizen but which contained her photograph and date of birth. The passport was subsequently discovered to have been a genuine passport that had been reported to the authorities on 12 April 2004 by its holder as having been lost. It is not known when this other passport had been lost or how or from whom FM had obtained the forged version.[15]Having been accepted for the nursing course, FM filled out an application form for an NHS student bursary dated 20 February 2004 which she submitted to the NHS SGU. In that application form, she described herself as having been the spouse of a British citizen between 2001 and 2004 and she included with the application a copy of the identity page of the forged passport to verify her settled status claim. This application was accepted and, over the three years of her degree course from March 2004 till March 2007, she received bursary payments totalling £31,743.48. These included payments for basic and older student, dependence and childcare allowances. The offence, which had been committed in February 2004, was not discovered until 2009 two years after she had completed her course and then qualified and been registered. It was discovered when the NHS Counter Fraud Service had cause to investigate FM and she was interviewed on 3 September 2009 whilst in prison serving her sentence for her second offence that had already been sentenced in July 2009.[16]In 2006, FM’s course was nearing completion and her student leave to remain had expired so that she was an overstayer. She could have applied for asylum but decided to apply for leave to remain on the basis of her relationship with her English partner under a Home Office discretionary exercise then available for the unmarried partners of British nationals. When she applied to the Home Office for leave to remain, she was told that she needed to submit her passport with her application. Since the Home Office had never returned her passport after she had submitted it with her application for a student visa in 2001, she contacted the Zimbabwean Embassy in London in an attempt to obtain a duplicate passport but the Embassy would not assist her, informing her that if she wanted a duplicate, she would have to apply for one in Harare and obtain it there. The Embassy advised her that this process could take at least nine months. FM was unwilling and unable to return to Zimbabwe and, in any event, considered that she would be at great risk even if she did return to apply for one. Moreover, she had heard accounts of people applying in this way encountering considerable difficulties.[17]At that point, according to her evidence and that of her mother and partner, all of whom gave that evidence to the First Tier Tribunal which the Tribunal accepted, her mother told FM that she was still in touch with a family friend and with a relative of that person who worked in the relevant department of the Government in Zimbabwe. That relative would, she believed, be prepared to process the paperwork to enable FM to obtain a duplicate passport. Her mother contacted that person and then sent off FM’s details and some money and, about three weeks later, FM received what appeared to her to be a genuine Zimbabwean passport in the post by DHL from Zimbabwe. FM immediately sent this duplicate off to the Home Office and, many months later in March 2009, received that passport back from the Home Office stamped with the grant of indefinite leave to remain.[18]FM was informed that if she wanted to work, she needed to apply for a national insurance number and that she should submit her passport with that application. FM attended a local office of the Department of Work and Pensions on 9 April 2009 and lodged her application and her passport. The passport was sent off to the National Identity Fraud Unit who reported that the bio-data page reacted to ultraviolet light in an unusual way and that the stitching and FM’s photograph were in the wrong format. In short, the passport had been manipulated. Both the details and photograph within the passport were of FM. The passport had been good enough to persuade the Home Office officials to accept it as genuine and to stamp it with an indefinite leave to remain stamp. When FM returned to the benefits office to collect her passport and newly registered national insurance details, she was met by police officers who arrested her and took her for interview to Bethnal Green Police Station. There she made a statement which denied any knowledge of the fact that the passport was false and explained how she said she had obtained the passport when it had been sent to her from Zimbabwe by her mother’s family friend’s relative.[19]For the whole of the period between 2004 and 2007 whilst FM was studying for her nursing degree, she worked as an agency health and care assistant and obtained her work through an agency called Kelly’s Nurses. On qualification in March 2007, she obtained a nursing job in the Accident and Emergency Department of St Thomas’s Hospital through the A & E Nursing agency and she held this job without any complaint about her nursing capabilities or suitability from April 2007 until her arrest in March 2009.[20]FM was initially released on bail but when she surrendered to bail in May 2009, she was unable to provide the required address as a condition of her renewed bail and was remanded in custody. At a hearing in the Crown Court on 13 July 2009, she pleaded guilty, being the first occasion that she could plead guilty and was sentenced. She was charged with being in possession of a false Zimbabwean passport at the Cityside Jobcentre on or before 9 April 2009 which she knew to be false.[21]At the hearing, FM was represented by counsel. She pleaded guilty to the one count of deception. Her counsel in mitigation explained FM’s instructions as to the background to the offence in the terms that I have already set out. Counsel also placed before the judge a personal statement that FM had written out which the judge then stated was contrary to her plea. When counsel had finished her mitigation on FM’s behalf, the sentencing judge stated this:
“… if you are inviting me to sentence her on the basis of the mitigation that you have presented, I am certainly not minded to at the moment, because it is a wholly uncorroborated account, which is not in writing and which says she is not guilty of Count 1 [which she had pleaded guilty to]. What are you inviting? What credibility does she have, if that is so?”
[22]Counsel was then granted a short adjournment to enable her to put into writing the basis on which FM was pleading guilty so that the court could determine whether to grant a longer adjournment to enable the Home Office to look into that basis to see whether it would accept the plea on the proffered basis. When the court reconvened, counsel informed the judge:
“Well, my lord, on reflection I do not feel that any merit would be gained or likely to be gained in adjourning matters., because there is really little prospect of any … it would be unfair on anything that I told you further and [FM] is content to be sentenced on that basis that I have there.”
Counsel then informed the judge that FM was a lady of good character who had pleaded guilty at the earliest opportunity who was 35 years old with two children who would be affected by her custodial sentence.[23]The judge then passed sentence and in his sentencing remarks he explained the basis on which he was passing sentence which was intended to reflect the basis upon which FM had been sentenced:
“It is my duty to sentence you for this offence of possessing a false identity document with intent. That identity document was a passport, a Zimbabwean passport, as it purported to be. In the event, it is clear and you accept that it is so, that it was a false passport and that you knew it was false, as your basis of plea makes plain. It was initially for you to obtain from the Home Office, on the basis that it was a genuine document, leave to remain within this jurisdiction, you having overstayed your lawful right otherwise to remain here, on the basis you previously had been allowed to do so. You then sought to use it, having been granted leave to remain, to obtain a National Insurance card, so that you could, no doubt, obtain employment as a result. It is important that you understand why the courts in this country have made clear that such offences are so serious that they call for immediate custodial sentences. The identity documents which are used, such as, particularly, passports, have to be accepted as genuine by many of the authorities who have to process applications and where people seek to mislead, knowingly mislead as to the nature of the document, and it is a false document of that kind, that undermines the basis of integrity which it is essential passports and similar identity documents have.”
[24]The judge passed a sentence of 12 months, of which FM could expect to serve 6 in prison, and he also gave her credit for the 59 days she had already spent in custody awaiting her sentence. It followed that she would be spending a further 6 months less 59 days in prison.[25]Whilst in Holloway Prison serving that sentence, FM was interviewed on 3 September 2009 in relation to the offences she had committed in the period between 2003 to 2007 relating to the NHS student bursary payments she had obtained having used a false passport in support of her original application. Having been released from her prison sentence for the second offence, she was remanded in custody for failing to provide a home address having been charged with obtaining money by deception. She appeared at Wood Green Crown Court on 16 November 2009, pleaded guilty The certificate of conviction states that FM was convicted by the jury. This case was dealt with by the CCC on the basis that she had pleaded guilty and the decision states that that was so. This is something that the CCC could and should have explored with FM had they been sitting at a hearing and not a meeting held in the absence of the parties. and was sentenced on the basis that she had obtained a sum in the region of £31,000 by dishonestly using a passport that she knew was forged. In mitigation, her counsel said:
