Staying fitness to practise proceedings for abuse of process: A turning tide?
Recent reports suggest that those sitting on professional disciplinary panels are becoming emboldened to take the exceptional course of “staying” cases (in simple terms, barring it from proceeding any further) following errors and delays by regulators in bringing the matter to a hearing.
In this article, Christian Carr, Partner at Spencer West LLP and Tim Grey, Barrister at Old Square Chambers, explore the concept of stays for abuse of process and their application in professional disciplinary cases.
Origins of the concept
The concept of staying proceedings for abuse of process is by no means a new one and most frequently arises in the criminal courts. Although the notion of abuse of process does exist in civil proceedings, it is less a doctrine and more a nebulous concept concerned with procedural failings in bringing cases properly before the Court. The pre-occupation of the doctrine of abuse of process with the abuse of power in an imbalanced relationship is far more relevant in criminal proceedings, and to a degree professional disciplinary proceedings, where the State or the regulator have resources and powers that give them an advantage over the defendant, Registrant or Member.
The Supreme Court most recently considered the subject in R v Maxwell [2010] UKSC 48 case in which the Court confirmed that stays are available in two categories of case. First, where the circumstances mean it is impossible for the accused to be tried fairly (also known as the insurmountable prejudice ground); and second, where it offends the court’s sense of ‘justice and propriety’ to be asked to try the accused in the particular circumstances of the case. Lord Dyson gave the leading judgment in a majority decision. He drew on well-established criminal precedents in explaining that stays granted in the second category have their foundation in the judiciary’s repugnance in permitting its process to be used in the face of the executive’s misuse of state power by its agents. In granting stays on this basis, the court must balance competing interests in protecting the integrity of the justice system, including whether proceeding to a trial will undermine public confidence in the criminal justice system or bring it into disrepute. As to the first category of case, where no fair trial is possible, no balancing exercise of these interests is required and a stay should be imposed.
Cases have emphasised that stays for abuse of process must be exceptional and must not become a matter of routine.
Serious delay in bringing the accused to trial causing them significant prejudice is one reason for defendants applying for stays, though the underlying reasons may take many different forms and each case turns on its own facts. The courts have emphasised that delay merely due to the complexity of a case, and without fault on either side, should never be the foundation for a stay. The powers of the courts to regulate what evidence is used at a trial, to make adjustments to the trial process itself, to counterbalance the difficulties faced by the accused, and to give directions to juries (as finders of fact and the arbiters of guilt) will all weigh in the balance when deciding whether it is appropriate to impose a stay.
The right of a defendant to a fair trial under Article 6 of the European Convention on Human Rights, enshrined in domestic law via the Human Rights Act, adds to the legal infrastructure underpinning the basis for stays.
Stays in professional disciplinary cases
The foundation of the ‘justice and propriety’ ground for a stay is, as explained above, based largely in the need to ensure the proper conduct of the State in the exercise of its powers and duties. It follows that the greater the degree of power in the hands of the ‘prosecutor’ the more scope there is to found a stay. The powers of statutory and non-statutory regulators are, necessarily, not as profound as the powers of the State, whether acting through the Police, a prosecuting authority or a Government department. The likelihood of a stay on the ‘justice and propriety’ ground in non-State regulatory proceedings is therefore extremely slim. It was that rationale that underpinned the judgment of Goldring J in the case of Council for the Regulation of Health Care Professionals v General Medical Council and Saluja. The case involved allegations of entrapment by a journalist of a doctor. The evidence produced by the journalist that was the basis for the GMC’s case was likely to have been inadmissible in criminal proceedings. At first instance the case was stayed for abuse of process, on the basis the evidence was illegally obtained. in lifting the stay imposed at first instance, Goldring J found that there was no state involvement in proceedings being brought by professional regulators under their governing legislation, and emphasised that these processes exist to protect the public, uphold professional standards and maintain public confidence in the profession. They are therefore different to criminal proceedings and involve different considerations when deciding whether a stay is appropriate. Stays on the second ground identified by Lord Dyson will therefore be all the more rare in such cases.
The exceptional course of staying a case in professional disciplinary proceedings was illustrated in the more recent case of R (Clinton) v General Medical Council [2017] EWHC 3304 (Admin) in which the High Court considered the application of the insurmountable prejudice ground. The case concerned alleged sexually motivated behaviour on the part of a doctor. The complainants provided their original written accounts. Thereafter, and in contravention of the GMC’s Rules they were wrongly provided with a GMC case examiner’s decision and supporting material, including summaries of other allegations, critiques of the strengths and weaknesses of evidence and critical expert evidence. It was argued that this cross-contamination of evidence meant that the case satisfied the test of insurmountable prejudice and should be stayed. Both the Tribunal at first instance and the High Court considered that whilst there might have been a risk of prejudice in principle, the doctor had, as a matter of fact, suffered no insurmountable prejudice that could not be cured in the normal hearing process. When weighed against other considerations, it was still not appropriate to impose a stay. Applying the Wednesbury principles applicable in judicial reviews, the High Court found that the specialist professional panel’s decision was not so perverse or unreasonable an exercise of its discretion that the court should intervene.
