Virdee v The General Pharmaceutical Council [2015] EWHC 169 (Admin)

[2015] EWHC 169 (Admin)Case No CO/17364/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 30 th January 2015
Before
MRS JUSTICE ANDREWS DBE
Between
RAAJ VIRDEEAppellantTHE GENERAL PHARMACEUTICAL COUNCILRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mohammed Abdul Hay (instructed under the Bar direct access scheme) for AppellantAndrew Faux (instructed by the General Pharmaceutical Council) for RespondentHearing Hearing date: 23 January 2015
Judgment
[1]This is an appeal brought under article 58 of the Pharmacy Order 2010 against a determination made on 12 December 2013 by a panel of the Respondent’s Fitness to Practice Committee (“the Panel”) in proceedings for professional misconduct brought against the Appellant, a registered pharmacist. All the charges brought against the Appellant related to the period between October 2009 and August 2010, when he was working as a locum at a pharmacy where he had frequently worked as a student prior to his qualification and registration as a pharmacist in July 2009.[2]The complainant, Ms A, was working at the pharmacy as a pharmacy student during the same period. The charges all related to complaints by Ms A of various incidents of sexual harassment and/or sexual assault at the pharmacy. Not all the charges were found proved. However the charges which the Panel did find proved against the Appellant were of a particularly serious nature; namely, that on four different occasions the Appellant had approached Ms A from behind and rubbed his penis against her or pushed it against her bottom, and that these approaches were sexually motivated. It is hardly surprising that having found those charges proved, the Panel determined that the only sufficient and proportionate sanction was removal.[3]This appeal has had an unfortunate history. The Appellant was legally represented before the Panel, as he was represented before me, by Counsel, Mr Hay. According to the determination, Mr Hay was then instructed by a solicitor named Fiona Samuda acting on behalf of a firm of solicitors named Samuel Louis. The proprietor of Samuel Louis is a Mr Samuel Ezeh, and according to him, Ms Samuda was acting as an agent for the firm, and had referred the case to it on a “pro bono” basis after the Appellant had run out of funds to instruct his previous solicitors. The Grounds of Appeal appended to the Appellants’ Notice issued by Ms Samuda on 9 December 2013 were marked as a draft “subject to approval” by a named Queen’s Counsel. However the draft was never approved by him, and he has never become involved. The Appellants’ Notice stated that a skeleton argument would be lodged in 14 days. It was not.[4]The Appellant made an application in person to the court on 7 April 2014 (received on 8 April) to vacate a hearing fixed for 8 April and for a two month stay of the proceedings to enable him to secure legal representation. The court office wrote him a letter on 15 April, advising him that if he no longer wished to instruct the solicitors who were still on the record, he would need to file the appropriate notice to inform the court that he wished to act in person or change his legal representatives. The Appellant’s application for a stay was fixed for 21 May. On that date the judge ordered a stay until 8 June 2014 and directed that the appeal be listed for hearing as soon as reasonably practicable thereafter.[5]The date fixed for the adjourned hearing of the appeal was Monday 21 October 2014. By that date, there was still no sign of any skeleton argument from the Appellant. Mr Faux had lodged a skeleton argument on behalf of the Respondent on 6 October, responding as best he could to the Grounds of Appeal. The matter came on before Thirlwall J. On the day of the hearing, Ms Samuda appeared before the court and sought an adjournment on the basis that Mr Hay, who had been instructed the previous week (it later transpired, as late as Friday 18 October) had been taken ill and was therefore unable to attend. This was supported by a medical certificate. Mr Faux opposed the adjournment on the basis that the matter was straightforward and there was no substance in any of the grounds. Nevertheless Thirlwall J granted the adjournment. She said that the appellant was entitled to pursue his appeal as of right, and that she had considered the points made by Mr Faux about the merits but “if he is correct about that, it may be that Mr Hay may be of some assistance to Mr Virdee.” It is true that in the vast majority of cases, a party to litigation will benefit from being represented by counsel. Sadly, this case turned out to be one of the rare exceptions.[6]Thirlwall J directed that a skeleton argument be prepared and lodged with the court no later than 4pm on 11 November. Mr Hay, who had not recovered from his severe chest infection, was unable to settle the skeleton argument by the deadline, as explained in an email sent by his clerk to the court office seeking a 7 day extension of time. However, a document entitled “skeleton argument – preliminary” was prepared and filed by the solicitors before the deadline. It has never been replaced or finalised despite an email from Ms Samuda to Ms Davies, the in-house solicitor for the Respondent with conduct of this matter, sent on 13 November 2014, confirming that “Counsel will be drafting and lodging a separate Skeleton Argument”.[7]Thirlwall J made an order directing that the appeal be listed on the first available date after 1 December 2014, with a time estimate of 1 day, and at the end of October it was fixed on that basis for 23 January 2015. Despite this, the skeleton argument filed by Ms Samuda raised for the first time the suggestion that this court should conduct a complete re-hearing of the case, which would take longer than 1 day (paragraphs 20-22). That suggestion seemingly betrayed a fundamental misunderstanding of how appeals of this nature are conducted. The skeleton argument neither refers to the normal practice nor sets out no discernible reason why there should be a departure from it.