“… she behaved in this manner … it wasn’t out of greed. Although, again, that’s no excuse for the way she has behaved, she accepts that fully. It was in order for her to better her life and in order to look after her children. And that is the reason she did it.”
[26]The sentencing judge sentenced FM on the same basis as the first sentencing judge would have done had he had both counts to sentence at the same time. On that basis, he imposed a sentence of 6 months since he considered that had both matters been sentenced together, with the need to ensure that the total sentence on both matters was not unduly excessive, the sentence would have been 18 months in total, made up as 12 months for the second offence that had already been sentenced and 6 months for this, the first offence. The sentencing judge also directed a confiscation inquiry to determine whether FM had any assets to enable her to be ordered to repay any of the £31,000 she had obtained dishonestly but invited the prosecution to consider whether this step should be taken in the light of her evident lack of any financial means to pay any compensation.[27]When FM was nearing the end of that sentence, she was issued with a deportation notice on 22 January 2010 under the UK Borders Act 2007 on the basis of having been sentenced to 12 months imprisonment, the minimum sentence that carried a mandatory statutory deportation requirement unless FM could rely on asylum or human rights grounds to avoid being deported. FM lodged notice of appeal from that decision soon afterwards and soon after that, by a letter dated 17 March 2010, the NMC informed FM that it had referred to the Investigating Committee an allegation that her fitness to practice was impaired by virtue of the two convictions she had incurred. FM was invited to send a written response to the allegation and she submitted a brief response on 7 April 2010. This accepted full responsibility and for her actions and affirmed that she was deeply sorry and an intention not to repeat the same mistakes again. FM attached a brief favourable reference from the manager of the nursing agency she had worked for since March 2010.[28]FM’s appeal to the First Tier Tribunal was heard on 10 May 2010. This was, as is usual, a full rehearing with written and oral evidence which was tested in cross-examination. Ms Musonza was legally represented and the Secretary of State for the Home Department was represented by a presenting officer. On behalf of FM, her background history and the circumstances surrounding the second offence were set out in evidence as it had to be if she was to succeed since she had to show not only that her life would be in danger if she was returned to Zimbabwe and that she had established with her partner and two children a family life in England but also that those entitlements were not overridden by the public interest in deporting her in consequence of the serious criminality that had attracted the operation of the mandatory deportation provisions.[29]The tribunal made a number of relevant factual findings in its determination which was dated 7 September 2010 as follows:
“We find [FM], [her partner] and [her mother] to be credible witnesses on the centre-piece of their evidence. … We have applied the lower standard of proof of reasonable likelihood and we accept [FM’s mother’s account of her political activity in Zimbabwe and her evidence of what occurred to her in and after 1999 there]. We accept … that [FM] is in a long term relationship with [her partner] and that they have a daughter aged 7+ called [ ]. … We accept that she is entitled to apply for British nationality. … We accept [FM]’s account regarding the obtaining of her duplicate of her Zimbabwean passport. We do not find it incredible that [FM]’s mother wold approach people in Harare to assist [FM] to obtain a duplicate passport. They filled in the application form and the appellant sent a photograph and the fee. We do not find that this is something that jeopardises refugee status. We find that it is a normal course of action as [FM] needed a passport as the [Home Office] had lost her original one. As judges in this jurisdiction we have judicial knowledge of the fact that the [Home Office] does lose passports and we also have judicial knowledge of the logistical difficulties in obtaining passports in Zimbabwe due to the lack of basic supplies of paper etc. … .”
[30]The tribunal found that FM was one of those who would be at risk in Zimbabwe on the basis of suspicion and disloyalty to the regime and therefore was one entitled to refugee status in England. It also found that if FM was deported, that interference with her family life would not be in accordance with law. The tribunal then continued:
“We must carry out a balancing exercise between the public interest in the prevention of crime and disorder and the rights of [FM] to a family and private life in the United Kingdom.”
I interpolate, this is not dissimilar to the balancing exercise the CCC must carry out in balancing the registrant’s interests and the public interest, at least in a case involving a criminal conviction. “… [FM] has one conviction and she received a 12-month sentence, which is the very minimum sentence required for the [Secretary of State] to consider [FM] within his automatic deport provisions. However, although we accept the evidence of [FM] regarding the circumstances in which [HM]’s duplicate passport was obtained, there is still the conviction for which [HM] pleaded guilty. We agree with the sentencing judge that offences involving false passports are serious as they affect the overall security of the United Kingdom. However we bear in mind that [HM] does not have any further convictions since she has been in the United Kingdom. She did not use the passport to obtain fraudulent leave to remain. We accept that she was entitled to and was genuinely granted indefinite leave to remain. We accepted that she pleaded guilty and has served her sentence. [The tribunal then weighed up the various factors giving rise to a family life against the public interest and concluded] … Therefore weighing up all these matters and for the above reasons we find that the decision to remove her is disproportionate to the aim of the prevention of crime and protection of the public on the particular facts of this case.”[31]There was no evidence before the CCC as to why the tribunal thought that the second charge, being the charge relating to the forged Zimbabwean passport it was considering, was FM’s only conviction as opposed to her first of two convictions. The tribunal may have been mistaken or it may be that it was not informed by either FM’s representative or the case presenter or by the written materials it was provided with of this second conviction. This was something that the CCC would have wanted further details about had FM been present or represented.[32]Soon after the First Tier Tribunal’s decision was sent out, FM received notification of the referral of the allegation relating to her convictions to the CCC in a letter dated 9 December 2010. The letter invited FM to indicate whether she wished her case to be dealt with at a hearing or considered on the papers at a meeting and to send a written response to the allegation. The letter referred to the bundle of documents for use at the hearing which the CCC had previously sent FM and a case management form was enclosed for FM to fill up. The bundle contained transcripts of the two sentencing hearings in the crown court, the First Tier Tribunal’s decision, details of the first charge and the investigation that had preceded it and FM’s brief statement and reference she had submitted in April 2010.[33]FM returned the case management form on 15 December 2010. On the form, she indicated with a tick in the appropriate boxes that she did not intend to attend a hearing, did not intend that her representative would attend the meeting, did not require her case to be dealt with at a hearing, did not intend to rely on any written witness statement or call any witness and did not intend to rely on any testimonials. She also asked for her case to be heard in private. The CCC decided on 31 January 2011 to refer the case to a meeting to be decided on the papers and that meeting took place in the presence of three CCC members and a legal assessor. The allegation with which FM was charged was that she, as a registered nurse, was convicted at each of the two crown courts of the two charges and that, in the light of that, her fitness to practice had been impaired. This allegation was made under article 22(1) of the Nursing and Midwifery Order 2001 which provides that an allegation may be made against a registrant where it is alleged that her fitness to practice has been impaired by reason of a conviction in the United Kingdom for a criminal offence.[34]The consideration of the case occupied 4 minutes in private hearing which has been transcribed during which the legal assessor advised the CCC that the fact of the two convictions was proved by the certificates of conviction and by FM’s admissions and the CCC then, with the legal assessor, discussed the case in private and the deliberations were not transcribed. 37 minutes later, the CCC returned into private but transcribed session and the chairman read a brief decision into the record.

