Shiekh v General Dental Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVIS |
| Judgment Date | 09 November 2007 |
| Neutral Citation | [2007] EWHC 2972 (Admin) |
| Docket Number | CO/10616/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 November 2007 |
[2007] EWHC 2972 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Davis
CO/10616/2006
Mr I Winter QC and Mr A McCullough (instructed by Hempsons) appeared on behalf of the Claimant
Mr D Bradly (instructed by the GDC) appeared on behalf of the Defendant
This is an application to the court brought by claim form issued under Part 8 of the Rules and dated 19th December 2006. By this claim, the claimant, a dental surgeon called Mr Shiekh, seeks to challenge the decision of a Panel of the General Dental Council made on 21st November 2006 whereby it was decided that Mr Shiekh be suspended for a period of 18 months on an interim basis pending the final substantive hearing of complaint proceedings against him. There was subsequently a review under the relevant rules and on 17th May 2007 another Panel decided that it was necessary for the order for suspension of Mr Shiekh's registration to continue for the remaining period of the term.
As it happens, the substantive hearing is due to take place before a Committee in the course of next week. It is a matter of the greatest regret, and through absolutely no fault of either party, that the Administrative Court has not been able to secure a hearing of this particular matter until today, that is to say in the course of November 2007. It has been said before that challenges to interim orders of this kind should be sought to be accommodated by the courts, for obvious reasons, within a reasonably quick time frame; and that has not happened here. It has had the further unfortunate consequence for the claimant that he has felt constrained to abandon one of the arguments he would have wished to have run because, had he continued to run it, the estimated length of hearing would have been a day and (as he was told) he would not in those circumstances have secured any hearing by even now, November 2007. That also is a very unsatisfactory position for a claimant to find himself in. I should also add that it might be wondered why, given that the substantive hearing is going to take place in the next few days, there is any further purpose in my hearing this particular challenge. However, both parties desired me to do so and I can understand why they have desired me to do so. In any event, I do not see why they should be deprived of a judicial ruling just because the court system itself has been so slow in providing a hearing date.
Shortly put, the background is this. Mr Shiekh is a dentist who has long practised in the Nottingham area. He had a number of dentists working with his practice on a self-employed basis, they accounting to Mr Shiekh for a percentage of their earnings and he making the practice facilities available to them. The evidence would suggest that the practice he supervised was a very large and very profitable one. However, in the course of operating that practice, as it transpired, certain associates were making false claims for expenses on travelling matters. I need not go into the details of that: suffice it to say that ultimately this resulted in criminal proceedings being brought against Mr Shiekh. Conspiracy to defraud was alleged.
There was a trial of a very lengthy nature in the Northampton Crown Court. Some weeks into the trial, it appears that the evidence may not have been going altogether as the prosecution might have planned. In due course, at all events, Mr Shiekh offered a plea of guilty on the indictment, a basis of plea being proffered. Part of the basis of that plea was that so far as the associates' benefits were concerned, Mr Shiekh had failed adequately to police the requirement in respect of the travel claims by certain of those associates. (It is, of course, accepted that he, Mr Shiekh, stood to receive a percentage of the travel claims made by those associates). Various other matters were advanced in the basis of plea and, amongst other things, it was also said that from 1998 he had insisted that the associates completed the appropriate travel before a claim could be made. It should be said that on the face of the indictment the period of the conspiracy was between 1994 and 2000.
When he came to sentence Mr Shiekh, the judge (Judge Alexander QC) made a number of observations about the case. The judge rightly emphasised that, notwithstanding the basis of plea put forward and notwithstanding the various points of mitigation put forward, here there was sustained dishonesty: there was a conspiracy to defraud. The judge also, however, said in terms:
"I consider it unlikely that you would indulge in making dishonest claims in the future."
In the event, the judge imposed a sentence of imprisonment, suspended for a period of time, and also made certain financial and costs orders. The actual sentence was 12 months' imprisonment and that was suspended for a period of 18 months. Mr Shiekh did in fact seek to appeal against that sentence but his application for permission to appeal was rejected by the Court of Appeal (Criminal Division) on 11th January 2007.
In the light of the conviction, proceedings were then commenced by the General Dental Council. It might, I suppose, have been possible for the General Dental Council to commence proceedings even had Mr Shiekh not been convicted; but at all events these proceedings were commenced in the light of his having been convicted. The matter was then placed before an Interim Hearings Panel of the General Dental Council and it is the decision of that Panel of 21st November 2006 which prompted the present claim.
It is necessary to refer to the provisions of the Dentists Act 1984 as amended, in particular section 32. At section 32(4) this is said:
"(4) Where a Committee are satisfied that it is necessary for the protection of the public or is otherwise in the public interest, or is in the interests of the person concerned, for the person's registration to be suspended or to be made subject to conditions, the Committee may make—
(a) an order that his registration in the register shall be suspended during such period not exceeding 18 months as may be specified in the order (an 'interim suspension order'); or
(b) an order that his registration shall be conditional on his compliance, during such period not exceeding 18 months as may be specified in the order, with such conditions so specified as the Committee think fit to impose (an 'order for interim conditional registration')."
Section 32(5) then makes provision for the Committee having a power to review an interim suspension order or an order for interim conditional registration; and subsection (6) also gives power to the Committee with regard to an interim suspension order or order for interim conditional registration that has been made.
Provision is made for extension of periods of suspension, amongst other things, the power being conferred on the court in such case. Then at subsection (12) this is provided:
"Where an interim order has effect under any provision of this section, the court may—
(a) in the case of an interim suspension order, terminate the suspension,
(b) in the case of an order for interim conditional registration, revoke the order or revoke, vary or add to any condition imposed by the order,
(c) in either case, substitute for the period specified in the order (or in an order extending it) some other period which could have been specified in the order (or in the order extending it) when it was made … "
The relationship between that power conferred on the court and the power conferred on the Committee itself to review is not altogether clear from the structure of the section. It also may be noted that the court's statutory power in the case of an interim suspension order is that it may terminate the suspension or, under subsection (12)(c) shorten it or extend it. But there is no power conferred on the court to quash any interim suspension order made. Quite why that is so is unexplained: but there it is.
I heard some argument as to the nature of the approach that the court should adopt on an application of the kind made to me under section 32(12). It seems to me, given what the statute says, that this is an original jurisdiction conferred on the court; and it seems to me also that I should be guided by the comments of Arden LJ in the case of GMC v Hiew [2007] 1 WLR 2007 and, in particular, the discussion found in paragraphs 26 and 32 of her judgment. I was also referred to certain other earlier authorities which in some cases had indicated that the approach of the court in this context might equate to that of a judicial review approach. But it seems to me that that is not right and the court's approach is more open ended than that. The court has to approach the task by reference to its powers under section 32(12) as a matter of original jurisdiction. At the same time, it seems to me that in the ordinary way the court will show respect for the decision of a Panel in this context, given that the Panel is an expert body which is well acquainted with the requirements that a particular profession needs to uphold and with issues of public perception and public confidence.
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