Monji v The General Pharmaceutical Council [2014] EWHC 3128 (Admin)

Case No CO/179/2014

[2014] EWHC 3128 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday 3 rd October 2014

Before

ANDREW GRUBB

(SITTING AS A DEPUTY HIGH COURT JUDGE)

Between

SUDHIR MANILAL MONJIAppellant

THE GENERAL PHARMACEUTICAL COUNCILRespondent

(Transcript of the Handed Down Judgment of

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The Appellant in Person for in person

Mr Andrew Faux (instructed by the GPC Solicitor) for Respondent

Hearing Hearing dates: 23 July 2014

Judgment

Judge Andrew Grubb :

Introduction

[1]Mr Sudhir Manilal Monji (“the appellant”), who is a registered pharmacist, appeals against a decision of the General Pharmaceutical Council’s (“the respondent”) Fitness to Practise Committee (“FPC”) on 17 December 2013 to remove him from the Register of Pharmacists under article 54 of the Pharmacy Order 2010 (SI 2010/231) (the “2010 Order”).

[2]The appellant was employed by Boots UK at their store in Whetsone as the pharmacist manager. Following an investigation into the alleged theft of a number of fragrance testers on 24 September 2010 from the store, the appellant was dismissed on 10 November 2010. The appellant’s subsequent claim to an Employment Tribunal was dismissed and that decision was upheld on appeal by the Employment Appeal Tribunal.

[3]The appellant has since been employed by Lloyd’s Pharmacy prior to his removal from the Register of Pharmacist. The appellant’s alleged theft was not reported to the police and he has not been the subject of any criminal investigation or prosecution.

The Respondent’s Case

[4]On 14 March 2013 the respondent initiated fitness to practise proceedings before the FPC. The allegation against the appellant was as follows (File A p.1): “1. On 24 September 2010 you removed a quantity of fragrance testers from the pharmacy

[2]Your conduct at paragraph 1 was(a) Inappropriate; and/or

(b) Dishonest, in that you: (i) Intended to permanently remove the fragrance tests from the pharmacy (ii) Knew you had no lawful authority to permanently remove the fragrance testers from the pharmacy By reason of the matters above, your fitness to practise is impaired by reason of misconduct.” (a) Inappropriate; and/or (b) Dishonest, in that you: (i) Intended to permanently remove the fragrance tests from the pharmacy (ii) Knew you had no lawful authority to permanently remove the fragrance testers from the pharmacy

[5]The essence of the allegation was one of dishonesty by the appellant, in effect, in stealing the fragrance tests. The allegation did not concern any professional judgment or failing in the appellant’s professional practice as a pharmacist.

[6]In addition to the evidence of Phillip Henrich, who was the respondent’s principal witness, before the FPC the respondent relied upon evidence from a number of employees at the store: Rita Taylor, Ewa Romanczuk, Mahemdra Chawla, Anil Maloo and Sheila Wilson.

[7]In summary, the respondent’s case was as follows.

[8]It was alleged that on Wednesday 22 September the appellant had placed an order for a large number of fragrance testers. The appellant had been seen by Rita Taylor (an employee) placing an order on the computer. He told Ewa Romanczuk (another employee) about the order and asked her to keep an eye out for its delivery.

[9]On Friday 24 September, she took delivery of the order (which she thought was the appellant’s rather than an order she had placed). Rita Taylor told her, having spoken to Phillip Henrich, to leave them in the ground floor stock room near the lift. She left work around 6 pm before doing so and asked another employee Rosa Sueca to deal with them. The fragrance testers were then moved into the store room.

[10]Around 7.10 pm, the appellant was seen from the car park in front of the store by a Boots Profit Protection Officer, Phillip Henrich loading a number of crates into the rear of his car in the Boots’ loading bay. Mr Henrich had been made aware of suspicions in relation to the appellant by Rita Taylor who had previously been approached by other staff (Ewa Romanczuk and Mahendra Chawla) about their suspicions about the theft of fragrance testers from the store. Mr Henrich believed the crates contained the fragrance testers. When Mr Henrich tried to stop the appellant from driving away, the appellant “squeezed” out of the bay driving away in an aggressive manner.

[11]After she had left work, Phillip Henrich telephoned Rita Taylor and told her what had happened. She came back to the store and they searched the store room and the remainder of the building (except for the dentistry area and toilets). The fragrance testers could not been found in the store room or elsewhere.

[12]On that evening and over the weekend the appellant spoke to Anil Maloo (an employee) on the telephone seeking his help to return the fragrance testers. Another employee, Mahendra Chawla overheard Mr Maloo speaking to the appellant on the telephone on two occasions on the Sunday in the store which appeared to implicate the appellant. In the earlier conversation reference was made to the “dentistry” area. Mr Chawla told Rita Taylor of what he had overheard. Mrs Taylor informed Mr Henrich but a search of the “dentistry” area did not reveal anything. In the later conversation Mr Maloo made reference to the “toilets”. Mr Chawla again told Mrs Taylor what he had heard.

[13]The following morning (Monday 27 September) the fragrance testers were found by Rita Taylor in the disabled toilets of the store. It was the respondent’s case that these had been returned in a suitcase on the Sunday afternoon (26 September) shortly before the store closed by a woman seen on the store CCTV who was acting on behalf of the appellant as he had realised he had been seen taking them. It was suggested that the woman was the appellant’s sister.

The Appellant’s Case

[14]In summary, the appellant’s case was as follows.

[15]He had placed an order on Wednesday 22 September but it was not a large or unusual one. On 24 September 2010 he had taken 3 empty and collapsed crates and a wheeled dolly and he was loading those into the rear of his car when observed by Mr Henrich. He denied that he had taken any fragrance testers or that he had arranged for their return to the store. Indeed, he claimed that there was no evidence they had ever left the store. He denied that it had “squeezed” out of the loading bay to avoid Mr Henrich’s car which was parked across it. He denied Mr Henrich’s version of their encounter in the loading bay/car park area. The appellant denied that he had telephoned or spoken to Anil Maloo about returning the fragrance testers. He claimed that any conversations over the weekend with Anil Maloo were with his sister whom Mr Maloo was contacting in order to find accommodation for a friend.

[16]The appellant maintained that the witnesses for the respondent were not telling the truth and, in particular, Phillip Henrich was lying in order to falsely implicate the appellant. The appellant also relied upon a DVD and an expert report (with appended photographs) prepared by Steve Wilson which dealt with the view which Mr Henrich claimed to have had of the appellant loading his car in the Boots loading bay on 24 September. The report was relied upon to support the appellant’s contention that Mr Henrich could not have seen him loading the crates with fragrance testers as he claimed. Further, he argued that it showed that it was not possible to “squeeze” out to avoid Mr Henrich’s car parked in front of it.

The FPC’s Determination

[17]The hearing before the FPC took place over 9 days between 4 November 2013 and 10 December 2013. The appellant represented himself and was assisted by a friend (Mrs Golt) who was permitted to question witnesses and address the FPC. The respondent called 6 witnesses who were cross-examined and the appellant, who also gave evidence, called 1 witness (his sister) who was cross-examined. A number of lengthy bundles of documentary and other written evidence were submitted by the appellant and respondent. Both the respondent and the appellant made detailed submissions to the FPC on the facts. The transcript of the FPC’s proceedings including the evidence and submissions runs to 598 pages (Files 4 (Days 1-5) and 5 (Days 6-9)).

[18]On 10 December 2013, the FPC gave its determination on the facts. The determination is 32 pages long setting out the evidence and the FPC’s assessment of it and its conclusions.

[19]First, the FPC set out a summary of the parties’ respect cases on the allegation (Day 9, pages 3-4 of Transcript).

[20]Secondly, the FPC set out the oral evidence of Mr Henrich (Day 9, pages 4-7 of the Transcript), Rita Taylor (Day 9, pages 8-11 of the Transcript), Anil Maloo (Day 9, pages 12-13 of the Transcript), Mahendra Chawla (Day 9, pages 13-15 of the Transcript) and Ewa Romanczuk (Day 9, pages 15-16 of the Transcript).

[21]Thirdly, having rejected the appellant’s ‘submission of no case’, the FPC set out his evidence (Day 9, pages 17-21 of the Transcript) and that of his sister, Bina Parshotam (Day 9, pages 21-23 of the Transcript).

[22]Fourthly, the FPC summarised the submissions made on behalf of the respondent (Day 9, pages 23-24 of the Transcript) and the appellant (Day 9, pages 24-28 of the Transcript).

