Tim Grey appeared for Dr. JT instructed by Michelle Stewart of Thompsons Solicitors LLP.
Dr. JT was a senior clinical psychologist alleged to have made inappropriate, disempowering, harassing, bullying and sexually motivated comments to members of staff working within the same NHS Trust. The alleged comments were made up to 8 years prior to the hearing in informal circumstances, so that no independent record of the conversations existed.
A Trust wide investigation had been undertaken and ceased for undisclosed reasons. A second independent investigation commenced some months later, and was the basis for the HCPC investigation. The original Trust investigation had been the subject of disclosure requests to the HCPC by Dr. JT’s lawyers, none of which had been substantively responded to.
The HCPC had chosen not to disclose the Trust’s refusal to disclose the details of the original investigation, including interviews with witnesses in the HCPC case, which in each case represented the most contemporaneous account given by those witnesses as well as up to 25 other potential witnesses, whose identities and interviews had not been disclosed.
All those people involved had been subject to anonymity throughout the entirety of proceedings, save for Dr. JT. Anonymity was successfully challenged a year before the final hearing by reference to Lu v SRA [2022] EWHC 1729 (Admin). That anonymity had prevented Dr. JT and his lawyers identifying and speaking to potential witnesses until 7 years after the events in question.
The HCPC had chosen not to inform Dr. JT’s lawyers that one of its witnesses was unavailable for the hearing, in spite of knowing that for 5 months prior to the substantive listing. Instead, it had decided not to rely upon that witness as part of its case, without notice to Dr. JT or his lawyers. When the HCPC had wrongly put the witness statement and exhibits of that witness before the Panel as pre-reading, it decided to make an application to adduce the evidence as hearsay.
The abuse of process arose out of the delay and consequent prejudice arising from Dr. JT’s inability to identify and speak to potential witnesses when events may have been fresh in their minds, failure to disclose contemporaneous accounts given by witnesses (Ali v CPS [2007] EWCA Crime 691) and procedural impropriety.
In staying the case the Panel considered the delay and prejudice in the following terms:
“The Panel accepted [the HCPC’s] submission as to the importance of not allowing the application for a stay to morph into a premature Galbraith submission that the evidence is (or would, if given, be) so unreliable that it would not be possible for a panel applying correct principles to reach a finding against the Registrant. Were that to be the highest that the matter could be put, the application for a stay should fail, and the hearing should proceed, allowing for the possibility of a Galbraith submission in due course if appropriate. However, applying this accepted submission, the Panel has come to the conclusion, that such is the delay that…the Registrant cannot in fairness be expected to address the HCPC’s case, and the Panel could not properly attempt to decide the issues of primary fact and objective and inferences that the HCPC would invite the Panel to draw as to the Registrant’s state of mind from those primary facts. The Panel has anxiously considered whether the prejudice to the Registrant can fairly be addressed by the application of normal trial processes, but has come to the conclusion that they cannot.”
As to disclosure issues the Panel concluded that:
“This is not a case, such as one involving clinical concerns, where there are contemporaneous documents that could be thought to provide a more reliable source of evidence than that of long-distant recollections; the nearest record of recollections of already past events is provided by the still absent [Trust investigation] interview notes… in addition to the risk that memories will be significantly impaired eight years after the relevant events, there will be the additional risk of memory distortion arising from shared recollections. These comments apply to being able to decide the issues of primary fact of what words were spoken by the Registrant, to whom and about whom.”
“…The Panel was acutely conscious of the fact that the imposition of a stay should be considered an exceptional course to take. Nevertheless, the Panel has concluded that even at the present time, the Registrant cannot receive a fair hearing. That being the case, the consequences flowing from the [absent] interview notes issue are in a real sense purely academic. However, the Panel feels it necessary to state that, if the time had not already arrived when a fair hearing is not possible (as it has), it would consider it unconscionable to subject the Registrant to yet further delay while efforts are made to ensure that the…notes are obtained and provided to him. For all of the foregoing reasons, the Panel is satisfied that the circumstances of this case are indeed truly exceptional, and the Panel is also satisfied that the only fair response to those circumstances is the imposition of a stay.”
As to prosecutorial misconduct the Panel concluded that:
“Having carefully considered the matter, the Panel has concluded that the HCPC’s conduct of the case (by which it is intended to include not only the HCPC as a body, but also its Solicitors) can be categorised as demonstrating lamentable, repeated failings to exercise even the most basic degree of care in the conduct of the case. As such, the behaviour has clearly been reprehensible. However, the Panel considers the conduct to be that of serial incompetence rather than a deliberate attempt to prejudice the Registrant’s legitimate interests. Accordingly, the Panel does not consider that the threshold has been passed to result in the case being stayed on this ground.”
The case was therefore stayed on the basis of prejudice caused by delay along with failings in disclosure.
Postscript
The increase in delays to cases coming before first instance Tribunals is likely to see a consequent increase in the number of abuse of process applications. The decision, whilst only a first instance one, is a sage reminder of the risks associated with delay and the potential injustice that can be caused to anyone subject to the kind of “lamentable” failings identified in Dr. JT’s case.
