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Appeals from FTP Panel

In the case of Nagiub v General Medical Council [2011] EWHC 366 (Admin) Foskett J set out the parameters for hearing appeals from a decision of a Fitness to Practise panel as follows:

"An appeal under these rules does not require permission to appeal. The appeal is technically by way of rehearing, but in reality involves a review of the evidence and material before the Panel in accordance with the parameters set out in Gupta v GMC [2001] and Ghosh v GMC [2001] 1 WLR 195, conveniently summarised by Stanley Burnton J, as he then was, in Threlfall v General Optical Council [2004] EWHC 2683 (Admin) at paragraph 21 where he said this: "Because it does not itself hear the witnesses give evidence, the court must take into account that the Disciplinary Committee was in a far better position to assess the reliability of the evidence of live witnesses where it was in issue. In that respect, this court is in a similar position to the Court of Appeal hearing an appeal from a decision made by a High Court Judge following a trial. There is, however, an important difference between an appeal from a High Court Judge and an appeal from a Disciplinary Committee. The Disciplinary Committee possesses professional expertise that a High Court judge lacks ….
This court appreciates that such a Disciplinary Committee is better qualified to assess evidence relating to professional practise, and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more: see Ghosh v General Medical Council [2001] UKPC 29 and Preiss v General Dental Council [2001] UKPC 36. These decisions make it clear that the court should be more ready to overrule a disciplinary tribunal than previously appeared to be the case. It however remains the position that an Appellant must establish an error, of law or fact or of judgment, on the part of the tribunal."
Although I have referred to that convenient summary, I should, I think, quote what was said in Gupta v General Medical Council [2002] 1 WLR 1691, where the following appears: "[T]he obvious fact [is] that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect, these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. 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 or 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. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas [1947] A.C. 484 , 484–488." The passage from Lord Thankerton's opinion is as follows: "I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus:
I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion;
II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;
III The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."
In relation to the sanction imposed, and the approach to reviewing it in this court, my attention has been drawn to the case of Fatnani Raschid v General Medical Council [2007] EWCA Civ 46 where Laws LJ (with whom Chadwick LJ and Sir Peter Gibson agreed) said this: "As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel."

 

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