Issues

[35]FM was unrepresented at the hearing of her appeal. She submitted two short but helpful skeleton arguments and a friend of hers accompanied her to the hearing as a McKenzie friend. At the hearing, FM asked for my permission for her McKenzie friend to address the further oral submissions to the court on her behalf because she felt particularly stressed and I agreed to that course being taken. Counsel instructed by the NMC had submitted a helpful skeleton in advance of the hearing and provided me with considerable assistance in his concise and cogent submissions.[36]The appeal was advanced on a number of grounds which may be summarised as:(1) Procedural irregularity.(2) Evidential conclusiveness of the convictions.(3) Failure to consider FM’s mitigation.(4) Errors in the decision.(5) Unduly harsh sanction.

The decision

[37]The decision was as follows:
“The facts of in this case are proved by the Registrant’s written admissions and by the certificates of conviction from Snaresbrook Crown Court on 13 July 2009 and from Wood Green Crown Court dated 16 November 2009. In relation to fitness to practise, the Registrant admitted that her fitness to practice is impaired. The Registrant committed two separate serious acts of dishonesty, for which she received immediate custodial sentences. She used a false passport to obtain leave to remain in the United Kingdom. She obtained over £31,000 by deception over some four years by pretending to be British when she was not. By behaving as she did, the Registrant breached the NMC Code 2008. This states that a nurse must be open and honest, act with integrity and uphold the reputation of her profession. It provides that a nurse must act lawfully whether these laws relate to her professional or private life. The panel considered what sanction, if any, to impose. The panel considered a caution order and rejected it. Whilst there is no evidence that the Registrant’s misconduct would have caused direct or indirect patient harm, these were serious matters which would bring the profession into disrepute. The Registrant pleaded guilty to the offences at both crown courts. To that extent she has demonstrated insight into her failings and expressed regret. The panel has no evidence as to her previous history or repetition of the misconduct. No rehabilitative or corrective steps are capable of remedying the dishonesty. These cases are too serious to be dealt with by means of a caution. A conditions of practice order would not be practical or appropriate in this case. A suspension order is not a sufficient sanction in this case. The Registrant’s misconduct is fundamentally incompatible with continuing to be registered with the NMC. The panel has decided to make a striking off order. Confidence in the NMC would be undermined if the Registrant was not struck off. This is the only proportionate sanction to reflect the gravity of the Registrant’s misconduct.”

