Police Law Blog European Decisions Statutory Materials

Proceeding in absence: Adeogba reaffirmed

Just a very short point on proceeding in misconduct hearings in the absence of defendant officers, following the judgment in Sanusi v GMC [2018] EWHC 1388 (Admin).

The position on proceeding in absence of a defendant officer in police misconduct hearings was always thought to mirror that in criminal proceedings – and for good reason. The central authority of R v Jones (Anthony) [2003] 1 AC 1, setting out the very high bar to proceeding in criminal actions was followed by Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34, which adopted that test for disciplinary hearings. It is worth noting that although Tait was heard by the Privy Council, it did so as a first (and only) tier appeal tribunal. Regardless, the position in Tait no longer holds.

A line of resulting and somewhat inconsistent authority came to a head in General Medical Council v Adeogba [2016] EWCA Civ 162; [2016] 1 WLR 3867. There, it was contended that the test in Jones applied to General Medical Council misconduct hearings. It is worth setting out the relevant paragraphs of the judgment at [17]-[20]: [emphasis added]

“In my judgment, the principles set out in Hayward, as qualified and explained by Lord Bingham in Jones, provide a useful starting point for any direction that a legal assessor provides and any decision that a Panel makes under Rule 31 of the 2004 Rules. Having said that, however, it is important to bear in mind that there is a difference between continuing a criminal trial in the absence of the defendant and the decision under Rule 31 to continue a disciplinary hearing. This latter decision must also be guided by the context provided by the main statutory objective of the GMC, namely, the protection, promotion and maintenance of the health and safety of the public as set out in s. 1(1A) of the 1983 Act. In that regard, the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance. 

It goes without saying that fairness fully encompasses fairness to the affected medical practitioner (a feature of prime importance) but it also involves fairness to the GMC (described in this context as the prosecution in Hayward at [22(5)]). In that regard, it is important that the analogy between criminal prosecution and regulatory proceedings is not taken too far. Steps can be taken to enforce attendance by a defendant; he can be arrested and brought to court. No such remedy is available to a regulator. 

There are other differences too. First, the GMC represent the public interest in relation to standards of healthcare. It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. The consequential cost and delay to other cases is real. Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed.

Second, there is a burden on medical practitioners, as there is with all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”

In Sanusi, Kerr J was asked to consider whether Adeogba had overtaken other recent authority. In particular, the doctor relied upon both Jones, Tait, Lawrance v General Medical Council [2015] EWHC 586 (Admin) at [39] and Sukul v Bar Standards Board [2014] EWHC 3532 (Admin), per Laws LJ at [34]. The GMC submitted that these had been overtaken by Adeogba – with which Kerr J agreed. He stated at [42]-[43]: [emphasis added]

“In my judgment, the decisions in Sukul and Lawrance should be regarded as having been decided on their own facts and under disciplinary regimes in which the rules were not necessarily to the same effect as those of the GMC; or the basis of reasoning that has to an extent been overtaken by Adeogba. That does not mean, of course, that they are wrongly decided on their facts.

Indeed, in Adeogba the court emphasised that fairness to the doctor is a “prime consideration”. What fairness demands is a question of fact in each case. But in the context of the disciplinary jurisdiction exercised by MPTS tribunals in the case of doctors, it will rarely be unfair for a tribunal to proceed straight to the question of sanction, rather than pausing to invite attendance from a defendant who has, up to that point, hitherto voluntary absented himself.”

Police misconduct hearings are, of course, different to GMC hearings in structure and in the disciplinary regulations. But the point holds good here in relation to the broader matter of proceeding in absence.* Fairness to the police officer will be a “prime consideration” but in the premises of there being a burden on police officers to engage with the regulatory regime, both in relation to the investigation and the resolution of the allegations made against them, it will rarely by unfair for a police misconduct to proceed where an officer has failed to co-operate or comply with the regulations.

*Note that Adeogba has also been referred to positively (and relied-on by both active parties) in R (O’Connor) v (1) Police Appeals Tribunal (2) CC West Yorkshire Police [2018] EWHC 190 (Admin).