Schulze Allen v Royal College of Veterinary Surgeons
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson |
| Judgment Date | 01 July 2019 |
| Neutral Citation | [2019] UKPC 34 |
| Date | 01 July 2019 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0022 of 2018 |
[2019] UKPC 34
Privy Council
Trinity Term
From the Disciplinary Committee of the Royal College of Veterinary Surgeons
Lord Wilson
Lord Carnwath
Lord Lloyd-Jones
Privy Council Appeal No 0022 of 2018
Appellant
Acting in Person
Respondent
Ivan Hare QC
(Instructed by Bates Wells Braithwaite LLP)
This is an appeal by Dr Schulze Allen against a direction of the Disciplinary Committee of the Council of the Royal College of Veterinary Surgeons (“the Committee”) that his name should be removed from the register of veterinary surgeons. He appeals to Her Majesty in Council under section 17(1) of the Veterinary Surgeons Act 1966 (“the Act”). Dr Schulze Allen, who is German, mainly lives in California, so the Board has acceded to the request of both parties that it should dispose of this appeal by way only of written submissions. Dr Schulze Allen is, as he was before the Committee, a litigant in person. Mr Hare QC now represents the Royal College.
The Committee made its direction against Dr Schulze Allen under section 16(1)(a) and (b) of the Act, which provides as follows:
“(1) If —
(a) a person registered in the register is convicted in the United Kingdom or elsewhere of a criminal offence which, in the opinion of the disciplinary committee, renders him unfit to practise veterinary surgery; or
(b) any such person is judged by the disciplinary committee to have been guilty of disgraceful conduct in any professional respect
…
the committee may, if they think fit, direct that his name shall be removed from the register or … that his registration therein shall be suspended …”
The Royal College brought four charges against Dr Schulze Allen. The first charge was that he was unfit to practise veterinary surgery because he had been “convicted … of petty theft” in California. Although it does not spell out the underlying assumption that his conviction was of a “criminal offence”, this charge must have been brought under section 16(1)(a), of which it is a requirement. The second to fourth charges, brought under section 16(1)(b), were that Dr Schulze Allen had been guilty of disgraceful conduct in a professional respect because he had made three different representations to the Royal College which were dishonest or which he ought to have known were false.
After a disciplinary hearing on 12 and 13 September 2017 the Committee made its Decision on Facts on 13 September, in which they found the facts underpinning all four charges to be proved. Dr Schulze Allen could not attend a further hearing on 9 January 2018 but agreed that the case should proceed in his absence. The Committee then decided, in relation to the first charge, that his conviction rendered him unfit to practise veterinary surgery. It also decided that Dr Schulze Allen's conduct identified in the second to fourth charges amounted to disgraceful conduct in a professional respect. By way of sanction in respect of all four charges, it directed the removal of his name from the register.
In 2010 Dr Schulze Allen first registered with the Royal College as a veterinary surgeon under section 2 of the Act. In 2011 his name was removed from the register on non-payment of his annual renewal fee, apparently after he had left the UK to go to work in California.
On 25 September 2013, in the Superior Court of California, County of San Bernardino, Dr Schulze Allen pleaded guilty under a plea bargain and was convicted of “petty theft under $50 without prior”. His offence was stealing a package of superglue worth $1.48. He was ordered to pay a fine of $435, plus fees. This conviction forms the basis of the first charge.
By an application dated 3 December 2013 Dr Schulze Allen applied for restoration to the register of veterinary surgeons in the UK. One of the questions on the application form was: “Do you have any cautions or criminal convictions, including absolute and conditional discharges and spent convictions, or any adverse findings, including professional disciplinary proceedings against you, whether in the UK or overseas?” Dr Schulze Allen put a cross next to the word “No” beneath it. This representation is the basis of the second charge.
As part of the application process, Dr Schulze Allen also swore an affidavit dated 4 December 2013 in which he stated that “at no time have I ever been convicted of any criminal offense in the UK or elsewhere”. This representation is the basis of the third charge.
On 10 December 2013 Dr Schulze Allen was restored to the register.