Introductory Discussion

[38]Allegations referred to the CCC by the Investigating Committee are ones to the effect that a registrant’s fitness to practise is impaired by reason of misconduct, lack of competence, a conviction or caution for a criminal offence, her physical or mental health or a finding of impaired fitness to practice by another relevant regulator Rule 22 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order 2004. . These five categories are, in practice, treated as separate pathways and, clearly, in this case, the relevant pathway related to FM’s two convictions. The CCC first had to decide whether to hold a hearing since, if no hearing was directed, the allegation would be determined at a meeting. A hearing is usually held in public and is conducted orally and, usually, the registrant will be in attendance, will be represented, will give evidence and be questioned by the representative of the NMC, may call other relevant witnesses and will have, through her representative or herself if unrepresented, the opportunity to question the witnesses called by the NMC. A hearing bundle will be before the CCC containing all relevant documents. A meeting, on the other hand, will usually be held in private, apart from the formal parts. The CCC will have a hearing bundle which will include any written representations submitted by the registrant or her representative but the registrant will not be present, neither party will be represented and no oral evidence or submissions will be heard. The CCC are directed to hold a hearing where the registrant asks for one within the specified period of 28 days after the referral of the allegation to the CCC or, and in any event, if it considers that a hearing would be desirable. Ibid., rule 10.[39]The NMC, in furtherance of its statutory duties, has issued statutory guidance to panels of the CCC and Health Committee relating to the consideration of allegations referred to them. This is entitled Indicative sanctions guidance for panels of the Conduct & Competence and Health Committees Published in April 2008. A new edition of this guidance has been published, dated 18 May 2012 which has taken effect for hearings conducted on and after 11 June 2012. The guidance is more detailed but not different in scope or content than the 2008 version. . The terms of this guidance are highly relevant to the issues I must determine and was one that the CCC clearly had in mind during their consideration of the reference. One of the matters I must decide is whether it applied material parts of the guidance in this case.[40]I can summarise the relevant issues in this way:(1) The guidance describes the general principles that panels should take into account when considering the appropriate sanction, sets out the range of sanctions available, describes associated issues to be considered or decided in relation to the various sanctions and suggests criteria to apply when considering any particular sanction.(2) In considering what sanctions to apply, a panel must have regard to both the public interest and the registrant’s own interests. The public interest includes the protection of members of the public, the maintenance of public confidence in the nursing profession and the NMC and declaring and upholding proper standards of conduct and performance.(3) The sanction should demonstrate in each case a considered and proportionate balance between the interests of the public and the particular registrant and the mitigating and aggravating factors in the particular case.(4) The panel must give reason for its decision on sanction. The reasons should clearly explain the interests and factors the panel took into consideration in arriving at its decision, the weight it attached to those interests and factors and how the balancing of those interests and factors led the panel to its decision.[41]The guidance sets out criteria which the CCC should apply when considering the available sanctions. It also advises that the sanctions should be considered separately and in turn in ascending order of severity. The available sanctions are: no sanction, a caution order, a conditions of practice order, suspension for a period not exceeding one year in the first instance and striking-off. There is also guidance on mitigation which includes this relevant passage:
“29. Mitigation evidence can include evidence about the circumstances leading up to the incidents in question as well as evidence about the registrant’s previous good character and history. It can also include evidence about the time-lapse since the incidents and evidence of actions taken to apologise, redress the wrong or harm, or avoid repetition of the behaviour or practice in question. Specific examples of mitigation evidence are shown in the criteria listed for each sanction but should always be weighed carefully against the aggravating factors in each case. 30. [This paragraph provides guidance as to how the CCC should approach and evaluate references and testimonials].”
[42]FM had notified the CCC that she did not intended to contest the allegation. The CCC was therefore not concerned with either the facts or as to whether her fitness to practice was impaired. However, once the hearing bundle had been considered in detail, it would have been clear to the CCC that FM’s case presented difficult issues in relation to the decision as to what was the appropriate sanction. This was because FM had extensive mitigation in relation to the circumstances of each offence and to her personal circumstances, the extent and gravity of her dishonest behaviour was not clear-cut, the first offence had occurred eight years previously and five years before she had qualified and the second offence and her plea of guilty in relation to it for it appeared to be in conflict of the findings of the subsequent immigration decision that had granted her asylum. Moreover, the public interest had to be carefully balanced against these interests of FM and that balancing exercise could only be undertaken in the light of the CCC’s views about FM’s history, conduct and attitude. It is not surprising therefore that the NMC had proposed, on the copy of the case management form that was sent to FM on 9 December 2010 for her to fill in, that the time estimate for the hearing should be one day for a hearing in which the NMC was not proposing to call any witnesses.

Procedural irregularity

[43]The possible procedural irregularity that needs to be considered in this case relates to the nature of the advice given and not given to FM in the directions letter as to whether or not she should seek legal advice and representation and attend or not attend a hearing, as to the decision to refer the case to a meeting rather than a hearing, as to a potentially significant omission from the hearing bundle and as to the absence of a reported legal direction from the legal assessor. (1) Factual background[44]FM had first become involved with the NMC disciplinary process when she was served with a copy of the referral notice on 17 March 2010 and returned a brief statement to the NMC which she drafted herself without any advice on 7 April 2010. At that time, her life was in turmoil. She had recently been released from prison to be immediately faced with the real prospect of being deported back to Zimbabwe without her children or partner. She had a fear, which the First Tier Tribunal subsequently considered to be real and significant, that she would be persecuted and her life would be endangered if she returned to Zimbabwe. Although that was her country of birth and upbringing, it was somewhere where she no longer had a place to live, no immediate family members were still living there and she would have no assets or means of keeping herself. She was faced with a First Tier Tribunal hearing on 10 May 2010 and had to wait on tenterhooks until 7 September 2010 to hear the result of that hearing. I was also informed, although this was not formally in evidence, that FM was throughout this period involved in caring for her mother who was ill and in need of her as a carer, that her relationship with her partner had become extremely strained and that FM had had very great difficulty in funding her immigration appeal and had no resources left to enable her to obtain paid legal advice or representation in connection with the disciplinary proceedings and had no prospect of obtaining appropriate representation through an accessible Law Centre or a Citizens Advice Bureau. I was also informed that FM had not joined the nurses’ union on qualifying in 2007 since she did not see that it had any benefit to her whilst she was working as an agency nurse. She was not, therefore, eligible for free representation in relation to the NMC disciplinary process in the way that any nurse who was a member of the union would have been entitled to.[45]FM was in this complex and stressful situation when she received the CCC’s letter dated 9 December 2010 notifying her of a hearing or meeting in the hearing window March to May 2011 and enclosing a case management form seeking her answers to some very important directions questions that had to be returned by 6 January 2010. It is to be noted that she was expected to answer these questions, relating to representation, appearance, type of hearing and witnesses she wished to call on her behalf within a four-week period that included the entire Christmas and New Year holiday period. FM in fact returned the completed form on 15 December 2010.