[23]Finally, the FPC set out its reasons for its findings (Day 9, pages 28-32 of the Transcript). The FPC accepted the evidence of the respondent’s witnesses, in particular Mr Henrich and found that the appellant was not telling the truth. Its reasoning was as follows: “We have considered all of the evidence and the submissions made to us with great care. I have set out details of the evidence that we heard and the submission that were made to us in some considerable detail but, inevitably, I will not have mentioned some matters that Mr Monji might consider important. This is a case in which we have had the advantage of a full transcript as the hearing has gone on. In addition to listening carefully we have read the transcript of the full hearing, and I believe that we have considered everything, whether or not I have referred to it in the summaries that I have given in this determination. We have also borne in mind the fact that Mr Monji has been representing himself. It seemed to us that he had difficulty, particularly in the cross-examination that he conducted, in focusing on the matters that are relevant to the allegation made against him. His submissions to us were more focused, and it was obvious to us, that a great deal of work had gone into them. We have also, in our consideration of the facts, borne in mind the undoubted fact that Mr Monji appears before us as a man of good character. Not only is it right that he has no convictions or any disciplinary matters recorded against him, but we have seen evidence in the testimonials that he has put before us that he is an excellent pharmacist and a man of positive good character. We have borne this in mind as an indication, both that it means that he is more likely to be telling the truth as a result, and also that it shows that it would not be likely that he would commit the acts that he is accused of. We do not believe that there is room here for a misunderstanding as to the allegations that are being made. On the basis of the differing accounts given by the witnesses for the Council and Mr Monji, it seems to us that there is no possibility of honest misunderstandings. The inevitable conclusion is that either the account given by Mr Monji is false and a dishonest attempt to avoid the consequences of what he did in September of 2010, or the Council’s witnesses are all not telling us the truth in their account of what happened and are deliberately trying to mislead us to put a false case against Mr Monji. In a nutshell the effect of Mr Monji’s evidence and his submissions to us is this: he said that Mr Henrich’s evidence was improbable and flawed and untrue. The investigation against him was inadequate and unfair, and the evidence of the other witnesses from Boots was dishonest and tainted by grudges against him or a desire in others to commit the type of theft alleged against him. He said that, on the contrary, he was a good manager with the highest standards which he would never jeopardise, and he did not do what he was accused of. We have of course reminded ourselves that our job is to determine the facts on the balance of probability. Inevitably we have borne in mind the effect of a finding adverse to Mr Monji as a professional man but, in the end, our job is to apply the civil standard of proof. Mr Monji has put a quite immense amount of effort into this case, as we are sure he also did at the hearing before the Employment Tribunal. He has mastered the detail of the documents in a most impressive way but, in the end, we considered that Mr Micklewright’s submissions to us about Mr Monji’s evidence were well-founded. It was clear to us that he took every opportunity to give answers that he wanted to give at great length but, when he was asked difficult questions, he was evasive and went to considerable lengths to avoid them and answer questions that had not been asked. We did not find Mr Monji a credible witness on the important issues, and we did not believe his protestations that all the Council’s witnesses had conspired against him. It is right to say that we know that Mr Monji lost his case at the Employment Tribunal. We have not seen the decision of the Employment Tribunal, and we know that we have only been shown a small fraction of the material that was before the Employment Tribunal. We have ignored the result at the Employment Tribunal in our consideration of Mr Monji’s evidence. Our conclusion about Mr Monji is based entirely on the evidence that we have heard and seen. We understand that Mr Henrich is an ex-policeman and, in that capacity, he would have experience of investigations and court proceedings. He seemed to us to be a competent and careful Profit Protection Officer. We considered that he gave his evidence careful and that, although it was possible to criticise some aspects of his investigation with the benefit of hindsight, it was fair and even-handed. We saw nothing in the evidence of the DVD and the report commissioned by Mr Monji to cast any doubt at all on what Mr Henrich said he could see from his observation in the car park. On the contrary, we thought that the plan and photographs we were shown, as well as the DVD, were all consistent with what Mr Henrich told us he could see. We accepted his account of what he saw in the car park and what he said happened when he tried to stop Mr Monji from driving away, and we did not believe Mr Monji’s account that nothing had happened apart from his taking three empty and collapsed crates together with a wheeled dolly. We believe that Mr Monji was not telling us the truth and we reject his account. We also reject Mr Monji’s suggestion that Mr Henrich’s evidence was a series of lies, falsely to implicate Mr Monji in wrongdoing. We could see no basis for this suggestion and no support for it. This conclusion by itself would be enough to dispose of the factual issue that we have to determine but, because of the number of issues that have been raised, the other witnesses that have given evidence before us and the submissions made to us, we would also say this:

[1]We found Mrs Taylor to be an impressive witness and we believed that she was telling the truth. In particular we accepted entirely her account that there were two sides to Mr Monji as a manager and that, in the way that she described, she was afraid of him and his temper. In areas where there were inconsistencies between her account to us and other material, we accept that she was not trying to mislead us, but may have had difficulty in remembering. We reject the suggestion that she was deliberately trying to tell a false account in order to satisfy a grudge against Mr Monji. We do not know what the explanation is for the inconsistencies in the accounts as to when exactly she went to the store on Monday morning, but we do not think that it matters. We accept that she found the fragrance testers in the disabled toilet on Monday morning, and that they were then photographed as they were found.

[2]We believed the account given to us by Ms Romanczuk. Again, there were some uncertainties about some details, but we accepted that she was telling us the truth as far as she could remember it. In particular we accepted that she had placed only one order on the computer on the Monday for fragrance testers, and that she did not place a further order using Mr Monji’s initial ‘S’ as he suggested to her.

[3]In general, we accepted the evidence given to us by Mr Chawla. In particular we accepted that he overheard Mr Maloo speaking in Gujarati on the Sunday, and that he believed that he was speaking to Mr Monji. We accepted that he had gone into the dentistry area with Mr Henrich and had then heard a reference in a further telephone call by Mr Maloo to the toilets. We did not accept that he was part of a conspiracy to give false evidence against Mr Monji. On the contrary, we accepted the force of his evidence, although we consider that it is not clear as to when he first went to the store on Monday morning but, as with Mrs Taylor, we do not think that it matters.

[4]We accepted the account given by Mr Maloo that he had spoken to Mr Monji immediately after his departure from the branch on the Friday, and that Mr Monji said what had happened and asked for help in returning the testers to the store. We rejected Mr Monji’s story that he had returned the Sim card for the 645 mobile phone number two days before, and we accepted that calls to that number on Mr Maloo’s records on the Friday, the Saturday and the Sunday were to Mr Monji. In particular, the call to the 645 number on Sunday morning was at exactly the time that such a call would have been expected when Mr Maloo would report to Mr Monji after opening the shop. That is all we need to say about the evidence of Mr Maloo. We consider that it may have been the case that he did not immediately come to the conclusion that it was inconceivable that he would help Mr Monji as we believe he was asked to do on the Friday. It may be that his course was not clear to him until the Sunday, but we do not have to make a finding on this aspect of the case, and we do not do so.

[5]We did not accept Mrs Parshotam’s account that the nine calls she received from Mr Maloo on the Sunday were all about getting accommodation for a friend from India when her account was that she had told Mr Maloo that no answer could be given until her husband was back home. We did not believe that her account on this was credible, and we did not believe it. But we do not know whether it was she who returned the testers to the shop on the Sunday. This is not a finding that we have to make, and we make no findings. We are quite satisfied that the testers were returned on the Sunday at the instigation of Mr Monji, but who it was who took them there we do not know.”

[24]The FPC then concluded (Day 9, page 32 of the Transcript):

“We find that Mr Monji did take the two crates of fragrance testers from the branch on Friday 24 September in a dishonest attempt to steal them. What he was doing was clearly dishonest and it is clear that he knew that it was dishonest because of the way he reacted when Mr Henrich asked him to stop. We find that he realised that he had been under observation from Mr Henrich and drove away past him aggressively to escape being caught red-handed with the testers in his car, and we find he then arranged for the return to the branch of the testers on the Sunday. It follows that we also find that Mr Monji has not told us the truth in this hearing, but has lied to us and has falsely tried to discredit the Council’s witness in order to escape the consequences of what he did.”

[25]Thereafter, following the required steps set out in the 2010 Order, the FPC considered(1) whether the appellant’s fitness to practise was impaired and

(2) if it was, what was the appropriate sanction. The FPC heard submissions from both the respondent and appellant in respect of both issue.

[26]In relation to ‘impairment of fitness to practise’, the FPC considered this was established. It concluded (Day 9, page 43 of Transcript):

“While we do not doubt that he is an excellent pharmacist with a long and distinguished record in acting as a pharmacist, and there is no risk to the public from his practise as a pharmacist, we nevertheless have no doubt that Mr Monji’s fitness to practise is currently impaired, and public confidence in the profession, and the need to uphold professional standards would be undermined if we were not to make such a finding.”

[27]In relation to sanction, the FPC considered that the imposition of conditions upon the appellant’s practise and suspension could not meet the gravity of his case – only removal would. The FPC concluded (Day 9, page 58 of Transcript) that:

“We believe that Mr Monji’s conduct is fundamentally incompatible with continued registration, and our determination is that only removal from the register can meet the seriousness of Mr Monji’s misconduct in order to maintain standards in the profession and confidence in the profession.”