Early in 2016 Dr Schulze Allen worked for three weeks as a locum for Mr Peters, a veterinary surgeon in Horsham, West Sussex. Mr Peters took issue with Dr Schulze Allen's claimed remuneration and with the quality of his work. In February 2016 Mr Peters telephoned the Royal College, raising concerns about Dr Schulze Allen's performance, and informed it that his son had found a record that Dr Schulze Allen had received a conviction for petty theft.
The Preliminary Investigation Committee of the Council opened an investigation into Dr Schulze Allen. On 6 June 2016 they requested his written comments on the allegation that he had failed to disclose to the Royal College convictions or adverse findings for dishonesty. He replied by email the same day criticising what he said was the Royal College's failure correctly to interpret information provided to it in bad faith by third parties, and added: “I have no criminal record, what so ever”. This is the basis of the fourth charge.
The Preliminary Investigation Committee made its own enquiries and obtained a record of Dr Schulze Allen's conviction from the Superior Court of California, County of San Bernardino. It formed the view that on 25 September 2013 Dr Schulze Allen had there been convicted of a criminal offence. In May 2017 it referred his case to the Committee.
The appeal in relation to the first, third and fourth charges revolves around whether Dr Schulze Allen was convicted of a “criminal” offence within the meaning of section 16(1)(a); whether in his affidavit sworn on 4 December 2013 he had been dishonest in denying that he had been convicted of a “criminal” offence; and whether in his email dated 6 June 2016 he was dishonest in averring that he had no “criminal” record.
Dr Schulze Allen's own position on this issue, at least in the early stages of the inquiry, was unclear. In emails to the Preliminary Investigation Committee dated 24 November 2016 and 2 and 24 May 2017 he referred to his having been convicted of a “misdemeanor”; indeed in the first email he accepted that he had been wrong to believe that he had no “criminal record or conviction”. But, by the time of the hearing on 12 September 2017, he was contending that, although he had a conviction, it was only for an “infraction”, a less serious type of offence than a “misdemeanor”. So, by that time, he was admitting that he had a conviction but not that he had been convicted of a “criminal” offence.
The evidence before the Committee at the hearing included the court record which the Preliminary Investigation Committee had obtained from the court in San Bernardino. The record shows that Dr Schulze Allen was indeed the subject of a conviction. But also, under a heading which has been cropped off but looks like the beginning of the word “Severity”, it labels the entry with the letter I, as follows:
It is now clear that the letter I is shorthand for “infraction”.
| “ Charge information | |||
| … | Plea | Status | Se[verity] |
| PETTY THEFT UNDER $50 WITHOUT PRIOR” | G | Convict | I |
The evidence before the Committee also included screenshots of an online consultation between Dr Schulze Allen and Mark McDonald, a criminal defence attorney in California. In the consultation Dr Schulze Allen asked “Do I have any criminal record that is, or might be considered a ‘blemish’?” Mr McDonald replied that he does not, and in a later reply added:
“Infractions are not considered ‘crime’ but rather minor transgressions that have no real significance. A traffic citation is one such example.”
Dr Schulze Allen also relied on a screenshot of a website entitled “Theft in California” which defines petty theft as
“the crime of stealing items or money that is worth less than $400.”
but also explains:
“An infraction is less serious than a misdemeanor, and does not go on your criminal record … You might receive an infraction if it is your first offense or if the value of the item is less than $50.”
In their Decision on Facts the Committee did not expressly address the issue of whether Dr Schulze Allen's infraction was a criminal conviction. But they must have decided that it was. For otherwise they would have had no power to direct the removal of his name from the register under section 16(1)(a) of the Act. Although the Decision on Facts omits the word “criminal”, saying (at para 18) that Dr Schulze Allen “gave no plausible reason … as to why this court record … did not amount to a conviction”, it is implicit in their reasoning that they found that his conviction was for a criminal offence. At para 19 they quoted from rule 23.3 of the Veterinary Surgeons and Veterinary Practitioners (Disciplinary Committee) (Procedure and Evidence) Rules Order of Council 2004 (SI 2004/1680), which identifies a manner of proving that a person has been convicted of a “ criminal offence” (emphasis added). And at para 20 they in effect rejected Dr Schulze Allen's evidence that he did not have a “criminal record” on the basis that Mr McDonald and another California attorney whom he had contacted had not been involved with the court proceedings in San Bernardino and that their comments could not be tested in evidence.
Before the further hearing on 9 January 2018, Dr Schulze Allen...
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