Representation

[46]The referral notice letter gave FM important advice in the context of her answering these questions. I set out the relevant passages of this advice and the relevant questions and answers that FM gave extracted from the case management form. “What happens now? First, a panel of the committee will meet in private to consider the papers concerning your case. The panel will decide whether there should be a full public hearing or whether the matter can be dealt with at a private meeting which you would not be able to attend. To help the panel decide, the Conduct and Competence Committee invites you to: send a written response to the allegation, and state whether you require the allegation to be considered at a hearing. You should read the section below headed ‘Information about hearings and meetings’ to help you decide your answer to this question. The panel will meet on 31 January 2011 to consider the allegation and your responses. I must receive your responses no later than 6 January 2010 (sic). Documents the panel will consider I enclose a schedule of documents the panel will consider and which I have previously sent you. Please refer to the schedule to ensure that you have all the documents. … The panel will also receive any written response from you or sent on your behalf. Panels can deal with cases at hearings or at meetings. The full range of sanctions is available at both hearings and meetings. Whether the case is dealt with at a hearing or meeting, full details of all decisions are always published on the NMC website. Hearings take place in public – although in certain circumstances the panel may allow all or part of a hearing to take place in private.• You are entitled to attend the hearing and to be represented.• The hearing will be held in the UK country of your registered address. If your registered address is outside the UK, the hearing will be held in England.• A presenter representing the NMC will present the case against you. They may call witnesses to give evidence to the panel. You will be entitled to cross examine any witness the presenter calls.• You will be entitled to give evidence, to bring evidence and to bring witnesses. The presenter will be entitled to cross-examine you and your witnesses.• A legal assessor will attend the panel to advise on any legal matters. You must ask for a hearing if you want to give your side of the story to the panel in person. If you ask for a hearing or if the panel decides your case requires a hearing, it is likely to be heard in March, April or May 2011. Meetings are held in private and do not hear from anyone in person.• The panel makes its decisions based on the bundle of document we have previously sent you together with your responses.• You cannot attend the meeting and neither can the NMC presenter. Witnesses cannot be called to the meeting. The panel will not meet anyone concerned in the case.• …• A legal assessor will attend the panel to advise on any legal matters. Even if you do not request a hearing or tell us you would prefer your case to be considered at a meeting, the panel may still decide that the case should be considered at a hearing. I enclose a case management form with this letter. The form has space for you to say whether or not you want a hearing and asks for other information. … You should complete and return the form to me even if you do not want to make any other written response. Representation The NMC strongly recommends you to take legal advice from your professional organisation, trades union or lawyer in preparing your response. If you complete the relevant section in the case management form, I will send copies of any future correspondence direct to your representative.” send a written response to the allegation, and state whether you require the allegation to be considered at a hearing. You should read the section below headed ‘Information about hearings and meetings’ to help you decide your answer to this question. Documents the panel will consider• You are entitled to attend the hearing and to be represented.• The hearing will be held in the UK country of your registered address. If your registered address is outside the UK, the hearing will be held in England.• A presenter representing the NMC will present the case against you. They may call witnesses to give evidence to the panel. You will be entitled to cross examine any witness the presenter calls.• You will be entitled to give evidence, to bring evidence and to bring witnesses. The presenter will be entitled to cross-examine you and your witnesses.• A legal assessor will attend the panel to advise on any legal matters.• The panel makes its decisions based on the bundle of document we have previously sent you together with your responses.• You cannot attend the meeting and neither can the NMC presenter. Witnesses cannot be called to the meeting. The panel will not meet anyone concerned in the case.• …• A legal assessor will attend the panel to advise on any legal matters. Representation The accompanying Case Management Form asked FM to answer a number of questions by ticking a yes or no box including the following, with FM’s answers italicised:(1) Attendance Do you intend to attend your hearing? If you do not intend to attend, do you intend for your representation to a attend on your behalf? FM ticked the no box for each of these questions.(2) Hearing or meeting Your notice of referral explains that the panel can deal with your case at a hearing or a meeting, and that you are entitled to have your case decided at a hearing. Please tick the relevant box to show how you would like your case to be dealt with. You should re-read the information in the notice of referral before completing this section. I require my case to be dealt with at a hearing. I do not require my case to be dealt with at a hearing. FM ticked the box associated with the second of these two options – she did not require the case to be dealt with at a hearing.(3) The first charge – admissions It is currently proposed that you will answer to the following charge. Please indicate below each allegation whether you admit any of the facts alleged. 1. On 13 July 2009 … you were convicted of possession of false/improperly obtained/another’s identity document with intent, for which you were sentenced to 12 months imprisonment. Do you admit the facts of this allegation? Yes No FM did not tick either box. If yes, please state which facts FM wrote this answer: At the time of sentencing me, I had no witness from Zimbabwe to stand for me. Therefore I humble myself and admit the charge. On the 10/05/2010 my case was heard in the tribunal and rectified my case and understood truly that I did not know it was false. I have enclosed a copy of my tribunal case. If no, why not? [Nothing was written underneath this question](4) The second charge - admissions 2. on 16 November 2009, … you were convicted of obtaining a money transfer by deception for which you were sentenced to 6 months imprisonment. Do you admit the facts of this allegation FM ticked the yes box If so please state which facts FM wrote this answer: I was so apologetic and I humble myself and that is why I admitted the charge. I was wrong and accept my wrong doing. I am truly sorry for what I did.(5) Fitness to practice - admission [FM ticked the yes box to admit that her fitness for practice had been impaired by reason of her convictions] If no, please state below why your fitness for practice is not impaired” FM wrote this answer (despite having ticked the yes box) These things happened well before I became a nurse. However, I have always to the best of my ability maintained my duty of care to my patients and their safety.(6) Witness evidence The form stated that the NMC was not reading [i.e. serving or relying on] any witness statements in this case FM left the boxes blank seeking details of witnesses she wished to call and ticked the no box in answer to the question as to whether she intended to rely on testimonials or references (despite having served a brief reference with her brief statement in April 2010).(7) Private hearing Do you intend to apply for all or any part of your case to be heard in private? [FM ticked the box “all of my case”] If so, please use the space below to explain your reasons for making the application FM wrote this in the box provided: For the sake of my children and family I just want it to be dealt with in private as it will destroy my children’s life if everyone is mocking me about the case. Do you intend to attend your hearing? Yes No If yes, please state which facts FM wrote this answer: If no, why not? [Nothing was written underneath this question] Do you admit the facts of this allegation FM ticked the yes box If so please state which facts FM wrote this answer: If no, please state below why your fitness for practice is not impaired” FM wrote this answer (despite having ticked the yes box) [FM ticked the box “all of my case”] If so, please use the space below to explain your reasons for making the application

FM wrote this in the box provided:

