Weekly Digest: 16 October 2017

The appellant was convicted of a number of sexual offences against children, including rape of a child under 13 and sexual activity with a child, at Norwich Crown Court in August 2016. The appellant became known to the authorities after he used the internet to access indecent images of children on a laptop. Subsequent investigations revealed that it had been used on numerous occasions to view child pornography. After the appellant had been interviewed, the complainant in proceedings (anonymised as KH) was interviewed for the first time. Over the course of a number of interviews, it emerged that there had been a sexual relationship between the complainant and the appellant, which had begun when the complainant was 11 and progressed to full sexual intercourse before the complainant‘s 13^th birthday. Indecent images of the complainant had been found on the appellant‘s phone and traces of his semen in the complainant‘s underwear.

During the trial, it was the prosecution case that the evidence that the complainant had given during her later interviews about the sexual relationship she had engaged in with the appellant was substantiated by, inter alia, DNA evidence of the appellant’s semen in the complainant’s underwear and the photos of the complainant found on the appellant’s phone. The defence case was that the appellant had never engaged in such activity and that the complainant’s evidence from the interviews could not be believed. The question for the jury on the most serious counts was the credibility of the complainant’s evidence.

During deliberation, it emerged that the jury had, somehow, obtained transcripts of the complainant’s ABE interviews, transcripts which, as was agreed between the judge and counsel, they did not have permission to have. Despite the judge’s direction regarding the way in which they should regard the transcripts – i.e. that they should not give them any undue weight – there was rightfully concern about the fact that the jury had spent some three hours in deliberation with some of them. That the jury had access to the ABE transcripts clearly ran contrary to CPD VI Trial 26L, but the judge was left with limited choices, especially given that this was itself a re-trial and he was reluctant to discharge the jury and put the complainant through the ordeal of giving evidence for the third time.

Nevertheless, applying the principles laid down on analogous facts in Popescu [2010] EWCA Crim 1230, the appellate court was satisfied the defence did not agree to the jury having access to the transcripts and the direction the judge had given on the weight to be attached to them was insufficient, partly due to the fact it had been given at the wrong time, such that it would have impacted the fairness of proceedings. In the court‘s view, there was a real prospect that the appellant‘s convictions were unsafe.

A person may be placed in immigration detention while a claim for asylum or protection, or some other basis for remaining in the UK, is considered and appealed. There are individuals, however, who should not normally be placed in immigration detention. A category of those vulnerable individuals is those who have been ‘tortured’. The guidance and the policy relating to the definition of ‘torture’ was challenged in these proceedings.  The guidelines were the ‘Adults at Risk in Immigration Detention’ (AARSG), issued under s. 59 of the Immigration Act 2016. The two policies were the Detention Services Order (DSO) 9/2016, which dealt with the Detention Centre Rules (DCR) 2001 SI No. 238, and Chapter 55b of the Enforcement Instructions and Guidelines (EIG). Three issues were raised by the claimants, only two of which were dealt with substantively in judgment:

1. The definition of ‘torture’ used in the AARSG was unlawfully restrictive, was contrary to the definition of ‘torture’ in the DCR (particularly R 35(3)), and had no rational justification in relation to the identification of those particularly vulnerable to harm in immigration detention;
2. The EIG 55b caseworker guidance was inconsistent with the AARSG which took precedence over it.

Previous proceedings had been brought by a number of individual litigants, supported by medical justice, in relation to the meaning of ‘torture’ in previous guidance and policy, including the DCR, in EO and Others v. SSHD [2013] EWHC 1236 (Admin). Before Burnett J, it was contended by the SSHD that ‘torture’ meant torture as defined in the United Nations Convention Against Torture (UNCAT), but he found that it had a broader meaning, i.e. that the definition should not be restricted to pain or suffering inflicted by a ‘public official’. The definition was not as inclusive as it could have been, but it was broad enough for the purposes of those proceedings.

The meaning of torture had been, effectively, authoritatively decided as being broader than UNCAT torture in the context of R 35(3) DCR. As a result, the DSO 9/2016, which purported to require medical practitioners not to request a R35(3) report where their concerns were of treatment which did not meet the UNCAT definition of ‘torture’, was unlawful. It was not open to the SSHD to issue policy statements (such as the AARSG) to alter the meaning of a statutory instrument (DSO 9/2016). Aspects of the AARSG, in relation to the definition of torture, were also found to be unlawful. The correct interpretation of ‘torture’ in R35 (i.e. that broader definition established by the Court in EO) was ignored. This incorrect interpretation also infected other areas of policy statements issued by the government. It was determined that the AARSG, which contained a list of indicators of particular vulnerability, was thus also unlawful, in that it did not list indicators beyond those pertaining to the UNCAT definition of torture. It was thus too narrow.

The judge was to hear further submissions about the appropriate form of relief.

