Admitting Fresh Evidence on Appeal
25 October 2023
A doctor’s appeal under s40 Medical Act 1983 against a decision of the Medical Practitioners Tribunal to strike him off relied on a single ground: (a) did Ms B’s statement constitute fresh evidence which should be received by the court; and (b) if so, was the tribunal wrong because it made an erroneous assessment of the central matter of credibility because it did not have available to it the important evidence of Ms B which affected the credibility and reliability of Ms A’s account? Roy v General Medical Council [2023] EWHC 2659 (Admin) Calver J
The General Medical Council accepted that, applying the Ladd v Marshall [1954] 1 WLR 1489 test, Ms B’s evidence could not have been obtained with reasonable diligence for use before the tribunal by the doctor and that it met the low threshold of “apparent credibility”.
Mr Selva Ramasamy KC, for the doctor, submitted that took him some way along the road in submitting Ms B’s evidence would probably have such an impact but that it was necessary to analyse it as a whole. The issue was, therefore, whether the evidence of Ms B would probably have an important influence on the result of the case (though it need not be decisive).
The tribunal observed in its determination that it recognised irreconcilable differences between the evidence of Ms A and the evidence of the doctor who provided fundamentally incompatible versions of events of a relationship between them from a time when Ms A was vulnerable as she was between 10 and 15 years old. It was the GMC’s case that the doctor pursued an improper emotional relationship with Ms A and that his actions were inappropriate and sexually motivated.
It recognised that there was no direct and specific corroborative evidence in relation to those disputed matters and that the issue of whether the GMC had discharged its burden of proof therefore crucially turned on the question of credibility and reliability of their respective evidence. Counsel submitted those comments made it clear that this was a case in which assessment of credibility was crucial.
This case is perhaps a good illustration of the need for careful legal directions at tribunal hearings. Here the legally qualified chair based his advice on Suddock v NMC [2015] EWHC 3612:
Whilst demeanour is not an irrelevant factor for a court or tribunal to take into account, the way in which the witness’s evidence fits with any non-contentious evidence or agreed facts, and with contemporaneous documents, and the inherent probabilities and improbabilities of his or her account of events, as well as consistencies and inconsistencies (both internally, and with the evidence of others) are likely to be far more reliable indicators of where the truth lies. The decision-maker should therefore test the evidence against those yardsticks so far as possible before adding demeanour into the equation.
In Suddock the tribunal was also reminded that it should not assess the witnesses credibility exclusively on their demeanour when giving evidence, but their veracity should be tested by reference to objective facts proved independently and by reference to documents.
In the present case his Lordship did not consider that Ms B’s evidence would probably have had an important influence on the result of the case and declined to admit it.
(1) The doctor admitted that he had behaved inappropriately with Ms A over a number of years, for example, in emails he sent to her from the age of 12 and by the language he used to her; (2) the contemporaneous documents were damning of the doctor. There was a full documentary record of a highly inappropriate essay, a poem and messages which he sent to Ms A over a considerable period of time when she was under age, all of which the Tribunal rightly referred to and relied upon in finding that he was not a credible witness; (3) the doctor’s evidence was inconsistent in a number of ways which undermined the credibility and reliability of his evidence generally.
Ms B was unable to give direct evidence about the relationship between the doctor and Ms A even though she came forward of her own accord. Whilst her evidence was apparently credible in the sense that there was no reason to believe that she was lying, it should be treated with caution in view of the long passage of time since the relevant events and her limited involvement with them.
The tribunal was fully entitled to find that the doctor wanted to conceal the true nature of his relationship with Ms A and that he made her aware of that fact, and nothing that Ms B said in this respect undermined the tribunal’s findings on credibility.
The appeal was dismissed and costs against the doctor summarily assessed in the sum of £12,000.
Other cases cited in judgment:
Azzam v GMC [2008] EWHC 2711 (Admin)
General Medical Council v Adeogba [2016] EWCA Civ 162
Southall v GMC [2010] EWCA Civ 407
Gupta v General Medical Council [2002] 1 WLR 1691