[28]The FPC then went on to impose the interim measure of immediate suspension under article 60 of the 2010 Order. That order was the subject of an unsuccessful (and final) appeal to Lang J on 21 May 2014.

The Grounds of Appeal

[29]The appellant challenges(a) the FPC’s assessment of the evidence and its factual findings that led to its finding that he had dishonestly taken the fragrance testers and

(b) the sanction to remove him from the register. The appellant does not challenge the FPC’s finding that, on the basis that the facts were established, his fitness to practise was impaired.

[30]The appellant’s grounds are as follows: i) No reasonable Committee/Tribunal would have reached the determination this Committee did on the basis of the evidence seen and heard (Ground 1); ii) The Committee made material findings of fact that were not supported by the evidence before it (Ground 2); iii) The Committee failed to give reasons for not taking into account the evidence that supported Mr Monji’s case (Ground 3); iv) The Committee acted in an unjust manner by treating Mr Monji in an irregular and unfair fashion (Ground 4); v) The Committee failed to consider

article 8 of the ECHR

when making their determination, sanction and interim order (Ground 5).

The Legal Framework of this Appeal

[31]This appeal is brought under article 58 of the 2010 Order which provides for a right of appeal to the “relevant court” (for these purpose, the High Court) against an “appealable fitness to practise decision” of the FPC under article 54 of the 2010 Order, inter alia, to remove an individual from the register.

[32]Articles 58(1) and (2) so far as relevant provide as follows:

“(1) The following decisions are appealable fitness to practise decisions for the purposes of this Part – (a) a decision of the Fitness to Practise Committee under article 54 to give a direction to remove the entry of a person from one or more parts of the Register: …. (2) A person in respect of whom an appealable fitness to practise decision has been made may appeal against that decision to the relevant court….”

[33]By virtue of article 58(5), on an appeal under article 58 the relevant court may:

“(a) dismiss the appeal; (b) allow the appeal and quash the direction in respect of which the appeal is made; (c) substitute for the direction in respect of which the appeal is made any other direction that the Fitness to Practise Committee could have given; or (d) remit or refer the case to the Registrar or the Fitness to Practise Committee for disposal of the matter in accordance with the relevant court’s directions, and may make such order as to costs…as the relevant court thinks fit.”

and may make such order as to costs…as the relevant court thinks fit.”

[34]The appeal is governed by CPR 52.11(3) which provides as follows:

"The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court"

[35]The appellant relies upon both CPR 52.11(3)(a) and (b). He challenges the factual findings made by the FPC on the basis they were “wrong” as was the sanction it imposed. He also challenges the procedure followed by the FPC which he argues was unfair, namely that the FPC refused a site visit.

[36]The governing principles to be applied in this appeal were succinctly stated by Mostyn J in Luthra v General Medical Council

[2013] EWHC 240 (Admin)

which I gratefully adopt. Having set out CPR 52.11(3) and made reference to the Court of Appeal decision in Raschid v General Medical Council

[2007] 1 WLR 1460

, Mostyn J (at [4]) summarised the governing principles as follows:

“i) I can only overturn the decision of the FTPP if I am satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings (CPR 52.11(3)). ii) In determining whether the decision was wrong I must pay close regard to the special expertise of the FTPP to make the required judgment (Raschid paras 16, 19). iii) Equally, I must have in mind that the exercise is centrally concerned with the reputation and standards of the profession, and the protection of the public, rather than the punishment of the doctor (paras 16, 18). iv) The High Court will correct material errors of fact and of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case (para 20). v) Where the appeal is against a sanction (as here) my decision must not constitute an exercise in re-sentencing or the substitution of one view of the merits for another (paras 21, 22).”

[37]In General Medical Council v Meadow

[2007] QB 462

, the Court of Appeal concluded that “wrong” required no adverbial limitation so that it should be read as “clearly wrong” (see [125] per Auld LJ).

[38]In considering whether a decision of a professional body such as the FPC was “wrong”, Auld LJ in Meadow set out the role of the Court in an appeal (at [197]):

“…it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors: i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; iii) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”

(emphasis in original) i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; iii) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.” (emphasis in original)

[39]The Court of Appeal recognised the constraints in an appeal in determining whether a decision was “wrong” not only where professional judgment was involved, but also when an assessment of witnesses was required and in carrying out the “jury function” of making findings of fact on the evidence.

[40]In Gupta v General Medical Council

[2002] 1 WLR 1691

, the Privy Council recognised the context of a “re-hearing” on appeal by a professional from disciplinary body where the reliability of credibility of witnesses was in issue (at [10]): “"[T]he obvious fact [is] that the appeals are conducted on the basis of the Transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect, these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability or the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas

[1947] AC 484

, 484-488."

[41]The reference to Lord Thankerton’s opinion is as follows:

“I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question.”

[42]In Fish v General Medical Council

[2012] EWHC 1269 (Admin)

Foskett J, having cited Gupta, concluded (at [32]):

“It is plain that where the conclusion of the FTP is largely based on the assessment of witnesses who have been ‘seen and heard’, this court will be very slow to interfere with that conclusion. Nonetheless, the court has a duty to consider all the material put before it on an appeal in order to discharge its own responsibility, appropriate deference being shown to conclusions of fact reached on the basis of the advantage of having seen and heard the witnesses. Where this court does not feel disadvantaged by not having heard the witnesses, and the issues can be addressed with little emphasis on the direct assessment of the evidence by the Panel, it is in a position to take a different view in an appropriate case.”

[43]In this appeal, the point being made is very relevant to the assessment of the witnesses by the FPC and its assessment of the evidence in general even though that involved no professional judgment relating to the practise of pharmacy. The relevance of professional judgment is, however, engaged in the FPC’s assessment of the appropriate sanction once its primary findings of fact were made and it had determined that the appellant’s fitness to practise was impaired.

[44]In relation to a challenge to the ‘sanction’ imposed upon a professional, Mostyn J in Luthra (at [5]) cited the judgment of Sir Anthony Clarke MR in Meadow (at [32]) which is as follows:

“the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.”

[45]Mostyn J then continued (at [5]):

“Thus, the exercise is proleptic but the best prophet of the future is the past. (But we should also surely give ourselves the warning that appears on every financial product for sale that past performance is no guarantee of future returns.) By the same token, as Sir Thomas Bingham MR explained in Bolton v Law Society [1994] 1 WLR 512, there should be a full understanding by me of the reason why the FTPP makes an order which might otherwise seem harsh. The sanction may have consequences for the individual and his family which are deeply unfortunate and unintended. But that does not make the sanction the wrong order if it is otherwise right: "The reputation of the professions is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." The reason that the reputation of the profession is so important is not a reflection of a collective amour propre. It is an aspect of the need to protect the public. The public must be able to approach doctors, lawyers and other professionals with complete faith that they are both honest and competent. Without that faith the problems that would arise are too obvious to state.”

[46]Bearing in mind the approach to an “appeal” of this nature, I now turn to consider the appellant’s challenge to the FPC’s factual findings and sanction imposed.

The Challenge to the FPC’s Factual Findings

[47]The appellant developed his Grounds (1-4) in considerable detail in his skeleton argument and orally before me. The arguments were wide ranging challenging the FPC’s assessment of the evidence of the witnesses and its assessment of the DVD evidence as supporting Phillip Henrich’s account of what he claimed to have seen of the appellant loading crates in the rear of his car from the vantage point in the car park. I have not always found it altogether possible to isolate the appellant’s arguments under Ground 1, 2 or 3 and so I deal with them compositely in considering the FPC’s assessment of the evidence and its factual findings.

The Credibility Issue

[48]The appellant submitted that the FPC was wrong to focus on the credibility of the witnesses rather than assessing and reviewing the evidence before it. In particular, the appellant argues that the FPC was wrong to conclude that Mr Henrich was a credible witness and that the DVD evidence and expert report were consistent with his evidence. The appellant submitted that that evidence demonstrated that it was impossible for him to have “squeezed” through in his car to avoid Mr Henrich’s car which was parked in front of the appellant’s in the loading bay and also it demonstrated that Mr Henrich’s evidence that he had seen the appellant loading crates into the rear of his car was not possible from the angle Mr Henrich claimed to be viewing the appellant.

[49]The appellant made a number of detailed criticisms of Mr Henrich’s evidence set out at para 42 of his skeleton argument, including his involvement in the internal investigation leading to the appellant’s dismissal; that he claimed to have witnessed a crime and yet failed to call the police; that he had confirmed that he had no evidence against the appellant when he drove off; that he had only written his witness statement after he had sat in on investigative interviews; that he made no log in his notebook of witnessing any theft or of any alleged attempt to stop the appellant driving away; that he had failed to take details of independent witnesses who were in the car park; that he had kept only selective CCTV footage and incomplete or misleading CCTV logs. At para 45 of his skeleton, the appellant also notes the shift in Mr Henrich’s evidence before the FPC initially that he was 100 per cent sure that he saw the appellant with fragrance testers in the rear of his car and latterly acknowledging that he had only seen blue crates.

