AS TO THE ADMISSIBILITY OF
Application No. 31503/96
by Kenneth Conrad WICKRAMSINGHE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 9 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 December 1995
by Kenneth Conrad WICKRAMSINGHE against the United Kingdom and
registered on 16 May 1996 under file No. 31503/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
4 May 1997 and the observations in reply submitted by the
applicant on 30 June 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Sri Lanka, permanently resident in
the United Kingdom. Before the Commission he is represented by
Messrs. Pillai & Jones, solicitors, of London. The facts of the
application, as submitted by the parties, may be summarised as follows.
The applicant is a medical doctor. A complaint against him was
brought by the General Medical Council ("the GMC"). It was alleged
that:
On 18 June 1992 the applicant behaved indecently towards a
patient, whilst purporting to offer her medical advice and
treatment;
On two further occasions, in December 1992 and November 1993, the
applicant behaved indecently towards female patients.
The applicant was interviewed with regard to the November 1993
incident prior to the end of that month (in the event no evidence was
submitted before the Conduct Committee in relation to this charge).
With regard to the June 1992 incident, the applicant was interviewed
on 7 January 1994. On 26 January 1994 the applicant was interviewed
in respect of the December 1992 incident.
On 8 December 1994 the Professional Conduct Committee of the GMC
("the Conduct Committee") held that the facts alleged against the
applicant in connection with the incident on 18 June 1992 had been
proved to the Committee's satisfaction. The Conduct Committee ordered
the erasure of the applicant's name from the register.
The Conduct Committee found the facts relating to the alleged
incident in December 1992 not proven, and no evidence was submitted as
to the allegations relating to November 1993.
The applicant appealed to the Privy Council. His appeal was
heard on 26 June 1995. The applicant alleged:
(1) that he did not receive a fair hearing because of a delay of
18 months in notifying him of the complaint against him;
(2) that he did not receive a fair hearing as he was denied access
to the medical records related to the alleged incident;
(3) that he did not receive a fair hearing due to various failures
by his legal representatives;
(4) that the penalty imposed was excessive.
The Privy Council dismissed the applicant's appeal on 25 July
1995. It noted that the case concerned a health care assistant
employed at a hospital which the applicant visited one day a week: in
examining her for pain in her neck, he touched parts of her body in
ways which, it was accepted by the applicant, would have been seriously
improper if true. It further noted that the Committee had accepted the
evidence of the health care assistant and rejected that of the
applicant.
The bulk of the Privy Council's decision, which runs to six
pages, deals with the applicant's complaints concerning the fairness
of the proceedings. The Privy Council noted first that the delay
between the incident and the date on which the applicant was accused
was regrettable, but had to be considered in the light of what actually
happened in the course of the investigations by the Committee, and was
coupled with the complaints about his representatives, who had
allegedly not requested sufficient information at an appropriate
moment.
Relevant domestic law and practice
The jurisdiction of the Conduct Committee to hear allegations of
serious professional misconduct is founded upon Section 36 of the
Medical Act 1983:
"(1) Where a fully registered person - ...
(b) is judged by the Professional Conduct Committee to
have been guilty of serious professional misconduct,
whether while so registered or not;
the Committee may, if they think fit, direct -
(i) that his name shall be erased from the register ..."
The Conduct Committee is elected annually by the GMC and
consisted in December 1994 of 34 members comprising: the President of
the GMC (or some other member of the GMC appointed by him); a member
of the GMC appointed by the President; 22 elected members, two
appointed members and eight lay members (who are nominated for
appointment to the GMC by Her Majesty on advice of her Privy Council
and who do not hold a qualification registrable under the Medical Act
1983). Members of the Conduct Committee normally serve for a term of
one year. The quorum for the Conduct Committee is five, although eight
members of the Conduct Committee are invited for any one hearing,
comprising six medical members and two lay members. No member may sit
on a case if that person has previously considered the same case,
either as a member of another committee or in preliminary stages of the
proceedings before the Conduct Committee. The Conduct Committee is
advised on questions of law by a legal assessor, who must be a
barrister or solicitor of not less than ten years' standing. An oral
hearing is held in public during which the practitioner may be legally
represented. At the hearing, the rules of evidence in criminal cases
are applied, and evidence is given on oath. The practitioner may cross
examine witnesses and call his own witnesses at the hearing. The
Committee does not give reasons for its decision.
