Case Update: Khan v GMC (2021).

Case citation: Khan v GMC (2021) EWHC 374 (Admin)

This is an interesting case in which good character and the Tribunal’s approach to evidence were reviewed. The case of Dutta v GMC (2020) EWHC 1974 (Admin) was cited at length and was followed.

Background

Mr Khan, a consultant orthopaedic surgeon appealed under section 40 of the Medical Act 1983 against a decision of the Medical Partitioners Tribunal (MPT) that his name should be erased from the medical register. The real focus of the appeal was the Tribunal’s determination of the facts.

The Tribunal had found that Mr Khan had behaved in an inappropriate and sexually motivated way towards three female members of staff.

Prior to the MPT hearing, the complaints had led to a number of legal processes. These included, disciplinary proceedings by the Trust which led to Mr Khan’s dismissal for gross misconduct in February 2014, successful Employment Tribunal proceedings brought by Mr Khan in 2015 for unfair and wrongful dismissal and a criminal trial in the Crown Court in 2016 for sexual assault of one of the complainants (Miss D). Mr Khan was acquitted on the 22nd March 2016.

Each of the complainants had made allegations of sexually motivated physical and verbal conduct.

Mr Khan’s case in relation to Miss D’s allegations was that, apart from one episode of innocent physical contact, which had not been sexually motivated and which Miss D had exaggerated and embellished, the allegations were completely untrue.

Mr Khan maintained that all three complainants had been encouraged to give false evidence against him by senior Trust managers in order to get rid of him because they viewed him as a troublesome employee. One of the complainants, Miss C, admitted lying on oath in previous proceedings.

The Appeal

Two of the grounds of appeal are of particular interest:

1. The Tribunal failed to have any or any adequate regard to the good character of Mr Khan;
2. The Tribunal placed undue reliance on witnesses’ demeanour in judging their credibility, in contravention of the principles in Dutta,

Good Character

In this case the MPT had agreed written directions of law and the GMC had expressly accepted the relevance of good character in those written directions.

Mr Justice Knowles set out the following:

1. ‘It is now clearly established that, just as in a criminal trial, in professional disciplinary proceedings good character is relevant to both credibility and propensity, Donkin v Law Society (2007) EWHC 414 (Admin). [86]
2. ‘I accept Mr McCartney’s submission that the Tribunal’s reasons do not contain a self-direction on good character…. The question, it seems to me, is whether the absence of a good character direction vitiates the Tribunal’s decision on the basis that it must therefore be inferred that it did not take Mr Khan’s good character properly into account’ [87].
3. ‘As a general rule, it is not readily to be assumed that a judge at first instance has failed to apply well-understood principles even when they are not directly set out in his/her judgment: Piglowska v Piglowski [1999] 1 WLR 1360 , 1372G’ [89]
4. Shaw v Logue [2014] EWHC 5 (Admin), [180]-[182]…. The SDT is an expert, professional jury which does not need the sort of ‘good character direction’ one sees in criminal trials (and neither counsel sought to give one) and does not need to have demonstrated that it took the Appellants’ good character into account by express reference to these trite principles in the body of its Judgment. [90]
5. This approach was approved by the Court of Appeal in Wingate v Solicitors Regulatory Authority [2018] EWCA Civ 366, [167] The Solicitors Disciplinary Tribunal is not obliged to give itself a good character direction of the kind that Crown Court judges routinely give to juries in criminal trials: see Shaw v Logue [2014] EWHC 5 (Admin) at [180]-[182] .” [91]

This ground of appeal was rejected. Mr Justice Knowles concluded:

‘From these authorities I derive the following. Whilst a disciplinary Tribunal must take good character evidence into account in its assessment of credibility and propensity, Donkin, supra, and Bryant, supra , show it is an error not to do so, it is not required slavishly in its reasons to give a self-direction to that effect (although if it does do so, there can be no room for argument..). It is sufficient, where the matter is raised on appeal, if the appeal court is able to infer from all the material that the Tribunal must have taken good character properly into account. That is the conclusion I reach in this case. [92]

Evaluation of the evidence

The case of Dutta v GMC was reviewed at length at paragraphs 71 – 72.

Mr Justice Knowles found that the Tribunal’s approach to the evidence of all three complainants was erroneous. He considered that the Determination was based on a fundamentally flawed approach, that it could not stand and must be quashed.

Of particular note are the following parts of the Judgment:

• ‘In relation to Miss C, the Tribunal’s approach was first to consider her credibility generally (at [124]-[136]) and, having done that, and found her to be ‘genuine, sincere’ and ‘credible’ ([135]), to consider the individual allegations against Mr Khan at [137]-[173]. But by then its conclusions were foregone because of what it had already decided in the first section that she was ‘genuine’. When its reasons for concluding that Miss C was ‘credible’ are examined, it is clear that the Tribunal fell into the precise trap which Dutta , supra, warned against’ [107].
• ‘..it seems to me that the Tribunal was, in effect, beginning its analysis by asking ‘Do we believe her … ?’, which is the very thing which Warby J said in Dutta , supra, at [42] should not be done’. [108].
• ‘The Tribunal’s language shows that its reasons were based in significant part on the twin fallacies that ‘the more confident another person is in their recollection, the more likely it is to be accurate’ and ‘because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth’ (per Gestmin, supra). I also consider its reasons violated Warby J’s second stricture in Dutta , supra, [42], that ‘Reliance on a witness’s confident demeanour is a discredited method of judicial decision making’. That must be all the more so in the case of a witness who had admitted lying on oath on a previous occasion’. [110]
• ‘I turn to Miss A. I think similar criticisms can be made of the Tribunal’s reasoning about her evidence. Whilst not as stark as in Miss C’s case, it does appear that the Tribunal made, at the outset, a global assessment that she was telling the truth based impermissibly on her demeanour. That is because, as I have already said, in the second paragraph of its discussion ([91]) it described her as ‘confident, credible’ and ‘sincere and consistent’. Again, it seems to me that this approach displays one of the errors of reasoning identified in Gestmin, supra, namely that it is wrong to suppose ‘the more confident another person is in their recollection, the more likely it is to be accurate’ [122].
• ‘It was not open to the Tribunal baldly to declare at the outset, before considering any of the evidence in detail, that Miss D was ‘credible’ [129]… It was a wrong approach for the Tribunal to find Miss D to have been ‘credible and consistent’ before it had considered any of the evidence’ [131].

This case is another reminder to Tribunals of how important it is to avoid the flawed approach of considering demeanour, confidence and whether they believe the witness first and then letting that guide their decisions on the facts.