Professional Standards Authority for Health and Social Care v General Pharmaceutical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 14 March 2024 |
| Neutral Citation | [2024] EWHC 577 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-003168 |
[2024] EWHC 577 (Admin)
Mr Justice Chamberlain
Case No: AC-2023-LON-003168
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Fenella Morris KC and David Hopkins (instructed by Browne Jacobson) for the Claimant
Andrew Colman (instructed by the General Pharmaceutical Council) for the Defendant
Hearing dates: Thursday 7th March 2024
Approved Judgment
This judgment was handed down remotely at 10am on 14 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal by the Professional Standards Authority for Health and Social Care (“the Authority”) against a decision of the General Pharmaceutical Council (“GPhC”) in disciplinary proceedings against a registered pharmacist. The GPhC's Fitness to Practise Committee (“the Committee”) found that the registrant had committed misconduct which impaired his fitness to practise and imposed a warning by way of sanction. The Authority appeal against the sanction, which they submit was not sufficient.
Background
Al Quds is the Arabic name for Jerusalem. Since 1980, the Al Quds Day rally has been held annually in central London to demonstrate support for the Palestinian cause. For some years, it has been led by Nazim Hussain Ali, a registered pharmacist, stand-up comedian and political activist. In 2017, the Al Quds Day rally was held on 18 June, four days after the fire at Grenfell Tower, which resulted in 72 deaths. Participants marched from Duchess Street along Regent Street, Oxford Street and Duke Street to Grosvenor Square. Mr Ali addressed the rally at length using a loudhailer and led chants. There were interjections from counter-demonstrators supportive of Israel.
The Campaign Against Antisemitism brought a private prosecution against Mr Ali for an offence under s. 5 of the Public Order Act 1986 in respect of some of his comments at the rally. The Director of Public Prosecutions decided to take over and discontinue the prosecution. A claim for judicial review challenging that decision failed before the Divisional Court: R (Campaign Against Antisemitism) v Director of Public Prosecutions [2019] EWHC 9 (Admin). In his judgment, Hickinbottom LJ (with whom Nicol J agreed) summarised what Mr Ali had said:
“25. Mr Ali's address had a number of recurring themes. He repeatedly emphasised that the rally was a peaceful event. His address was, of course, pro-Palestinian, and supportive of a Palestinian state. It was equally antagonistic to Israel as a state, and to Zionists i.e. those who support the establishment and maintenance of Israel as a state. He repeatedly said and suggested that Israel is a ‘terrorist state’, responsible for the deaths (the ‘murders’) of Palestinian men, women and children. That antagonism extended to those who support – or those who Mr Ali perceived as supporting Zionism. He referred to specific corporations and other states which he considered did so, and to the British Prime Minister and the President of the United States.
26… the rally was only a few days after the Grenfell fire. During the course of the parade, Mr Ali held a minute's silence for those who lost their lives. A recurring theme in his address was that they were the ‘victims of Tory policies, the victims of policies of the Tory council and the Tory government, of Theresa May’…; and the loss of life was ‘caused by corporate Tory greed’… In developing this theme, he said that, not only were many of the Prime Minister's ‘cronies’ supporters of Zionism, but Zionist corporations were supporters of the Conservative Party. Zionists were thus ‘responsible for the murder of the people in Grenfell’…
27. Another theme that regularly recurred was, in seeking their own state, Zionists had been responsible for ‘murdering British soldiers’ in the 1946 bombing of King David Hotel at a time when the hotel housed the British administrative headquarters for the mandated territories. Mr Ali referred to that bombing at the beginning of his address…, and regularly thereafter.”
Criminal proceedings (which, as indicated, were ultimately discontinued) were not the only consequence of Mr Ali's comments on 18 June 2017. He was also subject to disciplinary proceedings brought by the GPhC before the Committee in respect of four unscripted comments:
“a. ‘It's in their genes. The Zionists are here to occupy Regent Street. It's in their genes, it's in their genetic code.’
b. ‘European alleged Jews. Remember brothers and sisters, Zionists are not Jews.’
c. ‘Any Zionist, any Jew coming into your centre supporting Israel, any Jew coming into your centre who is a Zionist. Any Jew coming into your centre who is a member for the Board of Deputies, is not a Rabbi, he's an imposter.’
d. ‘They are responsible for the murder of the people in Grenfell. The Zionist supporters of the Tory Party.’”