An appeal against the decision of the Conduct Committee to the
Privy Council lies of right by Section 40 of the Medical Act 1983. The
Privy Council may on any such appeal recommend in its report to Her
Majesty in Council: (1) that the appeal be dismissed; (2) that the
appeal be allowed and the direction or variation questioned by the
appeal quashed; (3) that such other direction or variation as the
Conduct Committee could have given or made be substituted; or (4) that
the case be remitted to the Conduct Committee to dispose of the case
in accordance with the directions of the Privy Council.
In Libman v. GMC ([1972] AC 217) Lord Hailsham of St. Marylebone,
the Lord Chancellor, reviewed the authorities and summarised them as
follows:
"(1) The appeal lies of right by the statute and the terms of
the statute do not limit or qualify the appeal in any way, so
that the appellant is entitled to claim that it is in a general
sense nothing less than a rehearing of his case and a review of
the decision: ...
(2) Notwithstanding the generality of the above language, the
actual exercise of the jurisdiction is severely limited by the
circumstances in which it can be invoked. The appeal is not by
way of rehearing in the sense that the witnesses are heard afresh
or the evidence gone over again .... . This amongst other
things, means that there is a heavy burden upon an appellant who
wishes to displace a verdict on the grounds that the evidence
alone makes the decision unsatisfactory.
(3) Beyond a bare statement of its findings of fact, the
[Conduct Committee] does not in general give reasons for its
decision as in the case of a trial in the High Court by judge
alone from which an appeal by way of rehearing lies to the Court
of Appeal ... . It follows from this that the only circumstances
in which an appellate court can reverse a view of facts taken by
the [Conduct Committee] would be a case, where, on examination,
it would appear that the committee had misread the evidence to
such an extent that they were not entitled to make a finding in
the state of the evidence presented before them.
(4) The legal assessor who assists the committee at its hearing
is not a judge, and his advice to the committee is not a summing
up, and no analogy with a criminal appeal against a conviction
before a judge and jury can properly be drawn. The legal
assessor simply advises the committee in camera on points of law
and reports his advice in open court after he has given it. The
committee under its president are masters both of law and of the
facts and what might amount to misdirection in law by a judge to
a jury at a criminal trial does not necessarily invalidate the
decision ..."
For the purposes of English administrative law, an appeal to a
court on a "point of law" or a "question of law" includes a review as
to whether a decision or inference based on a finding of fact is
perverse or irrational. The court will also grant a remedy if the
impugned decision was such that there was no evidence to support a
particular finding of fact, or the decision was made by reference to
irrelevant factors or without regard to relevant factors; or made for
an improper purpose, in a procedurally unfair manner or in a manner
which breached any governing legislation or statutory instrument. The
court of review cannot substitute its own decision on the merits of the
case for that of the decision-making authority.
COMPLAINTS
The applicant complains that the procedure laid down by the
Medical Act 1983 for the hearings of complaints of serious professional
misconduct, as applied in his case, did not constitute a fair trial
by an independent and impartial tribunal as required by Article 6
para. 1 of the Convention.
The applicant claims that the seriousness of the charges against
him, the seriousness of the consequences for his reputation, livelihood
and finances are such that he should be treated as having faced a
criminal charge. He alleges a series of violations of his procedural
rights, including that he was denied a fair hearing because of the
delay in informing him of the allegations against him.
The applicant invokes Article 6 paras. 1, 2 and 3 (a), (b) and
(d).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 December 1995 and registered
on 16 May 1996.
On 17 January 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 4 May
1997, after an extension of the time-limit fixed for that purpose. The
applicant replied on 30 June 1997.
On 28 May 1997 the Commission granted the applicant legal aid.
THE LAW
1. Article 6 para. 1 (Art. 6-1) of the Convention provides, in so
far as relevant, as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law..."
The applicant claims that the disciplinary proceedings determined
charges which were so serious (and could have been brought before the
criminal courts), and which had such serious consequences for his
reputation, livelihood and finances, that they should be treated as
criminal charges for the purposes of Article 6 para. 1 (Art. 6-1) of
the Convention. He underlines that in Le Compte (Eur. Court HR, Le
Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981,
Series A no. 43) the Court left open the question of whether the
professional disciplinary proceedings in that case determined criminal
charges, as in any event the same guarantees applied to both civil and
criminal matters.