[8]On 24 November 2014 Ms Davies wrote to the Administrative Court Office (copying in the Appellant’s solicitors). Among other matters, she drew attention to the point raised in the skeleton argument about the duration of the hearing of the appeal. She pointed out that it had not been raised in advance of the hearing on 22 October or at the appointment to fix on 30 October, and that whilst there was as yet no formal application for a direction of the Court that the matter be heard entirely afresh, the Respondent wished it to be noted that this proposition was opposed and that if such an application were to be made, it would have to be determined by the Court following submissions by both sides. However, no application notice was then issued.[9]Matters were left in abeyance until 21 January 2015, when Ms Davies wrote a letter to the List Office (copied to the Appellant in person and to Samuel Louis) to say that the Respondent had received an email from Samuel Louis stating that they were no longer acting for the Appellant and that he will now be acting in person, but that Mr Hay would be instructed through public access to attend the hearing on 23 January to represent him. The letter referred to the fact that Samuel Louis had stated in their email that they had applied to the court for the case to be listed for a telephone directions appointment “either today or tomorrow” with a time estimate of 20 minutes, and that the appeal required a 5 day hearing. Ms Davies said the Respondent did not understand how Samuel Louis could propose that they deal with a directions hearing if they had come off the record. She also noted that no application for such directions had been formally applied for before they came off the record.[10]The application notice seeking an adjournment and re-listing of the appeal for a full rehearing over five days was not formally issued until 22 January 2015, although it bears the date of 18 January in typescript on the front page. It seeks a 20 minute telephone hearing. It bears a statement of truth signed “Samuel Louis Solicitors” identifying the person responsible for its issue as “Luke Ukonu for Fiona Samuda”. The signature and address details in paragraph 11 of the notice, (immediately below the box containing the Statement of Truth) bears the same signature, a handwritten date of 20 January, and the typed words “fee earner” next to “position or office held.” The part of the form requiring the issuer to set out “the address to which documents about this application should be sent” contains the postal address of Samuel Louis, marked “FAO Fiona Samuda”, and an email address and mobile telephone number for Ms Samuda. To anyone reading the notice, Samuel Louis were the Appellant’s solicitors, they had issued this application to adjourn on his instructions, and any communication regarding it had to be addressed to them, for the attention of Ms Samuda, rather than to the Appellant in person or to Counsel directly instructed.[11]That application notice was first seen by me at approximately 3.15pm on 22 January. There was plainly insufficient time at that late juncture for the Court to fix a telephone hearing even if that course had been appropriate, which it was not. The Administrative Court Office had tried in vain to contact Ms Samuda. The parties were both due to appear in court for the hearing of the appeal the following morning. I directed that Mr Ezeh should attend court and provide a full and proper explanation for how this state of affairs had come about.[12]Mr Ezeh attended, and provided a witness statement in which he tendered an apology for the “confusion and embarrassment” caused. Whilst there was no doubt about the genuineness of that apology, I was not satisfied with the explanation given, which was that the application notice “by mistake still had the details of Ms Samuda and this firm following a previous email from a senior fee earner Mr Luke Ukonu confirming that the firm would be coming off the record”. Given that Mr Ukonu appears to have signed the application notice, I do not understand how the “mistake” came to be made. Mr Ukonu’s behaviour requires some explanation, given that on Mr Ezeh’s account he (Mr Ukonu) knew about the application to come off the record (and may even have made it). There is no explanation of how the application notice came to be issued in the name of the firm – if a pre-prepared application notice had been given to the Appellant himself to issue, ostensibly in the name of solicitors who were no longer acting for him, that would be a very serious matter indeed. It would also be a very serious matter if a senior fee earner at a firm of solicitors had taken it upon himself to issue the application notice in those terms after he knew that his firm had come off the record, or even if he expected that it would be off the record by the time that application came to be heard.[13]Mr Ezeh stated that Ms Samuda had suffered from serious ill-health for some time, and was unable to continue acting as an agent for his firm due to those health issues. He suggested that Ms Samuda’s ill-health was the reason for the extreme delay in issuing the application notice. Yet Ms Samuda must have had some hand in the skeleton argument in which the point about needing more time to hear the appeal first emerged, and she knew that a formal application was necessary and that it would be contested. I am not prepared to accept without more that she has been so ill that she could not have organized the issue of the application notice well in advance of the hearing. In the event the application notice appears on its face to have been issued by Mr Ukono on her behalf, and no reason is given for why he could not have done that earlier. Mr Ezeh stated that his firm had come off the record because Ms Samuda was the only person able to deal with Mr Virdee’s matter, and without her the firm did not have the resources to continue representing him pro bono. That is an entirely reasonable explanation for why Samuel Louis came off the record. It is not an explanation of how an application notice came to be issued by somebody in their name on 22 January with a signed statement of truth identifying them and Ms Samuda as the Appellant’s solicitors.[14]Mr Ezeh said in his statement that Ms Samuda was in Birmingham for a medical consultation and investigation on 22 January, and that the application was filed as a “protective measure”. That, and the content of the application notice, which points to Mr Ukonu being the signatory on it, suggests that she may not have been responsible for its issue. I do not know whether she was even aware of it.