[47]The returned case management form was considered with the allegations and the hearing bundle by the CCC at its procedural meeting on 31 January 2011 at which a legal assessor would have been present. The CCC did not inform FM of the contents of any legal advice given to the CCC or of the reasons for its decision to refer the allegation to a meeting for determination and sent FM a copy of that decision under cover of a letter dated 4 March 2011. (2) Shortcomings in the referral letter[48]FM was charged with unfitness to practice as a result of her convictions for two serious offences of dishonesty which were not related to her practice as a nurse and which had been committed before she had qualified, albeit they had been charged, tried and sentenced after she had qualified and been practising for about two years. She was one of a minority, possibly a small minority, of nurses who were not members of a union which provided her with free legal representation. She was also in an extremely vulnerable position. Although her background would not have been known to the CCC in any detail at the directions stage, any advice about representation was, as it knew, likely to be read by some registrants who could not afford, and would not obtain, legal advice, who were both vulnerable and frightened and who, in many cases, would be feeling both shamed and embarrassed about the charge and any previous convictions. Such registrants, who included FM, needed clear and realistic advice as to the vital need for legal advice and representation and the means of obtaining it and as to the necessity for them to seek an oral hearing and to be present at that hearing. The advice should also address the problem confronted by such as FM if they could not obtain legal advice and representation for free and who couldn’t afford it. Public funding or legal aid was not available to FM and free advice from a Citizens Advice Bureau or law centre of the kind that was needed was also not available. Despite this, the letter and the form did not clearly and fully address the need for FM to be advised that she should inform the CCC if she wished to be legally advised or represented but could not afford or obtain it and should seek an oral hearing. If she had intimated that she wanted but could not obtain legal advice and representation and an oral hearing, it would have alerted the CCC of the need to give particular consideration to holding an oral hearing rather than a meeting in her case.[49]The need for informed legal advice at this stage for nurses who had no working knowledge or experience of a disciplinary hearing is obvious. FM was being asked to decide, within a few days after receipt of the letter and case management hearing, whether she wanted an oral hearing or was content to leave her case to a meeting which she would not be permitted to participate in, whether she wanted to be legally represented, whether she wanted to appear at the hearing, whether she admitted the facts giving rise to the charge and that her fitness to practise was impaired, whether she wanted to call evidence including expert evidence and whether she wanted the hearing to be held in public or private. It can be seen from the questions and her answers on her case management form that are set out above that FM needed to consider all these matters with a legal adviser and that none of them had been answered by FM in an informed basis.[50]A registrant who was in FM’s position, being one who was unable to obtain legal advice or who was not advised sufficiently of the necessity of obtaining it and who in consequence waived the right to an oral hearing or to attend before the CCC was in a particularly perilous position. This was because she had been convicted of two crimes involving dishonesty and it would be unlikely that she would know that she ran a significant risk of being struck off on the grounds that that was the only sanction that was appropriate in the public interest. If that registrant had any semblance of a chance of escaping a striking off sanction, it was necessary for her to attend at a hearing, present her mitigation and explanations and allow the CCC to question her and see for themselves whether she was now trustworthy and reliable and had clearly learnt from her previous mistakes.[51]A telling example of this necessity is provided by this wording in the recently issued 2012 version of the Sanctions guidance when dealing with the particular considerations that pertain to cases involving dishonesty:
“Dishonesty 39. Dishonesty, even where it does not result in direct harm to patients but is related to matters outside of a nurse or midwife’s professional practice, for example fraudulent claims for monies, is particularly serious because it can undermine the trust the public place in the profession. Honesty, integrity and trustworthiness are to be considered the bedrock of any nurse or midwife’s practice. 40. In Parkinson v NMC [2010] EWHC 1898 (Admin). This decision was handed down in July 2010, some six months before the case management form was sent out to FM. , Mr Justice Mitting said: ‘A nurse found to have acted dishonestly is always going to be at a severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an understanding that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and t suspend for a period rather than erasure.’”
[52]It is also well worth keeping in mind the views of Lord Bingham expressed in his judgment in the decision of the House of Lords in Smith v The Parole Board [2005] UKHL 1, HL. in a related field. This was whether a prisoner at a Parole Hearing held to determine whether his risk of harming the public had been sufficiently lowered to enable him to be released from prison should have been allowed an oral hearing notwithstanding the then practice of the Parole Board to hold all hearings of the type being considered on paper and to deny requests for oral hearings. Lord Bingham said this:
“The common law duty of procedural fairness does not, in my opinion, require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.”
[53]Relating this passage to FM’s case, it can be seen that the CCC was involved in a decision-making exercise involving a consideration of important facts concerning FM’s factual background and her state of mind that needed to be explored, explained and mitigated. The CCC’s consideration would also need to consider the significance of these facts to FM’s case and whether they could, as Lord Bingham put it, lose some of their significance when the CCC balanced the interests of FM with the public interest. Further, FM’s case would certainly have been assisted, and could be seen in advance as being able to assist her case since it would have enabled it to be more effectively and fairly put if explored with the CCC members so as to bring out points that were troubling them. By way of example, the CCC members would have been interested to know whether FM was proposing to repay in instalments the money that she had dishonestly obtained as a student bursary once she was able to afford to do so. These considerations related to a fair hearing mirror and support the considerations referred to by Mitting J in Parkinson v NMC in the passage of his judgment quoted by the NMC in its current sanctions guidance.[54]Mr Garsed in his submissions pointed to the passages in the advice given to FM in the referral letter which strongly recommended FM to take legal advice from her professional organisation, trades union or lawyer in preparing her response to the case management form and that she should ask for a hearing if she wanted to give her side of the story to the panel in person. He also pointed to her having given her consent to, and indeed to have requested, an oral hearing. Smith was not cited in argument but Mr Garsed could also have, and no doubt would have, referred to the passage in Lord Bingham’s judgment already quoted which makes it clear that the entitlement to an oral hearing in a case such as this one does not arise if FM, as she did, declined NMC’s offer of a hearing.[55]However, neither of these points has any substance in this case. The passages referred to by Mr Garsed do not spell out why it was so important for FM to take legal advice on how to proceed, whether to be represented and whether to appear before the CCC. Furthermore, the advice to obtain legal advice would not have seemed pertinent to her as someone who was not a member of the union, who could not afford to obtain it from elsewhere, who could not find appropriate free advice and representation and who did not have a family solicitor to call on given her background, resources and way of life. Moreover, the advice to use a solicitor to give her side of the story would not have brought home to her that a solicitor was a necessity for her given the complex nature of her mitigation and her ignorance as to the gravity of the allegations and the risk of being struck off. Finally, although it was true that FM had waived the offer of an oral hearing, that waiver was not made, and was obviously not made, with informed consent. This was clear since she had obviously not consulted a solicitor before waiving the offer of a hearing and her sparse responses to the case management showed that she was unaware of the full significance of the forthcoming CCC consideration of her case. Thus, FM had obviously waived her right to an oral hearing without being aware of the consequences and the disadvantages of taking that ill-advised course of action. (3) Other procedural unfairness[56]There were three further examples of procedural unfairness associated with the meeting. These were:(1) The CCC, at its meeting on 31 January 2011, did not of its own volition direct that FM’s case should be referred to a hearing and did not invite FM to attend that hearing nor advise her that it would be in her best interests to arrange to be legally represented at it. The CCC had this power, even if FM had previously requested a meeting and, given the various considerations that I have already dealt with, it is inexplicable that it decided to refer FM’s case to a meeting without giving reasons or without reference to any established procedural practice.(2) The hearing bundle did not include the entirety of the lengthy decision of the First Tier Tribunal but only a limited number of its pages. This was, it would appear, a photocopying error and Mr Garsed contended that the missing pages added nothing relevant or significant to the pages that were provided. Had this mistake been the only potential unfairness that had occurred, a close textual analysis of the missing pages might well have shown that the unfairness was not sufficient to vitiate the decision. Nonetheless, the contents of the decision of the First Tier Tribunal, taken as a whole, formed a significant part of FM’s defence and mitigation so that their omission was potentially a significant prejudice to her.(3) Before the CCC retired to consider the hearing bundle and its decision in private, the legal assessor did not give them any direction on how rule 31 should be applied to the facts of this case and did not given them any guidance as to the mitigation put forward by FM or of any relevant matters that could be considered as pointing to her suspension rather than to her being struck off. Since she was not present or represented, the legal assessor needed to advise the CCC as to what they should and should not consider in relation to sanction in order to ensure that FM obtained a fair consideration of her case. The legal assessor retired with the CCC when they considered FM’s case in private. If he gave them advice in that private session, the fact and content of that advice should have been referred to in the decision. If he did not give them any advice, that too should have been recorded.

