Blake Morgan's Professional Regulatory bulletin - review of September 2016
Welcome to Blake Morgan's latest update for the Professional Disciplinary sector.
This month we report on three important cases all of which make key statements that ought to be promptly and markedly noted by prosecution and defence organisations alike.
The Jenyo case is another judgment in a string of authorities that reminds everyone that the High Court will continue to pay great deference to the first instance tribunal on issues of witness credibility and the factual decisions that flow from such assessments. A "generous ambit" will always be afforded to the tribunal of fact and we are reminded that the Committee/Panel is not obliged to make express reference to every matter relied on by the registrant when drafting reasons.
The judgment in the SRA case of Manak and Dhillon is one that should be read by anyone who has involvement in pre-substantive hearing case management procedures in particular. Thirlwall J emphasised the importance of case management being "more than the setting of a timetable". The case management system should have flushed out the defence concerns about the allegations and whether an application would result from those concerns. While she was also critical of the allegation drafting she was also keen to state that the SRA should have been directed to improve the pleadings rather than the case be struck out as an abuse. The defence should have raised their concerns earlier themselves.
Finally, in the case of Kimmance and the GMC, Mr Justice Kerr revealed that he enjoyed his own passing comments in his judgment in the case of Burrows v GPhC more than he thought, by stating that any registrant's failure to attend his own disciplinary hearing was "close to professional suicide".
I hope you enjoy reading our full case reviews and our round up of other important news. If you have any comments regarding the e-bulletin we would very much like to hear from you.
Jenyo v General Medical Council
A case that reaffirms the reluctance of the Appeal Courts to interfere with the decision of a Fitness to Practise Panel who have determined the credibility of a witness, having had the benefit of seeing and hearing the evidence from that witness. This is of particular relevance in cases of dishonesty where the Registrant's credibility is often the key issue for the panel to decide.
Solicitors' Regulation Authority v Manak and Dhillon
A case that emphasises the responsibility of all parties to highlight any issue that might affect the expediency of a case, from an early stage, and the need for effective case management. The Respondents were criticised for allowing proceedings to continue before making an application of abuse of process, when they had all the information they needed to make such an application before the start of the substantive hearing. The Judge stressed that inadequate pleadings/allegations should be allowed to be corrected as opposed to become the subject of a successful abuse of process argument.
Kimmance v General Medical Council
A case that reminds regulators of the importance of ensuring allegations reflect the available evidence and acting fairly but is also a stark reminder of the danger of registrants not attending their disciplinary hearing (echoing Burrows v GPhC) and the importance of regulators informing them of the consequences of non-attendance. The Judge reminds professionals that insight and remediation are nuanced, require a self-critical eye and cannot usually be assessed in the absence of the registrant.
Key press releases include those from the: BSB, SRA, GDC and Bar Council.