[15]Mr Ezeh’s witness statement did not touch upon the merits (or, rather, the lack of them) of the application to adjourn. The procedure on a rehearing in this type of appeal is well known, and any solicitor purporting to practice in this area should be aware of it, see e.g. Gupta v General Medical Council [2002] 1 WLR 1691. On the face of it, the application to adjourn for a complete re-hearing appeared to be an abuse of process: not because the suggested course was a departure from the normal practice, but because there was no issue in the appeal which could possibly justify taking such an exceptional course. Although the Grounds of Appeal suffer from a number of deficiencies, they(a) recite a number of key findings of fact made by the Panel without seeking to disturb them, quite the contrary;(b) criticize the approach of the Panel and where appropriate seek to draw inferences from the transcript (though the spaces for the transcript references are left blank); and(c) nowhere raise any specific issue of fact that the Panel had not decided and which could only be determined by hearing evidence afresh. Even the Skeleton Argument raises no such issue. There may be cases in which it would be appropriate for the Court to hear evidence on an appeal of this kind, but this was manifestly not one of them.[16]I came to the conclusion that the behaviour of the three solicitors involved warranted a direction that they should each write to the court to show cause why they should not appear before the Divisional Court in accordance with the principles established in Hamid [2012] EWHC 3070 (Admin) and reiterated in Butt [2014] EWHC 264 (Admin), and I have so directed. Mr Ezeh’s explanation was incomplete and unsatisfactory. That matter will be dealt with hereafter by Mr Justice Green, who has the initial responsibility for considering all Hamid cases. On the evidence before me there was no suggestion that the idea of seeking an adjournment and a full re-hearing of the disciplinary hearing over five days emanated from Counsel. If there had been any such suggestion I would have made the same direction in respect of him.[17]Although Mr Hay persisted in making the application to adjourn, he did display an initial reluctance to do so after I had expressed my disapproval of the way in which the application had come before the Court. He only went ahead when I made it clear to him that although I had formed a provisional view about the merits I was willing to listen to anything he wished to say to try to persuade me that that view was wrong. Thus, in fairness to Counsel, I do not consider this was a case of wilful persistence in advancing an application that was manifestly wholly without merit. Nevertheless I waited in vain for Mr Hay to advance any sensible reason why fairness to his client demanded a full rehearing. The best he could come up with was that the judgment on credibility at the heart of the case was very finely balanced, the consequences for his client were very serious, and therefore it would be in the interests of justice to re-hear the evidence of the two main protagonists. As Mr Faux submitted, in a case where the only witness whose evidence was contentious was the complainant, it could not be a sensible or proportionate use of High Court time to spend 5 days on a re-hearing. The Court would not normally order a re-hearing of the evidence of the two chief protagonists in a case depending on the word of one against the other, and there was no special reason to do so in this case. For reasons which I gave in an ex tempore judgment delivered at the time, I refused the application to adjourn.[18]That set the scene for the substantive appeal, to which I now turn. The governing principles to be applied in appeals of this nature are well-established. The court can only overturn the decision if it is satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings (CPR 52.11(3)). In determining whether the decision was wrong, the court must pay close regard to the special expertise of the Panel to make the required judgment. As Auld LJ pointed out in General Medical Council v Meadow [2007] QB 462 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: 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; The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers”. (emphasis in the original).[19]This is not a case about clinical practice in which the specialist knowledge and expertise of the Panel came into play; but the remaining factors referred to by Auld LJ are relevant and important. The case was one in which the tribunal had the advantage of seeing and hearing the witnesses, and it turned on the assessment of their credibility. However, somewhat unusually, the Panel went to great pains to make it clear in the determination that it was unable to resolve the matter simply on the basis of the evidence of Ms A and Mr Virdee and the manner in which they gave it. It described the numerous difficulties it had in assessing Ms A’s credibility (page 10 D-G) but nevertheless concluded, for reasons which it gave, that she was an honest witness doing the best at all times to tell the truth as she believed it to be. However, as the Panel also recorded in the determination, the defence was not one of fabrication but of error; it was accepted by the Appellant that Ms A was an honest witness, but he contended that she was mistaken.[20]So far as the Appellant was concerned, whilst some criticism was made of the manner in which he gave his evidence, the Panel said it was unable to discern whether his failure to answer questions put to him and the contradictions in his evidence were the result of nerves and confusion, or of obfuscation to conceal the truth. It carefully examined the evidence of two occasions in which it was suggested that he had admitted his guilt expressly or by implication, and concluded that there was nothing there to assist the Panel either. Thus (at page 13H) the Panel said that it:
“was therefore unable to deduce from the demeanour of either Ms A or Mr Virdee whether the account of each witness was factually correct, and it was unable to identify any reliable independent evidence. It has been obliged to weigh and consider the probability of each of the allegations of inappropriate touching. In considering the allegations of fact individually, the Committee has not lost sight of the overall picture of allegations made about a number of incidents alleged to have occurred over a period of time from October 2009 to July 2010, nor the fact that Ms A was reporting her concerns contemporaneously to her friend Ms D.”