Evidential conclusiveness of FM’s convictions

[57]It became clear during Mr Garsed’s submissions that the CCC in deciding not to hold an oral hearing and the CCC when considering the hearing file, laboured under an error of law. This error related to the effect of rule 31 of the Nursing and Midwifery (Fitness to Practise) Order 2004 and as it how should have been applied to evidence of FM’s convictions and the facts upon which they were based. FM wished, as could be seen from her case management form answer quoted above that she had submitted to the NMC when she returned her form, wished to explain and reduce the impact of the finding of dishonesty in relation to the second charge involving the replacement passport that had been obtained from Zimbabwe. Mr Garsed contended that that evidence had been inadmissible and that the CCC had correctly ignored it. The relevant part of the rule reads as follows: “31 - Evidence (2) Where a registrant has been convicted of a criminal offence-(a) a copy of the certificate of conviction, certified by a competent officer of a Court in the United Kingdom shall be conclusive proof of the conviction; and(b) the findings of fact upon which the conviction is based shall be admissible as proof of those facts. (3) The only evidence which may be adduced by the registrant in rebuttal of a conviction certified or extracted in accordance with paragraph 2(a) is evidence for the purpose of proving that she is not the person referred to in the certificate or extract.” (b) the findings of fact upon which the conviction is based shall be admissible as proof of those facts.[58]It would seem that both the CCC that decided to refer the case to a meeting and not to a hearing and the CCC itself at the meeting where under the impression that it was not open to FM to advance evidence, including the First Tier Tribunal findings, to the effect that she had not been involved in obtaining the false passport and that she was unaware that the passport was false until this was alleged when she was being questioned by the police. Moreover, Mr Garsed submitted that that was the effect of rule 31 and that that was the interpretation that was placed on rule 31 by CCCs considering a registrant’s previous convictions.[59]When construing the words of rule 31, it is necessary to take account of criminal procedural rules. When someone is convicted of an offence, whether by plea or by verdict of the jury, that conviction is recorded in a certificate of conviction issued by the relevant crown court. The certificate is conclusive evidence both of the fact of the conviction and of the facts on which it was based. The facts on which the conviction was based are those that are taken from the indictment that gave rise to the conviction. This must set out the facts which it is alleged give rise to the offence charged. These facts are the essential facts needed to be proved in order to establish that the offence was committed by the defendant. This procedure can be seen from the wording of the two certificates in this case which each set out the convictions and the facts on which they were based. The wording was:
“Florence Musonza was upon her own confession convicted upon an indictment of with intent knowingly possess false/improperly obtained another’s ID document.” “Florence Musonza was tried and convicted upon indictment of obtaining a money transfer by deception x 1” (i.e. one money transfer). The certificate states that FM was tried and convicted, the transcript does not make it clear that she had pleaded guilty. This was a detail that should have been explored with FM had she been present. ”
[60]It should also be remembered that using a false passport “knowingly” or obtaining a money transfer “by deception” does not of itself identify the extent or nature of the dishonesty involved. These terms cover a wide range of activities, degrees of culpability and outcomes and all involve a state of mind which is rarely able to be identified and its nature and extent cannot usually be ascertained directly. Thus, it can be seen that rule 31 (2) does no more that allow the fact of a conviction to be proved by the relevant certificate. In this case, this was not necessary since FM admitted the two convictions. The rule also allowed, but did not require, either the NMC or the registrant to adduce evidence to show what further facts were or were not facts which were taken into account, proved or relied on in the conviction or guilty plea that had occurred. Thus, the entirety of FM’s evidence and all the facts capable of being extracted from the three transcripts, including the First Tier Tribunal transcript, were admissible and any extracts from the transcripts concerning the convictions or FM’s state of mind could be referred to and were relevant. What weight was placed on that evidence, and what conclusions favourable or adverse to FM were reached were matters for the CCC. They could, for example, have concluded that evidence from the registrant that she was contending something significantly different from, and of diminished consequence to, the facts upon which the conviction was based showed that she had not learnt from her mistakes, was showing limited insight and had not shown that she would not be dishonest again.[61]The evidence was also not prohibited by rule 31(3). That rule prohibited evidence, save as to identity, which was being adduced to rebut, that is to deny, the fact of the conviction. It did not prohibit evidence, for example, which sought to show that although FM had acted dishonestly, the nature and extent of the dishonesty was at the lower end of seriousness.[62]It follows that the CCC was in error in not considering FM’s evidence in relation to the second offence. The fact that they did not consider this evidence is shown by the absence of any reference to it in their reasons. The CCC was also in error in not taking this evidence into account when directing a meeting rather than a hearing since, at the very least, that evidence needed to be explored with FM and explained, or explained away, with the assistance of oral submissions.

