“CPR Part 52 governs this type of statutory appeal.CPR PD52D applies, in particular para 19(1)(c). This is a “rehearing” not a review. However, in my judgment the word “rehearing” is misleading. The appellate Court does not rehear or resee any live witnesses. Instead, what the appellate Court does is re-analyse the transcript of the evidence and the bundles of evidence put before the PCC. So, it is actually an appeal by way of reanalysis, not a full rehearing.”
“First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable …; more recently, the test has been put that an appellant must establish that the fact finder was plainly wrong …. Further the court should only reverse a finding on the facts if it “can be shown that the findings…were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread” (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council[1972] AC 217 at 221F …). Finally, in Gupta v General Medical [2002] I WLR 1691, Lord Rodger put the manner in this way (at [10] page 1697D): “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.”
“The panel was persuaded, based on all the evidence before it, that you did not shout at Student I in an aggressive manner. Therefore, the panel finds this charge not proved.”
“The findings were part of the narrative of this long and detailed decision and plainly not intended to identify where the burden of proof was presumed to lie. Strictly speaking, it would have been apt for the PCC to have said of any given failure that they were “satisfied that it had occurred” rather than “not being satisfied that it had not occurred”
“In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability.”
“Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? [...] Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
“[61] In this case, however, by failing to step back and take into account the whole of the evidence before him, the judge placed unjustifiable weight on the issue of whether the mother had had a conversation with the father about her unhappiness at his initiating sex when she was asleep. [She] elevated that issue into the determinative one, saying that if it were proved, the allegations would themselves be made out. The judge failed to bring the various points of challenge made by the father into his evaluation. Those failures meant that there cannot be said to have been a fair consideration of these important allegations from the father’s perspective. At no stage did the judge step back and consider the mother’s credibility in the round, bringing into account his findings that the mother had put forward false allegations of reporting to Dr C, of financial control, and (also) of isolation from her family when in fact the family had lived with her parents between 2004 and 2012. [62] In all the circumstances, we have concluded that the finding that the father raped the mother during the marriage is unsafe and must be set aside.”
“I think partially, but I do think that there’s a certain amount of wilfulness or their attitude to it. I remember one statement being given to me, passed to me that, ‘Well, like we’ve told you, we’ve written it down, that’s our evidence. You have to trust us’. Well, that’s not how it works.”
“You have stated that, in the main, you dispute the evidence of [the Complainant Nurses]. The panel noted your stated position is that those who made the allegations against you have fabricated their accounts of these incidents and “colluded” in presenting their accounts. The panel was in no doubt that [the Complainant Nurses] were familiar with each other and that your appointment as nurse manager of the College health centre caused friction in relation to wide-ranging matters. The panel was also in no doubt that those colleagues discussed their concerns with each other, decided to seek advice as a group from an independent HR adviser at their own cost, and worked together in putting together a formal, collective grievance. The panel, however, considered “collusion” to mean “a conspiracy to deceive” and found no evidence of collusion between these witnesses as you had asserted, such that their evidence was rendered generally unreliable. The proper approach was for the panel to consider the evidence from each relevant witness in relation to each factual charge and make its findings.”
“Based on all the information before it, the panel preferred the evidence of [Ms Kellett and Ms Haigh’s] written statement as it determined that this is the more accurate account of the incident namely, that you did shout at Student J and displayed intimidating behaviour towards him.”
“The panel preferred the evidence of [Ms Bell]. The panel acknowledged that due to the passage of time, [Ms Bell] could not accurately recall all events clearly and therefore they relied on the documentation, which was produced closer to the time of the alleged incident, namely the collective grievance signed on27 April 2018 ….”
“The panel aware of the issues you had with Student D, preferred the evidence of [Ms Bell] and therefore find this charge proved.”
“You gave evidence that you did not shout at the students. The panel was mindful that the students had been sent to you to apologise for not attending the class that you had organised and preferred Colleague 2 and 3’s accounts. The panel considered there to be an element of frustration in your own oral evidence as you recalled the time these students had not attended the lesson. The panel therefore found that it was more likely than not that you shouted at Students K, L and M.
“When considering whether the above charges amounted to misconduct, the panel had regard to your oral evidence during which you were able to highlight the importance of managing controlled medication correctly. You also told the panel about your awareness surrounding the potential abuse of ADHD medication. The panel heard evidence that during your employment at Stonyhurst College, you implemented a new policy in relation to controlled medication. Despite this, you failed to adhere to that policy. The panel noted that the medication mismanagement occurred over several months, that the errors varied and concerned a number of different students. It determined that a registered nurse, would have, or should have been aware of the importance of managing controlled medications correctly and the potential serious consequences of failing to do so properly. In light of this, the panel determined that your actions as found proved in charges 14a, b and d, 15 and 16 did fall significantly short of the standards expected of a registered nurse and therefore amounted to misconduct.”