[21]When I read the determination in advance of the hearing, I was troubled by some aspects of the Panel’s approach to determining, on the balance of probabilities, whether the burden of proof had been discharged on each of the charges of inappropriate touching. In particular I had concerns about some of the reasoning in the bullet points set out on pages 14E-15D of the determination. In the light of this, I anticipated that the focus of Mr Hay’s submissions on behalf of the Appellant would be on the approach to the balancing exercise that was adopted by the Panel, and on the evidence in the Appellant’s favour, to which it was alleged the Panel either failed to accord any weight or which it allegedly failed to take into account. However, Mr Hay chose instead to concentrate from the outset on specious allegations of procedural unfairness. I shall deal with them as succinctly as possible.[22]On the first day of the hearing before the Panel, Counsel then instructed on behalf of the Respondent, Ms Bruce, made an application for special measures directions under Rule 44 of the Fitness to Practice Rules, namely, that Ms A should be allowed to give her evidence from behind a screen. The Panel was told that Ms A was “distraught” at the prospect of giving evidence and very nervous, and that she felt that she would be assisted by a vulnerable witness screen. The application was opposed by Mr Hay on the basis that these were not criminal proceedings and that “a defendant or respondent should have the right to be able to face their accuser so that the evidence can properly be tested in an open environment.” The Panel acceded to the application; the Chairman explained that the situation fell fairly and squarely within Rule 44(1)(e) where the allegation was of a sexual nature and the witness was the alleged victim, and it appeared to them to be a case where “plainly she should have the reassurance of screens.”[23]Subsequently, and despite those measures, Ms A indicated that she did not feel comfortable reading out parts of her witness statement in public. The Panel therefore considered whether to treat the statement as her evidence in chief. Ms Bruce advocated taking that course, and submitted that whilst it was difficult to see any prejudice arising from it, the Panel would have to hear what the registrant said and whether he required Ms A to give her evidence in person. The transcript records Mr Hay’s response:
“Sir, I do not in principle have any issue with the fact that if the witness feels uncomfortable reading what is obviously graphic matters then so be it, because inevitably I am going to test those matters in cross-examination and will have to establish an evidential foundation before I put points.”
[24]In the determination (page 10E-G) the Panel adverted to the difficulties it encountered in judging Ms A’s credibility. It recorded that when she gave evidence, it was obvious that she was unable to speak directly about the things the Appellant was alleged to have done. She became distressed whenever she was asked any sexually explicit questions. (The transcript bears this out.) The Panel said:
“…it was unlikely that she would have been able to give evidence in chief in any other way. Ms Bruce did not press her to give any additional evidence which might have helped to give context to her written evidence. Mr Hay did not question her about the important and sensitive parts of her complaint, but explored peripheral issues. The Committee itself felt obliged to ask no questions of Ms A, because of her apparent distress, and the lateness of the hour.”
[25]The draft Grounds of Appeal, which bear Mr Hay’s name, and which I therefore presume he settled, allege that:
“The Panel at 10E failed to discharge [the] burden of proof, by failing to even test her evidence in chief on a serious allegation of sexual assault when she was behind a screen already with an overly sympathetic and erroneous approach that caused unfairness to the trial by a failure to make Ms A as they did with the appellant an unsophisticated witness read their own statement…. They did not offer the same approach with the appellant and sought to draw inferences about his demeanour from examination in chief and cross-examination.” [Emphasis added].
This last criticism is manifestly ill-founded for, as I have already stated, the Panel made it abundantly clear in the determination that it was not drawing any inferences, adverse or otherwise, from Mr Virdee’s demeanour whilst giving evidence.[26]No express complaint is made in the Grounds about the fact that Ms A gave evidence from behind a screen. The nearest one gets is paragraph 26 where it was alleged that “there was no medical evidence to find exceptional vulnerability as victim, the panel took an overly sympathetic approach to Ms A leading to error and an unfair trial, tainting the entire approach to the evidence and the case.” (Emphasis in original).[27]Paragraphs 16 and 17 of the “preliminary” skeleton argument , which Mr Hay sought to treat as an expansion of the Grounds of Appeal, are worth quoting in full:
“16. The Panel erred in law and failed to ensure a fair hearing in English law and according to art.6 Human Rights Act 1998, by exempting the alleged victim from reading out her evidence when the appellant was required to do so. The Panel was duty bound to be even handed and her demeanour could have been examined and heard in the same way. This suggests that the panel had demonstrated bias by undue levels of sympathy towards Ms A compared to the Appellant. It was critical that the Panel were even handed and seen to be even handed with the Appellant as much as with Ms A. 17. Similarly, screens were erected for Ms A, when the Appellant was duty bound to have the fair chance of facing down his accuser, when his career and livelihood were at stake.”