[50]In my judgment, there was nothing, in principle, wrong in the FPC considering the credibility of the witnesses whom they saw and heard give evidence. The FPC was, in effect, acting as a jury in assessing the reliability of their evidence and whether a particular witness was to be believed. The appellant specifically put the credibility of the respondent’s witnesses in issue by alleging that they were, in effect, lying and giving false evidence.

[51]Further, on the appellant’s behalf, detailed submissions were made in relation to the evidence which are set out at pages 24 to 28 of the Transcript for Day 9. The FPC records that at the conclusion of the submissions, the appellant “summed up with comments” about the witnesses including Mr Henrich and “drew attention to what he said was a summary of the shortcomings of their evidence”. There can be no doubt, therefore, that the FPC had well in mind the detailed arguments that the appellant was making in relation to all the witnesses, including Mr Henrich. At page 30 of the Day 9 Transcript, the FPC noted that:

“It was possible to criticise some aspects of his investigation with the benefit of hindsight, [but] it was fair and even-handed.”

It was not necessary for the FPC to set out each and every submission by way of criticism of the evidence, in particular for these purposes, the evidence of Mr Henrich.

[52]As regards the DVD, photographs and expert report, I have looked at and read them carefully. As Mr Faux, on behalf of the respondent pointed out in his submissions, there was not as much dispute about what happened in the Boots loading bay on Friday 24 September as the appellant appears to believe. There is no dispute that the appellant was loading crates into his car. In his cross-examination, the appellant achieved some success in soliciting from Mr Henrich that he had not, in fact, seen the fragrance testers in the crates being loaded into his car by the appellant.

[53]Having viewed the DVD and photographs myself, I do not see any basis upon which the FPC’s conclusion that it was at least “consistent” with Mr Henrich’s claim to have seen the appellant loading blue crates (which he was in fact doing) into the rear of his car as being wrong. Mr Steve Wilson’s report (appellant’s DVD submission, Appendix 1) refers at pages 5-7 to difficulties of viewing from points at which Mr Henrich claimed to be positioned due to “reflective glare” when the rear boot was raised. At page 8, he states that:

“The time at which my visit was made to the location is critical to any future assumptions that may be made.”

His report states that he carried out his investigation at 7 am on 21 November 2010. The appellant was, of course, viewed by Mr Henrich about 7.10pm on 24 September 2010. Common sense raises at least the possibility, not specifically addressed by Mr Wilson in his report, that reflective glare might depend upon whether it was early evening (as Mr Henrich was viewing) or early morning (as Mr Wilson was viewing). Again, the assessment of this evidence was very much akin to a jury issue and I see nothing in the report or DVD and photographs to conclude that the FPC was wrong to accept Mr Henrich’s evidence of what he said he saw in the light of that evidence.

[54]Further, despite the appellant’s sustained criticism in his submissions of the claim that he “squeezed” his car out of the bay in order to avoid Mr Henrich, there is nothing necessarily inconsistent shown in the photographs. The appellant relied upon the fact that there was a bollard and wall to the left (when viewed from the car park) of his car which, he claimed, would have prevented the manoeuvre which Mr Henrich said he undertook. Whilst there is a wall to the left of the car and a bollard (albeit a few feet into the bay), nothing in the photograph leads me to conclude that it was impossible for the appellant to do as Mr Henrich claimed he did. Much would depend on the position of Mr Henrich’s car in front of the appellant’s. There is no doubt that his car would have obscured some of the loading bay exit. There was a car parked close to the loading bay which would, at least, have required some obstruction of the loading bay. None of the photographs, however, contain a representation of the position of Mr Henrich’s car and nothing in the evidence leads me to conclude that it was not a perfectly permissible view for the FPC to take that it accepted that the appellant had “squeezed” out past Mr Henrich’s car when confronted by him.

[55]For those reasons, I reject the appellant’s contention raised under Grounds(1) and

(2) that the FPC was wrong to assess the credibility and reliability of the witnesses and, in particular, to conclude that Mr Henrich was credible and his evidence of what he claimed had occurred in the Boots loading bay on 24 September was to be believed.

The Assessment of the Evidence

[56]The appellant submitted that the FPC had failed properly to assess the evidence in relation to a number of matters central to the respondent’s allegation. In his skeleton argument, the appellant raises these under Grounds (2) and (3). For convenience, I will take the factual issues as they arose in chronological order.

[57]The first concerned the evidence in relation to the allegation that the appellant had placed a large order for fragrance testers (118) on Wednesday 22 September in order to subsequently take them from the store. In relation to orders placed, there was evidence from Ewa Romanczuk and Rita Taylor. Ms Romanczuk, the appellant pointed out, had told the Profit Protection Team that she had placed an order on Wednesday 22 September. However, in her witness statement she had said that was a mistake. She was referring to an order she had made on Monday 20 September. In cross-examination, the appellant submitted, Ms Romanczuk stated that she had placed a large order. The system for ordering online was generic and it asked for the initials of the operator. There was an order for 118 testers using the initial “S”. The appellant submitted that anybody could have used the initial “S” and the FPC had never investigated whether Ms Romanczuk had made an order on 22 September and had not taken into account her change of evidence as to whether she placed an order on 22 September.

[58]I do not accept this submission. The FPC set out clearly the evidence of Ms Romanczuk (Day 9, pages 15-16 of the Transcript). That included her change of evidence, since the initial investigation, to the effect that she had only placed an order on Monday 20 September. In cross-examination, it was put to her by the appellant that she had surreptitiously made an order on 22 September 2010 using the initial “S” intending to steal the fragrance testers herself. Her response was that that was a complete lie.

[59]The FPC was clearly alive to the change in Ms Romanczuk’s evidence. The FPC said this about her evidence (Day 9, page 31 of the Transcript):

“We believed the account given to us by Ms Romanczuk. Again, there were some uncertainties about some details, but we accepted that she was telling us the truth as far as she could remember it. In particular we accepted that she had placed only one order on the computer on the Monday for fragrance testers, and that she did not place a further order using Mr Monji’s initial ‘S’ as he suggested to her.”

[60]I do not accept that the FPC failed to take into account Ms Romanczuk’s change of evidence. The FPC heard her evidence and had well in mind the changes in that evidence. The FPC was fully entitled, having heard her evidence, to accept that she had been mistaken when she had said in the initial investigation that she had placed an order on Wednesday 22 September rather than on Monday 20 September. That is quintessentially a jury issue. I see no basis to disagree with the FPC’s finding in relation to Ms Romanczuk’s evidence.

[61]In addition, the appellant submitted that the FPC had failed properly to deal with the evidence of Rita Taylor who had seen the appellant place an order online for fragrance testers on Wednesday 22 September.

[62]In her witness statement (at para 5), Mrs Taylor stated that she had seen him make a large order. In the course of cross-examining Mrs Taylor, the appellant put to her that they had had a conversation while he was making the order. The gist of that cross-examination (Day 2, pages 46-47 of the Transcript) was that he was ordering a small number of items rather, than is alleged by the respondent, a large order of 118 fragrance testers.

[63]The FPC summarised Mrs Taylor’s evidence on this issue (Day 9, pages 10-11 of the Transcript). Her evidence was that Ewa Romanczuk had placed an order for testers on Monday 20 September. She did accept that it was possible that Ms Romanczuk had placed two orders, one on the Monday and another on the Wednesday. Her evidence was, perhaps, equivocal, and she added:

“All I know is that she ordered some testers. I did not know when they would arrive”

. Her evidence was that she could not remember a conversation with the appellant and she accepted that the appellant was not concealing the fact that he was placing an order. When it was put to her, she denied that she was targeting the appellant. In its determination (Day 9, page 11 of the Transcripts) the FPC said this, having set out Mrs Taylor’s evidence:

“We believe that it is fair to say that the cross-examination of Mrs Taylor was wide ranging and in some respects it was unfocused. In the course of it Mr Monji expressly conceded that he had placed an order on 22 September for some fragrance testers, although at that stage it was not clear how many he was accepting that he ordered.”

[64]In its conclusion (Day 9, pages 30-31 of the Transcript), the FPC concluded that Mrs Taylor was “an impressive witness and we believed that she was telling us the truth”. The FPC noted that, “there were inconsistencies between her account to us and other material” and the FPC concluded, “we accept that she was not trying to mislead us, but may have had difficulty in remembering”. In particular, the FPC rejected the appellant’s case that, “she was deliberately trying to tell a false account in order to satisfy a grudge against Mr Monji”.

