Potentially disastrous. Especially if you are accused of dishonest conduct, according to the recent High Court case of Katharine Elizabeth Burrows v General Pharmaceutical Council [2016] EWHC 1050 (Admin).

Background

Katherine Burrows was a pharmacist for over 20 years until she was struck off for misconduct. In summer 2013, acting out of character, she switched the labels for 2 dresses from Debenhams and fraudulently obtained 2 refunds totalling £75. She was arrested and accepted a caution admitting the offences.

It proved a costly mistake.

Under the professional rules [1] Ms Burrows had to inform the General Pharmaceutical Council (‘GPC’) of the caution within 7 days of receiving it. She failed to do so and the police informed the GPC instead.

Seven months later, the GPC investigated. Eventually the matter came before an independent disciplinary committee.

The first hearing was delayed due to conflicting evidence from the police. There was some unclarity over whether Ms Burrows had admitted the offences and whether the caution was valid.

Ms Burrows later accepted that she received the caution. However, at the time of the second hearing she was away on a pre-booked holiday.

The Committee concluded that Ms Burrows’ fitness to practice was impaired by the fact that she had accepted a caution and she admitted the dishonest behaviour that led to her arrest. They found that removal from the register was the appropriate sanction, in part because Ms Burrows had failed to show remorse and had changed her position several times on the validity of the police caution.

The appeal

Ms Burrows appealed on 2 main grounds: firstly, the Committee had taken the wrong approach when considering mitigation and, in particular, when assessing Ms Burrows’ level of insight. Secondly, the sanction of removal from the register was too severe.

Condensing the relevant principles, Mr Justice Kerr stated, at paragraph 48:

(i) dishonesty may well lead to removal from the register because it is very serious and threatens public confidence in the profession;

(ii) lack of insight makes removal more likely;

(iii) an appeal is only allowed where the decision below is wrong, or unjust because of a serious procedural or other irregularity;

(iv) appropriate deference is due to the tribunal below in view of its special expertise, especially in cases regarding professional practise (which this is not);

(v) the court can correct material errors but its judgment on application of principles to the facts is a secondary one; and

(vi) as regards sanction, the court should not conduct a resentencing exercise, substituting its view for the tribunal’s.

To this, he added:

  • Where the conduct does not concern professional practice or clinical judgment, considerable respect ought to be shown to the tribunal’s primary views (paragraph 50).
  • In a case of obvious dishonesty, not attending the hearing is practically an invitation to being struck-off (paragraph 58).

The Judge noted that the High Court is receiving a high number of appeals against removal decisions by Defendants who failed to attend their disciplinary hearings. Disciplinary bodies should give advanced warning to Defendants that cases may proceed in their absence and that failure to attend may result in serious prejudice to their case (paragraph 58).

Non-attendance deprives the panel of hearing from the Defendant about their state of mind and level of personal insight into the consequences of their conduct.

Given that Ms Burrows was a first time offender, the decision was harsh, but not wrong. The Committee had weighed all the relevant factors appropriately in determining her sanction.

Comment

Those facing regulatory prosecution often have to make hard choices about whether to attack the evidence against them or make admissions and express remorse. Tone matters when it comes to mitigation, and careful thought should always go into the impression that taking particular lines of defence will make on a disciplinary panel. Advisors do well to ensure that clients are fully aware of the risks of non-attendance, particularly in cases of dishonest conduct or whenever the state of mind of the Defendant may have some relevance.

Finally, Mr Justice Kerr disapproved of lawyers citing legal authorities for well-established points of law. As ever, legal economy is advisable in order to avoid irritating the Court.

[1]:  The General Pharmaceutical Council (Fitness to Practise and Disqualification etc. Rules) Order of Council 2010

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

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