Introduction
In a regulatory case of alleged unacceptable professional conduct, (1) what reliance if any can be placed on a registrant’s guilty plea to a criminal charge which is followed by a conditional discharge, and (2) to what extent can a professional conduct committee rely on contextual facts which are not contained in the particulars of the conduct alleged to amount to unacceptable professional conduct?
In The General Osteopathic Council v Wray [2021] EWCA Civ 1940 the Court of Appeal addressed each of these important issues.
Richard O’Keeffe, pupil at Old Square Chambers who attended the 1-day hearing in the Court of Appeal, has written a case summary following the judgment.
The facts
Mr Wray is an osteopath regulated by The General Osteopathic Council (GOSC). One night his daughter returned home distressed and apparently intoxicated. When Mr Wray answered her telephone, he spoke to a man who said he had attacked and hurt Mr Wray’s daughter and would do it again. He suggested Mr Wray come to meet him locally to discuss matters ‘man to man’. Mr Wray did so. When he reached the relevant place, he got out of his car, holding for the purpose of deterrence and self-defence a softball bat. The bat was taken from Mr Wray and used to hit him over the head. He sustained significant injury.
When the police took a statement from Mr Wray about the attack and heard about the bat, they charged him with an offence under Section 1(1) of the Prevention of Crime Act 1953, that of having an offensive weapon in a public place without lawful authority or reasonable excuse. He was advised by his then solicitor to plead guilty and was given a six-month conditional discharge despite the bat not being an offensive weapon per se and his statement as to his intended use. On subsequent advice he considered that he had had a reasonable excuse, in that the bat was for self-defence, but his attempt to appeal the outcome was dismissed as out of time.
The GOSC commenced regulatory proceedings against Mr Wray on the basis of “Unacceptable Professional Conduct” (UPC) in that, on the relevant date, “without lawful authority or reasonable excuse, the Registrant had with him in a public place an offensive weapon, namely a softball bat, contrary to Section 1(1) of the Prevention of Crime Act 1953.” Before the Professional Conduct Committee (PCC) Mr Wray admitted the facts alleged on advice from his solicitor, but denied that they amounted to UPC, and answered questions from the PCC as to the altercation, including as to whether there were members of the public witnessing events nearby outside of a wine bar. The PCC found that the conduct did amount to UPC. They expressed sympathy with Mr Wray, but considered that in light of the conduct amounting to a criminal offence, and there having been members of the public present, it was conduct which would be considered deplorable by other practitioners. By way of sanction Mr Wray was given an admonishment.
The High Court
Mr Wray appealed to the High Court, arguing in summary and in so far as is relevant to the Court of Appeal decision:
(1) The PCC had wrongly gone beyond the facts admitted by the Registrant, by questioning him about the presence of members of the public and their reactions, when that was not part of the GOSC’s case at the factual stage;
(2) The PCC had erred in dealing with the event as a criminal offence at all when the GOSC charge was not brought as one of criminal conviction, and;
(3) In any event, no reasonable PCC could have reached a conclusion of UPC in all the circumstances.
Collins Rice J quashed the finding of UPC and the admonishment, on the basis that (i) the PCC had, by making the allegation in terms of charge, plea and sentence, made an allegation of conviction, contrary to Section 14 of the Powers of Criminal Courts (Sentencing) Act 2000 (PCCSA) which provides that conditional discharges “shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made”, (ii) at the point at which the fact finding stage ought to have concluded the PCC made further findings of fact adverse to Mr Wray, and (iii) the conduct did not in any event cross the threshold of seriousness and of risk of damage to the reputation of the profession such as to amount to UPC, in light of the extenuating circumstances.
The Court of Appeal
The GOSC sought permission to appeal (which was granted) and advanced seven grounds of appeal, but effectively abandoned all but two of them at the hearing. Those which it maintained were that:
(1) The HC had wrongly interpreted Section 14 of the PCCSA to the effect that it required a regulator to go behind a criminal conviction and re-litigate the factual basis of a guilty plea before a criminal court; and
(2) The HC had wrongly found that it was not permissible for the PCC to hear contextual factual evidence after announcing its finding of fact.
Stuart-Smith LJ (with whom Underhill and Nugee LJJ agreed) held that:
(1) The distinction between a regulatory case alleging conviction of a criminal offence, and a case alleging conduct falling short of the standard required of a registered professional, is fundamental. Subject to any contrary jurisdictional rule, the regulator is required to “re-litigate” (i.e. prove) the factual basis of a guilty plea before a criminal court that results in a conditional discharge if that factual basis is to be relied upon as constituting UPC. The GOSC’s contention by Ground 1 to the contrary was therefore dismissed. Stuart-Smith LJ noted however that it is permissible to rely upon a registrant’s admission to a criminal court by a plea of guilty as evidence of a course of conduct said to amount to UPC. It may also be relevant in determining whether conduct amounts to UPC that it amounted to a criminal offence.
(2) It is permissible, between an admission of all facts alleged and a determination of whether those facts amount to UPC, for the PCC to hear contextual or other factual evidence, provided they keep a weather eye on the admissibility of such evidence in light of the formal complaint as drafted. The PCC had acted properly in doing so in Mr Wray’s case where the evidence had come from his own answers to questions put. Subject to their own jurisdictional rules, that ought to be true of all professional regulators.
(3) The GOSC’s appeal however fell to be dismissed, as the HC had been entitled, giving due deference to the PCC’s specialist judgement, to find that the admitted conduct did not amount to UPC.
The Appellant was ordered to pay the Respondent’s full costs.
Comment
This decision provides welcome clarity on the extent to which regulators can rely on conditional discharges as evidence of unacceptable professional conduct, and the care which regulatory panels are required to take when they rely on evidence as to context which is not expressly a particular of the conduct alleged to amount to unacceptable professional conduct.
Mary O’Rourke QC acted for Mr Wray, instructed by Paul Grant of BSG Solicitors.
