“16. I should make it clear from the outset that I deny these allegations which I regard either as embellishments of the truth or simply untrue. I consider that my dismissal and the manner in which I have been treated by the Trust was unfair[ly] discriminatory and influenced by political expediency. My belief is that I have been subject to a sustained and false campaign to justify terminating my employment. Despite my seniority and acknowledged clinical skills the Trust came to regard me as a problem employee and I believe the referral to the GMC represents the culmination of their efforts to get rid of me, to terminate my employment.”
“A central part of his case was that the Trust encouraged, facilitated or connived in the creation of false allegations of sexual misconduct. He believed that initially this was because the Trust wished to terminate his employment as he had been a ‘whistle blower’ with regard to poor practice at the Trust. Further, as clinical lead of the orthopaedics team he had been critical of Trust management in respect of the death of a patient, which resulted in an inquest reported in the media.”
“Mr Khan did not make any admissions to the Allegation[s]. The Tribunal is therefore required to determine whether Mr Khan behaved inappropriately towards Miss A, Miss C and Miss D as alleged, and whether his actions were sexually motivated.”
“85. The Tribunal considered Mr Khan’s position that Miss A and Miss C fabricated their complaints and were influenced and encouraged by the Trust to do so in order to support the Trust’s position not to re-employ Mr Khan. It carefully considered the position with regard to Miss A and Miss C and could identify no evidence of a conspiracy or encouragement by the Trust to support the position as was suggested. 86. The Tribunal was satisfied that there was no evidence that these allegations were fabricated by either claimant at the behest of the Trust. Further, it has seen no evidence to identify any individual or group of individuals as the instigators or coordinators of such a fabrication or of any conspiracy against Mr Khan. 87. The Tribunal was not persuaded on the basis of the evidence before it that the Trust management team influenced or encouraged Miss A or Miss C to fabricate their complaints in relation to the allegations before it. The Tribunal noted that the Trust requested anyone who had a complaint to come forward and speak up, as might be expected in any organisation where allegations of this kind were alleged, however there was no evidence the Trust induced, requested, persuaded, or enticed anyone to fabricate complaints. The Tribunal therefore did not accept the assertion of a Trust conspiracy against Mr Khan in relation to the allegations made by Miss A and Miss C.”
“Having considered all of the evidence before it, the Tribunal was not persuaded that Miss C’s admission that she lied about the authorship of the anonymous letter was, of itself, sufficient to undermine her credibility in relation to the rest of her evidence. It was satisfied that Miss C had given a genuine, sincere and credible account in relation to matters other than her authorship of the letter.”
“(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 MPTS 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.”
“(1) Every appeal will be limited to a review of the decision of the lower court unless - (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. … (3) 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.”
“(1) This paragraph applies to an appeal to the High Court under – … (e)section 40 of the Medical Act 1983 ; … (2) Every appeal to which this paragraph applies must be supported by written evidence and, if the court so orders, oral evidence and will be by way of re-hearing.”
“32. Appeals undersection 40 of the Medical Act 1983 are by way of re-hearing (CPR PD52D ) so that the court can only allow an appeal where the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity in its proceedings:CPR 52.11 . The authorities establish the following propositions: (i) The Panel's decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council[2015] EWHC 1996 (Admin) , per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department[2004] EWCA Civ 56 at [44]; (ii) The court must have in mind and must give such weight as appropriate in that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkal v. General Medical Council[2015] EWHC 2445 (Admin) ; (iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not; (iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v. General Medical Council, [197], per Auld LJ; (v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group[2003] 1 WLR 577 , [197], per Ward LJ; (vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council[2010] EWCA Civ 407 , [47] per Leveson LJ with whom Waller and Dyson LJJ agreed; (vii) If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, paragraph [30](iii); (viii) Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v. General Medical Council[2010] EWCA Civ 407 , [55]-[56]; (ix) A principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschid v General Medical Council[2007] EWCA Civ 46 , [19], per Laws LJ.”[2007] EWCA Civ 46 , [19], per Laws LJ.”