[65]That, in my judgment, was a conclusion which the FPC made having heard and seen Mrs Taylor give evidence and having taken into account the evidence that she had given including her presentation in cross-examination and I see no basis on which I could reach a different view on the basis that its assessment of Mrs Taylor and findings on her evidence are wrong.

[66]Secondly, the appellant submitted that the FPC could not reasonably have concluded that the fragrance testers had left the Boots store on the night of Friday 24 September. Before the FPC, the appellant relied upon CCTV footage showing an employee, Rosa Sueca, wheeling boxes into the store room at 19.23 hours, after the time the appellant was alleged to have loaded the fragrance testers into his car and driven away. The appellant sought to argue that this evidence demonstrated that he could not have taken the fragrance testers as alleged. Ms Sueca was transferring to the store room the very delivery of fragrance testers which the appellant was alleged to have stolen. In addition, the appellant relied upon the evidence of another employee, Kageen Kanthasamy who, in an interview, had stated that, inter alia, he had seen a large delivery of fragrance testers after 8 pm.

[67]This evidence was dealt with during the cross-examination of Mr Henrich by the appellant. It is at Day 9, page 7 of the Transcript in the FPC’s determination as follows:

“He was then shown the CCTV footage of the employee Rosa Sueca in the store room on the Friday evening. It was Mr Monji’s case that she was working on the delivery of testers after Mr Monji was supposed to have taken them. Mr Henrich said that he considered that she was throwing away rubbish while working on a delivery of other items. Mr Henrich was then referred by Mr Monji to the notes of the interview with Kageen Kanthasamy at page 77 of the Respondent’s bundle. The interviewer has noted Mr Kanthasamy saying this in answer to a question as to whether he was aware of a large delivery of fragrance testers: ‘Yes, I took them to Ewa/Rosa. One was going on a break; also I saw testers in night delivery after 8 pm’. Mr Henrich said that Mr Kanthasamy was talking about a very small number (two or three) of testers mixed in with healthcare products in a different deliver. It was put to him at 7.15 the testers were not missing from the store. He said ‘No, they were missing’.”

[68]Mr Kanthasamy was not called to give evidence and his statement was made in the course of an interview during the internal investigation (see File 1, pages 76-78). The only exploration of his evidence was in the course of cross-examining Mr Henrich and, Mr Henrich, as the above extract from the FPC’s determination shows, gave evidence that Mr Kanthasamy was talking about a small number of testers in a different delivery.

[69]Likewise, Mr Henrich dealt in his evidence with the CCTV footage concerning Ms Sueca. His explanation of what she was doing was that she was “throwing away rubbish”.

[70]The FPC was clearly aware of the appellant’s submissions in relation to this evidence and that Mr Henrich’s account of what the CCTV showed was untrue (Day 9, page 26 of the Transcript). The FPC accepted Mr Henrich was a witness of truth. As I have already indicated, they were entitled to do so. It was not the respondent’s case that every fragrance tester in the Boots store was taken by the appellant on Friday 24 September. Even if Ms Sueca was moving a blue crate with “white boxes” in them at 19.23 that was not necessarily inconsistent with the respondent’s case that the appellant had already removed a large number of testers from the store. Neither the CCTV footage nor the statement of Mr Kanthasamy in his investigative interview were ‘knock-out punches’ of the respondent’s case before the FPC. The FPC also had before it the evidence of Rita Taylor in her witness statement at para 8 (File A, pages 2-6) where she stated that she had seen the fragrance testers in the store room at approximately 17.20 on the Friday evening. I do not consider that the FPC’s treatment of this evidence, in the light of its acceptance of the evidence of the respondent’s witnesses, undermines the FPC’s ultimate actual finding.

[71]Thirdly, the appellant submitted that the FPC had evidence before it that it was not possible for the appellant to have exited the store through the rear entrance without being seen on CCTV and passing through an alarmed door. He submitted that there was an inconsistency between the evidence of Mr Henrich who said that the CCTV in the loading bay was not working and that of Mrs Taylor that it was working. Likewise, Mr Henrich’s evidence was that the door was not alarmed but, the appellant submitted, he meant that the alarm was broken. The door was in fact alarmed.

[72]As regards the CCTV cameras in the loading bay, Mrs Taylor gave evidence that they were working on the particular Day (Day 2, page 59 of the Transcript). However, her evidence was that the back door footage was blank. In its determination, the FPC (Day 9, page 11 of the Transcript) summarised her evidence as follows:

“She said that she spent a lot of time looking at CCTV and trying to get the system to work. She said that they had difficulty in making it work. She said that the back door camera was blank. She recalled that two cameras were coming up blank.”

[73]There was, in my view, no significant inconsistency in the evidence of Mrs Taylor and Mr Henrich – the fact of the matter was that no viewable footage could be obtained from the loading bay CCTV.

[74]The FPC set out the appellant’s submission that it would have been impossible for him to have carried the two crates of testers out of the store via the back door to the loading bay at Day 9, page 27 of the Transcript. That included his submission that the back door was alarmed. The evidence was that there was no relevant CCTV footage and, from Mr Henrich, that the door was not alarmed. The FPC had well in mind the appellant’s contention that the supposed route of exit was impossible. There was no CCTV footage for the rear door and there was also evidence that it was alarmed on the day. Whilst the FPC did not, in its reasons, engage precisely with the appellant’s submission on this issue, given the acceptance of the evidence of Mr Henrich and Mrs Taylor as credible and reliable witnesses, the FPC, in my judgment, must impliedly have rejected the appellant’s submission that his route of out of the store was not possible as that was inconsistent with the evidence of witnesses whose evidence the FPC accepted. I see no basis for concluding that the FPC’s assessment of this evidence and its findings were wrong.

[75]Fourthly, the appellant submitted that the FPC had been wrong to accept the evidence which had led it to find that the appellant had telephoned Anil Maloo on the evening of Friday 24 September and, in effect, admitted that he had taken the fragrance testers and that there had been a number of calls between the appellant and Mr Maloo over the weekend, two of which were overheard by Mr Chawla on Sunday 26 September in which he had heard reference to the “dentistry” area and to the “toilets”.

[76]Before the FPC, the respondent’s case was that the mobile phone call to a number ending “645” shown in the phone records of Mr Maloo were calls to the appellant and that a call at 11.37 on the morning of Sunday 26 September was a call made by Mr Maloo to the appellant shortly after the store opened on the Sunday morning. The appellant’s case was that although he had a “645” SIM card until 22 September, on that date Mr Maloo had come to the appellant’s home and collected the SIM card from him. The appellant’s case was that the only call he had from Mr Maloo was on the Sunday morning between 10.30 and 11 in order that Mr Maloo could update him about matters relating to the store. The appellant’s case was that there were calls between Mr Maloo and the appellant’s sister but those related to attempts by Mr Maloo to obtain accommodation for a friend who was visiting.

[77]There were undoubtedly inconsistencies in Mr Maloo’s evidence. For example, prior to the FPC proceedings, Mr Maloo’s evidence was that he had not been to the appellant’s house on Wednesday 22 September. Likewise, Mr Maloo previously maintained that he did not have a conversation with the appellant on the evening of Friday 24 September in which the appellant was seeking to return fragrance testers to the store. The appellant cross-examined Mr Maloo on these inconsistencies in his oral evidence before the FPC (Day 3, pages 16-18 of the Transcript). However, in his oral evidence Mr Maloo’s evidence changed and he accepted that he did go to the appellant’s house on Wednesday 22 September for a social visit. He also gave evidence that there were phone calls between him and the appellant on Friday, Saturday and Sunday, 24-26 September.

[78]The FPC was faced with inconsistent statements by Mr Maloo. In its determination (Day 9, pages 31-32 of the Transcript) the FPC accepted the oral evidence of Mr Maloo that the conversations had taken place as he claimed (and rejected the appellant’s contrary accounts). The FPC was fully entitled to do so having heard Mr Maloo give evidence. The mere fact that here were inconsistencies did not mean that the FPC could not accept, having heard him given evidence, what he said in his oral evidence. The FPC said this:

“We consider it may have been the case that he did not immediately come to the conclusion that it was inconceivable that he would help Mr Monji as we believe he was asked to do on the Friday. It may be that his course was not clear to him until on the Sunday, but we do not have to make a finding on this aspect of the case, and we do not do so.”

[79]Although stated somewhat tentatively, that explanation for Mr Maloo’s change of evidence has a ‘ring of truth’ about it.

