The Queen (on the application of Johannes Philip Bonhoeffer) v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stadlen |
| Judgment Date | 21 June 2011 |
| Neutral Citation | [2011] EWHC 1585 (Admin) |
| Docket Number | Case No: CO/11367/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 June 2011 |
[2011] EWHC 1585 (Admin)
Lord Justice Laws
Mr Justice Stadlen
Case No: CO/11367/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Kieran Coonan QC and Neil Sheldon (instructed by Radcliffes Le Brasseur) for the Claimant
Mark Warby QC and Kelyn Bacon (instructed by Field Fisher Waterhouse LLP) for the Defendant
Hearing date: 8 April 2011
This is an application for judicial review of the decision of the Fitness to Practise Panel ("FTPP") of the General Medical Council ("GMC") announced on Friday 29 October 2010 to admit the hearsay evidence of Witness A in fitness to practise proceedings brought against the Claimant by the GMC. It raises important issues relating to the circumstances in which hearsay evidence may be admitted in disciplinary proceedings.
Background
The Claimant is an eminent consultant paediatric cardiologist of international repute. Until last year he was a consultant at The Great Ormond Street Hospital for Children. It is alleged by the GMC that he was guilty of serious sexual misconduct whilst undertaking work in a foreign country. Despite attempts by the GMC and the FTPP to preserve the anonymity of that country it emerged in newspaper reports on the eve of the hearing of this application that it was Kenya. Accordingly Mr Coonan Q.C., who appeared on behalf of the Claimant at the FTPP and in front of us, accepted that there was nothing to be gained by seeking to conceal in these proceedings the fact that it is Kenya. The evidence against the Claimant in respect of the majority of the charges he faces comes from a single source, Witness A, whose identity for reasons which will become apparent has been disguised. The Claimant denies the allegations.
Witness A is a young man in his late twenties. He lives in Kenya. He has repeatedly indicated, including shortly before the GMC's application to the FTPP to admit hearsay evidence that he is willing and able to travel to the UK to give evidence in person to the FTPP in support of the allegations he has made against the Claimant. However despite his availability and willingness to give live oral testimony, the GMC decided not to call him as a witness. Instead at the outset of the proceedings it made an application for permission to rely on hearsay evidence from Witness A in the form of (1) transcripts of video-taped interviews of Witness A conducted by the Metropolitan Police ("the MPS"), in Kenya in 2009 (the tapes themselves having been lost by the MPS due, as accepted by the MPS, to incompetence on its part), (2) a transcript of a conversation between Witness A and a third party (Witness Z) which was recorded on Witness Z's mobile phone, (3) hearsay accounts given by Witness Z and another witness as to what they were told by Witness A, and (4) text messages sent to Witness Z by Witness A.
The sole ground on which the GMC advanced its application to the FTPP was that if Witness A were to give oral testimony in the FTPP proceedings whether by attending in person or by giving evidence via live video link from Kenya he would be exposed to a significantly increased risk of harm in Kenya. In the light of that alleged risk the GMC made three submissions to the FTPP:
i) that it was not reasonably practicable for the GMC to call Witness A to give evidence such that his hearsay evidence would be admissible in criminal proceedings pursuant to section 116(2)(c) of the Criminal Justice Act 2003 ("2003 Act").
ii) that it would be "in the interest of justice" for Witness A's hearsay evidence to be admitted such that it would be admissible in criminal proceedings pursuant to section 114(1)(d) of the 2003 Act.
iii) that even if Witness A's hearsay evidence would not be admissible in criminal proceedings, the FTPP's duty to inquire into the allegations against the Claimant made its admission desirable so that its admission was not prohibited by Rule 34(2) of the General Medical Council (Fitness to Practice Rules) 2004 ("the 2004 Rules"), and the FTPP should exercise its discretion under Rule 34(1) to admit it since it would be fair to do so.
