2021-08-17 12:14:19
In the GPhC’s recent consultation on its Fitness to Practise strategy, it sought views on when to use remote hearings and what impact they may have. In our response, we set out what we saw as the advantages and disadvantages of remote hearings. We concluded that the default position should be that hearings should not be remote unless the registrant agreed.
One of the potential disadvantages of remote hearings concerns the ability of a tribunal to assess the demeanour of a witness in order to form a view of credibility. However, in three recent fitness to practise cases, the courts have expressed varying views about reaching conclusions based on the perceived demeanour of a witness.
In The Queen (on the application of Dutta) v General Medical Council [2020] EWHC 1974 (Admin), Mr Justice Warby said: “Reliance on a witness’s confident demeanour is a discredited method of judicial decision-making.”
In Khan v General Medical Council [2021] EWHC 374 (Admin), the Medical Practitioner Tribunal found that the Dr Khan had behaved in an inappropriate and sexually motivated way towards three female members of staff. Mr Justice Julian Knowles upheld Dr Khan’s appeal. The Tribunal had approached disputed evidence by first considering whether a witness was credible. The judge criticised this approach and followed Mr Justice Warby’s decision in Dutta (above).
In Byrne v General Medical Council [2021] EWHC 2237 (Admin), Mr Justice Morris heard an appeal by a registrant whose name had been erased from the medical register because of an inappropriate sexual relationship with a vulnerable patient. The medical practitioner had denied having such a relationship. Differing from Mr Justice Julian Knowles and Mr Justice Warby in the other recent cases, Mr Justice Morris gave this guidance on assessing evidence:
- First, the credibility of witnesses must take account of the unreliability of memory and should be considered and tested by reference to objective facts, and in particular as shown in contemporaneous documents. Where possible, factual findings should be based on objective facts as shown by contemporaneous documents.
- Secondly, nevertheless, in assessing the reliability and credibility of witnesses, whilst there are different schools of thought, I consider that, if relevant, demeanour might in an appropriate case be a significant factor and the lower court is best placed to assess demeanour: Despite the doubts expressed in Dutta and Khan , the balance of authority supports this view.
- Thirdly, corroborating documentary evidence is not always required or indeed available. There may not be much or any such documentary evidence. In a case where the evidence consists of conflicting oral accounts, the court may properly place substantial reliance upon the oral evidence of the complainant (in preference to that of the defendant/appellant). There is no rule that corroboration of a patient complainant’s evidence is required.