“20 … This is a challenge to the Tribunal's fact-finding processes at Stage 1. A specialist Tribunal may of course have specialist expertise that is relevant at that stage, but this is not such a case. If the Court finds that the Tribunal went wrong at the first stage, it should quash the conclusions at all three Stages, unless persuaded that the error would have made no difference to the outcome. That, as Ms Hearnden rightly accepts, is a high threshold, which is not readily satisfied: R (Smith) v North Eastern Derbyshire Primary Care Trust[2006] 1 WLR 3315 , 3321. 21. Bearing that in mind, the points of most importance for the purpose of this case can be summarised as follows: (1) The appeal is not a re-hearing in the sense that the appeal court starts afresh, without regard to what has gone before, or (save in exceptional circumstances) that it re-hears the evidence that was before the Tribunal. ‘Re-hearing’ is an elastic notion, but generally indicates a more intensive process than a review: E I Dupont de Nemours & Co v S T Dupont (Note)[2006] 1 WLR 2793 [92-98]. The test is not the "Wednesbury" test. (2) That said, the appellant has the burden of showing that the Tribunal's decision is wrong or unjust: Yassin [32(i)]. The Court will have regard to the decision of the lower court and give it ‘the weight that it deserves’: Meadow [128] (Auld LJ, citing Dupont [96] (May LJ)). (3) A court asked to interfere with findings of fact made by a lower court or Tribunal may only do so in limited circumstances. Although this Court has the same documents as the Tribunal, the oral evidence is before this Court in the form of transcripts, rather than live evidence. The appeal Court must bear in mind the advantages which the Tribunal has of hearing and seeing the witnesses, and should be slow to interfere. See Gupta, [10], Casey, [6(a)], Yassin, [32(iii)]. (4) Where there is no question of a misdirection, an appellate court should not come to a different conclusion from the tribunal of fact unless it is satisfied that any advantage enjoyed by the lower court or tribunal by reason of seeing and hearing the witnesses could not be sufficient to explain or justify its conclusions: Casey, [6(a)]. (5) In this context, the test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Yassin, [32(v)]. (6) The appeal Court should only draw an inference which differs from that of the Tribunal, or interfere with a finding of secondary fact, if there are objective grounds to justify this: Yassin, [32(vii)]. (7) But the appeal Court will not defer to the judgment of the tribunal of fact more than is warranted by the circumstances; it may be satisfied that the tribunal has not taken proper advantage of the benefits it has, either because reasons given are not satisfactory, or because it unmistakably so appears from the evidence: Casey [6(a)] and cases there cited, which include Raschid and Gupta (above) and Meadow [125-126], [197] (Auld LJ). Another way of putting the matter is that the appeal Court may interfere if the finding of fact is ‘so out of tune with the evidence properly read as to be unreasonable’: Casey, [6(c)], citing Southall [47] (Leveson LJ). 22. Ms Hearnden places heavy reliance on another passage from Southall, [47], where Leveson LJ observed that: ‘… it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable.’ However, it is clear from paragraph [47] read as a whole, that this sentence does not purport to represent a distinct principle, imposing a more exacting test than those I have identified. Rather, it is intended to be a distillation of the jurisprudence I have summarised. Southall, [47], also shows that the passage I have quoted from Casey, [6(c)] reflects high authority. It is a variation of words used by Lord Hailsham, sitting in in the Privy Council, in Libman v General Medical Council[1972] AC 217 , 221F.”
“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 of 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 …”
“14. … In every case, every MPT (including the PCC of the GMC) needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost ?”
“261. … It must be apparent to the parties why one has won and the other has lost and the judgment must enable an appellate court to understand why the judge reached his decision … … 337. It does not, of course, follow that there are no circumstances in which a decision based in whole or in part on express or implied conclusions reached by an FTPP as to the demeanour of witnesses will not be overturned by the Court. There may be circumstances in which for example critical evidence has been ignored or is of such a character that logic or common sense or both demonstrate(s) that the view reached by the FTPP must be wrong. The court will always be astute to assess whether that has in fact occurred in any particular case if invited to do.”
“In my judgment where, as here, the MPT was faced with two conflicting accounts in relation to an issue of such profound importance to the appellant, the Panel was bound to give careful consideration to each element of evidence and then to arrive at a conclusion taking into account all the evidence in the round.”
“The Tribunal did not have to resolve every issue in the case, however it should resolve those questions of fact that either impact upon the credibility of the principal witnesses and/or those which are determinative of a relevant issue or allegation. The Tribunal must first determine which facts are proven and thereafter draw appropriate inferences. If the Tribunal has either failed to determine the facts or come to a conclusion on the facts that no reasonable Tribunal court have reached, then there is no proper foundation for the subsequent inference.”