[80]Of course, Mr Maloo’s evidence had also to be seen in the light of the evidence of Mr Chawla who had given evidence that he had overheard Mr Maloo on the Sunday speaking to someone (whom he believed to be the appellant) in which reference was made to the “dentistry” area and subsequently to the “toilets”. That evidence, seen in the context of what it is claimed subsequently transpired, is supportive of Mr Maloo’s evidence in relation to telephone conversations he claimed had taken place between him and the appellant. Mr Chawla was cross-examined by the appellant (Day 9, pages 14-15 of the Transcript). The FPC was clearly impressed by the evidence of Mr Chawla. The appellant suggested to him in cross-examination that he had a grudge against the appellant. Mr Chawla denied this and the FPC records (Day 9, page 14 of the Transcript) that:

“We were struck by the language that he used when he said that Mr Monji was the best manager he had ever known”

. A little later, the appellant having put to Mr Chawla that he and the other employees had got together to get rid of the appellant, the FPC commented (Day 9, page 15 of the Transcript):

“We were again struck by his response. He said, ‘No. This is because of you; and what you did’.”

[81]The appellant, before the FPC, relied upon the evidence of his sister, Bina Parshotam. In his submissions to me, the appellant placed reliance upon his sister’s evidence that there were phone calls between her and Mr Maloo over the weekend relating to his seeking accommodation for a friend. The appellant pointed out that Mr Maloo had accepted that he was seeking such accommodation and had called the appellant’s sister.

[82]The evidence of the appellant’s sister is summarised by the FPC at Day 9, pages 21-23 of the Transcript. The FPC did not accept her evidence. (Day 9, page 32 of the Transcript), the FPC said this:

“We did not accept Mrs Parshotam’s account that the nine calls she received from Mr Maloo on the Sunday were all about getting accommodation for a friend from India when her account was that she had told Mr Maloo that no answer could be given until her husband was back home. We did not believe that her account on this was credible, and we did not believe it.”

[83]Having heard Mrs Parshotam give evidence and having considered the evidence of the other witnesses, it was open to the FPC to reject her evidence and accept that of Mr Maloo. The FPC formed its view of Mr Chawla’s evidence having heard him deal, in particular, with questions from the appellant in cross-examination suggesting that he and others were conspiring to present a false case against the appellant. That was a view that the FPC was entitled to take in those circumstances and it supported the evidence of Mr Maloo and the case against the appellant that he had taken a quantity of fragrance testers on Friday 24 September. It is not a view I consider to be wrong.

[84]The fifth point raised by the appellant concerned the evidence of CCTV footage taken in the store around 4 pm on Sunday 26 September. That footage showed a woman pulling a large suitcase and going into the disabled toilets shortly before 4 pm and then leaving with the suitcase shortly after 4 pm prior to the store closing at 5 o’clock. In his oral evidence, Mr Henrich suggested that the woman was trying to conceal her identity and avoid her face being seen by the cameras. It was the respondent’s case that this was an individual returning the fragrance testers taken by the appellant and which were discovered the following morning in the disabled toilets.

[85]The appellant submitted that when he viewed the CCTV footage the mother of an employee of the store could be seen entering the toilet later on Sunday at 5.15 pm. The appellant submitted that Mr Henrich, in completing the CCTV log, had not referred to this later footage and, when she was interviewed, the store employee was not asked whether her mother had seen any fragrance testers in the disabled toilets.

[86]Before the FPC, the appellant’s sister was shown the CCTV footage and it was put to her in cross-examination whether the woman shown in the CCTV was her and that she was returning the fragrance testers at the request of the appellant. She denied both suggestions.

[87]The appellant’s contention before me was that the failure to draw to his attention the existence of the second woman entering the toilet and the failure to ask the employee whether her mother had seen any fragrance testers, in some way made the FPC’s conclusion that the fragrance testers had been in the toilet on the Sunday evening to be unreasonable.

[88]In respect of the evidence of the appellant’s sister and whether the evidence established that the testers had been returned on the Sunday, the FPC said this (Day 9, page 32 of the Transcript):

“... we do not know whether it was she who returned the testers to the shop on the Sunday. This is not a finding that we have to make, and we make no finding. We are quite satisfied that the testers were returned on the Sunday at the instigation of Mr Monji, but who it was who took them there we do not know.”

[89]As I have already indicated, the FPC accepted the credibility of Mr Henrich and rejected the appellant’s contention that he was deliberately lying (along with other employees) in order to target the appellant. The suggestion that the omission from the log showed partiality by Mr Henrich was merely one part of the material relevant to the FPC’s assessment of his credibility in the light of all the evidence. The appellant was not prejudiced by the omission as he was fully able to deal with the evidence in the FPC proceedings. Further, I am unable to see how it can be said that the absence of evidence from the employee’s mother (who entered the toilets subsequent to the woman with the suitcase) is a matter which undermined the FPC assessment of the evidence and its finding.

[90]A related point raised by the appellant concerned the position of Boots prior to the proceedings before the respondent that the testers had in fact been found in the store a day earlier on Saturday 25 September. That does, indeed, appear to have been Boots’ position before the Employment Tribunal (see for example File 1, page 65). It is not entirely clear to me whether the appellant raised this matter directly in his submissions before the FPC. It may well have been a mistake. Throughout the proceedings before the FPC, the evidence called on behalf of the respondent was always that the fragrance testers were found early on Monday morning. Even if it had been raised, the FPC was entitled to conclude, having accepted the evidence of the witnesses, that the fragrance testers were, in fact, returned late on Sunday afternoon.

[91]The final major point raised on the FPC’s factual finding concerned the evidence relating to the discovery of the fragrance testers in the disabled toilets of the store on the morning of Monday 27 September. The appellant, in his submissions, pointed out that there was a discrepancy in the evidence of Mrs Taylor and Mr Chawla. Mrs Taylor’s evidence was that she went to the store at around 7.45am on Monday 27 September and that she opened the store with Mr Chawla. The evidence was that Mrs Taylor texted Mr Henrich at 6.47am saying that the testers had been returned. Mr Chawla, by contrast, gave evidence that he did not start work until 8 am on that Monday and that he was not with Mrs Taylor when she found the testers, as she claimed, in the disabled toilets.

[92]Mr Faux accepted that there was a significant discrepancy in the evidence that was, as he put it, teased out by the appellant in cross-examination of the witnesses. I do not accept, however, that these discrepancies necessarily undermine the credibility and reliability of the evidence of Mrs Taylor and Mr Chawla. The FPC was clearly alive to the inconsistency and rejected the appellant’s contention that both Mrs Taylor and Mr Chawla were conspiring to give false evidence. Despite the inconsistencies, the FPC concluded that the evidence of both was credible and reliable. That was a view the FPC was again entitled to reach having heard the witnesses give evidence and subject to cross-examination by the appellant. I am unable to conclude that, having regard to all the evidence, that was wrong.

[93]For these reasons, I reject Grounds 1, 2 and 3.

Procedural Impropriety

[94]In his skeleton argument, the appellant raised three matters of procedure which, he submitted, led to him being treated unjustly or unfairly.

[95]First, he relied on the fact that the Chair of the FPC had accepted the respondent’s bundles of documents five months in advance of the principal hearing at a case management hearing.

[96]The appellant did not rely upon this in his oral submissions. He was correct not to do so: it is wholly without merit. Any suggestion of unfairness, in that the respondent’s had an unfair advantage in presenting its case five months in advance, is simply not made out. There was nothing wrong, in principle, in the FPC accepting the respondent’s bundle in advance of the principal hearing even if the appellant was unable to submit his. I see no basis upon which it can be said that any unfairness resulted or that a fair-minded and informed observer, having considered these facts, would conclude that there was a real possibility that the decision maker was biased (see Porter v Magill

[2002] 2 AC 357

[97]Secondly, the appellant argued that it was unfair that the FPC granted the respondent permission at the outset of the hearing to include Mr Maloo as a witness. The appellant argued that Mr Maloo’s last minute inclusion caused him unfairness and difficulties as a litigant in person.

[98]The appellant did not expressly rely upon this matter in his oral submissions. Again, he was right not to do so: it also has no merit. Although the appellant was a litigant in person (albeit assisted by a friend), a reading of the transcript demonstrates that he was well-equipped to represent himself and undertake the cross-examination of witnesses. Indeed, as I have already commented, he achieved some success in cross-examining a number of the witnesses. In any event, Mr Maloo’s evidence was well-known to the appellant. Mr Maloo was a witness at the Employment Tribunal and was there cross-examined by the appellant. Although undoubtedly the respondent requested the submission of Mr Maloo’s evidence late in the day, I am simply unable to see any unfairness or disadvantage which that presented to the appellant in preparing and presenting his case before the FPC.

[99]Thirdly, the appellant argued in his skeleton argument that the FPC was wrong to refuse his application for a visit to the car park of Boots in order to determine first-hand the angle of vision of Mr Henrich when he observed the appellant on the evening of Friday 24 September. Even if that application was properly refused, the appellant argued that the FPC indicated that it would do so if it was necessary fairly to dispose of the proceedings. Given its conclusion that the DVD evidence, photographs and expert report were, contrary to the appellant’s submission to the FPC, supportive of Mr Henrich’s evidence, it was incumbent upon the FPC to carry out a site visit.