Failure to consider FM’s mitigation

[63]The CCC failed to give any consideration to significant aspects of FM’s mitigation or to factors which could point to her receiving a lesser sanction than being struck off. The brief decision only referred to her pleas of guilt at both crown courts and to her expression of regret. The reasons then referred to an absence of evidence as to her previous history and as to whether her misconduct had been repeated. In fact, the three decisions, taken together and if closely considered, provided much relevant evidence of her previous history and to an absence of any repeat misconduct. That can be seen from my summary of that evidence in this judgment. Moreover, there was no reference to such matters as the age of the two offences and the fact that they had both been committed before she had qualified as a nurse, the factors which might be said to point to the levels of dishonesty in each case being at the lower end of the scale of dishonesty, FM’s hardship over many years in both Zimbabwe and in England that she had overcome, the care she had provided to her mother, children and partner through their various difficulties, the work she had undertaken as a nurse and her good reference and her positive but regretful attitude. Moreover, the decision did not, as the sanctions guidelines suggested, clearly explain the interests and factors that the panel had taken into consideration in arriving at its decision, the weight to be attached to those interests or how the balancing exercise had been carried out.

Error in the decision

[64]The decision included one error which, although not itself decisive, demonstrated that the CCC had not fully considered CCC’s mitigation or the factual basis of that mitigation. The decision recited that FM had “obtained over £31,000 by deception over some four years, by pretending to be British, which she was not”. FM’s offence is there misstated. Her offence was to use a forged passport to support her claim for an NHS bursary based on three years’ prior lawful residence in the UK which she had not in fact achieved. This bursary was not dependent on nationality but on lawful residence and her conviction was based on her dishonesty in claiming a benefit on lawful residence grounds whilst using a forged passport to verify that claim. This difference did not affect FM’s guilt or the seriousness of the dishonesty but it showed that some of the factors that FM could have quite fairly relied on to reduce its impact were not considered. These included the fact that the offence was committed at a time when she needed her passport to apply for the much-needed student bursary yet the Home Office had lost her own passport and she would have been unable to obtain a replacement without subjecting herself to the danger of returning to the country she was a refugee from and that, had she waited for a few more months, she would have been entitled to receive the bursary in any event.

Sanction of striking off unduly harsh

[65]The main thrust of FM’s submissions at the hearing of this appeal was to the effect that it was clear from the CCC’s reasons that the meeting had not considered her mitigation nor had given effect to that mitigation and that the decision was grossly disproportionate in striking her name off the register. She referred to two recent decisions of the CCC, which she had quite fairly downloaded from the NMC website which posts all decisions of the CCC on it. She suggested that these decisions showed that registrants with convictions involving much more serious dishonesty had been given less significant sanctions than she had been given. She also referred to the decision of Kenneth Parker J in Ballesteros v Nursing & Midwifery Council [2011] EWHC 1289 as an example of the type of dishonesty which was so serious that a striking out sanction was justified. This was said to be an example of much more serious dishonesty than she had committee. These decisions were relied on to show that the dishonesty she was convicted of could and should have resulted in a lesser sanction than being struck off.[66]I propose to address only one issue that arose in relation to this ground of appeal. FM supported her submissions by reference to the previous decisions that I have referred to. However, it was contended on behalf of the NMC that this reference to previous sentencing decisions was impermissible on the grounds that they were not precedents and not, therefore, capable of being relied on in a subsequent sanctions-fixing exercise or in an appeal relating to the level of sanction imposed.[67]It is, of course, the case that a decision as to a sanction to be imposed for unfitness to practice does not create a precedent and is one relying on the exercise of discretion that is fact-based and case-specific. However, all decisions of the CCC are published on the NMC website and are available for public scrutiny. One purpose, albeit by no means the only purpose, of publishing these decisions is to enable everyone, including registrants whose cases are subsequently dealt with by the CCC, to know and to be satisfied that the CCC is applying its sanction-imposing powers consistently and fairly particularly in relation to the ultimate sanction of striking off. Moreover, the previous decisions are publicised in order to ensure that the NMC’s disciplinary process is article 6 compliant, that is one that is open and transparent. Furthermore, as in criminal sentencing in the crown courts, previous appellate decisions concerned with sentence or sanction are or should be used as indicators of the appropriate level or severity of sentence or sanction, in other-words as guidelines to the appropriate sentence or sanction being appealed. It is therefore permissible to refer to previous sanction decisions to show that a particular decision is outside the wide margin of appreciation permitted to a CCC panel when deciding on an appropriate sanction. Any reference to other decisions for this purpose should be both limited and circumspect and the previous decisions scrutinised with care to ensure that their different factual background is taken account of. The High Court in hearing such an appeal is, after all, in an analogous position to the Court of Appeal Criminal Division when hearing a sentencing appeal from the crown court when relevant previous sentencing appeal decisions are regularly considered. I would add this gloss. What is permissible in NMC sanction cases is, in limited and appropriate cases, at the hearing or meeting stage and on an appeal, for there to be reference by either the NMC or the registrant or their representatives to previous sentencing decisions of the CCC or to High Court judgments on appeal.[68]However, in this case, I will not consider the decisions cited on behalf of FM further since I have decided that, for reasons of procedural error and unfairness of process, this decision must be set aside and reconsidered by the CCC. Moreover, the decisions that were cited were relied on to seek to show that the sanction that was imposed was unduly harsh on the basis of FM’s mitigation which I have now decided was not properly considered. If that mitigation had been properly considered, the CCC might still, this time quite properly, have imposed the sanction of striking off, the cited decisions would have been inappropriate and the sanction would have been within the margin of appreciation that was open to the CCC and would be unchallengeable on appeal.

Conclusion

[69]In the light of my findings and conclusion, FM’s appeal should be allowed since the decision of the CCC promulgated on 4 March 2011 and the procedural decision of 31 January 2011 were flawed due to procedural errors and unfairness. Since there has, in consequence, been no determination by the CCC of the allegations referred to them in FM’s case and there has been no decision as to whether the allegations should be dealt with at a hearing or considered at a meeting, I will remit the case, including the need for necessary case management directions, to be redetermined by the CCC. It will be for the CCC to consider, in the light of this judgment, whether to refer the case to a hearing or to be considered at a meeting. FM would be well-advised to obtain legal advice and representation from those with suitable knowledge and experience of representation in CCC cases. HH Judge Anthony Thornton QC