Alghofari v GDC [2018] EWHC 2412 (Admin)

[2018] EWHC 2412 (Admin)Case No CO/1759/2018IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTCourtroom No. 15The Courthouse1 Oxford RowVenue LeedsLS1 3BG11.02am – 11.32amDate Wednesday, 25 th July 2018
Before
HER HONOUR JUDGE BELCHER
Between
AlghofariClaimantGDCDefendantB E T W E E N:ALGHOFARIandGDC
THE APPLICANT appeared In PersonMR JAMIESON appeared on behalf of the Respondent

JUDGMENT APPROVED

[1]This is an appeal by the Appellant, Mr Alghofari, from the findings and sanction of the fitness to practice panel of the General Dental Council’s Professional Conduct Committee which had a hearing between 3 and 5 April this year. For the purposes of this appeal what is challenged is only the sanction. The sanction in this case was that, by reason of the level of impairment of fitness to practice, Mr Alghofari should be erased from the register of dentists in this country. In this judgment I shall refer to the General Dental Council as “the GDC”, and the Professional Conduct Committee as “the PCC”.[2]The background is this. On 4 February 2016 Mr Alghofari was arrested by French police at Bordeaux Airport in the company of his father-in-law. Both men were in possession of Syrian passports. His father-in-law’s passport had within it a false visa endorsement, a visa which included the statement that there was a right of residence in the UK. Initially, Mr Alghofari denied to French police that he had anything to do with that false visa endorsement in his father-in-law’s passport and sought to blame his father-in-law for that. That is an account he maintained when questioned further by police on the same day, and by that time the police had interrogated his laptop and had found the relevant documents created on his laptop. He did not know the police had found that material, and he maintained and continued to maintain what were, on any view of the matter, lies about that. Once presented with the evidence on the laptop he accepted his responsibility for creating the false visa and putting it into his father-in-law’s passport.[3]As a result of that he was summoned to appear before the criminal court of Bordeaux on a charge of forgery of an administrative document, namely the UK visa endorsement. He pleaded guilty to that charge before that court in June 2016. As a result he was fined €500, half of which, as I understand it, was suspended for five years. He made an application to the French courts for the judgment to be registered in a particular category. French judgments are registered in three categories: one completely open to the public, one open only to the judiciary and certain public bodies, and the third available only to the judiciary. That third category is the registration that the Judge granted. Mr Alghofari’s case before the PCC was that he therefore believed the matter was purely administrative and not something which he needed to report to the GDC.[4]The conviction came to the notice of the GDC, not from Mr Alghofari, but through official channels and the GDC then contacted Mr Alghofari. There is no dispute that Mr Alghofari then cooperated with the GDC, providing copies of the conviction and relevant paperwork in relation to it. The charges for the purposes of the PCC are set out in the bundle at AB/2 and Mr Alghofari pleaded guilty to charges 1- 4, which I will read out in a moment, and 5.1, but disputed 5.2. Although he accepted charge 1, it is right to note that in dealing with sanctions, charge 1 was disregarded in its entirety. Nevertheless, for the sake of completeness, I include charge 1, which was that on or around 5 February 2016 he was summoned to appear before the criminal court in Bordeaux for the offence of forgery. Charge 2 was that on 7 June he was convicted at the criminal court of Bordeaux on that offence of forgery. Charge 3 was that he failed to inform the GDC immediately that he was the subject of criminal proceedings, that is by the issue of the summons. He accepted that. Charge 4 was that he failed to inform the GDC of his conviction, and he accepted that.[5]Charge 5 was that his actions in failing to inform the GDC about the criminal proceedings and/or the conviction were 1) misleading and 2) dishonest. Mr Alghofari accepted that his actions were misleading, but he challenged the charge of dishonesty. In those circumstances, the first part of the hearing, dealing with the facts, inevitably focused on whether the agreed facts or admitted facts nevertheless amounted to more than “misleading” and were “dishonest”. The findings of the PCC in this respect were that in relation to the failure to inform about the fact of criminal proceedings, that was not dishonest and they accepted Mr Alghofari’s explanation. Accordingly that part of it was dealt with as misleading only. In relation to the failure to inform of the conviction, however, they found that his conduct in that respect was dishonest. That finding is not challenged in these proceedings and nor realistically could it be, having read the evidence.[6]Having made those findings, the hearing then proceeded to the question of fitness to practice and sanction. As I have already said, the sanction which was imposed was erasure from the record. The effect of that is that Mr Alghofari is unable to practice in this country, and that after five years he would be able to apply to be re-registered. Mr Alghofari submits that may be the legal position, but the reality would be that he would be unable to apply after five years because he would have no evidence to be able to put before the GDC as to his fitness to practice, because in this five-year period he will not be able to practice.