“38. In any event, I regret to say, in my judgment the Tribunal's reasoning process is vitiated by at least three fundamental errors of approach. First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness's uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents. Secondly, the Tribunal's assessment of the witness's credibility was based largely if not exclusively on her demeanour when giving evidence. Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof. 39. There is now a considerable body of authority setting out the lessons of experience and of science in relation to the judicial determination of facts. Recent first instance authorities include Gestmin SGPS SA v Credit Suisse (UK) Ltd[2013] EWHC 3650 (Comm) (Leggatt J, as he then was) and two decisions of Mostyn J: Lachaux v Lachaux[2017] EWHC 385 (Fam) [2017] 4 WLR 57 and Carmarthenshire County Council v Y[2017] EWFC 36 [2017] 4 WLR 136 . Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office[2018] EWHC 2066 (QB) [96]: i) Gestmin: oWe believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate. ◦ Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of ‘flash bulb’ memories (a misleading term), ie, memories of experiencing or learning of a particularly shocking or traumatic event. ◦ Events can come to be recalled as memories which did not happen at all or which happened to somebody else. ◦ The process of civil litigation itself subjects the memories of witnesses to powerful biases. ◦ Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say. ◦ The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. ‘This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth’. ii) Lachaux: ◦ Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities.45 I extract from those citations, and from Mostyn J's judgment, the following: ◦ ‘Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…’ ◦ ‘…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…’ ◦ Mostyn J said of the latter quotation, ‘these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.’ iii) Carmarthenshire County Council: ◦ The general rule is that oral evidence given under crossexamination is the gold standard because it reflects the longestablished common law consensus that the best way of assessing the reliability of evidence is by confronting the witness. ◦ However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said: ‘…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past.’ This approach does not dilute the importance that the law places on crossexamination as a vital component of due process, but it does place it in its correct context. 45 The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis[1968] 2 Lloyd's Rep 403 , 431; Robert Goff LJ in Armagas Ltd v Mundogas SA[1985] 1 Lloyd's Rep 1 , 57.” 40. This is not all new thinking, as the dates of the cases cited in the footnote make clear. Armagas v Mundogas, otherwise known as The Ocean Frost, has been routinely cited over the past 35 years. Lord Bingham's paper on "The Judge as Juror" (Chapter 1 of The Business of Judging) is also familiar to many. Of the five methods of appraising a witness's evidence, he identified the primary method as analysing the consistency of the evidence with what is agreed or clearly shown by other evidence to have occurred. The witness's demeanour was listed last, and least of all. 41. A recent illustration of these principles at work is the decision of the High Court of Australia in Pell v The Queen [2020] HCA 12. That was a criminal case in which, exceptionally, on appeal from a jury trial, the Supreme Court of Victoria viewed video recordings of the evidence given at trial, as well as reading transcripts and visiting the Cathedral where the offences were said to have been committed. Having done so, the Supreme Court assessed the complainant's credibility. As the High Court put it at [47], "their Honours' subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence …" The Supreme Court was however divided on the point, and the High Court observed that this "may be thought to underscore the highly subjective nature of demeanour-based judgments": [49]. The High Court allowed the appeal and quashed Cardinal Pell's convictions, on the basis that, assuming the witness's evidence to have been assessed by the jury as "thoroughly credible and reliable", nonetheless the objective facts "required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt": [119]. Therefore, contemporary documents are always of the utmost importance…’ 45 The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis[1968] 2 Lloyd's Rep 403 , 431; Robert Goff LJ in Armagas Ltd v Mundogas SA[1985] 1 Lloyd's Rep 1 , 57.”
“42 … It is an error of principle to ask ‘do we believe her ?’ before considering the documents … Reliance on a witness’s confident demeanour is a discredited method of judicial decision making …”
“Mr Khan was always very personable and easy to get along with. He was softly spoken and never raised his voice. I never heard a cross word from him. He was never aggressive or inappropriate in any way (verbally or physically) towards me and I have never seen him behave in an inappropriate way towards anyone else. … I found Mr Khan to be firm in his resolve but always fair. Mr Khan has never invaded my personal space and he has never made me feel uncomfortable.”
“8. Over the years I have been witness to conversations and behaviour between Mr Khan and all grades of staff from Junior Doctors and Nursing staff to Senior Consultants and Management and only found this to be of a professional manner and context. Colleagues have very high regard for Mr Khan. 9. I perceive no problems with Mr Khan returning to work in Barnsley Hospital. I am happy to work with Mr Khan when he returns.”
