“Where, at hearing of a Tribunal, a legal assessor has not been appointed under paragraph 7(1B) of Schedule 4 to the Act, and the Chair as a legally qualified person advises the Tribunal on any question of law as to evidence or procedure, the Chair shall— (a) so advise in the presence of every party, or person representing a party, in attendance at the hearing; or (b) if the advice is tendered after the Tribunal has begun to deliberate on any decision during the course of the proceedings, include the advice so given in the Tribunal decision, unless the Chair considers it necessary to advise in the presence of every party, or person representing a party, in attendance at the hearing”
"(1) The following decisions are appealable decisions for the purposes of this section, that is to say – (a) a decision of a Medical Practitioners Tribunal under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration; ... (7) On an appeal under this section from a Medical Practitioners Tribunal, the court may— (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Medical Practitioners Tribunal; or (d) remit the case to the Tribunals for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit."
“Ms Fordham (counsel for the GMC): My learned friend and I have had the opportunity to discuss the use to which the tribunal can put the suggested false allegations that Ms A made against her grandfather. The Chair: Yes. Ms Fordham: Of course, the GMC’s position is that it is not a false allegation, simply it was not challenged. The defence position is that it was a false allegation. The question is: to what use can the tribunal put that part of the evidence ? Unfortunately, we don’t have the directions from the judge in the criminal court, from his summingup. However, it is agreed between my learned friend and I that in order for that part of the evidence to have any relevance to the tribunal’s consideration, the tribunal would first have to find on at least the balance of probabilities that that was a false allegation, an untrue allegation. If the tribunal do not find that it was false or untrue, that it then has no relevance.”
“35. The Tribunal received evidence that Ms A had made allegations of sexual abuse against a close family member which was said to have begun when she was aged 11/12 and which were still on-going when at age 14 she reported the abuse to her dad by way of letter which the tribunal has seen, and the matter was then reported to the police. Ms A was interviewed by the police and no further action was taken against the family member who had denied the allegations. Ms A denied making up the abuse allegations or that she was a fantasist as suggested by Mr Janner. Ms A also categorically denied fabricating the allegations against the appellant. 36. The Tribunal accepts that the allegations were made and that after initial investigation no further official action was taken. However, it did not consider that those bare facts assisted in determining the truth of the current allegations.”
“The Tribunal could find no basis for concluding that Ms A was lying about events. As previously outlined the evidence of the historic allegations do not assist in establishing a tendency on her part to make allegations. The Tribunal has found no evidence to support the contention that Ms A is a fantasist. Furthermore, the Tribunal has accepted the evidence of Ms A that she was unaware about the possibility for a financial aware from the Criminal Injuries Compensation Board when she first made the allegations.”
“We know that the complainant [Ms A] has made an allegation some years before against her maternal grandfather. We know from the agreed facts what she said, what others said and that no prosecution arose out of those allegations. The defence say that’s important because is demonstrates she is prone to making false complaints and that impacts on her reliability. The first issue you must consider is whether the evidence shows that there is a real possibility that this was a deliberate false attempt made by the complainant against her grandfather. If you are sure it was not a deliberate false complaint, the evidence doesn’t help you at all. If you conclude there is a real possibility that it was a deliberate false complaint made against the grandfather, you can consi (sic) – you should consider whether that shows that the complainant has a tendency – or propensity – to make such false allegations. If you conclude that she might have such a tendency – or propensity – that is something which you would be entitled to consider when assessing her reliability and credibility. However, it is only part of the evidence. The fact that someone may have made a false complaint in the past does not, and cannot, mean that every complaint they may – might make in the future must be false.”
‘As stated in finding paragraphs 3 and 4 proved, the tribunal preferred the evidence of Ms A and believed her account that the appellant did conduct a second examination in the manner described.’
