The Professional Standards Authority for Health and Social Care v The General Pharmaceutical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 23 June 2021 |
| Neutral Citation | [2021] EWHC 1692 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4878/2020 |
| Date | 23 June 2021 |
[2021] EWHC 1692 (Admin)
Mr Justice Johnson
Case No: CO/4878/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Fenella Morris QC (instructed by Browne Jacobson LLP) for the Appellant
Helen Fleck (in house counsel) for the First Respondent
David Gottlieb (instructed by Arani Solicitors) for the Second Respondent
Hearing date: 9 June 2021
Approved Judgment
Mr Nazim Ali is a pharmacist registered with the General Pharmaceutical Council (“the Council”). Disciplinary proceedings were brought against him, alleging that he had used antisemitic and offensive words during a public speech. A Fitness to Practise Committee (“the FPC”) found that the words he had used had not been antisemitic, but that they had been offensive, that this amounted to misconduct, that Mr Ali's fitness to practise was impaired, and that he should be given a warning.
The Professional Standards Authority for Health and Social Care (“PSA”) appeals against this decision and argues that the FPC took the wrong approach when deciding whether the words were antisemitic. Instead of considering the objective meaning of the words in their context, it took account of (a) Mr Ali's subjective intention, and (b) Mr Ali's good character as being factors relevant to an assessment of the meaning of the words. Moreover, it considered individual phrases in isolation without taking account of their cumulative impact. The PSA contends that if it had taken the correct approach the FPC might well have decided that the words were antisemitic and this might have resulted in a more stringent sanction. The PSA argues that the Court should allow the appeal and remit the case back to the FPC for re-determination.
The Council agrees that the FPC erred in its approach to deciding whether or not the comments made by Mr Ali were antisemitic, in that it took into account both his stated intention and his character, rather than taking a purely objective approach.
Mr Ali resists the appeal. He contends that the FPC was entitled to take account of Mr Ali's intent in order to determine the “‘objective’ true meaning” of the words he used. In any event, even if the words had been antisemitic, the sanction that was imposed was appropriate in all the circumstances, so there would be no purpose in remitting the case back to the FPC.
The facts
Mr Ali is the managing partner of Chelsea Pharmacy in London.
On 18 June 2017 Mr Ali attended the Al Quds Day rally, an event which is held to demonstrate support for Palestinian rights. Mr Ali led the rally and used a loudhailer. In the course of a long speech during the rally, he made the following 4 separate comments (with lettering added):
“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 in to 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.”
An allegation was made against Mr Ali that he had thereby said things that were antisemitic (charge 2a) and offensive (charge 2b). The matter was referred to the FPC. Mr Ali admitted using the words, and admitted that they were offensive. He contended that he did not have any antisemitic intent and the comments were not antisemitic. A hearing took place from 26 October 2020 to 30 October 2020. The FPC made its determination on 3–5 November 2020. It found that the comments made by Mr Ali were not antisemitic and so dismissed charge 2a. Nevertheless, it concluded that Mr Ali's use of the words, which he admitted were grossly offensive, amounted to serious misconduct and that his fitness to practise was thereby impaired. It issued Mr Ali with a warning.
The FPC's decision that the words were not antisemitic
The FPC took account of a dictionary definition of “antisemitic”: “hostile to or prejudiced against Jewish people.” It also took account of the working definition of antisemitism provided by the International Holocaust Remembrance Alliance:
“Antisemitism is a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of antisemitism are directed towards Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”
It also made reference to examples provided by the International Holocaust Remembrance Alliance (“IHRA”):
“Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that levelled against any other country cannot be regarded as anti-Semitic. Antisemitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong”. It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits. Contemporary examples of antisemitism … taking into account the overall context, include, but are not limited to:
• …
• Making mendacious, dehumanizing, or stereotypical allegations about Jews as such or the power of Jews as collective – such as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.
• Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.
• …
• Holding Jews collectively responsible for the actions of the state of Israel.”
The FPC accepted the following advice which was provided by its legal advisor:
“… the Committee was advised to consider the Registrant's comments in the context in which they were said, having regard to all the relevant circumstances … The Committee was advised to take into account all the oral and documentary evidence, the two video footages viewed, and the character references submitted on behalf of the Registrant. It was for the Committee to decide what weight to attach to these references, taking into account everything it had heard about the Registrant and his evidence. The Committee was reminded of the Registrant's good character and that it was relevant at this stage of the proceedings.”
The test applied by the FPC was whether a reasonable person with all the relevant information would consider the words to be antisemitic:
“The “reasonable person” in the Committee's mind therefore is someone who is in possession of all the facts and knows the context; someone with no particular characteristics … This reasonable person therefore would know what a Zionist is and how that is defined; would know the IHRA definition of anti-Semitism and its associated guidance; would know the dictionary definition of “anti-Semitic” etc. This reasonable person would have no strong views on the Israel/Palestinian question; would not otherwise be unduly sensitive; would be open-minded, balancing what they had heard and seen before reaching a conclusion. …”
The FPC said:
“222. The Committee noted the context of the Al Quds day rally: it was a pro-Palestine, anti-Zionist rally, at which there was a counterdemonstration by supporters of the State of Israel. The Committee concluded that most reasonable people knowing this would not be surprised to hear the term ‘Zionists’ used that day by the Registrant. It would only be thought anti-Semitic by most reasonable people if they believed additionally that when using this term what actually was meant was ‘Jews’. However the evidence was that the Registrant had repeatedly during the rally used words to the effect that ‘Zionists’ and ‘Jews’ must not be conflated …
223. The Committee then looked at the use of ‘Zionist’ in the context of the other comments …, particularly the use of the words ‘genes’ and ‘genetic code’ … The Registrant stated that when using the expressions ‘genes’ and ‘genetic code’ these were figures of speech, in the same way that … people say that scoring goals is in a striker's blood.
224. The Committee concluded that most reasonable people would consider the use of those words highly ill-advised, and certainly readily capable of being misinterpreted. However, the Committee, bearing in mind his good character, believed the Registrant's explanation … Therefore the Committee concluded that most reasonable people having heard and seen the Registrant's evidence would not think it more likely than not that that comment … was anti-Semitic, in context of an anti-Zionist rally…
226. … the Registrant had not been able to explain what the phrase “European alleged Jews” connoted … The Committee concluded that most reasonable people would not find anti-Semitic a part of a comment they could not understand when it appeared to make no sense …
227. The Committee considered that this phrase was open to two possible interpretations. Either it was a statement de facto denying Jewry to anyone who was a Zionist, i.e. if you are a Zionist you cannot be a Jew. The Registrant himself had accepted that denying Jewry to someone of the Jewish faith who was a Zionist would be anti-Semitic …
228. However, it could equally be a statement to the effect that Zionists and Jews should not be conflated. Given that the Registrant had made other statements on the rally emphasising the distinction between Zionists and Jews the Committee concluded that most...
To continue reading
Request your trial
-
Professional Standards Authority for Health and Social Care v General Pharmaceutical Council
...by way of sanction. 6 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 qu......
-
Robert Lambert-Simpson v Health and Care Professions Council
...has “used antisemitic words” in a speech, as was alleged of the registered pharmacist in Professional Standards Authority for Health and Social Care v General Pharmaceutical Council (Ali) [2021] EWHC 1692 (Admin). On both points, I agree. The Ali case was one in which the panel had taken a......