If a police officer facing professional disciplinary proceedings disputes the misconduct allegations and continues to do so even after a finding of gross misconduct, can the misconduct hearing conclude that that the officer lacks insight and remorse – and impose a higher disciplinary sanction? The case of General Medical Council v Awan [2020] EWHC 1553 (Admin) from the medical regulatory tribunals suggest that such a conclusion should not be reached automatically, although a continued denial of the findings may well be a relevant consideration.
Whilst professional disciplinary proceedings brought by the General Medical Council (‘the GMC’) against doctors are based on a different regulatory regime, the general principles underpinning those proceedings are equally applicable to police misconduct hearings.
Dr Awan, a GP, was suspended from practice for nine months; the GMC submitted that this decision was wrong and the sanction was insufficient to protect the public. In relation to its first ground of appeal, the GMC argued that Dr Awan’s “implausible, incredible and inconsistent” evidence at the hearing was relevant to his “insight into his misconduct and the risk of repetition”, yet the regulatory tribunal failed to refer to this and failed to count this as an aggravating factor [35].
Notwithstanding that Mostyn J described Dr Awan’s defence before the Tribunal as “ludicrous”, he rejected this ground of appeal. He thought it “inconceivable” that the tribunal did not have in mind the nature of Dr Awan’s defence when making its findings about insight. In any event, Mostyn J considered it to be “too much to expect of an accused member of a profession who has doughtily defended an allegation on the ground that he did not do it suddenly to undergo a Damascene conversion in the impairment phase following a factual finding that he did do it.” To expect the professional to do that would be “seriously to compromise his right of appeal against the factual finding“ and would add little to the assessment of culpability [37].
Continuing this point, the judge held, “an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions” [38]. That is why explicit admissions of culpability are often not made after the factual findings are made; the professional might instead say “I am sorry if what I have said has caused you to take offence” or might admit that “what the tribunal had found proved was serious and deplorable” [39]. This is as much as can be expected in the absence of a significant hiatus between the factual findings and the sanctions stage “in which full reflection can be undergone” [40]. This ground of appeal advanced by the GMC was rejected.
This followed an earlier case of Yusuff v General Medical Council [2018] EWHC 13 (Admin), which involved an appeal by a doctor against his regulatory tribunal’s review hearing decision that his fitness to practise was still impaired and that he remain suspended from practice for a further six months. At the original disciplinary hearing, Dr Yusuff had been found guilty of misconduct involving dishonesty and sexual impropriety, and he was suspended for twelve months. At that time, the regulatory tribunal found that Dr Yusuff showed no insight into his misconduct.
At the first review hearing, Dr Yusuff told the tribunal that he accepted its factual findings. The tribunal considered that showed insufficient understanding of the seriousness of the misconduct and directed a period of four months’ suspension. At the second review hearing, it concluded that his fitness to practise was still impaired and determined that a further period of six months’ suspension “would be sufficient to allow Dr Yusuff to gain genuine and full insight”.
Dr Yusuff appealed on the basis that, inter alia, the tribunal’s determination on impairment at the second review hearing was wrong and based substantially on unfair questioning in relation to previous denials of the facts. Yip J held that it “would be wrong to equate maintenance of innocence with a lack of insight”, although a continued denial of the finding of misconduct “will be relevant to the Tribunal’s considerations on review”. Things would have moved on by the time of a review hearing, and the professional “may be able to demonstrate insight without accepting that the findings at the original hearing were true.” However, “[a] want of candour and continued dishonesty may be taken into account by the Tribunal in reaching its conclusions on impairment.“
In turn, Yip J referred to the earlier case of Amao v Nursing and Midwifery Council [2014] EWHC 147 (Admin), in which Walker J considered it “thoroughly inappropriate, almost Kafkaesque, to cross-examine Ms Amao in a way which implied that she would be acting improperly if she did not “accept the findings of your regulator”. The nurse was entitled to say that she did not accept the findings of the panel. In the event, Yip J held that the tribunal’s finding that Dr Yusuff’s oral evidence was “evasive and inconsistent” was “unassailable”. There was no reason for interfering with the Tribunal’s judgment that his “insight was partial, limited and somewhat superficial.”
Comment
In Awan, Mostyn J was not referred to Yusuff or the earlier case of Amao, despite those decisions raising similar issues. One might initially have thought that there was a disparity between the judgments, on the basis that Mostyn J in Awan concluded that a professional who advances a ludicrous defence should not be given a harsher sanction if that defence is disbelieved (and/or still maintained thereafter). That is perhaps consistent with the well-known adage that the purpose of sanctions made by professional disciplinary tribunals is not primarily punitive.
However, one must read Awan more closely. Despite Mostyn J’s support of professionals’ right to advance any defence they wish without the jeopardy of further charges or enhanced sanctions, this did not mean that the nature of that defence (or the professional’s continued denial) was not relevant to the sanction stage. First, Mostyn J said that a continued denial would add little, if anything, to the assessment of culpability. Secondly, he held that it was “inconceivable” that the Tribunal did not have in mind Dr Awan’s “ludicrous” defence when making its findings about “insight”. From this, it is clear that the nature of a professional’s defence and their continued denial of the misconduct after it has been found proved may be relevant to insight and remorse, notwithstanding its irrelevance to culpability.
There are some practical tips to take away from this:
- Police misconduct hearings are not the same as medical review hearings – there is no such type of police hearings – where the final (and unreviewable) disciplinary sanction is considered almost immediately after disciplinary finding. However…
- If a police officer does not accept the findings of fact at all and there is a proper basis upon which to make an appeal, they should not be expected to make admissions, as this will compromise their right of appeal. That said, the number of cases in which a professional disciplinary tribunal’s factual findings will be overturned on appeal will be low, especially when those findings are based upon an assessment of the credibility of witnesses: see e.g. Gupta v General Medical Council [2001] UKPC 61, [2002] 1 WLR 1691 at [10] (Lord Roger) and Southall v General Medical Council [2010] EWCA Civ 407, [2010] Med LR 235 at [47] (Leveson LJ) – although see the recent case of R (Chief Constable of Dyfed Powys) v (1) Police Misconduct Tribunal (2) PC England [2020] EWHC 2032 (Admin);
- Thus, although (as Yip J identified) a professional is ‘entitled’ to disagree with the tribunal’s findings, such a denial may well be taken into account in the tribunal’s assessment of insight and remorse. How can a professional be said to demonstrate insight into, and remorse for, their misconduct if they do not accept that they misconducted themselves at all? That this will be taken into account is therefore logical, but it means that police officers and other persons facing disciplinary proceedings should not be too quick to maintain a denial on the basis of an ‘entitlement’ that, in reality, is unlikely to have any positive effect.
- As identified by both Mostyn J and Yip J, a better way to go about maintaining a ‘denial’ would be to accept that the tribunal has made its findings, not seek to go behind them, and admit that what they have found is serious and deplorable (if appropriate) and is likely to undermine public confidence in the profession. That shows a far greater level of insight than continuing to completely deny the misconduct. As the above cases establish, it is not necessary for a full admission to be made in order for a tribunal to conclude that that person understands the seriousness of the findings and is unlikely to repeat it.
- However, despite the higher likelihood that such a position will allow the professional to show ‘insight’, it might still make it difficult for the professional to show ‘remorse’, which can be defined as “deep regret or guilt for a wrong committed”. It is unlikely that someone who does not accept that they committed a wrong would feel regret or guilt about it. However, not showing remorse does not necessarily mean that the professional is indifferent about the misconduct, particularly if they are still able to demonstrate sufficient insight and understanding.
- For lawyers representing police officers, the key lesson to take away is: the officer does not have to make full admissions but, if findings are made against them with which they disagree, you should try to avoid an approach that would lead the panel to conclude that they lack insight or remorse. In that regard, consistency in the approach is necessary so as not to appear at times to be going behind the findings.
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For appropriate authorities, the above two cases make clear that a denial of misconduct should not of itself lead to a finding of dishonesty or a more serious sanction, and a suggestion that it should is unlikely to be looked upon favourably. Although an officer who doughtily defends the allegations will be unable to rely on the mitigating factor of “open admissions at an early stage” (Outcomes Guidance, para 4.71), an absence of a mitigating factor is not an aggravating factor.