Notwithstanding the legal landscape outlined, it would be an error to think that stays for abuse of process in professional disciplinary proceedings are unheard of. To the contrary, in recent times they are occurring more often than might have been the case 5 years ago. This is for a number of different reasons. In most cases, it is due to attempts by regulators to reduce up-front costs and thereby the under-resourcing of up front investigations. The obvious false economy this presents is evident when cases are later stayed or for other reasons the regulator’s case fails, causing far more resource to be expended to try and prop up a poorly investigated or processed investigation, which had it been properly resourced from the outset might have come to a more equitable conclusion for all involved.
In a recent unreported case, the HCPC had investigated a senior Clinical Psychologist for what amounted to alleged inappropriate comments made in the workplace to professional colleagues. Eight years had elapsed between the alleged conduct and the hearing. Disclosure requests to the regulator, particularly for original and contemporaneous accounts from complainants, had not been substantively responded to and no original accounts had ever been provided. Initially, all the people involved, whether as complainants or identified by the complainants as being present when alleged incidents had occurred, retained anonymity until 7 years after the events, thereby denying the Registrant the ability to identify and speak to potential defence witnesses. The Registrant had therefore lost the opportunity to obtain evidence from possible witnesses. The delay in removing anonymity had meant that tracing and contacting potential witnesses who might by now have left the employment of the NHS Trust in question and expecting them to recollect a conversation seven years after the events was prejudicial to such an extent that the hearing process could not cure it. The failure to disclose the original accounts of the complainants had also caused unfairness. Whilst that could potentially be cured by adjourning the case to allow the HCPC further time to obtain that information, the delay of eight years was already manifestly excessive and it would lead to even greater prejudice to the Registrant in obtaining reliable and credible evidence. The case was therefore stayed for abuse of process and is a prime example of an investigation in which corners were cut, such that the Registrant was precluded from having a fair hearing.
The human cost for Registrants of having regulatory proceedings hanging over them for years at a time is not a factor that plays any real part in the test for abuse. However, simply having proceedings outstanding, even if they ultimately end in acquittal, can be ruinous for many.
Analysis
Whether in criminal, professional disciplinary or any other type of case, stays for abuse of process should be granted only in exceptional circumstances. However, stays are an important measure available to safeguard the accused’s right to a fair hearing, but also the public’s faith in systems of justice more generally.
The purpose served by professional regulators and the scheme of fitness to practise is different to those in the criminal justice system. In professional discipline proceedings, acting in the pursuit of public protection is paramount in all decisions made by regulators, their tribunals and committees. This imperative is commonly relied upon by regulators as a reason for cases continuing, notwithstanding the potential for unfairness to the registrant, and often there are good reasons to support this. However, the protection of the public, like the public interest, is multi-faceted.
A balancing exercise needs to be undertaken and in the right (if rare) circumstances, cogent countervailing arguments can be deployed to show that the guiding principle of the protection of the public is not a one way street and is not always served in allowing cases to continue.
In summary, all the circumstances of any given case are relevant to the consideration of a stay application, but the presence of the following features will weigh heavily in that decision:
- Exceptionally long delay in bringing issues to final resolution at a hearing, particularly where it can be shown that that delay has caused substantial prejudice to a defendant (relevant both at Common Law and under Art. 6 ECHR). This could be through the natural distortion of the memories of current witnesses and witnesses yet to be contacted by either party for whatever reason, the inability to trace witnesses, or the loss of documents without fault on the Registrant’s/Defendant’s part;
- Decisions by the prosecuting authority over the course of the proceedings that have compounded any prejudice to the registrant, be it as to disclosure, witness contamination or some other detail;
- Whether the difficulties caused to the registrant by the regulator’s conduct cannot be effectively counterbalanced by pre-hearing or in-hearing procedural measures to ensure fairness; and
- Instances where evidence was acquired by the regulator in circumstances particularly prejudicial to the Registrant’s human rights that would constitute prosecutorial misconduct in a criminal context.
It should not be forgotten that the protection of the public involves the pursuit of several essentially reciprocal objectives set out for most regulators in statute. These include the promotion and maintenance of the safety of the public, public confidence in the profession and the declaration and upholding of standards for their members. To secure these objectives, regulators must act with authority in the eyes of all concerned: substantive delays, errors or unfairness in their processes undermine each objective and the authority with which they act, in the eyes of both the public and their registrant members. Maintenance of registrants’ own respect for, and confidence in, their regulators is an essential precursor to the public having confidence in the profession. Neither registrants’ nor the public’s confidence are promoted in instances where registrants, referrers and witnesses are left in a state of limbo for extended periods of time, or errors creating unfairness occur, whether as a result of the allocation of insufficient resources to investigations or otherwise. Nor can the regulator truly speak with authority when declaring and upholding standards to their members or ensure public safety in these instances. Confidence can be lost in fitness to practise processes whose fairness and integrity in any individual case or more broadly is undermined. Taking an holistic view of fitness to practise processes, it is clearly key to the effective discharge of the statutory functions of regulators not only for members of the public to have faith in those processes, but also the constituent members of that profession.
At present, many regulatory bodies act under particularly strained budgets, leading to obvious limitations on the resources at their disposal to progress cases with due speed and skill. Mistakes and delay causing prejudice will naturally flow from this, and so a growth in applications may result. In every case it is always worth asking the question as to whether the correct procedures have been followed and whether a fair hearing is in fact possible. Even if the answer to both is “yes” and no argument can be made for a stay, policing the process is part and parcel of the duties owed by every Registrant, member or Defendant to ensure the regulator’s processes are fair, just and equitable.