Gopakumar v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Rix,Lord Justice Tuckey,Lord Justice Jacob,The Master of the Rolls |
| Judgment Date | 09 April 2008 |
| Neutral Citation | [2008] EWCA Civ 309,[2007] EWCA Civ 1218 |
| Docket Number | Case No: C1/2007/0124,Case No: C1/2007/0124(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 09 April 2008 |
[2007] EWCA Civ 1218
Lord Justice Waller and
Lord Justice Rix
Case No: C1/2007/0124
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE UNDERHILL)
Mr I Pennock (instructed by Messrs Scofield Sweeney) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
By a decision of the Fitness to Practice Panel, dated 19 August 2005, Dr Gopakumar was found guilty of serious professional misconduct and the penalty imposed was one of erasure from the register. Dr Gopakumar was 65 years of age at that date, and if that decision were upheld it would spell the end of his professional career. He appealed, as was his right, in the Administrative Court, and by a reserved judgment given on 10 April 2006 his appeal was dismissed by Underhill J. Before the Fitness to Practice Panel, he was represented by solicitors and counsel and before Underhill J he was represented by solicitors and counsel; it may be that the solicitors were different but, certainly, the counsel were different. Before Underhill J he was indeed represented by leading counsel Mr Robert Jay QC. Underhill J, in fact, extended time for applying for permission to appeal to the Court of Appeal, but Dr Gopakumar made no application within that extended time. He made an application in person nearly eight months out of time. His application was refused on paper by Moses LJ and it is a renewed application which has come before us today. Dr Gopakumar was to conduct that application in person, but at the 59 th minute of the 11 th hour he instructed Mr Ian Pennock to conduct the application for him.
Dr Gopakumar had put in a skeleton argument of well over 100 pages. The thrust of that skeleton was to suggest that there had been a witch-hunt against him, that there had been a telling of lies by the complainants and that a terrible injustice had been done. When Mr Pennock saw the case and saw the skeleton and worked on what points could be argued, he very realistically appreciated that much of what the doctor was saying in that very lengthy skeleton argument would not produce points which could be argued before the Court of Appeal—in particular because this is a second appeal, and it is appreciated by Mr Pennock that, if permission is going to be given by the Court of Appeal to bring a second appeal, it will not give permission unless it considers that the appeal raises an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
What Mr Pennock has sought to do is to identify what he suggests is an important point of principle which contains certain facets. It relates first of all to the direction given by the legal assessor to the original panel, a point considered by the judge as a preliminary point in his judgment. It concerns the question of whether evidence of the character of one of the complainants—which was not put before the panel and not originally put before the judge—should have been accepted as material to go before the judge, and should be material which should go before the Court of Appeal. Before coming to the details of that, I should just describe very briefly what the proceedings before the panel were about. The first related to a complaint by a female, A, and that was not as serious a complaint as the one relating to a female, B. Indeed, it is unnecessary in this judgment to say anything about the proceedings so far as A is concerned—simply to say that the panel found Dr Gopakumar's conduct inappropriate but they did not find it indecent. It was the complaint by B which formed the very serious complaint, and that involved consultations between B and Dr Gopakumar during the period January 2004 to 18 February 2004. What the panel found was that there were some inappropriate comments made by the doctor during certain of those consultations, but the most serious matter that they found established was B's allegation that, when she consulted Dr Gopakumar on 18 February 2004 (and she did so in the context of having taken her son to see the doctor), he conducted an inappropriate and indecent examination of her.
According to her, she informed the doctor that she might be pregnant. He performed an abdominal examination, during the course of which (according to her) he put his hands beneath her knickers or thong, pressed on her pubic bone, pressed in the creases between her legs and the pubic bone, and pressed where the outer labia starts. The experts called before the panel could provide examples where an abdominal examination might have been clinically indicated—for example, ectopic pregnancy—if that was suspected; but both were agreed that the examination as described by Ms B was inappropriate and indeed indecent. What the panel found was that Ms B was a credible witness (as indeed they found in relation to Ms A) and they found that examination had taken place and that it was indecent. So far as penalty was concerned, they found that it was a gross breach of trust and therefore the appropriate penalty was erasure. Now, before the panel, it seems that there was no attack on the character of either A or B. It looks as though that was a deliberate decision, in that it was known that B had been cautioned for travelling in a motor car that had been stolen, and there had been disclosed to those representing the doctor the medical records of B, which had at least one entry which would indicate that she had at some stage been taking drugs, including intravenous drugs.
The legal assessor of the panel, when directing the panel on character, founded the direction to be given on the good character direction that is given in criminal trials. So it had two aspects. First, it had the aspects of character supporting credibility, and then it had an aspect of the good character leading to the likelihood that a defendant in a criminal trial (or in this instance a person charged with professional misconduct) would be unlikely to have committed the conduct alleged, having regard to the character. So far as that second aspect is concerned, no criticism could be made of the direction: it concentrates on the good character of the doctor and directs absolutely in accordance with the standard direction (the JSB standard direction) in a criminal trial. So far as the first aspect is concerned, however, it contains a substantial difference. The direction read in this way:
“I will go on to say this, yes: good character is relevant in two aspects of matters when you are asked to consider it. It is evidence that you should take into account in his favour in these two ways: in the first place, as the doctor has given evidence, good character supports his credibility. Good character supports every witness's credibility. The doctor is of good character. His good character supports his credibility. That means it is a factor which you should take into account when deciding whether you believe or disbelieve his evidence, or are not sure.”
So it contained a sentence which related to every witness, and, as the judge accepted, in the criminal context that would not be a satisfactory direction. The defendant is entitled to a good character direction in supporting credibility, and the JSB direction certainly does not contain any suggestion that the jury are entitled to assume that a witness has a good character and that such good character supports every witness's credibility. The judge had to deal with whether that direction led to there being (or was significant in possibly reaching) an invalid decision, and he decided that it was not. What he said was:
“As regards the reference to all the witnesses being of good character, I do not think this undermines substantially the main point being made: read as a whole, the direction clearly focuses principally on the credit to be given to Dr. Gopakumar. Nor in any event do I think that the practice in a criminal trial of drawing attention only to the good character of the defendant, and not of the prosecution witnesses, represents any fundamental principal of justice. I can see nothing inherently wrong – as a matter of fairness or of logic – in a tribunal assessing the credibility of a 'prosecution' witness taking into account what may be known about his or her good character: nor could Mr Jay suggest why this should be so. The statement that Miss B was of good character was not in any real sense wrong. It is clear that her record had been checked; and I do not believe that the only matter discovered, namely the criminal caution relied on by Mr. Jay, can conceivably be regarded as damaging to her credibility.”
The first point taken is as to whether it is right for the judge to say that drawing attention only to the good character of the defendant and not of the prosecution witnesses represents any fundamental principle of justice. We have given some consideration to that point, asking ourselves during the argument as to why it is that there is not in the direction normally given in a criminal trial a direction similar to that given by the legal assessor in this case. It seems to us possible that the logic is this: that a defendant cannot attack the character of a witness without putting himself at risk and having his character put in. Thus it can be said in a criminal trial: simply because the witness does not put in their character, there should not be an assumption that that witness is of good character, and such a witness is not entitled...
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