Beard v General Osteopathic Council [2019] EWHC 1561 (Admin)
This article originally appeared in Issue 2 (July 2019).
This was an appeal by the registrant osteopath against the GOC’s Professional Conduct Committee (PCC’s) decision to impose conditions on her registration. Her real complaint on appeal was that the hearing of the PCC was unjust because of serious procedural irregularity. The first and principal ground of appeal asserted apparent bias and unfairness arising from the conduct of the hearing and in particular from questions by one Ms Neville, appointed as a lay member to the panel, although a qualified solicitor.
The original hearing and decision
The appeal is of interest because as part of the appeal the judge was asked not only to read the transcripts of the hearing but to listen to the tape recording of the questioning of the relevant witnesses. This was because counsel for the registrant relied not just on the content but the tone of some of the questioning. In his findings Kerr J recorded that until that part of the disciplinary hearing where the panel are entitled to ask questions to the witness (i.e. after the parties’ representatives have examined and cross-examined) the evidence given by the complainant and the evidence given by the registrant was “unremarkable”. It was only the Panel’s questioning which was relevant to the argument of serious procedural irregularity, and the focus was squarely on the hostile questioning of the lay member Ms Neville. She formulated a series of questions which were plainly upsetting to the registrant, so much so that a break had to be taken. After that break the questions continued but they were directed through the Panel chair. The total time taken by the Panel’s questions was 1 hour and 45 minutes.
The Panel then received closing submissions and announced (after consideration) their conclusion that all the charges which had not been admitted had been proved in their entirety. They adjourned the case for consideration of whether the conduct found proved amounted to unacceptable professional conduct.
Between that decision and the adjourned hearing the registrant instructed leading counsel who sought transcripts of the hearings and made, what was described as, a ‘rather unusual’ application that, either, Ms Neville should recuse herself, or, the other two members should recuse her, or, if they did not, should recuse themselves on the ground of “clear appearance of bias or at least pre-judgment”. Those submissions were renewed orally at the hearing but failed. The PCC made a 12-month conditions of practice order.
The appeal
The registrant appealed (which had the effect of suspending the effect of the decision). Allowing the appeal, Kerr J referred to the long recognised judicial duty to stay above the fray – Yuill v Yuill [1945] 1 All ER 183 CA. While the authorities point to the need for judicial restraint, they also support the proposition that excessive judicial intervention does not justify appellate interference unless the trial is rendered unfair. Helpfully, for those who practice in this area, the court distilled the principles to be obtained from the authorities into six propositions. Of those six, the key proposition in the instant case was that:
“on appeal, the issue is whether the interventions indicate that a fair trial has been denied because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and ‘into the perils of self-persuasion”.
On the registrant’s behalf it was argued that Ms Neville’s questioning amounted to “assuming the role for a second prosecutor and stepping into the ring”; was “hostile and oppressive”; deprived Ms Beard of the opportunity to give her evidence clearly and coherently; and amounted to bullying.
The judge agreed, holding that Ms Neville was allowed for too long to pursue hostile lines of questioning, the unstated relevance of which was “nil or so tenuous as to amount to vexing the witness rather than illuminating the factual issues”. Ultimately the judge concluded that there was a procedural irregularity and a serious risk that one of the committee’s member’s descent into the arena may have hampered her ability properly to evaluate and weigh the evidence before her so as to impair her judgment.
Comment
For those appearing in disciplinary hearings before employers or professional panels such as the GOC, GDC, and GMC, the strange incongruity of ‘panel questions’ outlasting the parties’ representatives questioning is not unknown. This clearly was a peculiarly bad example, where both the tone and the content of the lay member’s hostile questioning was found to do little to illuminate the factual issues the panel was there to determine.
The real value to practitioners in the case lies in the succinct summary of the six propositions to be derived from the case-law on serious procedural irregularity in the trial process and the ultimate conclusion that excessive intervention or pejorative comment will create a real danger of unfairness where a panel member’s descent into the arena is such to have created a real danger that the panel member’s ability properly to evaluate and weigh the evidence before her has been impaired. As was observed in one of the cases cited by the judge: Jones v National Coal Board [1957] 2 QB 55, the words of Lord Bacon remain as true today as they did in the 17th century:
“Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal’.