[100]The FPC dealt with the appellant’s application for a site visit at Day 1, pages 37-38 of the Transcript. The FPC’s conclusion was as follows:

“We have of course not seen the DVD that I have referred to, and we do not know what it will or will not show but, on the basis of what we have seen in the bundles that have been supplied to us, and on the basis of submissions made to us, we do not consider that it is necessary or appropriate for us to go to see these premises. In these circumstances, we accept the submission that it would be unusual [f]or us to have a view of the premises. We accept that it would take a little time for it to be arranged, and it is hard to see how a view, if it was undertaken, could take less than half a day to be completed, and it might take a little bit more. But, if it was necessary fairly to dispose of the allegation before us, the allegation against Mr Monji, we would unhesitatingly go on a view, but it seems to us that it is not necessary. On the basis, as I have said, of what we have seen and the submissions made to us, we believe that we will be able to determine the issues that arise without the need for a view and, accordingly, the application made by Mrs Golt that we should go for a view is refused.”

[101]I see no basis on which that reasoning can be faulted. The FPC had before it, and I have seen it myself, a well-produced DVD accompanied by photographs and an expert report. In the light of that, there was nothing unfair in the FPC declining to undertake a site view.

[102]Further, there is no reason to believe that the FPC did not, consistent with its reasoning, keep under review whether, as the evidence unfolded, a site view became “necessary”. Simply because the FPC did not accept the appellant’s “interpretation” of the DVD evidence and report did not make a site visit “necessary”. That is a view which I have independently formed having viewed the DVD and photographs together with the expert report. The appellant was undoubtedly able to present his case fairly in respect of the events in the loading bay and car park on the evening of Friday 24 September.Indeed, the appellant made some inroads into, for example, Mr Henrich’s evidence about what he had seen in his cross-examination.

[103]For these reasons, I reject Ground 4.

Conclusion on the Challenge to the FPC’s Factual Findings

[104]I remind myself that in this appeal the appellant must establish that the FPC’s decision (including its findings etc) was “wrong”. I also bear in mind that the FPC had the benefit of seeing and hearing the witnesses give evidence which I have not. I have already dealt with the detailed submissions made by the appellant and rejected them. I am not satisfied that the FPC’s decision was wrong. The FPC had to assess a number of witnesses called by the respondent and the appellant. The FPC had the benefit of seeing those witnesses and making what was, in effect, a jury assessment of the witnesses. In that, the FPC was entitled to considerable latitude in assessing evidence given over an eight day period. The FPC had to consider the inevitable inconsistencies and differences in evidence which juries have to assess in reaching factual conclusions.

[105]The appellant’s case was, in terms, that the respondent’s witnesses were lying and had their own ‘axes to grind’. It was even suggested that Ewa Romanczuk had ordered the fragrance testers so as to steal them. She is married to Mr Chawla and an earlier investigation into their propriety, I was told, exonerated them. The appellant by his own case put directly in issue the credibility and reliability of the respondent’s witnesses. The FPC was invited by the respondent to believe its witnesses rather than the appellant and his witness. The appellant, by contrast, invited the FPC to believe him and conclude that the respondent’s witnesses were lying.

[106]The appellant made some inroads into the evidence given orally, for example the change in Mr Henrich’s evidence as to what he saw the appellant putting into the rear of his car on the evening of Friday 24 September and, in relation to Mrs Taylor, the circumstance of her finding the fragrance testers in the disabled toilets in the store on the morning of Monday 27 September. However, in my judgment, those inroads did not result in the FPC’s findings being “wrong”. There were no ‘knock-out punches’ in the evidence that made the witnesses’ evidence on the core issues untenable. The appellant was seen taking blue trays from the back of Boots and loading them into his car and evade Mr Henrich when he approached. The fragrance testers were not found in a search of the store room on the Friday night by Mr Henrich or thereafter until the Monday morning. There were phone calls from the appellant or on his behalf to Mr Maloo on the Friday evening and over the weekend. Two calls on Sunday to Mr Maloo were overheard by Mr Chawla. A suspicious woman with a suitcase was seen entering the disabled toilets late on the Sunday afternoon shortly before the store closed. The fragrance testers were found in the disabled toilets early on the Monday morning.

[107]There were, undoubtedly, complexities in the oral evidence given over eight days and the considerable documentary evidence submitted. There were ‘twists and turns’ in the evidence and, when the totality of the evidence is considered, some shortcomings. The FPC conscientiously assessed that evidence carrying out its fact-finding function. The FPC correctly reminded itself of the appellant’s “good character” and directed itself that was relevant in assessing the appellant’s own evidence. The FPC’s positive credibility findings in relation to the respondent’s witnesses and not to believe the appellant’s account including his argument that the witnesses were combining to lie in order to target him, were open to the FPC carrying out its jury function.

[108]For these reasons, I have reached the conclusion that the FPC’s decision was not wrong in its determination of the facts and there was no procedural irregularity or unfairness in its proceedings.

The FPC’s Decision on Sanction

[109]Ground 5 challenges the FPC’s imposition of sanction, namely the appellant’s removal from the Register of Pharmacists. The appellant submits that the FPC decision is disproportionate and unfair. The Grounds place reliance upon

Article 8 of the ECHR

[110]The FPC’s determination on sanction is at Day 9 pages 55-58 of the Transcript. The FPC did so in the context of the General Pharmaceutical Council’s “Fitness to Practise Committee – Indicative Sanctions Guidance” (File 3, pages 408-420). The relevant passages in the determination are as follows: “...we also found that Mr Monji has not told us the truth in this hearing, but has lied to us and falsely tried to discredit the Council’s witnesses in order to escape the consequences of what he did. He has mounted a sustained campaign since he was seen to take these fragrance testers to somehow prove that he did not do what he was seen to do. In our judgment he has been trying to defend the indefensible so as not to have to accept what in fact he did. We have been referred by Mr Micklewright to the case of Hassan v General Council for Optometrists and to the Indicative Sanctions Guidance. It is well known that, in that guidance, the only section where dishonesty appears is in cases where removal from the register may be appropriate. We have been reminded by Mr Micklewright that this fact does not mean that there is a presumption in every case of dishonesty that there should be a removal from the register. We are clear that dishonesty is a factor to be taken into account, but gives rise to no presumption as to what the appropriate sanction should be. In considering the Indicative Sanctions Guidance, we have had regard to the aggravating factors and to the mitigating factors that can be found in this case. The aggravating factors are as follows:(a) Dishonesty;

(b) The abuse of trust here as this was misconduct by a senior employee;

(d) There has been a complete lack of insight into the importance of what Mr Monji did. He is prepared to accept before us that theft is serious misconduct, but he will not accept before us what in fact he did;

(e) There was an attempt at concealment of his wrong doing, both by giving false evidence and attempting to discredit the Council’s witnesses at the hearing, and also in an attempt to involve Mr Maloo in getting the testers back into the shop, and he in fact did involve some unidentified woman, as we have found, who actually did return the testers to the shop;