The applicant alleges violations of 6 para. 3 (Art. 6-3) of the
Convention. Article 6 para. 3 (Art. 6-3) of the Convention applies to
criminal cases but not to civil cases. The Commission therefore
considers that it should first ascertain whether in fact a criminal
charge was determined by the proceedings against the applicant.
The Commission recalls that in order to determine whether an
offence qualifies as "criminal", "it is first necessary to ascertain
whether or not the provision defining the offence belongs, in the legal
system of the respondent State, to criminal law; next the 'very nature
of the offence' and the degree of severity of the penalty risked must
be considered" (see, as a recent example with further references, Eur.
Court HR, Schmautzer v. Austria judgment of 23 October 1995, Series A
no. 328, p. 13, para. 27).
As to the first of these criteria, the classification of the
offence in domestic law, the Commission notes that the applicant was
accused of professional misconduct. Findings of professional
misconduct are made, in England and Wales as in many other Convention
States, by the peers of the professional concerned, at least in the
first instance. The "offence" is thus classified as disciplinary
within the domestic system.
As to the nature of the offence, the Commission observes that
professional disciplinary matters are essentially matters which concern
the relationship between the individual and the professional
association to which he or she belongs, and whose rules he or she has
agreed to accept. They do not involve the State setting up a rule of
general applicability by which it expresses disapproval of, and imposes
sanctions for, particular behaviour, as is generally the case with
"criminal" charges. The Commission recalls that in the case of
Campbell and Fell (Eur. Court HR, Campbell and Fell v. the United
Kingdom judgment of 28 June 1984, Series A no. 80, p. 36, para. 71) the
Court accepted that the possibility of proceedings being brought before
the prison disciplinary authorities and the criminal courts could give
the proceedings a "certain colouring which [did] not entirely coincide
with that of a purely disciplinary matter". It is true, as the
applicant points out, that the facts underlying the proceedings against
the applicant, namely allegations of sexual indecency, could also have
been the subject of criminal charges before the criminal jurisdictions.
However, it is frequently the case that the factual allegations in
professional disciplinary proceedings could also be pursued in ordinary
criminal proceedings: in the present context, the possibility of
parallel criminal proceedings does not make the nature of the offence
inherently criminal.
Finally, the Commission must have regard to the degree of
severity of the penalty risked. In this connection, the Commission
notes that the most severe sentence that the applicant risked was that
which was in fact imposed: erasure of his name from the register.
Alternative sanctions would have been directing registration to
continue subject to conditions, or suspension for a period of up to
12 months. Each of these sanctions is essentially disciplinary and
directed to protecting the public and the reputation of the medical
profession. The fact that erasure is likely to have far-reaching
consequences for the individual concerned does not render the penalty
"criminal".
It follows that the proceedings against the applicant did not
determine a "criminal charge".
The applicant also alleges violation of the civil "limb" of
Article 6 para. 1 (Art. 6-1) of the Convention. He contends that the
proceedings against him determined his civil rights, and that they did
not comply with the requirements of Article 6 para. 1 (Art. 6-1)
because the proceedings before the Conduct Committee were not before
a court with the requisite guarantees of independence, and because the
Privy Council, although independent, does not have an adequate scope
of review.
The Government submit that the Conduct Committee constituted an
independent and impartial tribunal and that the hearing before it was
conducted with all due expedition and with proper regard to the need
for the applicant to have time to prepare his defence. The Government
also note that the applicant was provided with a full transcript of the
hearing before the Conduct Committee prior to his appeal.
The Government further submit that the applicant enjoyed a right
of appeal to the Judicial Committee of the Privy Council which was
unrestricted by statute as to its scope of review and had the power to
quash or vary the direction of the Conduct Committee or remit the case
for reconsideration by the Committee. The Government contend that,
having regard to the proceedings as a whole, the applicant received a
hearing that was in conformity with 6 para. 1 (Art. 6-1) of the
Convention.
The applicant contends that the hearing before the Conduct
Committee was not a hearing before an independent and impartial
tribunal. In particular, he notes that the members of the Conduct
Committee were all members of the GMC - the majority directly elected
members - and that the GMC was also charged with the investigation and
"prosecution" of the applicant. He adds that the role of the legal
assessor is purely advisory. The applicant claims that the GMC not
only provides all members of the tribunal, but is also charged with
functions central to the doctor's professional future and reputation
and to the conduct and progress of the proceedings before the Conduct
Committee. He points out expressly that the GMC maintains the register
of medical practitioners, that it is responsible for the receipt of
complaints and their investigation and initial assessment, and that in
the proceedings before the Conduct Committee, the GMC's barrister acted
just as a prosecutor would in a criminal trial, namely to present the
"prosecution" evidence to the tribunal.
