13 August 2019

A recent decision of the Divisional Court (England and Wales), R (Kuzmin) v the General Medical Council (2019), confirms that a tribunal has the power to draw an adverse inference from a doctor’s refusal to give evidence.

Background

The claimant was a doctor subject to proceedings brought by the General Medical Council (“GMC”) before a Medical Practitioners Tribunal (“MPT”). The proceedings were brought as a result of an allegation of dishonesty made in respect of the doctor’s failure to disclosure interim conditions on his registration.

At the close of the GMC’s case on the facts, the doctor made an application of no case to answer, which the MPT rejected on the basis that there was evidence upon which dishonesty could be inferred. As a result of this finding, the doctor withdrew his witness statement and indicated that he would not be giving evidence. In response, the GMC sought a ruling from the MPT that it had the power to draw an adverse inference from the claimant’s refusal to give evidence.

Following consideration of submissions, the MPT determined that adverse inferences from silence were permissible, although they accepted that there was no definitive precedent on the point.

The doctor challenged the MPT’s decision by way of judicial review.

Judicial Review

The claimant submitted that that although section 35 of the Criminal Justice and Public Order Act 1994 had changed the position in terms of adverse inferences in the criminal sphere, that provision only applied to criminal proceedings. The claimant’s position was that disciplinary proceedings were of a quasi-criminal nature, thus the common law with regard to the prohibition of adverse inferences being drawn from the exercise of a doctor’s right to silence was the same as had been the case in criminal proceedings. The claimant also argued that even if it was in the public interest that adverse inferences were permitted, this could only be done by formal means such as a statutory instrument.

The Court issued their opinion on 5 August 2019, emphasising that it is a well-established fact that disciplinary proceedings are civil proceedings rather than criminal proceedings. Accordingly, it is open to a tribunal to draw adverse inferences from the failure of a charged individual to give evidence, including, if appropriate, the inference that they have no innocent explanation for the prima facie case against them.  The Court also addressed the claimant’s submission that statutory change was required, stating:

“…disciplinary tribunals have the legal power to draw adverse inferences from the silence of an individual charged with breaches of the regulatory scheme… even if in practice they have not in the past drawn such inferences in individual cases. The self-denying ordinance was, however, a matter of the tribunal’s own procedure, and not a matter embedded in common law or otherwise required by law.”

In emphasising the assertion that a decision to draw an adverse inference will be highly dependent upon the facts of the particular case, Lord Justice Hickinbottom stated that no inference can be drawn unless:

1. A prima facie case to answer has been established;
2. The individual has been given notice and warning that an inference may be drawn;
3. There is no reasonable explanation for his not giving evidence; and
4. There are no other circumstances in the particular case which would make it unfair to draw such an inference.

Implications north of the border

Unlike England and Wales, Scottish statute does not permit an adverse inference to be drawn from the silence of an accused person when questioned by the police in a criminal case. In cases involving Scottish doctors, the argument may still be that any statement made by the registrant in disciplinary proceedings may be perceived as a material admission which could, in Scottish law, amount to corroboration of elements of a criminal offence.

General implications

The result of the Divisional Court’s decision is that an individual’s right to silence may partly preserve their position in respect of a criminal case, but create the risk of an adverse inference being drawn in regulatory proceedings.

Regardless of whether or not a registrant is facing both criminal and regulatory investigations, this decision means they will need to take early advice to ensure the implications of providing evidence are considered.

Contact: Laura Donald, Partner ljd@bto.co.uk T: 0131 222 2939