The alleged risk to Witness A was the only reason advanced by the GMC for not calling him to give evidence. It remained the GMC's position throughout the course of the application to the FTPP that Witness A did face a significant risk of harm were he to give evidence and that that justified its decision not to call him and the admission by the FTPP of hearsay evidence. The application was opposed by the Claimant. In short it was his case that there was no good reason why Witness A should not attend to give evidence and that the admission of his hearsay evidence would be contrary to the interests of justice, and/or in breach of his right to a fair hearing. It would not be admissible in criminal proceedings by virtue of either section 116 2(c) or section 114(1)(d) of the 2003 Act and should not be admitted under Rule 34.
In support of its application, the GMC adduced evidence in the form of oral testimony from two police officers, Detective Chief Inspector Grant and Detective Sergeant Crystal, the oral testimony of Witness Z, a number of text messages sent by Witness A to Witness Z and a log kept by DS Crystal of conversations between him and Witness A. DCI Grant was the Senior Investigating Officer and DS Crystal was the Witness Liaison Officer. Witness Z was the person to whom Witness A first made his allegations against the Claimant. In addition at the request of the FTPP, oral testimony was given by Ms Kate Emmerson, a solicitor acting on behalf of the GMC. The FTPP wished to hear from her as to the circumstances in which the decision had been taken not to call Witness A to give evidence in the proceedings. The FTPP declined the GMC's invitation to read, and thus it did not consider the content of, the transcripts of the video-taped interviews of Witness A conducted by the MPS in Kenya in 2009, which constituted the core of the hearsay evidence which it sought to admit against the Claimant. In reaching its decision the FTPP was thus not in a position to and did not make findings as to the probative force or lack thereof of the hearsay evidence sought to be admitted.
The alleged risk to Witness A was said by the GMC to derive from two sources. First it was said that he would be at risk of reprisals from homophobic elements in Kenya were he to be identified as having engaged in sexual activity with the Claimant. Second it was said that he would be at risk of harm from those who were loyal to the Claimant and who might wish to prevent or exact revenge for Witness A's participation in proceedings against the Claimant. The FTPP characterised these two risks as "the general threat" and "the specific threat" respectively.
The charges against the Claimant were set out by the GMC in a notice of hearing dated 15 September 2010 giving him notice that a Fitness to Practise Panel hearing would be held on 18 October 2010 with a hearing estimate of 35 days. There were eight separate allegations alleging sexual misconduct and inappropriate sexually motivated conduct on the part of the Claimant on various dates between 1995 and August 2008 and directed variously against Witness A and an unspecified number of identified and un-identified young Kenyan male adults and Kenyan male children. It was alleged that over a number of years the Claimant travelled to Kenya to undertake charitable medical work and that the alleged victims were children and young men to whom he had provided sponsorship by paying for their education and accommodation.
In August 2008 Witness A for the first time made allegations to Witness Z that the Claimant had been guilty of sexual misconduct towards him and other spondees of the Claimant. The allegations were reported to the MPS in London who commenced an investigation and following the grant of permission by the Kenyan authorities travelled to Kenya in March 2009 to interview a number of the Claimant's spondees, including Witness A. Of the alleged victims who were interviewed by the MPS only Witness A supported the allegations against the Claimant. The investigation team concluded that the evidence obtained would not permit prosecution of the Claimant in this country for alleged offences against Witness A under the extra-territorial provisions of the Sexual Offences Act 2003 because they occurred before the commencement of that Act and the FTPP was told by Mr Donne Q.C., who appeared for the GMC at the FTPP hearing on its application to adduce Witness A's hearsay statements, that the MPS decided that there could be no sensible prosecution in this country against the Claimant in respect of Witness A's allegations that the Claimant abused the other alleged victims (notwithstanding that, since some of that alleged conduct took place after 2003, the English court would have jurisdiction under the Sexual Offences Act 2003) because they denied that the abuse had happened.
There were communications between the MPS and the GMC on the question whether witnesses who gave evidence in prospective fitness to practise proceedings in London would be exposed to the risk of harm.
By a letter dated 27 May 2009 the MPS wrote to the GMC emphasising the high degree of risk faced by many of the alleged victims and witnesses. It was recommended that a comprehensive risk assessment and where appropriate child protection strategy should be in place to manage and reduce any potential threats. It was said to be the view of the senior investigating officer that victims might be subject to considerable risk of violence if they were perceived by their community as being homosexual. It was said still to be...
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