R Ali Izzet Nakash v Metropolitan Police Service General Medical Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cox |
| Judgment Date | 17 November 2014 |
| Neutral Citation | [2014] EWHC 3810 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/208/2014 |
| Date | 17 November 2014 |
[2014] EWHC 3810 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Cox DBE
Case No: CO/208/2014
and
Adrian Darbishire QC (instructed by Medical Defence Union Services Ltd) for the Claimant
Gareth Munday (instructed by Metropolitan Police Service) for the Defendant
Iain Steele (instructed by General Medical Council) of the Interested Party
Hearing dates: 16 October 2014
Introduction
There is a strong public interest in the General Medical Council's performance of its statutory functions, as they relate to a doctor's fitness to practise. The disclosure of material to the Council by other agencies, including the police, has an important role to play in the exercise of those functions. By the provisions of s.35A of the Medical Act 1983, Parliament has granted a specific power to the Council (the GMC) to require the disclosure of information which appears relevant to the discharge of those functions.
The issue in this case is whether, as the Claimant contends, this Court should prohibit the disclosure by the Metropolitan Police Service (MPS) of material requested by the GMC, on the basis that it was unlawfully obtained by the police, in breach of the Claimant's Article 8 rights; that it includes material of a highly personal and confidential nature; and that the material has no relevance to the issue of the Claimant's fitness to practise as a medical practitioner.
The Facts
There is no dispute as to the relevant factual background.
In June 2011 the Claimant was working as a Specialist Registrar in the Obstetrics and Gynaecology Department of the Royal Free Hospital in London, where he had been employed for about four years.
On the morning of 5 June 2011 he carried out a transvaginal scan upon a young female patient referred to as "M". Although he initially asked a female nurse to accompany him as "chaperone", in accordance with hospital policy, it is not in dispute that the Claimant invited the nurse to leave at some point during the procedure, leaving him alone in the room with M. Later on that day M made a complaint of sexual assault by the Claimant in the course of this procedure and the police were contacted.
On the following morning the Claimant contacted the Medical Defence Union advice line and told them that he had been suspended following this allegation, and that the matter had been reported to the police. He was informed that the police might attend his home address to arrest him and was advised as to the importance of legal representation. He was expressly advised not to say anything to his employers or to the police without legal advice. In the afternoon of 6 June three police officers arrived at the Claimant's home. The officer in charge of the investigation at that stage was a Detective Constable Ryan.
It is not in dispute, for the purposes of these proceedings, that the police action on 6 June was unlawful. I summarise the material events.
The Claimant appears to have been arrested, although no contemporaneous record of the reasons for his arrest was made. The Claimant was not informed that he was being arrested, or of the grounds for his arrest, and no consideration was given as to the necessity for his arrest. A failure to inform the suspect of the grounds for his arrest automatically renders the arrest unlawful.
The Claimant's home was searched and computers containing private correspondence were seized, in purported exercise of the power under s.18 of the Police and Criminal Evidence Act 1984. Since this power arises only after a lawful arrest the search of the Claimant's home was also unlawful. In addition, no record of the search was maintained and DC Ryan did not inform his Inspector of the search, in what appears to have been a deliberate flouting of the rules rather than mere oversight.
Following the search the Claimant was conveyed to Holborn Police Station and detained. On the way there the Claimant told DC Ryan of the MDU's advice that he should have a legal representative. The Claimant alleges that DC Ryan's response at this stage was that the police would just be taking his "version of events" and that calling the MDU meant that he "might be kept waiting for hours in the cell". It is not conceded that this was said, but it is agreed that I should proceed in this case on the basis that it was.
The Claimant agreed to be interviewed by DC Ryan and another officer without a legal representative present. He was then interviewed for about one and a half hours in the early evening of 6 June, when he gave full and detailed answers to a wide-ranging series of questions about M's complaint and the surrounding circumstances.
It is not in dispute that there had been no advance disclosure and that, at times, the questions asked by the police were improper, both in form and in substance. The Claimant's solicitor, Mr Tennant, states in his witness statement that he would have advised the Claimant not to answer any questions in these circumstances.
However, it is also accepted that the Claimant had his rights explained to him by the Custody Sergeant on arrival at the station, before this interview commenced, and that he was told what the complaint against him was. He was cautioned before the interview began and, at the point when the tapes were changed over during the interview, he was reminded of his right to have a legal representative present. He agreed to continue the interview without legal representation.
In the course of the interview M's complaint was put to him in detail. None of the Claimant's answers is said to have been inaccurately recorded in the lengthy transcript before me. This interview is one of the two pieces of material which the police have decided to disclose to the GMC, and to which the Claimant objects.
The Claimant was released on police bail and there was then a very lengthy delay before he was charged with any offences. This was due to the conduct of DC Ryan, who initially failed to progress this case and who then misled his superior officers about the state of his investigations into both this and other cases for which he was responsible.
Concerns about DC Ryan's performance were first raised in November 2011. In April 2012 serious misconduct was discovered in relation to other matters, for which DC Ryan was suspended in May 2012. He was subsequently arrested on suspicion of perverting the course of justice and for misconduct in public office, and he was dismissed by the MPS on 18 January 2013.
The investigation of the case against the Claimant was therefore taken over by another officer in April 2012. The Claimant was eventually charged on 16 August 2012 with two offences, namely sexual assault and assault by penetration.
The Claimant denied both charges and the matter proceeded to trial. In May 2013 the CPS notified the Claimant's solicitors that they could not rely on DC Ryan as a credible witness and would not be seeking to rely on the interview conducted on 6 June 2011. At the hearing before me it was thought that an agreed summary of this interview may have been adduced in evidence at trial. I have subsequently been informed, however, that no summary was served and that at trial the Prosecution relied neither upon this interview nor upon a subsequent interview with the Claimant at which a legal representative was present.
The police examination of the Claimant's computer, seized from his home at the time of the search, had revealed a significant amount of private correspondence (approximately 100 pages) passing between the Claimant and a friend known as "W" (another doctor), during the months before M's complaint of sexual assault. This correspondence was conducted via the internet telecommunication facility "Skype". Much of it was of a personal and intimate nature but it contained, on one page, an exchange between the Claimant and W, occurring some three weeks before the alleged assault on M, on which the Prosecution initially sought to rely at trial. After considering Defence submissions opposing the admissibility of this evidence, however, the Prosecution withdrew their application to adduce it at trial. I shall return to this one page extract later on, because this is the second piece of material that the police have decided to disclose to the GMC.
M and the Claimant both gave evidence at the trial at Southwark Crown Court, which concluded on 2 July 2013 when the Claimant was acquitted on both charges.
The GMC has been aware of this case since 8 June 2011, when they were advised by the police that an allegation of sexual assault had been made against the Claimant and that he had been arrested on suspicion of committing a sexual offence. An investigation was opened and effectively put on hold, pending the police investigation. On 5 July 2011 the Claimant's employers informed the GMC that the Claimant had resigned from his post with effect from 5 July.
The Claimant was referred to the Interim Orders Panel of the Medical Practitioners Tribunals Service (MPTS) on 7 July 2011, when an interim order was made providing for conditions upon his registration. This order was reviewed on two occasions before, on 17 September 2012, it was varied to an order of suspension after the Claimant was charged.
On 3 July 2013 the police informed the GMC of the Claimant's acquittal on the...
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