“I would like to point out that not only did I have no problems with Mr Khan no concerns at any time were raised by any of my consultant colleagues. Also I think it is worth noting that, without prompting, one or two female members of the theatre team of their own volition chose to approach me and tell me how helpful and professional Mr Khan had been during [what] were some challenging trauma cases.”
“5. The case of HCPC v Wisson [2013] EWHC confirmed the relevance of a professional person’s character in the resolution of factual allegations. Good character evidence could be relevant to a decision on conduct, especially where credibility was in issue. Donkin v Law Society[2017] EWHC 414 (Admin) was followed: good character is a factor to be taken into account by a panel when they are assessing whether a registrant’s evidence was to be believed and whether it was likely he had done what was alleged. 6. The Crown Court Bench Book, which provides guidance to judges in relation to the legal directions to juries in criminal trials, provides the following specimen directions: ‘Good character is not a defence to the charge he faces but it is relevant to your consideration of the case in two ways. First, the defendant has given evidence. His good character is a positive feature of the defendant which you should take into account when considering whether you accept his evidence. Secondly, the fact that the defendant has not offended in the past may make it less likely that he acted as is now alleged against him. What weight should be given to the defendant’s good character on the facts of this particular case is a decision for you to make. In making that assessment you are entitled to take into account everything you know about him.’ 7. The parties are agreed that Mr Khan’s character is a relevant feature of the evidence in this case and that the Tribunal should direct itself in accordance with the Bench Book direction extracted above.” ‘Good character is not a defence to the charge he faces but it is relevant to your consideration of the case in two ways. First, the defendant has given evidence. His good character is a positive feature of the defendant which you should take into account when considering whether you accept his evidence. Secondly, the fact that the defendant has not offended in the past may make it less likely that he acted as is now alleged against him. What weight should be given to the defendant’s good character on the facts of this particular case is a decision for you to make. In making that assessment you are entitled to take into account everything you know about him.’ Book direction extracted above.”
“Lastly some final remarks. The legal document to which I will refer you shortly deals with some subjects that I wish to end on. First, Mr Khan’s character. You should, in fairness to him, take his good character into account in the way described. You should also bear in mind that good character supports a defence but is not itself a defence. You should also bear in mind that good character is indirectly a feature of the GMC’s case. By that I mean when I started by saying Mr Khan abused his position, that is he used his status to protect against complaint. But that status was itself a function of his character and standing within the hospital. Second, if you were to find an allegation of sexual touching proved, the GMC submits that that would evidence a tendency to engage in unwanted sexual touching and that in turn could lend support to other allegations. But third, while the question of sexual motivation requires a separate consideration, and you should give it separate consideration, in relation to the majority of charges all but those within 1 and 3 that I have referred to already the nature of the touching and the things said is, in my submission, demonstrably and obviously pursuant to a sexual purpose.”
“Mr Khan has chosen to give evidence. We must judge that evidence by precisely the same fair standards as we apply to any other evidence in the case. Mr Khan is of good character, he has no disciplinary matters proved against him. Good character is not a defence to the allegations Mr Khan faces but it is relevant to our consideration of the case in two ways. First, Mr Khan has given evidence; his good character is a positive feature of Mr Khan which we should take into account when considering whether we accept his evidence. Secondly, the fact that Mr Khan is of good character and has no previous disciplinary findings against him may make it less likely that he acted as is now alleged against him. What weight should be given to Mr Khan’s good character on the facts of this case is a decision for us to make. In making that assessment we are entitled to take into account everything we know about Mr Khan. Overall, then, where there is a dispute we should decide what evidence we accept and which we reject. It is always a matter for us to decide what weight we attach to the evidence before us.”
“51. There was no dispute before the Tribunal that Ms Martin was of good character: she had an unblemished regulatory record before these matters, and many positive professional and personal testimonials. She had achieved and pursued all her professional endeavours while at the same time taking responsibility for supporting her family financially, first as the primary breadwinner and, from 2014, as a single mother of children born in 2000 and 2004. Since evidence of good character is relevant to credibility and propensity (and not just to sanction), Ms Newbegin submitted that it was an error for the Tribunal to make no reference to Ms Martin's good character when dealing with allegation 1.1. Moreover, the fact that seven allegations were rejected with findings being made that were consistent with her evidence, and the inherent unlikelihood of Ms Martin risking everything for the sake of a relatively small sum, meant that the Tribunal was wrong to discount Ms Martin's evidence as it did. 52. Mr Wheeler did not dispute before the Tribunal (or before us) that evidence of good character is relevant to credibility and to propensity in relation to allegations of dishonesty: Donkin v Law Society[2007] EWHC 414 . However, he submitted that the significance of such evidence ought not to be overstated and should not detract from the primary focus on the evidence directly relevant to the alleged wrongdoing. We agree.”
