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The right to cross-examine

An eminent consultant paediatric cardiologist of international repute was charged by the GMC with serious sexual misconduct whilst undertaking work in Kenya.
The doctor had never been arrested or interviewed by the police in relation to the complaints made and no criminal prosecution has ever been undertaken. The only evidence of most of the allegations made against him came from one witness known as A. The GMC had successfully argued before the FTPP that if Witness A were to give oral testimony in the FTPP proceedings whether by attending in person or by giving evidence via live video link from Kenya he would be exposed to a significantly increased risk of harm from homophobic elements in Kenya. As a result the evidence of witness A was read to the FTPP.
The Fitness to Practise Rules provide that:

(1) Subject to paragraph (2), the Committee or a Panel may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law. (2) Where evidence would not be admissible in criminal proceedings in England the Committee or Panel shall not admit such evidence unless, on the advice of the Legal Assessor, they are satisfied that their duty of making due enquiry into the case before them makes its admission desirable….

Stadlen J, giving the judgment of the Court derived the following propositions from the authorities:

i) Even in criminal proceedings the right conferred by Article 6(3)(d) to cross-examine is not absolute. It is subject to exceptions referable to the absence of the witness sought to be cross-examined, whether by reason of death, absence abroad or the impracticability of securing his attendance. ii) In criminal proceedings there is no "sole or decisive" rule prohibiting in all circumstances the admissibility of hearsay evidence where the evidence sought to be admitted is the sole or decisive evidence relied on against the defendant. iii) In proceedings other than criminal proceedings there is no absolute entitlement to the right to cross-examine pursuant to Article 6(3)(d). iv) However disciplinary proceedings against a professional man or woman, although not classified as criminal, may still bring into play some of the requirements of a fair trial spelt out in Article 6(2) and (3) including in particular the right to cross-examine witnesses whose evidence is relied on against them. v) The issue of what is entailed by the requirement of a fair trial in disciplinary proceedings is one that must be considered in the round having regard to all relevant factors. vi) Relevant factors to which particular weight should be attached in the ordinary course include the seriousness and nature of the allegations and the gravity of the adverse consequences to the accused party in the event of the allegations being found to be true. The principal driver of the reach of the rights which Article 6 confers is the gravity of the issue in the case rather than the case's classification as civil or criminal. vii) The ultimate question is what protections are required for a fair trial. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one. viii) In disciplinary proceedings which raise serious charges amounting in effect to criminal offences which, if proved, are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed on the evidence of an accuser between whom and the accused party there is an important conflict of evidence as to whether the misconduct alleged took place, there would, if that evidence constituted a critical part of the evidence against the accused party and if there were no problems associated with securing the attendance of the accuser , need to be compelling reasons why the requirement of fairness and the right to a fair hearing did not entitle the accused party to cross-examine the accuser.

In the instant case the Administrative Court held that ‘no reasonable Panel in the position of the FTPP could have reasonably concluded that there were factors outweighing the powerful factors pointing against the admission of the hearsay evidence. The Panel’s decision was quashed.
Bonhoeffer, R (on the application of) v General Medical Council [2011] EWHC 1585 (Admin).

 

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