“[34] Disciplinary tribunals are part of the regulatory scheme which governs the relationship between professional associations and individuals who practise that profession and, as a condition of doing so, sign up to that scheme. In form they may have “charges” in the form of alleged breaches of the regulatory scheme under which the individual operates, which are “prosecuted” by the relevant regulatory authority; and, of course, disciplinary tribunals have the power to impose sanctions for breaches which may have very severe consequences for the individual involved. However, as the courts have repeatedly emphasised, disciplinary proceedings are civil and not criminal proceedings (see, e.g., Wickramsinghe v United Kingdom (ECHR Commission Case No 31503/96) [1998] EHRLR 338; R v The Securities and Futures Authority ex parte Fleurose[2001] EWHC 292 (Admin) and[2001] EWCA Civ 2015 ; R (Coke-Wallis) v Institute of Chartered Accountants of England and Wales[2011] UKSC 1 ;[2011] 2 WLR 103 at [23] per Lord Clarke of Stone-cum-Ebony JSC giving the majority judgment of the court; and R (Panjawani) v Royal Pharmaceutical Society of Great Britain[2002] EWHC 1127 (Admin) at [54] per Sedley LJ). .... [38] However, in my view, these authorities do not assist Ms O’Rourke’s [counsel for the registrant] cause. Each makes clear, beyond any doubt, that, whilst disciplinary proceedings involve the determination of a practitioner’s civil rights and obligations where the practitioner’s right to practise is affected, they are not criminal proceedings (see the resumé in The Regulation of Healthcare Professionals: Law, Principle and Process: D Gomez: 2nd Edition (2012), at paragraph 19-016, to which we were helpfully referred). It is true that, because they concern important rights and may result in severe consequences for an individual, disciplinary proceedings often demand strong procedural safeguards including some safeguards regarded as essential in criminal proceedings. But that does not mean that disciplinary proceedings are criminal, or even a criminal/civil hybrid as Ms O’Rourke submitted. They are civil proceedings in respect of which procedural fairness sometimes requires particular steps to be taken, including some of those specifically identified in article 6(2) and (3) as vital in criminal proceedings such as the requirement to be properly informed of the nature of the disciplinary charges against him. As the ECtHR put it in Albert and Le Compte (also at [30]), in the context of disciplinary proceedings: ‘… the principles enshrined in articles 6(2) and (3) are, for the present purposes, already contained in the notion of a fair trial as embodied in article 6(1))’. Those safeguards are demanded by the common law, as well asarticle 6(1) of the ECHR (see, eg R (Panjawani) v Royal Pharmaceutical Society of Great Britain[2002] EWHC 1127 (Admin) at [54] per Sedley LJ; and R (Banerjee) v General Medical Council[2015] EWHC 2263 (Admin) at 131] per Walker J). In practice, the scope of common law and article 6 in this area is more or less co-extensive”
“When criticism is made of the legal adviser’s account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result, to invalidate the decision.”
“As such, he is bound to-and can be relied upon to-exercise his judgment to ensure that the hearing, as a whole, is fair and in accordance with article 6. If he fails to ensure that fairness, then the resulting decision may be open to challenge, for example by way of appeal or judicial review.”
“So unfettered by any criminal analogy, was there anything wrong with the legal assessor’s direction in this case. Was it unfair ? Does it cast doubt on the Panel’s decision ?”
“It is my submission, given that evidence, that you are dealing with a track record for making a fantasy allegation of a sexual nature against an older man in a position of authority.”
“R v O’Dowd[2009] 2 Cr App R 16 nevertheless illustrates an important consideration which must be borne in mind by trial judges when determining applications to adduce evidence of propensity under articles 6(1)(d) and 8(1)(a). The jury is not asked to return a verdict on any previous allegations relied upon, and indeed should be reminded that the defendant is not on trial for them. It should be told to focus on the indicted offence(s). Reliance on cumulative past incidents in support of a case of propensity may indeed illuminate the truth of the currently indicted allegations, but excessive recourse to such history may skew the trial in a way which distracts attention from the central issue. Article 6(3) requires the judge to consider actively whether the effect of admitting the bad character evidence will have such an adverse effect on the fairness of the trial that it ought to be excluded. That species of adverse effect can arise through the sheer weight of disputed evidence on other uncharged allegations. And that can happen even though the jury will in due course be directed to consider propensity cumulatively, if the volume of evidence received is sufficiently strong to support a conviction. It is a truism that satellite litigation is often inimical to efficient trial.”