[7]He submits, therefore, that in effect it is a bar for life and that it has destroyed him financially. He is not able to earn and has serious impacts on him and on his family, all matters which I recognise. The Grounds as set out in the Appeal Notice and a skeleton which was filed at a time when he was represented are these. Ground 1: that the committee erred in finding that the Appellant’s failure to disclose the French criminal proceedings was serious, when it had also accepted his explanation that he did not know he had to disclose those criminal proceedings. The second Ground is that the committee erred in giving that factor significant weight so as to support erasure as an appropriate sanction, rather than suspension. The third Ground is that the committee erred by failing to give sufficient weight to the mitigating factors so as to consider that the appropriate sanction was a suspension rather than erasure. The fourth Ground is that the sanction imposed amounts to punishment of the appellant in circumstances where a period of suspension would have achieved the committee’s purpose.[8]Mr Alghofari has submitted a written personal statement to the court today and in that statement he makes a number of points, and he appears to challenge the way the hearing focused on dishonesty, rather than other matters. He seeks to assert that, notwithstanding he had been convicted in a French court, the PCC effectively retried that offence and that, he submits, is unfair and has also informed the decision that he should be erased rather than merely suspended. That is a misunderstanding of the proceedings and what happened. I have read the full transcripts which are in the bundle. Mr Jamieson who appears for the GDC today also appeared in front of the PCC. His cross-examination was designed to explore the issues of dishonesty generally with a view to inviting, as he ultimately did, the PCC to find that there was plainly dishonesty in withholding this information from them. Of course, as I have already said, they accepted that it was not dishonesty in relation to the fact of the proceedings, although they found there was dishonesty in relation to the failure to notify them of the conviction. That was based on a number of matters, but Mr Alghofari’s dishonestly generally was explored, including the fact of the dishonesty to police when arrested, dishonesty which was repeated by him until presented with the laptop evidence. Other issues were explored and, in particular, as to why Mr Alghofari asked the French courts to register his conviction in the way that he did on the basis that he must have realised that it potentially could have an impact. Those matters were explored and dealt with at the hearing.[9]Mr Alghofari submits that by focusing on the underlying offence, he has effectively been tried again, and that the PCC had not focused on the issue which he submitted was simply whether he was dishonest in failing to notify them of the conviction. He submitted that if he had notified the GDC of the conviction, given that the French authorities had already punished him and the French authorities thought that the €500 fine was adequate, then the sanction imposed in his case is out of all proportion. He put the rhetorical question “If I had notified the GDC of the conviction, would they have been able to erase me?” The simple answer to that is it would have been a matter for the PCC; that undoubtedly the GDC would have been able to erase him if they were satisfied that the misconduct (which in that situation is the offence itself) was such as to justify erasure. Indeed, it is self-evident that the reason professional bodies, whether it be the Medical Council, the Dental Council or indeed the professional body dealing with Judges, require professionally registered men and women to report offences for which they have been convicted is precisely because of the potential impact of the offence fitness to practice in whichever the profession is. Mr Alghofari’s suggestion that the PCC was not entitled to consider the dishonesty associated with the offence itself is one that is plainly wrong, and I reject it.[10]Turning then to the Grounds, the suggestion that the PCC erred in finding that the failure to disclose the criminal proceedings was serious, notwithstanding that it had accepted his explanation that he did not know he had to disclose those, is misconceived. What the committee accepted was his explanation that he did not know he had to disclose the fact of the proceedings, but they went on to find that he was dishonest in not disclosing the fact of the conviction. The distinction between those two matters, the fact that the first therefore amounted to a finding of misleading and the second was dishonesty, is a distinction which is clearly maintained and recognised in the transcripts which I have before me. There is no suggestion at all that in deciding on the sanction the PCC misled itself and failed to realise that it had not found dishonesty in relation to the earlier issue. It is quite clear the PCC have that firmly in mind and that the PCC was focusing on issues of dishonesty in relation to the failure to disclose the conviction, the dishonesty implicit in the offence itself which was undoubtedly a serious offence, an attempt to breach immigration control, and that the PCC, having heard from Mr Alghofari, was also focusing on what it perceived to be a lack of insight into the issues in this case.[11]Those written Grounds of challenge in some ways carry through to the oral submissions Mr Alghofari has made in front of me this morning. He submitted that the fact that he has already had a sanction of €500 in France, being sufficient and proportionate for the French authorities for what happened, means that the punishment in this case cannot be proportionate. I tried to explain to him at the outset there are two different jurisdictions involved here. How the French criminal court chooses to approach these matters is a matter for the French. The PCC in this country is entitled to apply its own Rules and to consider the matter on that basis.[12]The starting point in terms of the law is that set out in the General Medical Council (“GMC”) case of Meadow v The General Medical Council [2007] QB 462, a copy of which has been provided to me in the bundle. Before I deal with the quotation from it, Mr Alghofari has sought to submit that GMC cases could be totally different and should not be considered by the court. Of course, such cases are dealing with different facts but the principles of law involved are generally applicable to all professional conduct committees of this type. The important point appears at paragraph 197 in the judgment of Auld LJ and is this:
‘On an appeal from a determination by the GMC 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: 1) 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’
. Pausing there, and applying that her, the PCC of the GDC is a specialist tribunal whose understandings of what the dental professional expects of its members in matters of dental practice deserves respect. Returning to the quote from Auld LJ:
‘2) the tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides’
. Plainly the tribunal had the opportunity of seeing and hearing Mr Alghofari and they made certain findings and, in particular, found that, notwithstanding his written apology and protestations that he understood the seriousness of matters, they felt that his oral evidence was such that that was not the case and he had not shown full insight into these matters. Returning again to the quote from Auld LJ: ‘ 3) the questions of primary and secondary fact and the overall value judgement to be made by the tribunal, especially the last, are akin to jury questions as to which there may reasonably be different answers’.[13]The point of that is that if the decision that was reached was properly balanced and properly open to the tribunal in the facts and circumstances of the case, it is not for the court to interfere if the court might have reached a different decision. That is routine law in these areas. There is a further point which is relevant in this case and that is covered in the case of Rashid v General Medical Council [2007] 1 WLR 1460. In that case, similar observations were made to those made by Auld LJ and which I have just read, and this case further shows that the approach of previous authorities is such that the High Court should correct material errors of fact and errors of law and will exercise a judgement, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case. It is not an exercise in re-sentencing and not to substitute one view of the merits for another. Those points appear at paragraphs 21 and 22 in the judgment of Laws LJ and the quotation at paragraph 19 and 20 in that decision.[14]There is also a further section which Mr Jamieson has brought to my attention this morning in the light of the submissions made by Mr Alghofari. That is at paragraph 17 in the judgment in Rashid v General Medical Council where Laws LJ quotes from the decision in Bolton v The Law Society [1993] EWCA Civ 32. In that quotation Sir Thomas Bingham set out the general approach to be adopted and, in particular, pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. He observed:
‘It can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right’
. Sir Thomas Bingham concluded, ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits but that is part of the price’. Sir Thomas Bingham went on to say that the same approach will also be applied in considering the sanction of erasure imposed by the committee in that case. That plainly applies here also.[15]I have the guidance which the PCC members had in front of them. The guidance provides that in going through remedies the PCC must start with the least serious remedy and should only progress through the remedies if it decides that the remedy, at whichever level it is considering, is not adequate. It starts at the lowest remedy; if that is not adequate it works up until it reaches a remedy which it considers is appropriate. Mr Alghofari submits that it was wrong to go beyond suspension and into erasure. I have the guidance in front of me. At paragraph 7.28: ‘Suspension is appropriate for more serious cases and may be appropriate when all or some of the following factors are present. This list is not exhaustive. That there is evidence of repetition of the behaviour, that the registrant has not shown insight and/or poses significant risk of repeating behaviour, the patient’s interests would be insufficiently protected by a lesser sanction, public confidence in the profession would be insufficiently protected by a lesser sanction and there is no evidence of harmful deep seated personality and professional attitude problems’.[16]Plainly, the PCC in this case decided that public confidence in the profession would not be sufficiently protected by a lesser sanction and moved on to consider erasure. Erasure is set out at paragraph 7.30:
‘The ability to erase exists because certain behaviours are so damaging to a registrant’s fitness to practice and to public confidence in the dental profession that removal of their professional status is the only appropriate outcome. Erasure is the most severe sanction that can be applied by the PCC and should be used only where there is no other means of protecting the public and/or maintaining confidence in the profession’
. Then it goes on that, ‘Erasure is not intended to last for a particular or specified period of time but a registrant may apply for restoration only after the expiry of five years’.[17]In the PCC’s decision it is quite clear that the members went through the guidelines in relation to the matters of sanctions. They expressly stated that they must go through it step by step, and the committee clearly considered the mitigating and aggravating factors in this case. Mr Alghofari submits that those have not been taken into account. He submits in particular that they have not taken into account the fact that he made no money out of this offence, that no patients were harmed, and he feels that this is not a proper sanction. I am reading from the decision at page AB/391 of the bundle:
‘The committee considered the mitigating and aggravating factors in this case. It took account of your previous good character, the circumstances leading up to the events which resulted in your conviction, the evidence of your good conduct after your conviction had been disclosed to the GDC. The committee noted that there was no actual harm or risk of harm to patients, no financial gain and you apologised in your written reflection’
. Plainly, the PCC had firmly in mind that no money was made and that no patients had been harmed. They also took account of previous good character and good conduct after the conviction. ‘However, conversely the committee noted that your insight is limited and insufficient, the weight of your written apology was reduced by your oral evidence where you sought to pass the blame and go behind your conviction by accusing the French authorities of bias and of misleading you. A further aggravating feature is that your conduct was significant and pre-meditated and breached the trust the public place in dental professionals. The committee considered that to conclude this case with no further action would be inappropriate and would not justify the public interest. The committee considered the available sanctions in ascending order starting with the least restrictive. It determined a reprimand would not be appropriate because your behaviour was deliberate, not an isolated incident but one that was carefully planned and executed over a period of time. It did not meet the criterion and the guidance of the imposition of a reprimand’. The committee then considered whether conditions of practice order may be imposed but it concluded, perfectly properly, it was not, as this was not to do with the way Mr Alghofari was dealing with patients. Then the decision continues as follows: ‘The committee concluded that withdrawal of your registration is necessary for a period of time. In considering the duration of such withdrawal the committee considered whether suspension would be appropriate in this case. The committee was of the view that your conviction for an offence of forging a British visa to aid another illegal entry into the UK is very serious. The punishment for such an offence if convicted in the UK will often be a period of imprisonment. The committee considers this demonstrates the gravity of the offence for which you were convicted albeit your conviction was in France. In addition, although your written statement showed some insight on your part, your oral evidence did not support the written reflection before the committee. It concluded that you had placed personal concerns over what was expected of you as a registered dental profession. Further, the committee concluded that the nature of your conviction was such that any outcome short of erasure would not satisfy the public interest in declaring and upholding proper standards of conduct and in maintaining the reputation of the profession and the GDC as its regulator. The committee bore in mind your personal circumstances; however, it was not satisfied that these reduced the seriousness of your failings. The crime you committed is fundamentally incompatible with continuous registration. Your attempted cover up and failure to notify the GDC only reinforces that fundamental incompatibility’.[18]I have read that in full. It shows, in my judgment, that the PCC, in considering the remedy and sanction, plainly took into account all relevant factors and applied the proper test. In those circumstances the challenges to that are, in my judgment, bound to fail. I have to bear in mind that this was a specialist tribunal, that the tribunal had the benefit of hearing from Mr Alghofari which I have not, save for the purposes of submissions, and that the issues are essentially akin to jury questions on which there may reasonably be different answers. However, if it were a matter for me to re-decide, I would have had no hesitation in coming to exactly the same conclusion. This was a very serious offence. The fact that the French authorities dealt with it in a way very different to the way the authorities in this country would have dealt with it does not undermine the seriousness of the offence, or the attempt by Mr Alghofari to subvert UK immigration law and to bring an illegal entrant into the country.[19]It is self-evident, in my judgment, that the public would regard continuing registration, against the background of such fundamental dishonesty and in the context of such a serious offence, as something which would mean that the trust in the dental professional would be affected as would the trust in the ability of the General Dental Council to monitor the profession. I return to the paragraph on erasure. “The ability to erase exists because certain behaviours are so damaging to a registrant’s fitness to practice and to public confidence in the dental profession that removal of their professional status is the only appropriate outcome”. The PCC plainly recognised the seriousness of the sanction but concluded, for all the reasons set out in their decision, that public confidence in the dental profession would be damaged if Mr Alghofari was permitted to retain his registration having committed such a serious offence, and in the light of the further dishonesty in trying to hide that from the GDC itself. In my judgment this appeal was bound to fail, and I dismiss it. End of Judgment Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com This transcript has been approved by the judge.