[28]Of course, on the evidence before me Counsel did not have a hand in drafting that document. I was frankly astounded, and said so at the hearing, that submissions of this nature should have been made by any responsible qualified legal representative in the first place. However what concerned me even more was that they were adopted and pursued by Counsel. That should not have happened, even if the client was insistent on his doing so in the teeth of robust advice. Counsel has a duty to exercise independent judgment as to whether a matter is properly arguable. This is 2015, and thankfully we have moved on from the days when witnesses complaining of sexual assault (in the workplace or anywhere else) were forced to re-live the experience in full sight of the alleged perpetrator. One does not need medical evidence to conclude that such a person is vulnerable.[29]Vulnerable witnesses can appear in any court or tribunal. Special measures are not confined to criminal cases (hence, the Fitness to Practice Rules expressly cater for them). These measures are available to serve an important purpose: to ensure that the court or tribunal receives the best evidence available in all the circumstances. Far from creating an imbalance in favour of the complainant, special measures, when granted in an appropriate case, will ensure that there is equality of arms.[30]There is no basis and can be no basis for suggesting that Article 6 was infringed by this well-established procedure or that this was an inappropriate case for special measures. The tribunal was best placed to decide on the appropriate course to take, and the appellate court must defer to its decision. The Panel was able to see and hear the witness and judge whether her distress was genuine. So too were both Counsel. There was no unfairness to the Appellant caused by the fact that Ms A gave her evidence from behind a screen. On the contrary, it is more likely that the procedure would have been regarded as unfair if she had not done so. I wish to make it clear, in the strongest possible terms, that in a case of this nature such arguments will not be entertained or given credence by this Court, especially if the registrant is legally represented before the Panel, as this Appellant was.[31]Mr Hay submitted that the Panel had no evidence before it that the quality of Ms A’s evidence was likely to be impaired if she did not give evidence from behind a screen. However, that was not an objection that he raised at the time. Nor was it well-founded; the Panel had been told that she was distraught and nervous at the prospect of giving evidence, and it could draw its own inferences as to what the consequences were likely to be if it did not accede to the application. The Panel did the right thing – although despite its best endeavours, the witness still became distressed.[32]As to the suggestion that there was procedural unfairness because the Panel dispensed with making Ms A read out her witness statement, the point was unarguable – not least because the very same Counsel who was making that point on appeal had actually agreed to that course being taken at the hearing. Again, the Panel made an evaluation that it was the only way in which it was going to obtain her evidence of what allegedly occurred; it was far better placed than this Court to make that judgment call. There was no suggestion that the Appellant suffered from any vulnerability, or was unable to read out his statement as is the normal practice before the Fitness to Practice Committee. The fact that he was able to give oral evidence in chief might even be regarded as an advantage; the Panel plainly felt that it was disadvantaged in judging the complainant’s credibility by the fact she did not do so.[33]It is not for the Panel to “test” a witness’s examination in chief. That role falls to the cross-examiner. The fact that Ms A’s evidence was received in that manner did not inhibit her cross-examination, although (just as on this appeal) it took Counsel an inordinate time to get anywhere near the point. Indeed, late in the afternoon on day 1, at around 4.50pm, the Chairman asked Mr Hay whether he needed more time to prepare his questions, and imposed a time limit of one further hour to complete asking them (which, in the event, had to be extended). It was only after this interjection that any questions were asked specifically about the alleged assaults, and they were largely directed to the absence of any contemporaneous complaint to anyone other than Ms D (a point that had been repeatedly explored already), and how long the incidents lasted. It cannot be said that there was any procedural unfairness to the Appellant, who had ample opportunity to test the evidence of the complainant, and longer than he probably would have done if she had read her witness statement out. If his Counsel failed to take full advantage of that opportunity it is not something for which the Panel can be criticised.[34]One only needs to read this scrupulously careful determination to see that there is no substance whatever in the allegations of bias (whether actual or apparent). On the contrary, the Panel strove valiantly to ensure that it decided matters in a manner that was fair to the Appellant. Mr Faux relied by way of example on the approach taken by the Panel to the evidence of email correspondence between Ms A and her best friend, Ms D, in November 2009, and to Ms D’s witness statement (she was in hospital at the time of the hearing and thus was unable to be cross-examined). The evidence of Ms D was to the effect that Ms A confided in her after each of the alleged incidents of inappropriate touching. The Respondent sought to rely upon this evidence as independent corroboration of Ms A’s account. The Panel expressly rejected that suggested approach. It decided that as a matter of law the evidence of Ms D could only be used to show consistency and rebut fabrication. It could not be used as evidence that what Ms A had said was true. As I have said, fabrication was no part of the defence case. Mr Faux submitted, and I agree (without expressing any view about whether the evidence might have been admissible as evidence of the truth of the allegations) that this approach was favourable to the Appellant.[35]In my judgment, these allegations of procedural unfairness and bias should never have been made in the first place, let alone pursued. There was no serious procedural or other irregularity which casts any doubt on the fairness of the hearing. The Panel did not display “undue sympathy” to Ms A, and such sympathy as it did show to her had no impact upon the outcome.