The respondent doctor was suspended for 12 months following a hearing before the Medical Practitioners Tribunal (MTP). The doctor had had a sexual relationship with a patient of his (Patient A), which lasted a number of years. Patient A was particularly vulnerable. During their relationship, it was alleged that the doctor, on two occasions, dishonestly provided official letters in support of Patient A’s application for benefits; the dishonesty consisted in the respondent not disclosing that he was in a sexual relationship with Patient A. Unfortunately, the decline of their relationship coincided with a number of Patient A’s suicide attempts. When the relationship ended, the respondent told the partners at his medical practice and reported himself to the General Medical Council (GMC).

The tribunal made adverse findings against the respondent on all heads of charge. The only one disputed related to the letters of support. Nevertheless, the tribunal found that such conduct had the potential to undermine public confidence in the profession. At the hearing, the tribunal heard evidence from a Medical Consultant Psychotherapist, who spoke to the respondent’s mental health diagnosis. This seemed to be a substantial mitigating factor and the sanction imposed was a 12 month suspension.

The GMC appealed against that decision, pursuant to s. 40(A) of the Medical Act (MA) 1983; the thrust of the appeal was that the sanction imposed by the MPT was insufficient to protect the public interest and that the doctor should have been erased. The appeal was brought on four grounds:

1. The MPT either misconstrued or failed to consider the Sanctions Guidance; an examination of para. 103 of those guidelines reveal that, given the severity of the doctor’s misconduct in this case, erasure was the most likely sanction, even in light of the respondent’s mitigating circumstances. Erasure would be the only way to protect the overriding objective – the need to maintain public confidence and proper professional standards.
2. The MPT placed disproportionate weight on the evidence of the psychiatrist. The GMC’s position was that the respondent’s mental diagnosis should not have militated so violently against an order for erasure.
3. The MPT gave inappropriate weight to the issue of dishonesty and the wider consequences of the doctor’s sexual misconduct.
4. In any event, the only appropriate sanction was that of erasure.

The judge found that the GMC succeeded on their first to third grounds. In respect of the first, the MPT had failed to have proper regard to the relevant paragraphs of the Sanctions guidance; the judge noted that he would have expected, in the very least, for the relevant paragraphs to be set out. The MPT had not properly considered the objective features of the case, to demonstrate that their gravity had been fully understood, and to address and explain how the available mitigation operatives to justify the imposition of suspension.

As regards the second ground, it was clear that the MPT had given too much weight to the expert evidence of the psychiatrist. This was an ‘extremely serious case of sexual misconduct’ such that only weighty mitigation could have properly commuted the sanction of erasure. The wider public interest had not been upheld by tribunals accepting expert evidence of this nature and applying a “plausible and psychologically coherent narrative” to the issues under scrutiny.

The third ground was dealt with swiftly by the judge; it was clear that the respondent’s dishonesty did add to the severity of his misconduct whereas the MPT had failed to make that clear. In the MPT judgment, the sanction of suspension had been resolved upon before the tribunal came to deal with the doctor’s sexual misconduct. This was a manifest error.

In terms of disposal, the proper result was clear enough for the judge to exercise his powers under s. 40A(6) MA 1983 and substitute the correct sanction without remitting the case back for reconsideration by the MPT. The sanction of erasure was accordingly substituted.

The appellant, a nurse, was found to have disseminated confidential information from her personal email account by a panel of the Conduct and Conduct Committee. The appellant claimed that this was a protected disclosure under the Public Interest Disclosure Act 1998, since it raised legitimate concerns about the quality of the medical care being provided to patients in the children’s ward at the hospital where she worked. After the hearing, the appellant exercised her right of statutory appeal, which she dealt with initially as a litigant in person, instructing counsel only for the oral hearing itself. At the oral hearing, the appellant’s counsel, part way through his submissions on the substantive findings of the panel, was asked by the judge whether the issue of sanction was not better dealt with first. The judge invited the appellant’s counsel to take submissions and, after a short break, counsel took the judge’s offer to proceed on that footing and the issue of sanction was dealt with. This aspect of the appeal was essentially successful, but the issue was that the appellant’s counsel never got the opportunity to finish addressing the court as regards the substantive findings of the panel, which formed the grounds of the appeal. If the appellant had succeeded on those grounds, then sanction would, of course, not have been in issue as none would have been necessary.

The appellant’s position following this initial hearing was to apply for review proceedings. Her application was struck out the papers and permission to set aside that order was refused as the appellant’s claim either failed to reveal any arguable cause of action or amounted to a subject more appropriate for an application for permission to appeal to the Court of Appeal. But the judge, recognising that the applicant was an extremely vulnerable litigant in person, treated the appellant’s application as encompassing an application to re-open the original statutory appeal pursuant to CPR 52.30 (cf. the court’s obligation to litigants in person, CPR 3.1A).