“182. The issue on this appeal is whether there is a substantial doubt as to whether the SDT bore Mr Fenwick's submissions in mind and had regard to the good character of the Appellants as relevant to the issues of credibility and propensity. In my judgment, there is no such doubt. The SDT is an expert, professional jury which does not need the sort of 'good character direction' one sees in criminal trials (and neither counsel sought to give one), and does not need to have demonstrated that it took the Appellants' good character into account by express reference to these trite principles in the body of its Judgment. It is obvious to anyone experienced in this line of work that the SDT, in the light of both Appellants' history and the inherent unlikelihood of an experienced solicitor such as Mr Shaw seeking to place his career in jeopardy, would be very slow to find subjective dishonesty, unless driven by the evidence to do so. Put in these terms it may be appreciated that Mr Fenwick was right to emphasise these cogent commonsense factors (see paragraph 156.44) rather than the testimonial evidence, which in my judgment added very little to the overall picture.”
“167. The tribunal was aware that Mr Malins was of previous good character. The tribunal received character references and had them in mind. Unfortunately, in a case such as this a solicitor's previous good character can do little to mitigate the seriousness of his misconduct or the sanction that must follow. This case is very different from R (Campbell) v GMC[2005] EWCA Civ 250 ;[2005] 1 WLR 3488 and Donkin v Law Society[2007] EWHC 414 (Admin) , upon which Ms Morris relies. The Solicitors Disciplinary Tribunal is not obliged to give itself a good character direction of the kind that Crown Court judges routinely give to juries in criminal trials: see Shaw v Logue[2014] EWHC 5 (Admin) at [180]-[182].”
“Mr Khan was dressed in theatre scrubs and once inside the changing room pulled his trouser waistband down to show her his penis, commenting ‘it is a pity your gay, just look at what you’re missing.’ [Miss C] told me she said to Mr Khan ‘Fuck off’ she laughed at him and left the male changing room. She didn’t say he followed her or said anything else to her.”
“135. Having considered all of the evidence before it, the Tribunal was not persuaded that Miss C’s admission that she lied about the authorship of the anonymous letter was sufficient, of itself, to undermine her credibility …” sufficient, of itself, to undermine her credibility …”
“147. The Tribunal has expressed its concerns about the truthfulness of Mr Khan’s evidence. It has accepted Miss C’s evidence as credible and sincere in relation to matters other than her authorship of the anonymous letter …”
“Q. … Did you hear Nicola Bushby say, ‘We just tell him to fuck off’ ? A. No. Q. Did you say that ? A. No. Q. Would it be language you would ever use to a consultant ? A. Absolutely not and especially not Mr Khan.”
“Q. … It has been suggested at one point that either you or Katy Taylor when you were together said, ‘Mr Khan does this, we just him to fuck off’. Would you ever say that to a consultant ? A.No. I would never say that to a consultant, nor would I ever encourage a member of staff to say that to a consultant – ever. Q. So if I suggest to you that anybody asserting that is just complete nonsense ? (sic) A. Absolutely, absolutely. I would be sacked !”
“The Tribunal noted in its findings in relation to Miss A that there was a pattern of repeated sexually motivated behaviour. The pattern found proved with Miss A was similar to the sexually motivated behaviour found proved with Miss D. The Tribunal considered whether this demonstrated a tendency on the part of Mr Khan to act in this way. Given its findings of sexually motivated inappropriate touching of work colleagues, the Tribunal could come to no other reasonable conclusion than that there was sufficient connection between the facts it found proved in relation to Miss D and Miss A to demonstrate a propensity in Mr Khan to act in this manner.”
“The Tribunal accepted as genuine Miss C’s specific account of these incidents, what she was doing and where they occurred, and determined that Mr Khan’s account could not be relied upon. The Tribunal had already established that Mr Khan has a tendency towards this type of conduct, which supported the evidence it has relied upon in relation to this subparagraph of the Allegation. It found sub-paragraph 4a of the Allegation proved.”
“The Tribunal determined that although the evidence was sufficient to find sub-paragraph 6a proved of itself, it found support in the evidence of Mr Khan’s tendency to this type of behaviour. It therefore found sub-paragraph 6a of the Allegation proved.”