[36]I finally come, therefore, to the substantive issues at the heart of this appeal and the question whether the Appellant is able to establish that the decision was wrong. Although there is no “heightened standard” of proof in proceedings of this nature, the inherent probability or improbability of an event is itself a matter to be taken into account in weighing the probabilities and deciding whether on balance the event occurred: see the speech of Lord Nicholls in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586-7, cited with approval in Re B (A Child) [2008] UKHL 35. The more improbable it is that the registrant would have behaved in the manner alleged, the more cogent and credible the evidence needed to satisfy the burden of proving on the balance of probabilities that he did.[37]In its determination, the Panel took as its starting point the fact that the allegations were of such a serious nature as to be inherently improbable. It said that it had subjected the evidence “to the closest scrutiny” and it is clear to me, not least from its examination and dismissal of the other charges, that this was true. It stated (at 13H) that “it was inherently improbable that Mr Virdee, a young professional man of previous good character, would sexually assault a young woman in the workplace.” On the other hand, it said that “it was inherently improbable that Ms A, a young professional person of previous good character, would imagine that she had been the victim of a sexual assault in the workplace if it had not in fact occurred.” Thus far the Panel’s approach was impeccable.[38]The Panel then went on to consider, at 14B-D, the submission that Ms A’s delay in complaining about the incidents made it less probable that the events occurred, and rejected it for the reasons which they gave. Essentially it accepted her explanations. It was entitled to do so. It is well known that the victims of sexual assault do not react in a stereotypical manner. In criminal cases, express warnings are given to the jury about making assumptions from the complainant’s behaviour, including any delay in complaining and their demeanour whilst giving evidence: see e.g. R v Millar [2010] EWCA Crim 1578 at [23]. Mr Hay tried to revive the argument about the absence of complaints made by Ms A to anyone other than her friend Ms D; but this is an appeal. Nothing he said persuaded me that the Panel erred in its acceptance of Ms A’s explanations, which were not inherently incredible, and given by a witness they found to be honest. Their findings in that regard cannot be disturbed.[39]It was also contended by Mr Hay that the Panel failed to give sufficient weight to the Appellant’s good character, and especially to his good character in respect of his other (predominantly female) work colleagues. However the Panel made specific reference to his good character, including positive evidence that was adduced about him, at the onset of its determination (pages 3G-4A) and directed itself appropriately. Mr Hay submitted that having found that Mr Virdee was not dishonest (in respect of an unproved charge) he was given no credit for that; but I cannot see what further credit could or should have been given to him over and above the “good character” direction the Panel gave itself. A man of good character is self-evidently honest and, as the Panel directed itself at 4A, his good character lends support to his credibility as well as making it less likely that he would commit the offences in question.[40]It was also submitted that the Panel erred in its approach to evidence given by Ms A about witnessing what she later believed to have been a similar assault by the Appellant upon a Ms E. That incident occurred some time before the first of the alleged assaults took place on Ms A herself. Ms E had told an investigating inspector that she could not recollect any such incident. The Panel decided there was insufficient evidence before it to decide whether something inappropriate had occurred with Ms E. It correctly characterised the only significance of the incident as “allegedly demonstrating Ms A’s ability to put a retrospective sinister interpretation on something she did not regard as sinister when she first observed it”. At page 8D-F the Panel specifically took this matter into account in the context of considering whether Ms A might have misinterpreted an innocent action or actions by Mr Virdee towards her. That was the right context in which to consider it.[41]I regard it as being of considerable importance that the Panel found in that passage that it was common ground amongst the witnesses who spoke about the pharmacy that there would be no need in the course of ordinary work for Mr Virdee to stand close behind Ms A or to brush against her. Although space behind the till was limited, if someone wanted to get past a person who was serving at the till it was the practice not to push past them, but to wait for them to finish a transaction before going past. The Panel found that on the evidence it could not conceive of any innocent actions by Mr Virdee at the pharmacy which might have been misinterpreted as the behaviour alleged in the relevant charges. Thus the Panel rejected the possibility of Ms A retrospectively putting a sinister interpretation on innocent behaviour, such as an impatient Mr Virdee squeezing past her to get access to the shelves, for the reasons that it gave. On the facts that it found, it was entitled to do so. That being so, if the assaults did not happen, the only possible explanation left was that Ms A had convinced herself that she had been assaulted by the Appellant when she had not – something that the Panel found, and was entitled to find, inherently improbable. The answer to the question whether Ms A had mischaracterised what she saw happen between the Appellant and Ms E was not going to assist the Panel in determining whether she probably imagined what happened to her.[42]The Panel rejected the possibility that Ms A was delusional; Mr Hay complained that this was no part of his client’s case and that the Panel went off on a frolic of its own. However, the Panel was entitled to examine alternative explanations for why an honest witness might have been mistaken about matters of this nature, to the extent that it was able to do so. It was said that this examination was “otiose” – but even if that is right, it did not affect the outcome or make it wrong. The Panel may have been prompted to explore that particular avenue so by Mr Hay’s submission that in the light of Ms A’s shyness, timidity and inexperience in all worldly matters “it is possible that she might have deluded herself about Mr Virdee’s intentions towards her”.