Rumbold v General Medical Council
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE WYN WILLIAMS |
| Judgment Date | 09 November 2007 |
| Neutral Citation | [2007] EWHC 2569 (Admin) |
| Docket Number | Case No: CO/2052/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 November 2007 |
[2007] EWHC 2569 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Wyn Williams
Case No: CO/2052/2007
Mr David Morris (instructed by Messrs Radcliffes Le Brasseur) for the Appellant
Mr Martin Chamberlain (instructed by Ms Toni Smerdon, General Medical Council)
for the Respondent
Hearing date: 26 th October 2007
Judgement
Mr Justice Wyn Williams :
1. This is an appeal brought by Dr John Rumbold, the Appellant, against a decision taken on 12 February 2007 by the Fitness to Practise Panel of the General Medical Council. The appeal is brought pursuant to section 40 Medical Act 1983.
2. The decision made by the Fitness to Practise Panel was to suspend the Appellant from the Medical Register “for a further period of 12 months”. In order to understand the context in which this decision was made, however, it is necessary to begin the recitation of the relevant history from 2002.
3. In July 2002 police officers searched the Appellant's home and discovered 77 indecent images of children, predominantly female, aged between 4 and about 14. The images had been downloaded from the internet; they were all pornographic and some of the images showed penetrative activity between the child in question and an adult.
4. Following this discovery the Appellant was interviewed under caution and during the course of that interview he admitted having access to approximately six websites and having viewed between one and two hundred images. This conduct began in 1998 and ended in 2000.
5. On 23 October 2002 the Appellant's medical registration was suspended by the relevant committee of the Respondent. The Committee imposed what is called an “ interim suspension ”.
6. On 15 November 2002, the Appellant pleaded guilty at the Birmingham Crown Court to an indictment containing 12 counts of making indecent photographs of children. On that date, as I understand it, an order was made that the Appellant should become subject to the notification requirements of the Sex Offenders Act 1997 for a period of 5 years. No further order was made on that date.
7. On 23 December 2002 H.H. Judge Stanley sentenced the Appellant to a Community Rehabilitation Order for a period of 3 years subject to a special condition that he should complete a Sex Offenders’ Treatment Programme. He imposed that sentence in respect of each count to which the Appellant had pleaded guilty.
8. On 27 August 2003 the Appellant appeared before the Professional Conduct Committee of the Respondent. This committee was the predecessor of the Fitness to Practise Panel. The Committee found that he had been guilty of serious professional misconduct. It decided to suspend the Appellant's registration for a period of 9 months and, apparently, in fixing upon that period it took into account the fact that there had been an interim suspension order in place for approximately 12 months.
9. In June 2004 the Professional Conduct Committee further suspended the Appellant's registration for a period of 8 months. On 10 February 2005 the Fitness to Practise Panel (which by then had come into existence) imposed a further suspension for 12 months.
10. Prior to the expiry of that suspension and on 23 December 2005 the Community Rehabilitation Order which had been imposed at the Birmingham Crown Court expired. Additionally, just after the expiry of that order, the Appellant completed the Sex Offenders Treatment Programme. It seems very likely that the Programme had been completed by 13 February 2006.
11. On 13 February 2006 the Respondent's Fitness to Practise Panel imposed a further suspension for 12 months. On 14 June 2006 a “ Post-treatment Report ” was produced by those responsible for supervising the Appellant's participation in the Sex Offenders’ Treatment Programme.
12. It is against this factual background that the Appellant appeared before the Fitness to Practise Panel (hereinafter referred to as “the Panel”) on 12 February 2007. As I indicated above the Panel decided to further suspend the Appellant's registration for a period of 12 months. It did so, of course, in the knowledge that he had been suspended since August 2002 and that he had served the sentence imposed upon him by the Criminal Court.
The Hearing on 12 February 2007
13. The first task which faced the Panel was to determine whether the Appellant's fitness to practise was impaired. It concluded that the Appellant's fitness was so impaired and the transcript of the proceedings demonstrates that this was conceded on behalf of the Appellant. Prior to this decision being made the Panel had heard an opening statement from Counsel acting for the Respondent.