In particular the applicant submits that the present case should
be distinguished from the case of Bryan (Eur. Court HR, Bryan v. the
United Kingdom judgment of 22 November 1995, Series A no. 335-A), a
case concerning the refusal of planning permission after a review by
a government planning inspector whose decision was then reviewed by the
High Court. In the case of Bryan, the Court, although agreeing with
the applicant that the determination by the inspector did not satisfy
the requirements of Article 6 para. 1 (Art. 6-1) of the Convention,
found that there was no violation of Article 6 para. 1 (Art. 6-1) due
to the sufficiency of the scope of review by the High Court. The
applicant contends that the present case should be distinguished from
Bryan as, unlike Bryan, there was no carefully reasoned decision by the
Conduct Committee which could be considered on appeal, and the issue
of the professional conduct of the applicant did not involve a
"specialised area of law". Rather, the substance of the hearing turned
on a simple conflict of factual evidence relating to the behaviour of
the applicant on a certain occasion.
The applicant further considers that the review carried out by
the Privy Council did not remedy the defects of the hearing before the
Conduct Committee such as to justify a finding that the proceedings as
a whole were in conformity with Article 6 para. 1 (Art. 6-1).
The Commission notes that the proceedings against the applicant
were conclusive for his ability to continue practising as a doctor, and
the contested nature of the proceedings leaves no doubt as to the
existence of a "contestation" as to whether the applicant had or had
not behaved in an unprofessional manner. The Commission considers that
the proceedings determined the applicant's "civil rights and
obligations" (see Eur. Court HR, Le Compte, Van Leuven and De Meyere
v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 20-22,
paras. 44-50).
The Commission will first consider the question of the
independence and impartiality of the Conduct Committee.
The Commission recalls that in order to establish whether a body
can be considered "independent", regard must be had, inter alia, to the
manner of appointment of its members and to their term of office, to
the existence of guarantees against outside pressures and to the
question whether the body presents an appearance of independence (see
above mentioned Bryan judgment at p. 15 para. 37 referring to Eur.
Court HR, Langborger v. Sweden judgment of 22 June 1989, Series A
no. 155, p. 16, para. 32). There is no indication in the case-law of
the European Court of Human Rights that the mere fact that disciplinary
proceedings against professional persons are determined by members of
the profession amounts to a lack of "independence", even when the
professional body concerned regulates a number of functions of the
profession (as was the case in Eur. Court HR, H. v. Belgium judgment
of 30 November 1987, Series A no. 127-B, p. 35, paras. 50, 51).
It is true that problems of impartiality may arise if the members
of the determining body have personally been involved in prosecuting
the disciplinary proceedings at an earlier stage (see Gautrin and
others v. France, Nos. 21257/93 to 21260/93, Comm. Report 26.11.96,
pending before the European Court of Human Rights, where the Commission
found a violation of Article 6 (Art. 6), and Eur. Court HR, Diennet v.
France judgment of 26 September 1995, Series A no. 325-A, pp. 16-17,
paras. 36-39 where, on the facts of the case, the Court found no
violation of Article 6 (Art. 6)), but those problems do not necessarily
impinge on the independence of the determining body. There has been
no allegation of personal bias or lack of impartiality on the part of
the members of the Conduct Committee in the present case.
As to the proceedings before the Conduct Committee in the present
case, the Commission notes the presence of a number of procedural
guarantees of a type frequently met before tribunals: no individual
members of the GMC who had previously been involved with the case could
sit on the Conduct Committee; legal representation was available;
extensive disclosure of the documents took place: the applicant could
call his own witnesses and cross-examine GMC witnesses; and evidence
would only be admitted if it would be admissible in a criminal case.