These were alleged to be antisemitic and offensive. There was a hearing between 26 October and 5 November 2020 before a panel consisting of Alastair Cannon (Chair), Raj Parekh (registrant member) and Claire Bonnet (lay member). At the hearing, Mr Ali accepted that he has said these things and that they were grossly offensive. He gave a full apology. He did not, however, accept that any of the comments was antisemitic. On 5 November 2020, the Committee found that they were offensive but not antisemitic. They found serious misconduct proven and issued a warning by way of sanction.
That decision was successfully challenged in this court by the Authority: Professional Standards Authority for Health and Social Care v General Pharmaceutical Council [2021] EWHC 1692 (Admin). Johnson J found that the Committee had applied the wrong approach to the question whether Mr Ali's comments were antisemitic. By taking account of Mr Ali's intention and good character, the Committee had had regard to matters not relevant to whether he was guilty of the conduct alleged (though relevant in principle to impairment and sanction). In determining whether Mr Ali was guilty of the misconduct alleged the Committee should have concentrated exclusively on the objective meaning of the words that Mr Ali admitted using, bearing in mind the cumulative effect of the words taken together: [23]–[34].
Giving judgment in June 2021, Johnson J noted that the underlying allegation dated back four years and related to events when Mr Ali was not acting as a pharmacist. He also noted that Mr Ali had recognised that his remarks were offensive and expressed remorse. All this made him “in principle, sympathetic to the suggestion that, if it could be shown that the ultimate sanction would not be different if the case were remitted back to the FPC, I should… simply dismiss the appeal”. Ultimately, however, Johnson J concluded that the case engaged significant questions of public confidence and so should be remitted to the Committee: see at [35]–[38].
Accordingly, a further hearing was held between 29 and 31 August 2023 before the same Committee. After that hearing, the Committee decided that comments (a) and (b) were offensive but not antisemitic and comments (c) and (d) were both antisemitic and offensive. They went on to find that the comments amounted to serious misconduct, which impaired Mr Ali's fitness to practise. The Committee imposed a warning by way of sanction.
Legal framework
Part 6 of the Pharmacy Order 2010 (SI 2010/231) (“the Order”) makes provision for pharmacists' discipline and fitness to practise. Article 54(2) provides as follows:
“(2) If the Fitness to Practise Committee determines that the fitness to practise of the person concerned is impaired, it may—
(a) give a warning to the person concerned in connection with any matter arising out of, or related to, the allegation and give a direction that details of the warning be recorded in the Register;
…
(c) give a direction that the entry in the Register of the person concerned be removed;
(d) give a direction that the entry in the Register of the person concerned be suspended, for such period not exceeding 12 months as may be specified in the direction; or
(e) give a direction that the entry in the Register of the person concerned be conditional upon that person complying, during such period not exceeding 3 years as may be specified in the direction, with such requirements specified in the direction as the Committee thinks fit to impose for the protection of the public or otherwise in the public interest or in the interests of the person concerned.”
The introduction to the GPhC's Standards for pharmacy professionals (May 2017) (“the Standards”) includes this:
“The standards need to be met at all times, not only during working hours. This is because the attitudes and behaviours of professionals outside of work can affect the trust and confidence of patients and the public in pharmacy professionals.”
Standard 6 provides:
“Pharmacy professionals must behave in a professional manner
Applying the standard
People expect pharmacy professionals to behave professionally. This is essential to maintaining trust and confidence in pharmacy. Behaving professionally is not limited to the working day, or face-to-face interactions. The privilege of being a pharmacist or pharmacy technician, and the importance of maintaining confidence in the professions, call for appropriate behaviour at all times…”
The GPhC's Good decision making: Fitness to practise hearings and sanctions guidance, (revised, March 2017) (“the Guidance”) explains the circumstances when each sanction may apply. For warnings, it says this:
“There is a need to demonstrate to a...
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