R (on the application of Nakash) v Metropolitan Police Service (“MPS”) and GMC  EWHC 3810 (Admin)
The High Court dismissed the appeal of an Appellant doctor who had argued that the Court should prohibit the disclosure of material by the Metropolitan Police Service ["MPS"] as requested by the General Medical Council ["GMC"]. The appeal was brought on the basis that the material was unlawfully obtained by the police; was released in breach of the Appellant's right to privacy under Article 8 European Convention on Human Rights (in that it included material of a highly personal and confidential nature); and the material had no relevance to the issue of the Appellant's fitness to practise as a medical practitioner.
Although the Court determined that the manner in which the MPS had disclosed the material was flawed, it was found that disclosure to the GMC was a proportionate response to the regulator’s legitimate aim of protecting public health and interest.
The Appellant was a specialist doctor in obstetrics and gynaecology. He was the subject of a complaint of a sexual assault on a patient on 5 June 2011. On contacting the Medical Defence Union advice line, the Appellant was warned that the police may come to his home to arrest him and it was impressed upon him the importance of having legal representation.
On the morning of 6 June 2011 the Appellant was arrested by the police at his home. The police searched the property and the Appellant's computers were seized containing records of private correspondence. The arresting officer failed to inform the Appellant that he was being arrested and did not inform him of the grounds for his arrest. A failure to inform the suspect of the grounds for his arrest automatically renders the arrest unlawful. As such, the subsequent search of the Appellant's home and the seizing of material were also rendered unlawful. Records of a Skype conversation between the Appellant and another, gathered as a result of the search, represented one of the two pieces of material in question.
Following his arrest, the Appellant was interviewed in custody without legal representation. Although at points questions asked by the police officers were improper, the Appellant had had his right to legal representation explained to him and agreed to continue the interview without such representation. The record of the Appellant's interview represents the second piece of material in question. The Appellant was charged on 16 August 2012 with two offences, namely sexual assault and assault by penetration.
On 3 July 2013 the Metropolitan Police Service ["MPS"] informed the General Medical Council ["GMC"] that the Appellant had been acquitted on both charges at a Crown Court trial. The MPS also informed the GMC that they were in possession of material that had not been adduced at trial. It had not been adduced following an internal investigation into how the presiding officer had handled the arrest and subsequent interview process.
On 8 July 2013 the GMC, relying on s 35A of the Medical Act 1983, requested that the police provide a copy of the Appellant's file which included the material not adduced at trial. The MPS decided that the interview and the Skype extract should be provided to the GMC and they indicated their intention to disclose this material. The Appellant sought judicial review of the decision of the MPS to release this material.
Handed down by Cox J.
Cox J determined that the decision of the MPS to release the material to the GMC was made in error. Before the decision to disclose was made, there needed to be a careful balancing exercise of the competing interests required by Article 8 of the European Convention on Human Rights ["ECHR"]. This should have been done by the MPS. Cox J did however find that the Court could carry out that exercise afresh.
Cox J found that in respect of the Skype conversation; disclosure was a proportionate response. At paragraph 61 he stated: “The fact that the material was obtained unlawfully does not, in my judgement, outweigh the legitimate aim served by its disclosure under s 35A, namely to enable the GMC, in the exercise of their statutory functions, to protect public health and safety and to protect the rights and freedoms of others. For these reasons disclosure of the Skype extract does not violate the Claimant's rights under art 8. Disclosure is a proportionate response to that important and legitimate aim.”
In relation to the police interview records; Cox J found that notwithstanding the unlawful circumstances in which the interview was conducted, their disclosure was justified under Article 8(2) ECHR. At paragraph 68 he stated: “My conclusion in relation to the disclosure of this interview is the same, namely that its disclosure to the GMC is reasonable and justified. While I have considered it separately, my reasons for this conclusion are also the same. Both the Skype extract and this interview are documents which are relevant to the GMC's investigation and that is all I am concerned with at this stage.”