Mr Elsworth Wray v General Osteopathic Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Collins Rice |
| Judgment Date | 15 December 2020 |
| Neutral Citation | [2020] EWHC 3409 (QB) |
| Docket Number | CO/2983/2020 |
| Court | Queen's Bench Division |
| Date | 15 December 2020 |
[2020] EWHC 3409 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Collins Rice
CO/2983/2020
Ms Mary O'Rourke QC (instructed by BSG Solicitors) for the Appellant
Mr Andrew Faux (instructed by General Osteopathic Council) for the Respondent
Hearing date: 19 th November 2020
Judgment Approved by the court for handing down
Mr Wray's High Court Appeal
Mr Wray is an osteopath. On 30 th July 2020, a Professional Conduct Committee (PCC) of the General Osteopathic Council (GOsC) found him guilty of unacceptable professional conduct (UPC) contrary to section 20(1)(a) of the Osteopaths Act 1993, and administered an admonishment. Mr Wray says the PCC's decision was wrong and unjust because of serious procedural irregularity ( CPR 52.21(3)). His appeal under section 31 of the Osteopaths Act 1993 is by way of re-hearing (paragraph 19(2) of Practice Direction 52D).
The Regulatory Framework
The GOsC is the statutory regulator of osteopaths. Its functions come from the Osteopaths Act 1993. Its overarching objective is public protection, including promoting and maintaining public confidence in the profession through practice and conduct standards. It issues a statutory code setting them out.
Section 20(1) of the Act has four cases in which GOsC brings formal proceedings against individual osteopaths. Section 20(1)(a) deals with UPC: ‘conduct which falls short of the standard required of a registered osteopath’. Section 20(1)(c) applies to osteopaths convicted of criminal offences. The other cases deal with professional incompetence and impaired ability to practise for health reasons. Where allegations of UPC are made, or criminal convictions are involved, a PCC is set up to consider and adjudicate.
PCC procedure is governed by the General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules Order of Council 2000. In a s.20(1)(a) UPC case, a PCC frames an allegation and invites the osteopath to confirm if the facts set out in it are accepted. Any facts accepted are recorded as proven. Otherwise, the Rules direct a two-stage procedure. First, there is a fact-finding stage, where evidence is taken and witnesses may be cross-examined, and the PCC makes findings of fact on the balance of probability. Then the PCC retires to make its evaluative assessment of whether UPC is made out on the facts proven (by admission or on the evidence). The PCC can ask further questions at the evaluative stage. It makes a reasoned decision on UPC, and, if found, considers which sanction to apply.
In a s.20(1)(c) criminal conviction case, the facts of the offence are not separately proved/admitted, but are taken from the relevant prosecution files and trial evidence. There is then a separate stage at which the PCC considers the wider circumstances of the offence, mitigations, and whether the offence ‘has any material relevance to the fitness of the osteopath concerned to practise osteopathy’. It then makes a reasoned decision on fitness to practise (FtP) and considers sanction.
Paragraph 21(2) of the Schedule to the Osteopaths Act 1993 gives the PCC a residual power to regulate its own procedures, subject to the express provision made in the Rules. I am reminded that
“…when one is dealing with bye-laws and regulations of professional disciplinary bodies one cannot expect every contingency to be foreseen and provided for. The right question to ask of any procedure adopted should therefore be not whether it is permitted but whether it is prohibited… It must, of course, still be fair and that to my mind is the critical issue…” ( ICAEW v Hill [2013] EWCA Civ 555).
Factual Background
Mr Wray came before a PCC after he self-reported to the GOsC a traumatic series of events he had been involved in. He set them out in a witness statement to the PCC. They are not materially challenged.
They relate to the night of 10 th March 2018. It was a difficult time; following a family tragedy two years before, his teenage daughter developed behaviour and lifestyle problems, including drug taking. That night, she arrived home very late, dishevelled, distraught and apparently intoxicated by drugs. She went to bed and fell into deep sleep. Her phone rang persistently. Eventually, Mr Wray answered it. The caller was unknown to him (he later discovered it was a young man with whom his daughter was in a relationship). The phone conversation was shocking; the caller said he had attacked and hurt Mr Wray's daughter and would do it again. The caller suggested Mr Wray come to meet him locally, there and then, to discuss matters ‘man to man’.
