R on the application of Bonhoeffer v General Medical Council [2011] EWHC 1585 (Admin)

B, a consultant paediatric cardiologist, was accused of sexually abusing boys in Kenya. The criminal investigation against B was not pursued as only one of the alleged victims, A, supported the accusations. The matter was brought before a fitness to practise panel of the General Medical Council (GMC), who concluded that it would be unsafe for A to give oral evidence at the hearing (as A was resident in Kenya, where he feared homophobic attacks). The Panel agreed to admit a transcript of an interview between A and the police as hearsay evidence, concluding that its admission would be fair, since it was in the public interest for such allegations to be investigated. In reaching their decision, the Panel considered the serious nature of the allegations against B, the public interest in investigating such allegations and the Panel’s duty to maintain public confidence in the profession.

B brought a Judicial Review against the GMC’s decision to admit the hearsay evidence, arguing that it was a breach of his Article 6(1) right.  The Administrative Court held that there was no absolute right under Article 6, or at common law, for the accused in disciplinary proceedings to cross-examine witnesses upon whose evidence the allegations against him are based. However, the Court stated that this case should have been decided by the Panel under their general obligation to be fair, with regard to common law principles, B’s Article 6 rights and the Fitness to Practise Rules. Accordingly, it found that the Panel should have ruled A’s hearsay evidence as being inadmissible for reasons of fairness.

In its reasoning, the Court referred to the gravity of the allegations against B. It concluded that the serious nature of these allegations and the damaging effect that they could have on B’s career, if found proved, required the accused to be afforded with fair and proper procedural safeguards, including the opportunity to test uncorroborated allegations made by a single witness. Without the ability to cross examine A, B would have been disadvantaged by the deprivation of his rights under Article 6(1) of the ECHR.

The implications of this judgment may be considerable in fitness to practise and disciplinary proceedings. From an investigatory perspective, there will be a greater need to ensure that complainants of sexual misconduct, or similar allegations, are able and willing to give oral evidence before a fitness to practise panel. This may need to be achieved by offering better protection and support to vulnerable witness, in order to encourage their attendance and to ensure that such serious cases are properly prosecuted and not discontinued on the basis of insufficient evidence.