There remain, however, areas in which the independence of the
Conduct Committee may be seen to be open to doubt. In particular,
there is no indication that any attempt is made to ensure that the
members of the Conduct Committee determine cases independently of the
GMC's general policies, and members of the Conduct Committee generally
serve for the limited term of one year. Moreover, the President of the
GMC plays an extensive, though not necessarily direct and personal,
role in the investigation of complaints at the earlier stages of
proceedings. Further, the sole legal advisor in the case - the legal
assessor - is given no role whatever in the deliberations of the
Committee. Given these factors, the Commission does not consider that
the guarantees of independence which do exist - principally the
limitation on individual members sitting where they have had personal
previous contact with the case - suffice to ensure the required
appearance of independence.
However, "even where an adjudicatory body determining disputes
over 'civil rights and obligations' does not comply with Article 6
para. 1 (Art. 6-1) in some respect, no violation of the Convention can
be found if the proceedings before that body are 'subject to subsequent
control by a judicial body that has full jurisdiction and does provide
the guarantees of Article 6 para. 1 (Art. 6-1)'" (Eur. Court HR, Bryan
v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A,
p. 16, para. 40).
The Commission must therefore examine whether the Privy Council
had adequate jurisdiction in the present case. The Commission first
notes that although the jurisdiction of the Privy Council is not
limited by statute in any way, it is clear from the case of Libman
v. GMC ([1972] AC 217) that in practice the jurisdiction is limited as
if the appeal were on a point of law.
In the case of Bryan, the Court gave examples of the types of
matters which were relevant to assessing the adequacy of the review on
a point of law in that case: "the subject-matter of the decision
appealed against, the manner in which that decision was arrived at, and
the content of the dispute, including the desired and actual grounds
of appeal" (above-mentioned Bryan judgment, p. 17, para. 45).
As to the subject matter of the decision appealed against, the
Commission again notes that the determining of professional misconduct
by the peers of the professional concerned does not, on its own, give
rise to doubts as to the independence of the professional body
concerned. It is, indeed, of the nature of a self-regulating
profession that questions concerning the internal discipline of the
profession should be determined, in the first instance, by the
profession itself, even where the Convention requires subsequent
judicial control because the disciplinary proceedings also determine
civil rights.
In connection with the manner in which the decision in question
was arrived at, the Commission observes, as it noted above, that a
number of procedural guarantees were available to the applicant in the
proceedings before the Conduct Committee, such as the safeguards
against personal bias, the availability of legal representation, the
public nature of the hearings, the timetable to ensure adequate notice
of the inquiry, and the way in which evidence is taken (on oath, and
generally only if it would be admissible in criminal cases). Moreover,
the legal assessor must be a barrister or solicitor of at least ten
years' standing.
It is true that the Conduct Committee did not give reasons for
its decision, and that the Privy Council in the case of Libman v. GMC
considered that there was a difference between the advice given to the
Conduct Committee by its legal assessor and the summing up in a
criminal trial. However, the applicant was furnished with a full
transcript of the three day hearing before the Conduct Committee, and
it must have been apparent that, as the Privy Council later held, the
Committee had accepted the evidence of the health care assistant and
rejected that of the applicant.
With regard to the content of the dispute, the Commission notes
that in his case to the Privy Council, the applicant summarised the
issues as being:
(1) that he did not receive a fair hearing because of the delay of
18 months in notifying him of the complaint against him;
(2) that he did not receive a fair hearing as he was denied access
to the medical records related to the alleged incident;
(3) that he did not receive a fair hearing due to the various
failures by his legal representatives;
(4) that the penalty imposed was excessive.
The Privy Council, in the words of the European Court of Human
Rights, "considered these submissions on their merits, point by point,
without ever having to decline jurisdiction in replying to them or in
ascertaining various facts" (Eur. Court HR, Zumtobel v. Austria
judgment of 21 September 1993, Series A no. 268-A, p. 14, para. 32).
It was thus able to, and did, deal with each of the applicant's
complaints.
The Commission considers that, given the procedural guarantees
before the Conduct Committee and the complaints the applicant was
making, the scope of review of the Privy Council was sufficient to
comply with Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant further contends that the proceedings were not fair
because he was not informed promptly of the allegations made against
him, and that by the time the matter had come before the Conduct
Committee, it was no longer possible to recall his movements during the
day in question, and the person(s) he had been with on the particular
occasion.
The Commission observes that these complaints, which relate to
the proceedings before the Conduct Committee, were examined and
rejected by the Privy Council under a procedure which in this instance
was in conformity with Article 6 para. 1 (Art. 6-1) (see the above-
mentioned Zumtobel judgment, p. 14, para. 35, with further references).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy