Cross-Admissibility of Evidence in Medical Practitioners Tribunal

February 15, 2025

The Professional Standards Authority appealed a finding of the Medical Practitioners Tribunal that a doctor’s fitness to practise was not impaired: Professional Standards Authority for Health and Social Care v General Medical Council & Anor [2025] EWHC 318 (Admin) MacDonald J

The grounds of appeal centred on the treatment by the Tribunal of the issue of cross-admissibility of evidence, namely (i) that the Tribunal wrongly directed itself as to the test for the cross-admissibility of evidence; (ii) that the Tribunal wrongly interpreted and/or applied the legal test for cross admissibility.

Holding that the Tribunal wrongly directed itself on the issue of cross-admissibility of evidence, his Lordship observed that there were plainly challenges when applying the concept of cross-admissibility in proceedings before the Medical Practitioners Tribunal, not least because the concept of cross-admissibility derived from, or touched on, other relatively complex evidential concepts such as bad character, similar fact evidence, coincidence and propensity, and because the majority of the development of the law on cross-admissibility now took place in the context of a statute, namely, the Criminal Justice Act 2003, that was not applicable in the current context. Nonetheless, having regard to the authorities, the position with respect to cross-admissibility was tolerably clear in the present context.

There was a distinction between the different grounds of cross-admissibility, namely cross-admissibility on the ground of propensity and cross-admissibility on the ground of rebutting coincidence. The significance of the distinction was that, on the current authorities, the former ground required a finding to have been made to the relevant standard as a precursor to attaching weight to the cross-admitted evidence, whilst the latter ground did not.

A distinction also had to be drawn between admissibility and weight. To be admissible, evidence must be relevant. This would be equally true of evidence that was capable of cross-admissibility. For evidence in respect of one allegation to be cross-admissible in respect of the other allegation, it must be relevant to that latter allegation and its relevance would depend on whether there was a sufficient connection and similarity between the facts of the allegations. Once such evidence was admitted as being relevant, the question became one of weight.

In deciding the weight to be attached to the cross-admissible evidence, the approach would come back to the first distinction. Where the ground relied on was propensity, a finding to the relevant standard of proof was required before weight was attached to the cross-admitted evidence. Where the ground relied on concerned coincidence, i.e. the extent to which the cross-admitted evidence was capable of disproving coincidence, there was no requirement for a prior finding and the court was required to consider all the incidents together, holistically rather than sequentially and taking account of the defence explanation for coincidence, when deciding what weight could be attached to the cross-admitted evidence.

In determining an issue of cross-admissibility, a Tribunal would need to bear in mind the following matters:

There were two primary grounds on which evidence may be cross-admissible. Namely, (a) where it may establish propensity to commit that kind of conduct and/or (b) where it may rebut coincidence ((Freeman[2008] EWCA Crim 1863 at [14] and [15])
The Tribunal would need to decide on which ground or grounds it was being asked to cross admit the evidence and advise itself accordingly, in terms that were relevant to and reflected the particular circumstances in which the questions of cross-admissibility arose (Brennand[2023] EWCA Crim 1384).
The Tribunal would need to take care to distinguish clearly between the grounds and not advise itself on the other ground if only one ground were applicable, in order to avoid confusion (Nicholson[2012] EWCA Crim 1568 and BQC [2021] EWCA Crim 1944).
The Tribunal would need to consider whether the evidence was capable of being cross-admitted by evaluating whether there was a sufficient connection and similarity between the facts of the allegations (Chopra[2006] EWCA Crim 2133).
Where the evidence was cross-admitted to prove propensity in a case involving two allegations, before attaching weight to the evidence the Tribunal would need to be satisfied to the required standard that the first allegation took place before relying on evidence in respect of the first allegation to deduce propensity from the second allegation (Adams[2019] EWCA Crim 1363 at [14] and R v Mitchell [2016] UKSC at [43])
Where the evidence was admitted to rebut coincidence, before attaching weight to the evidence the Tribunal would need to advise itself that (a) it must exclude collusion or contamination as an explanation for the similarity of the complainants’ evidence before it could assess the force of the argument that the allegations were unlikely to be the product of coincidence, (b) if collusion or contamination were excluded, considering the evidence as a whole, the fact of two patients making such allegations reduced the likelihood of there being an innocent explanation for them (R v H[2011] EWCA Crim 2344 at [24]) and (c) it was not necessary to find one allegation to be proved before relying upon the evidence in respect of that allegation in support of the other allegation concerning the other patient (Adams [2019] EWCA Crim 1363 at [15]).

Notwithstanding these matters, the advice that the Tribunal gave itself concerned both bases for the cross-admission of the allegations. That advice risked conflating and confusing the two bases for cross-admissibility in the minds of the Tribunal.

As this was a legal matter and not a medical one, the court was not disadvantaged as compared to the Tribunal when it came to evaluating the correctness or otherwise of the approach taken to the issue of cross-admissibility in this case and the deference that would ordinarily be accorded to the Tribunal’s reasons was thus reduced.

In respect of the second ground and having concluded that the Tribunal did not direct itself correctly with respect to the principles governing cross-admissibility of evidence, the court was further satisfied that the Tribunal wrongly interpreted and applied the law with respect to cross-admissibility in the case. If it had not fallen into errors with respects to each ground of appeal, it might have made a different decision.

The Tribunal’s decision was quashed and the matter remitted for hearing by a differently constituted Tribunal with a direction that the Tribunal come to a fresh decision applying the correct legal approach to cross-admissibility.