[43]The Panel specifically said that it had avoided introducing its own notions or setting itself up as an expert or experts in psychology, but that it was obliged to decide whether it was more or less probable that Mr Virdee might have acted as he is alleged to have acted. As Mr Faux submitted, the Panel was simply considering a number of explanations for an honest but mistaken account, in order to ensure that the fullest consideration was given to any possible explanations that would assist the Appellant.[44]Three of the four incidents were alleged to have taken place just behind the till on the right hand side of the counter, in the pharmacy itself; the March 2010 incident is the only one alleged to have occurred in a private consulting room. There is a CCTV camera in the ceiling, which would have captured images of what was going on behind the counter and the till, and customers were said to have been present at the time. Moreover, on at least one occasion there were up to two other pharmacists working in the shop in the area behind the counter. Thus if Mr Virdee chose to assault Ms A in such circumstances, rather than waiting until the two of them were alone, even if he had been fairly confident that she would not protest about it, he would still have been taking the risk of being observed by someone else, or of being captured on CCTV. Those points are not specifically referred to in the determination.[45]There were five specific factors listed by the Panel at pages 14E-15D as matters that it examined in order to determine whether the allegation of the first assault was indicative of a genuine, factually true incident, or one which might have been imagined by Ms A. However it is clear from the determination that these were not the only factors it considered (“significant factors specifically considered in respect of paragraph 1 include the following…”)[46]First, the Panel said this:
“Ms A’s account of an incident occurring in the presence of customers or other members of staff would be improbable if Ms A was the type of person who would be more likely to voice her objection, but is more probable in the case of a timid, shy person who would feel unable to complain in public. It is improbable that Ms A would imagine an assault occurring in the presence of other people.”
The first part of the first sentence makes the fair point that if Ms A were a more robust character, it would have been improbable that Mr Virdee would have assaulted her in front of customers and other members of staff without her making an immediate complaint (and inherently improbable that he would have taken the risk of doing so). Whilst her timidity and shyness may be a reason for discounting the absence of immediate complaint as a reason for rejecting her account, and no criticism could attach to that, the way in which the Panel has expressed itself could be interpreted as going further. It is possible to read that passage as if the Panel has treated the inherent improbability of the assault occurring in a public place as a factor pointing towards the conclusion that it is more probable than not that it actually occurred.[47]The same concerns arise in respect of the last sentence. It may be improbable that someone would deliberately make up a story about being indecently assaulted in front of prospective witnesses, when it would be so much easier to weave a fiction about being assaulted in private. However, that was not the defence case. If Ms A imagined the assault happening, I cannot see how logically any inference can be drawn as to the likelihood or otherwise of her imagining it, merely from the location in which it is said to have occurred. Again, at least on one reading, the Panel appears to be saying that because Ms A’s version of this incident is so improbable, it is more likely than not to be real, rather than imagined. There is a logical fallacy in that. On the other hand, the Panel could simply have been reiterating the point it made at 13H-14A, to counterbalance the inherent improbability of the Appellant assaulting Ms A in the workplace, namely, that it is inherently improbable that Ms A would imagine that she had been the victim of a sexual assault in the workplace if it had not in fact occurred.[48]The next point made by the Panel is that circumstantial details supplied by Ms A were indicative of a genuine recollection. That is a fair point; but the Panel then goes on to say that “it is improbable that Ms A would accuse Mr Virdee of looking at her inappropriately in this way on one occasion only if she was fantasising: she would be more likely to allege repeated similar conduct”. Again, that could be blurring the distinction between fabrication and imagination. Moreover, although Ms A made only one allegation specifically about Mr Virdee looking at her bottom in what she described as “a disgusting manner”, she did make allegations of his looking at her inappropriately on other occasions. In its laudable effort to look at the evidence in respect of each charge separately, the Panel appears to have lost sight of that.[49]The third point made by the Panel is that the Respondent’s investigations revealed no complaints or suspicions of similar behaviour by Mr Virdee at any other pharmacy where he had worked. That point was obviously a point in his favour, but as the Panel said, “on the other hand, Ms A was exceptionally vulnerable as a potential victim”. It was entitled to make that finding, having seen and heard her. Sexual predators may choose their targets and pick on those who seem to be most unlikely to complain. The next factor it relied on was that Ms A blames herself, which it rightly said is consistent with the behaviour of a victim of a genuine assault. No criticism can be made of that.[50]The final point is that “Ms A has no discernible motivation to delude herself”. I do not understand what the Panel meant by that. If one is deluded, then motivation does not, or does not necessarily, come into play. However that could just be an infelicity of expression: had the determination simply said: “we have been unable to find any reason why she would have imagined something like this happening to her”, there would have been no cause for complaint.