Dishonesty in Regulatory Proceedings
“Dishonesty” is not a term of art; in the normal way it bears its ordinary and natural meaning and it is usually unnecessary for a legal assessor to give a tribunal a specific direction about it. In most cases it is not disputed that the act or acts complained of are dishonest; what is disputed is whether the registrant committed the act complained of.
In the words of Lord Nicholls in Royal Brunei Airlines v Tan, “An honest person does not deliberately close his eyes and ears, or deliberately not ask questions, lest he learns something he would rather not know, and then proceed regardless.”
Where, however, an issue is raised as to whether the registrant realised that the conduct charged was dishonest by the standards of reasonable and honest people, it is necessary to give the well-known two-part direction set out in the Court of Appeal case of R v Ghosh, approved by the House of Lords in the civil case of Twinsectra v Yardley [2002] UKHL 12 (where it was described as “the combined test”) and followed by the Divisional Court in the regulatory case of Bryant v Law Society.
Really, that is all Singh J was saying in his obiter remarks in Uddin v GMC [2012] EWHC 2669 (Admin) which have been considered and cited with approval by first instance judges in Penny Ann Lavis v Nursing & Midwifery Council [2014] EWHC 4083 (Admin), Mills v General Dental Council [2014] EWHC 89 (Admin) and Moseka v Nursing & Midwifery Council [2014] EWHC 846 (Admin).
The two-stage test in R v Ghosh [1982] QB 1053 consists of objective and subjective elements. The objective element which a tribunal must first address is whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not, that is an end of the matter and the registrant must be acquitted of the charge.
If it was dishonest by those standards, then the tribunal must consider whether the registrant himself must have realised that what he was doing was by those standards dishonest.
It is dishonest for a registrant to act in a way which he knows ordinary people consider to be dishonest even if he asserts or genuinely believes that he is morally justified in acting as he did.
The Divisional Court in Bryant v Law Society [2007] EWHC 3043 (Admin) considered that the Twinsectra combined test which corresponded to that in Ghosh was the most appropriate test in disciplinary proceedings.
If it needed reaffirming once again, it obtained that approval in the recent Court of Appeal decision of Hussain v General Medical Council [2014] EWCA Civ 2246 which involved allegations against a GP trainee of falsely stating his academic qualifications, falsely inputting feedback on behalf of another (for training purposes) and three allegations of plagiarism.
A reservation was, however, expressed by Longmore LJ about the Ghosh direction which he suggested should be adapted to fit the appropriate professional person: “This was a professional disciplinary hearing, and it seems to me that in future it would be right and proper for the first part of the direction to be adapted to read that the panel should decide whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest.” In a professional context there may be an important distinction between the two.