Mr Wray did so. He said afterwards how much he regretted it. But he said he was highly distressed and fearful about his daughter's state, anxious to know more about her intoxication. He could not wake her. He had extensive experience mentoring young people and thought he could handle a conversation to find out the facts and decide what to do next. His son tried to dissuade him. But they both set off in the car, the son anxious for his father's safety.
When they approached the place identified by the caller, they were surrounded by a group of young men who began hitting the car. He stopped the car. Inside was some sports kit which Mr Wray used in his regular coaching activities with young people. He picked up a softball bat before getting out of the car. He said he thought it might discourage the group from attacking him and might be needed for self-defence. He did not brandish it, but held it to his side. As soon as the two of them got out of the car, they were set upon. Someone snatched away the bat and hit Mr Wray over the head with it. He needed stitches, and suffered concussion and psychological after-effects.
The police saw that Mr Wray had been the victim of an attack and prepared to take a witness statement. He told them everything that had happened. When the police heard about the bat, however, they decided to charge him with having an offensive weapon, contrary to Section 1(1) of the Prevention of Crime Act 1953. That provides that anyone who, without lawful authority or reasonable excuse, has with them in a public place any offensive weapon is guilty of a criminal offence. By section 1(4), an offensive weapon means ‘any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him’.
Mr Wray says his solicitor at the time advised him to contest the charge, but on the day of the first preliminary hearing before the magistrates, the solicitor changed his advice at the last minute and recommended an early guilty plea. He says he was advised that, having admitted to possession of the bat, he faced a prison sentence after a contested trial. He had moments to decide, and went with the new advice. He pleaded guilty as charged. There was no other evidence before the magistrates. They accepted his plea and gave him a six-month conditional discharge.
Preparing for his PCC hearing a few months later with a new legal team, he was told that the advice to plead was wrong, and he had had a perfectly good defence to the charge all along. Since a softball bat is not an article made or adapted for use for causing injury to the person, the only basis on which Mr Wray could have been found guilty was if he intended to use it for causing injury and had no reasonable excuse for taking it. His own consistent account was that he never had any such intent. His intent in leaving his car with the bat was, he says, deterrence or self-defence. The criminal law decided cases suggest that an intention to frighten does not suffice for the offence. They also suggest that someone carrying an article in anticipation of imminent attack and for the purpose of their own personal defence may have a reasonable excuse.
He applied to appeal his conviction, on the basis that his plea was equivocal and he had been wrongly advised. His application was rejected as being too far out of time.
The PCC Hearing and Decision
The case was brought as a UPC case under section 20(1)(a) of the Osteopaths Act 1993, not a criminal conviction case under section 20(1)(c). His 6 months conditional discharge had expired. Section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 provides that on expiry a conviction ‘shall be deemed not to be a conviction for any purpose’ (other than for reasons not relevant to this case).
The PCC had particularly in mind paragraph D17 of the statutory Osteopathic Professional Standards Guidance, which provides, under the general heading of ‘professionalism’:
“1. The public's trust and confidence in the profession, and the reputation of the profession generally, can be undermined by an osteopath's professional or personal conduct. You should have regard to your professional standing, even when you are not acting as an osteopath.
2. Upholding the reputation of the profession may include:
2.1 Acting within the law at all times (criminal convictions may be evidence that an osteopath is unfit to practise)
…
2.3 Not behaving in an aggressive or violent way in your personal or professional life…”
Further guidance on UPC is found in the decided legal cases. To constitute UPC, conduct must be serious (although that bar is not higher than would be consistent with applying the lowest form of sanction – an admonishment). It must be capable of being considered ‘deplorable’ by fellow professionals, and worthy of ‘moral opprobrium’ by the public.
The allegation put to Mr Wray at the PCC was that (1) on 10 th March 2018 at Genotin Road, Enfield, without lawful authority or reasonable excuse, he had with him in a public place an...
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