[51]I remind myself that the question that the Court has to determine in this appeal is whether the Panel’s finding that the burden of proof had been discharged was wrong, not whether it could have been better expressed. Thus any flaws in the Panel’s approach or reasoning must fatally undermine the conclusion that it reached as to the discharge of the burden of proof, which essentially amounted to a finding that on the balance of probabilities, as a matter of fact, the four assaults did happen. Mr Faux’s submissions about that were admirably concise. In essence, he contended that reaching decisions on the balance of probabilities, based on the evidence before them, is both the function and responsibility of the Panel, and that in this case they carried out their task properly. Although there might be some areas of perceived deficiency in the Panel’s reasoning, overall the reasons were adequate to tell Mr Virdee why it had found the charges against him proved.[52]Looked at in the round, he submitted, the Panel’s conclusion was that it believed Ms A and disbelieved Mr Virdee. It reached that conclusion having reminded itself that it was inherently improbable that Mr Virdee, a young professional man of previous good character, would sexually assault a young woman in the workplace, having subjected the evidence to the closest scrutiny, and having sought to reconcile the competing accounts where possible to Mr Virdee’s advantage.[53]Having reflected on this matter and re-read the determination, I agree with Mr Faux’s submissions. I do so bearing in mind that, although the Grounds of Appeal raise a general complaint about the Panel’s approach to the issue of credibility, and the discharge of the burden of proof, neither they nor the Skeleton Argument refer to that particular passage in the determination, let alone raise any specific criticism of the reasoning deployed in it.[54]Although many other (misconceived) complaints were made of alleged failures by the Panel to take into account matters in the Appellant’s favour, it is no part of the Appellant’s case that the Panel misdirected itself by unfairly or erroneously taking something into account as a positive reason why he is more likely than not to have committed the assault. The specific concerns about the Panel’s reasoning to which I have referred in paragraphs 46-50 above were matters that were raised by me, and on which I invited submissions from both Counsel. Mr Hay contended that a finding of exceptional sensitivity on the part of the complainant was no basis for a finding that the assaults were likely to have happened. However, in my judgment it would be a legitimate basis for concluding that it was plausible to view her as a likely target for such abuse, that she had found it exceptionally difficult to pluck up the courage to complain, and that as she did eventually pluck up the courage to say something it is more likely than not that there was something to complain about. However, even if less weight should have been afforded to her vulnerability, timidity and lack of worldly experience there was still ample material to support the Panel’s overall conclusion that Ms A was not imagining that she had been subjected to these four separate indecent assaults of a similar nature over a period of several months.[55]As to the CCTV, although no image was captured of any of these alleged incidents, Mr Faux rightly pointed out that if it had shown the Appellant standing behind the complainant it was unlikely to show anything for which he would have been unable to afford an innocent explanation had he been challenged. The Panel rightly treated this as a case of his word against hers, with no reliable independent evidence to support either party’s inherently improbable version of events. In my judgment, the failure by the Panel to specifically mention the CCTV or the risk that the Appellant was running by assaulting the complainant apparently in its direct line of vision takes matters no further. The Panel did accept the inherent improbability that he would commit such offences in a public area. The reasons for it being improbable are essentially the same – he risked being caught out.[56]However sympathetic the Court may be to a young man who is facing the ruin of his professional career so soon after it began, it must guard against the danger of descending into the arena and attempting to compensate for perceived deficiencies in the presentation of the case by his legal representatives (just as, conversely, it must guard against the danger of allowing those shortcomings to adversely colour the view to be taken of the merits of his appeal). Although I was very much alive to this danger, I considered that the Grounds of Appeal were sufficiently widely couched to enable me to raise the concerns that I did and invite submission on them without trespassing on Counsel’s functions. At one juncture I was inclining towards the view that the Panel’s conclusion that the burden of proof had been discharged may have been tainted by what were least arguable flaws in its reasoning and that in a case which was so finely balanced, this might have made all the difference to their resolution of the matter in favour of Ms A’s account. However, on reflection, having taken into account both Counsel’s submissions, and considered the determination in the round, I am satisfied that is not the case. Bearing in mind Auld LJ’s guidance in Meadows, especially the third of the factors he adumbrated, I conclude that the Panel was entitled to reach the conclusion that the evidence of Ms A was an account of incidents that happened in reality, and not just in her imagination; it did not err in law in deciding that essentially factual issue against the Appellant, and this Court cannot say that it was wrong.[57]There was also an appeal against sentence which criticised the adequacy of the Panel’s reasoning for concluding that suspension would not have been an appropriate sanction. In his skeleton argument Mr Faux submitted that the key question for the Panel had been rightly identified by Mr Hay at the hearing as whether Mr Virdee’s conduct was fundamentally incompatible with his registration as a pharmacist. Though its reasoning was brief, the Panel’s decision was in line with the Indicative Sanctions Guidance, in particular paragraph 14 which deals with sexual misconduct. Mr Faux submitted that particularly when understood in the context of the guidance, the experience of the Panel, and the submissions made on Mr Virdee’s behalf, “the determination on sanction is a model of elegant sufficiency rather than an exemplar of poor practice”. I agree.[58]For all the above reasons, this appeal is dismissed.