Kieran Coonan QC and Neil Sheldon obtain block on hearsay evidence in Bonhoeffer case

In R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin) The Divisional Court has made an important ruling in Judicial Review proceedings brought by Johannes Bonhoeffer (represented by Kieran Coonan QC and Neil Sheldon) on the admissibility of hearsay evidence before the GMC.

On 21 June 2011 the Divisional Court held to be “irrational and … a breach of the Claimant’s Article 6(1) right to a fair hearing” a decision by the Fitness to Practise Panel of the General Medical Council to admit hearsay evidence under its own rules, having determined that such evidence would not be admissible under the criminal rules of evidence.

In his Judgment Stadlen J conducted a comprehensive review of the authorities, and arrived at the following eight propositions:

1. Even in criminal proceedings the right conferred by Article 6(3)(d) to cross-examine is not absolute. It is subject to exceptions referable to the absence of the witness sought to be cross-examined, whether by reason of death, absence abroad or the impracticability of securing his attendance.
2. In criminal proceedings there is no “sole or decisive” rule prohibiting in all circumstances the admissibility of hearsay evidence where the evidence sought to be admitted is the sole or decisive evidence relied on against the defendant.
3. In proceedings other than criminal proceedings there is no absolute entitlement to the right to cross-examine pursuant to Article 6(3)(d).
4. However disciplinary proceedings against a professional man or woman, although not classified as criminal, may still bring into play some of the requirements of a fair trial spelt out in Article 6(2) and (3) including in particular the right to cross-examine witnesses whose evidence is relied on against them.
5. The issue of what is entailed by the requirement of a fair trial in disciplinary proceedings is one that must be considered in the round having regard to all relevant factors.
6. Relevant factors to which particular weight should be attached in the ordinary course include the seriousness and nature of the allegations and the gravity of the adverse consequences to the accused party in the event of the allegations being found to be true. The principal driver of the reach of the rights which Article 6 confers is the gravity of the issue in the case rather than the case’s classification as civil or criminal.
7. The ultimate question is what protections are required for a fair trial. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.
8. In disciplinary proceedings which raise serious charges amounting in effect to criminal offences which, if proved, are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed on the evidence of an accuser between whom and the accused party there is an important conflict of evidence as to whether the misconduct alleged took place, there would, if that evidence constituted a critical part of the evidence against the accused party and if there were no problems associated with securing the attendance of the accuser, need to be compelling reasons why the requirement of fairness and the right to a fair hearing did not entitle the accused party to cross-examine the accuser.

The judge was also dismissive of the GMC’s argument that the gravity of the allegations is a factor militating in favour of admissibility of the hearsay evidence, describing it as “misconceived”; instead, Stadlen J comments:

“The more serious the allegation, the greater the importance of ensuring that the accused doctor is afforded fair and proper procedural safeguards. There is no public interest in a wrong result.”

For a full analysis click here.