The High Court’s power to re-open a final determination of any appeal is rarely exercised and the test (see CPR 52.30(1) requires a high threshold to be satisfied; it is three-fold:

1. It is necessary to re-open the appeal to avoid real injustice;
2. The circumstances are exceptional and make it appropriate to re-open the appeal; and
3. There is no alternative remedy.

In this case, the judge accepted the respondent’s submission that, although the wrong decision may have been reached in the original appeal proceedings, that was insufficient to meet the grounds for re-opening the appeal. What is more, there was an alternative remedy and that lay in an application to appeal to the Court of Appeal. As such, the judge declined to re-open the appeal.

The appellant’s (AS) claims for asylum and humanitarian protected were refused at first instance by the First-tier tribunal (FtT); the subsequent appeal was dismissed. The appellant then appealed to the Court of Appeal on the grounds that the FtT had erred in that the FtT had failed to give adequate reasons for its conclusions that the appellant:

1. as a victim of domestic violence in Iran, was in capable of being a “member of a particularly social group” under the Refugee Convention 1951;
2. did not demonstrate well-founded fear of persecution on grounds of her religion; and
3. did not demonstrate well-founded fear of persecution on grounds of her illegal exit from Iran.

In the appellant’s submission, this amounted to a material error of law and a fresh hearing was appropriate relief.

AS first entered the UK in 2001 on a visit visa and was removed from the country in 2009. AS was questioned on her return to Iran, but this was because her passport had expired. AS claimed to have left Iran illegally in the back of a lorry in 2012 and she arrived in the UK via Turkey. Her claim for asylum was refused by the SSHD.

On the first ground of appeal, the appellant contended that within the meaning of article 1A(2) of the UNHCR a “particular social group” meant a group of persons sharing a common characteristic, other than their risk of persecution, which serves to distinguish that group from the remainder of society. That common characteristic may be innate or immutable. The Court accepted that in concluding that AS, as a woman in Iran, was not a member of particular social group was an error. But, this was immaterial as, in any event, AS could not established a well-founded fear of persecution because of her membership of that social group. The error was not, then, material – the appellant was not at risk of persecution.

This was sufficient to dismiss the appeal, but the Court went on to consider the other grounds. On ground three, which was considered next, AS’s case was that, although the FtT was correct to conclude, with SB (Iran) CG [2009] UKAIT 00053 in mind, that her earlier illegal exit was insufficient to give rise to a finding of risk on return, the judge had failed to consider AS’s UK-based political activities and that these might become known on her return to Iran. In the eyes of the Court, this amounted to challenge to the factual findings of the FtT. But, there was no evidence to suggest that AS would be a suspected political activist or that she would be questioned directly about political activity. The FtT’s reasoning was sufficiently clear and the third ground would also fail.

Irwin LJ, who gave the judgment of the majority, dealt lastly with second ground of appeal. At the crux of this ground was whether AS had ever proselytised, since it is only under those circumstances that Christians are persecuted in Iran. The FtT found that she had not and AS was not helped by the fact that she was on record as regarding her religion as a private matter and thus was unlikely to proselytise. The finding that AS had not demonstrated a well-founded fear of persecution because of her religion was safe; it was for reasons unconnected with her religion that AS would not return to where she lived.

There was some issue regarding the defendant’s state of mental health. This arose first before the trial regarding the defendant’s fitness to stand trial. Following a contested hearing, it was held that he was. It did not, however – and somewhat interestingly – resurface during the trial, but the judge ordered provision of psychological reports as to the correct disposal. Two of the three considered a hospital order and restriction under ss. 37 and 41 MHA 1983, rather than a Limitation Direction under s. 45A. The third, with a particular view to public safety, thought it better for the defendant to be made a subject to a Direction under s. 45A. The concern being that a s. 37/41 disposal might leave a First Tier Tribunal with no option but conditional discharge of the defendant, in the event he made a quick recovery. He was also alert to the possibility the defendant was manipulating the other doctors in the case.

Following the guidance in Vowles [2015] 2 Cr. App. R. (S) 6, despite medical evidence to the contrary, the judge espoused doubts about the genuineness of the defendant’s mental illness and, in any event, was sure that the defendant’s conduct was not entirely attributable to that mental illness. Further, he was sure that any mental disorder could be appropriately dealt with on a direction under s. 45A and that there were no sound reasons for departing from the usual course of a penal sentence.

A sentence of life imprisonment with a minimum term of 15 years was imposed, with the notification requirements under Part IV of the Counter-Terrorism Act 2008 applying. A forfeiture order under s. 23A of the Terrorism Act 2000 was also ordered. The defendant chose not to appear in person.

The Trust took full responsibility and entered a guilty plea. The judge recognised the issues with money that the Trust had faced, and would face if too onerous a fine were imposed. The initial level of the fine was set at £300,000, but the judge thought that this could affect the Trust’s ability to meet its obligations to its other patients. This, combined with a substantial reduction for full admission of liability, meant the fine imposed was £125,000, with an order to meet the prosecution costs in full and pay the victim surcharge.