Banasinski v District Court of Sanok, Poland
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 18 September 2008 |
| Neutral Citation | [2008] EWHC 3626 (Admin) |
| Docket Number | CO/3626/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 September 2008 |
[2008] EWHC 3626 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Cranston
CO/3626/2008
Mr P Spencer (instructed by Aaskell, London N14 5BP) appeared on behalf of the Appellant
Miss N Mears (instructed by in-house barrister, Nursing and Midwifery Council) appeared on behalf of the Respondent
(As approved)
The appellant in this case challenges the decision of March earlier this year of the Conduct and Competence Committee (“the Committee”) of the Nursing and Midwifery Council (“the Council”). That Committee found that his fitness to practise was impaired and it removed his name from the register. He had been sentenced to a number of counts of obtaining Working Families' Tax Credit by deception in 2005, and he had also been convicted of using a false certificate of car insurance in December 2006. In summary the grounds of his appeal are that the Committee failed to consider whether the circumstances were serious enough to warrant the removal order, and that what it should have done was to impose a suspension of up to a year. Miss Mears, for the respondent, pointed out that there were certain matters which Mr Spencer for the appellant put before me today which were not before the Committee. She took no point in relation to those, in my view, rightly so.
Background
The background is that the appellant qualified as a nurse in 2002. He had practised on his account as a lawyer in Nigeria at some point previously. From 1999 until August 2002, during part at least of his period of training, he had, as I have said, wrongly claimed Working Families' Tax Credit. Working Families' Tax Credit at the time was administered by the Inland Revenue. The appellant had falsely claimed the credit by saying that he was the father of two persons: one, Mark Lucas and the other, Marcus Kerkeboom. That fraud was detected and he was prosecuted before the Crown Court at Luton. On the day of the trial in 2005 he pleaded guilty to five counts of obtaining property by deception, and three associated counts of false accounting. He was sentenced by the trial judge, Recorder Oldham, on 26 April 2005.
In the prosecution opening before the Recorder the nature of the fraud was outlined. Prosecuting counsel indicated that a false proof of identity, a false NHS card, had been produced at one point and a counterfeit driving licence as well. The sums defrauded were some £10,000, although it is fair to say that the full amount was repaid. The prosecution case was that the appellant had access to a number of addresses to perpetrate the fraud over the nearly three-year period. He had no previous convictions and, as well, mitigation involved the submission that during his training he was going through difficult times. That was specifically put by defence counsel to the Recorder. It was also said, on his behalf, that he was extremely remorseful.
During submissions the Recorder said that the appellant was on the cusp of custody and had probably passed the threshold. Nonetheless, in his sentencing remarks the Recorder said that he took into account the references, which had been provided, that he was of good character, that he had shown genuine remorse, and that he had pleaded guilty. But it was a deliberate and sophisticated fraud. Having regard to all the circumstances, the appropriate penalty was 120 hours of community punishment concurrent on each count.
That was in April 2005. In July 2005 the appellant completed a notification of practice form for the respondent. This is a periodical requirement: nurses have to complete these forms to demonstrate that they have undertaken the requisite amount of continuing professional development, and also that they have met certain practice standards. In the first form, which is dated 23 July 2005, the appellant said on the page headed “Police Caution and Conviction Declaration”:
“I was convicted in April 2005 for obtaining property by Deception and False accounting by Inland Revenue during the period between 1999 —2000.”
For some reason, not completely clear to me, a second form was completed, a month or so later, and again the appellant made a declaration on the form in relation to his convictions before the Luton Crown Court. He said:
“False accounting and obtaining property by Deception from Inland Revenue between 1999 and 2001. I was charged in February 2005.”
Thus on both forms the Luton offences were not correctly stated since the period of the offending was from 1999 until 2002. As a result of the appellant completing those forms, the Council wrote him a letter of 27 September 2005 and said that he had not properly marked the forms to draw attention to the conviction. It seems, from the explanation offered by Miss Mears, that this had something to do with the scanning of the forms and that the appropriate boxes had not been ticked. Certainly the appellant had made declarations, albeit inaccurate, about his offending. The letter of September 2005 then went on to say that legislation required that the registrar had to be satisfied that the appellant was of good character, and that it was the intention of the official writing the letter to put the matter before the registrar.
In reply to that letter the appellant wrote to the Council and set out a fuller account of the Crown Court offending. He wrote:
“The allegations were based on filling parts of application forms for benefit on behalf of my cousin between 1999 and 2001 who has since been deported from the country with the same identity.
I did acknowledge to filling part of the said forms however the Inland Revenue proceeded for the court to deal with the matter.”
He expressed the view later in the letter that the matter was an act of naivete on his part, perhaps stupidity. He said that he had gone through a lot of stress and had had two major operations. The account in this letter of a cousin being involved has been never mentioned, as far as I can determine, before or since.
Meanwhile, on 12 August 2005, the appellant had presented a false certificate of insurance at Luton Police Station. The background to that was that he had been stopped and asked for his insurance by the police and subsequently had been summoned for driving without third party insurance. As is generally the case, he was given the opportunity to produce a valid insurance certificate. He produced a certificate, but that was fraudulent. His explanation, when the police discovered this, was that he had seen a small advertisement in the local newspaper. He had called the number and someone had come to his address on his account, selling life insurance and this third party insurance. He had paid £150 for the third party insurance.
The police made certain enquiries, including trawling through back issues of one of the local newspapers. They could not find the advertisement as described by the appellant. The appellant was therefore prosecuted. He pleaded not guilty. The way it was put to me on his behalf, was that the easiest thing for him to have done would have been to say that he had simply overlooked renewing his third party insurance, and that he would not have gone to the extent of producing a false certificate knowing it to be a fraud. The fact is that in December 2006 he was convicted by the magistrates. He was fined £500 he had to pay £455 prosecution costs.
Just over a year later, on 1 February 2008, the appellant was notified of the charges the respondent intended to bring against him. There was to be a hearing on 3 March 2008. The charges involved the two sets of offending: the offending before Luton Crown Court and the offending before the Magistrates' Court. The charges read that in the light of those convictions his fitness to practise was impaired.
At that hearing before the Committee on 3 March 2008 the appellant was represented by Mr Spencer. The impairment was said by the presenting officer to involve the Luton convictions, committed over a lengthy period: they were convictions of dishonesty and convictions which the respondent would say related to premeditated offences, involving substantial sums of money defrauded in a relatively sophisticated manner. Mr Spencer, very early in those proceedings, pointed out that the sums had been paid back and that wrongdoing was by then relatively old. The appellant gave evidence and in reply to a question from Mr Spencer, when asked to explain the background to the offences, said:
“I needed money. I was desperate for money. I filled in some Family Credit forms which resulted in the money I had.”
The appellant also said that he loved his job dearly, that he was a dedicated nurse, that his mother had been a nurse before him, and that he had never been faulted in providing the necessary care required within the profession. The appellant also told the Committee that there had been an investigation by the Primary Care Trust (“PCT”) which employed him. The Clinical Services Manager had liaised with the Trust's Headquarters and no suspension had been imposed. The appellant also said, in answer to a question from the presenting officer, that:
“I genuinely wasn't planning it. I wasn't calculating it. I was given some forms which I filled in and got the proceeds from it.”
The appellant's colleagues had written a number of letters attesting to his character. There were five letters in total before the Committee. These letters, as I say, were supportive of the appellant. In general terms they...
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