(f) This was misconduct by a man who was in charge of the pharmacy premises; and

(g) Mr Monji’s conduct prior to, and in the course of, the hearing was designed in our judgement to complicate the proceedings and conceal what he had done. Against these aggravating features there are also mitigating factors that we have take into account: (a) Mr Monji has no previous disciplinary history; (b) We accept that this was a single incident in a previously unblemished career; (c) There was no actual or potential harm to patients or to the public as a result of what he did; (d) There was in the end no loss to his employers; (e) We repeat that we accept that Mr Monji is an excellent and caring pharmacist. We have reminded ourselves, in approaching the issue of sanction, that our role is not to punish Mr Monji, for whom the outcome of this proceeding, whatever the sanction, will be a personal disaster reaching his family as well as him, but to protect the public, maintain public confidence in the profession, and maintain proper standards in the profession. We also approach our task by reminding ourselves that we should impose the lowest sanction that is appropriate in the circumstances, and also that any sanction that we impose must be proportionate to the misconduct and to what we know about Mr Monji, and it must be fair to him. We have been told, and we bear in mind, that Mr Monji has no other findings again[st] him of a disciplinary nature, and that he is a man of previous good character, both in the sense that he has no findings of disciplinary or a criminal nature against him, but also that the testimonials provided to us show a positive good character, both as a man and as a pharmacist. The issue in this case is not one of public safety, but it is the maintenance of public confidence in the profession and the maintenance of standards within the profession. Mr Micklewright has submitted to us that, because of the aggravating factors here, and the seriousness of the misconduct, only a removal from the register can meet the facts of the case as an appropriate sanction. Mr Monji, in an emotional and eloquent submission to us, submitted that his removal from the register would be too severe on him and his family in all the circumstances. He said that he provides support for his young sons, as well as his elderly and disabled mother, and that if he was removed from the register he would not be able to get a job approaching his current level of employment, and he reminded us that he is nearly 53 and is in poor health. He also said that his removal from the register would be contrary to the public interest, because he is an excellent pharmacist who provides a good service to his patients. He urged us to impose a suspension rather than order his removal from the register. There was gross and serious dishonesty here in a blatant attempt to steal a substantial quantity of valuable products from his employer. Mr Monji shows no insight into the seriousness of his behaviour or remorse for it in that he has continued to deny it and has told us a false story in an attempt to escape the consequences of what he has done. Since we announced our findings on fact, he has repeated to us that he did not do it and that our findings are against the evidence. We have to decide whether this was conduct that is incompatible with continued registration as a pharmacist, or whether it falls short of that. In the end it is our clear judgment that this is a case where conditions or a suspension cannot meet the gravity of the case. We believe that Mr Monji’s conduct is fundamentally incompatible with continued registration, and our determination is that only removal from the register can meet the seriousness of Mr Monji’s misconduct in order to maintain standards in the profession and confidence in the profession. Accordingly our order on sanction is that Mr Monji’s name shall be removed from the register.” (a) Dishonesty; (b) The abuse of trust here as this was misconduct by a senior employee; (c) Mr Monji’s actions were premeditated; (d) There has been a complete lack of insight into the importance of what Mr Monji did. He is prepared to accept before us that theft is serious misconduct, but he will not accept before us what in fact he did; (e) There was an attempt at concealment of his wrong doing, both by giving false evidence and attempting to discredit the Council’s witnesses at the hearing, and also in an attempt to involve Mr Maloo in getting the testers back into the shop, and he in fact did involve some unidentified woman, as we have found, who actually did return the testers to the shop; (f) This was misconduct by a man who was in charge of the pharmacy premises; and (g) Mr Monji’s conduct prior to, and in the course of, the hearing was designed in our judgement to complicate the proceedings and conceal what he had done. (a) Mr Monji has no previous disciplinary history; (b) We accept that this was a single incident in a previously unblemished career; (c) There was no actual or potential harm to patients or to the public as a result of what he did; (d) There was in the end no loss to his employers; (e) We repeat that we accept that Mr Monji is an excellent and caring pharmacist.

[111]In his skeleton argument the appellant submitted that the sanction was “disproportionate and unfair” having regard to the positive testimonial submitted to the FPC by the appellant and the evidence that he had worked in a position of trust with Lloyds Pharmacy for three years following his dismissal by Boots. The appellant also relied upon the financial impact upon his family if he was unable to work as a pharmacist. In his oral submissions, the appellant accepted that he had struggled with the FPC’s decision on the facts and also that he had questioned its findings. He acknowledged that there had to be a sanction and he acknowledged that stealing was wrong and he accepted that he had removed trays. He submitted, however, that the FPC had focused on his failure to accept their findings. He referred me to the decision of this Court in Amao v Nursing and Midwifery Council

[2014] EWHC 147 (Admin)

where a removal sanction was overturned where the disciplinary body had focused upon the individual’s disagreement with the factual findings.

[112]On behalf of the respondent, Mr Faux submitted that the FPC’s reasoning was “impeccable”. The FPC had considered the impact upon the appellant and his family. The FPC was entitled to view the appellant’s denial as an aggravating feature. Mr Faux submitted that the FPC had been reminded by the respondent’s Presenting Officer that not every dishonest professional had to be struck off. Mr Faux submitted that this was one of those sad cases where the privilege of being a professional had to be removed in order to maintain the public confidence in the profession. He submitted that the FPC’s decision could not be said to be wrong.

[113]I have no doubt that the FPC correctly adopted the scheme set out in the “Indicative Sanctions Guidance”. It set out “aggravating factors” followed by “mitigating factors”. It correctly noted that the appellant was a man of “previous good character”. Further, that this was not a case concerned with “public safety” but rather with the “maintenance of public confidence in the profession and the maintenance of standards within the profession”. The FPC was clearly aware of the impact that its decision to remove the appellant from the register would have on his ability to practise as a pharmacist and the implications that would have on him and his family. The FPC made specific reference to the appellant’s submission setting out that he supported his young sons and his elderly and disabled mother and that he, himself, was in poor health.

[114]The FPC was entitled to take into account the appellant’s attitude to the allegation made against him and his conduct during the FPC proceedings, including his continued denial of the facts. In Nicholas-Pillai v General Medical Council

[2009] EWHC 1048 (Admin)

, Mitting J said at [19]:

“In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanctions should be imposed upon him.”

[115]In my judgment that statement of principle is correct and is not gainsaid by Amao v Nursing and Midwifery Council. There, at [161], Walker J stated that: “Ms Amao was perfectly entitled to say that she did not accept the findings of the panel: She had a right of appeal which she was entitled to exercise”.

[116]That was, however, said in a case where the representative of the respondent Council had persistently put to Ms Amao in cross-examination whether she agreed with the panel’s findings on each of the factual allegations (see [160]). That cross-examination was clearly seen as, in effect, oppressive and unnecessary. The repeated denials were, unlike in this case, not volunteered by the individual before the disciplinary body. That is, in my judgment, a material difference. I see nothing wrong, in principle, in the FPC taking into account the appellant’s lack of “remorse” and “continued denial” of his dishonesty. That was, of course, a matter which arose in the context of the allegation by the appellant, put to the witnesses, that they were liars and had effectively conspired to give false evidence in order to target the appellant.

[117]I am in no doubt that the FPC cannot be faulted in its approach to the issue of sanction in accordance with the Indicative Sanctions Guidance and in taking into account all that was relevant (and only that which was relevant) to its decision on sanction.

[118]That said, despite the seriousness of the appellant’s wrongdoing, he was a man of previous good character and has subsequently been working for almost three years in a position of trust with Lloyds Pharmacy. The level of sanction for this one incident of dishonesty might strike some as a harsh consequence in order to maintain standards and confidence in the pharmacy profession. I cannot, however, interfere with a sanction which in principle was open to the FPC simply because some would not have imposed it. I can only interfere if I am satisfied that the sanction is “wrong” and in reaching that conclusion what is necessary to maintain standards and confidence in the profession requires due weight to be given to the judgment of the professional body, here the FPC of the General Pharmaceutical Council who are best placed to make professional judgments of that sort.

[119]I remind myself of what Mostyn J said in Luthra (at [5]):

“The sanction may have consequences for the individual and his family which are deeply unfortunate and unintended. But that does not make the sanction the wrong order if it is otherwise right: "The reputation of the professions is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." The reason that the reputation of the profession is so important is not a reflection of a collective amour propre. It is an aspect of the need to protect the public. The public must be able to approach doctors, lawyers and other professionals with complete faith that they are both honest and competent. Without that faith the problems that would arise are too obvious to state.”

[120]Bearing all those matters in mind, I have concluded that the FPC’s decision to remove the appellant from the Register of Pharmacists was one open to it and was not wrong.

[121]Although the appellant’s Grounds rely on

Art 8 of the ECHR

, the appellant only placed reliance upon it in his oral submissions to the extent that he argued that the consequences for him and his family were disproportionate. No submissions were directed explicitly to Art 8 from either representative. I have concluded that Art 8 cannot avail the appellant. I can deal with Art 8 relatively briefly.

[122]Assuming for the purposes of this appeal that Art 8.1 is engaged on the basis that the decision interferes with the appellant’s private life (ability to work as a pharmacist), it is difficult to see how it impacts on “family life”. However, in any event, even if there is an interference there is no doubt that the decision is justified under Art 8.2. It is in accordance with the law, namely the regulatory regime in place for pharmacists.. Further, the FPC’s decision was in furtherance of a legitimate aim, namely the “economic well being of the country” or “for the protection of the health or morals” even where the appellant posed no risk to the safety of patients but where the sanction was necessary to maintain public confidence in the pharmacy profession or to maintain standards of that profession.

[123]The crucial issue is whether the sanction is proportionate, i.e. strikes a fair balance between the legitimate aim and the rights of the appellant (see R(Razgar) v SSHD

[2004] UKHL 27

at [20] per Lord Bingham of Cornhill). In making that assessment, I take into account that the imposition of a sanction entails a professional judgment by the FPC’s conferred upon it by the legislative scheme as to the appropriate regulation of the pharmacy profession.

[124]Despite the impact upon the appellant (and his family) of the FPC’s decision, I am satisfied that the sanction is a proportionate one. I reach that conclusion essentially for the same reasons as the FPC gave for imposing the sanction. The gravity and seriousness of the offence and the appellant’s stance before the FPC justified the most serious sanction in order to maintain the public’s confidence in the profession and the standards of the profession and outweighed the impact upon him and his family. For those reasons, no breach of Art 8 has been established.

Decision

[125]For all these reasons, the appeal is dismissed.