14. The Panel then went on to consider what sanction, if any, should be imposed. In relation to sanction the Panel heard evidence from the Appellant himself, from the Appellant's wife and it also heard evidence from Dr Richard John Badcock, a consultant forensic psychiatrist. It also had before it a number of documents, one of which was the Post-Treatment Report referred to in paragraph 11 above. Another important document was a document produced by the Respondent and entitled “ Indicative Sanctions Guidance ” April 2005 Edition.
15. Following the receipt of evidence the Panel heard submissions made by Counsel representing the Appellant and the Respondent. It should be noted that Counsel for the Respondent submitted that the appropriate sanction was a further suspension for a period of 12 months while Mr. Morris argued that the Appellant should be permitted to return to medical practise but subject to conditions. Following a period of deliberation the Panel announced its decision upon the appropriate sanction and gave reasons for reaching that decision. Thereafter a written decision was issued. That is a faithful record of what transpired at the hearing. That part of the letter which deals with the reasons why the Panel decided to suspend the Appellant for a further period begins at page 21 of the Trial Bundle and ends on page 23. I will refer to that part of the letter more fully later in this judgment.
16. At the hearing, as I have said, the Appellant gave evidence; he not only gave evidence but he was cross-examined by counsel appearing for the Respondent and questioned by the members of the Panel. As is obvious that placed the Panel at a distinct advantage compared with this court in assessing the Appellant and reaching conclusions about important aspects of this case. I will elaborate on these aspects more fully below.
The Law
17. In advance of the hearing I was provided with a number of authorities upon the proper approach I should adopt at this appeal. For a significant time during the oral submissions it seemed to me that I need quote only from the most recent decision in point. That is the decision of the Court of Appeal in Raschid and Fatnani v The General Medical Council [2007] 1 WLR 1460. However, during the course of the oral submissions Mr Morris drew my attention to the decision of the Court of Appeal in General Medical Council v Meadow [2006] EWCA Civ. 1390. He did so because, as it seemed to him, its reasoning was not consistent with Raschid.
18. Mr Chamberlain, for the Respondent, had no real opportunity to deal with Meadow. Accordingly, at the conclusion of the oral hearing I told Counsel that they had my permission to make written submissions about the differences of approach, if any, between Meadow and Raschid. Mr Morris decided to make no further representations. Mr Chamberlain did make written submissions; the thrust of which was to seek to show that any differences between Raschid and Meadow were illusory rather than real.
19. I deal firstly with the decision in Meadow since that is the first decision in time. The case reached the Court of Appeal on an appeal from Collins J. He had allowed an appeal by Professor Sir Roy Meadow against a finding of serious professional misconduct by the Fitness to Practise Panel of the Respondent in this case. The appeal had been brought under section 40 Medical Act 1983. Collins J had allowed Professor Meadow's appeal on two discrete bases only one of which is relevant to the issues before me.
20. In considering whether or not to allow the appeal under section 40 Collins J had formulated a test to be applied. He said that an appeal under section 40 was not limited to a review but he also concluded that a court would not interfere with the decision of the Fitness to Practise Panel unless persuaded that the decision in question was “ clearly wrong ”. Collins J then applied that test to the facts before him and, as I have said, allowed Professor Meadow's appeal against the finding of serious professional misconduct.
21. The formulation of the appropriate test by Collins J was considered by the Court of Appeal. Auld LJ gave a reasoned judgment in respect of this issue and, in short, Sir Anthony Clarke MR and Thorpe LJ agreed with his views. In paragraph 125 of his judgment Auld LJ said this: —
“For the following reasons, I can see no basis for faulting Collins J's simple expression of the test, save that I doubt whether the adverbial emphasis of “ clearly ” adds anything logically or legally to an appellate court's characterisation of the decision below as “ wrong ”.
In paragraph 126 to 128 Auld LJ gave the reasons which led him to that conclusion and in order to understand them fully it is also necessary to read paragraphs 117 to 124 of...
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