IB AGAINST THE GENERAL MEDICAL COUNCIL [2024] ScotCS CSIH

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

[2024] CSIH 4

P275/23

Lord Justice Clerk

Lord Tyre

Lord Boyd of Duncansby

OPINION OF THE COURT

delivered by LORD BOYD OF DUNCANSBY

in the Reclaiming Motion

Reclaimer

against

THE GENERAL MEDICAL COUNCIL

Respondent

Reclaimer: Party

Respondent: Lindsay KC, Byrne KC; Anderson Strathern LLP

_________________

1 February 2024

Introduction

[1]

The reclaimer is a doctor who is subject to a fitness to practice investigation by the

respondent, the General Medical Council. In August 2020 he was arrested and charged with

offences under anti-terrorism legislation. On 26 October 2020 an Interim Orders Tribunal of

the Council made an order for suspension of his registration for a period of 18 months. That

order was extended by this court for a year until 25 April 2023 (see B v General Medical

Council 2022 SLT 961). The Council subsequently applied to the court for a further extension

to 25 April 2024. By interlocutor dated 6 July 2023, the Lord Ordinary (Lord Ericht) granted

the extension. In this reclaiming motion (appeal), the reclaimer asks the court to recall that

interlocutor and to refuse the extension.

The regulatory framework

[2]

The Council has responsibility for keeping a register of medical practitioners

registered under the Medical Act 1983 and for supervision and regulation of fitness to

practise of persons so registered. An allegation concerning the fitness of a registered

medical practitioner to practise may be referred to an IOT to consider whether an interim

order should be made. If satisfied that it is necessary for the protection of members of the

public or is otherwise in the public interest or the medical practitioner's own interest to do

so, the IOT may make an order for the medical practitioner's registration to be suspended or

restricted by way of conditions. In each case, the IOT must specify the period, not exceeding

18 months, during which the order is to remain in force. The order is reviewed within 6

months of the date when it was made and thereafter every 6 months. The respondent may

apply to the court for an order made by an IOT to be extended, and may apply again for

further extensions. The court may extend (or further extend) the period of the interim order

for up to 12 months.

[3]

The Medical Practitioners Tribunal Service has published guidance entitled

"Imposing interim orders Guidance for the Interim Orders Tribunal, Tribunal Chair and the

Medical Practitioners Tribunal". In terms of paragraphs 23-25 of the Guidance, if the IOT is

satisfied that: (a) in all the circumstances that there may be impairment of the doctor's

fitness to practise which poses a real risk to members of the public, or may adversely affect

the public interest or the interests of the practitioner; and (b) after balancing the interests of

the doctor and the interests of the public, that an interim order is necessary to guard against

such risk, the appropriate order should be made. In assessing whether or not it is

appropriate to impose an interim order, the IOT should consider, inter alia, whether public

confidence in the medical profession is likely to be seriously damaged if the doctor

continues to hold unrestricted registration during the relevant period. When weighing up

these factors, the IOT must carefully consider the proportionality of their response in dealing

with the risk to the public interest (including patient safety and public confidence) and the

adverse consequences of any action on the doctor's own interests.

[4]

In relation to public confidence, the Guidance notes at paragraph 40:

"The public has a right to know about a doctor's fitness to practise history to enable

them to make an informed choice about where to seek treatment. To balance this

with fairness to the doctor, allegations leading to the imposition of interim conditions

are not published or disclosed to general enquirers. It is therefore the responsibility

of the IOT to consider whether, if allegations are later proved, it will damage public

confidence to learn the doctor continued working with patients while the matter was

investigated."

At paragraphs 43 and 44, the Guidance addresses the situation where the allegations made

against the practitioner involve "serious criminal charges", and states that "it is incumbent

on the Tribunal to consider the individual features of each case and the particular facts of the

criminal charges".

The criminal proceedings against the reclaimer

[5]

The charges against the reclaimer are, firstly, of engaging in conduct in preparation

for giving effect to his intention of committing acts of terrorism or assisting another to

commit such acts, contrary to section 5 of the Terrorism Act 2000; and, secondly, of

addressing a meeting for the purposes of encouraging support for terrorism, contrary to

section 12(3) of that Act. The former charge carries a maximum sentence of life

imprisonment; the latter carries a maximum sentence of 14 years' imprisonment.

[6]

At paragraph 5 of its decision on the 2022 application for extension, the court

recorded that the reclaimer had been detained at Heathrow Airport following a surveillance

operation targeting terrorist activities. He was arrested and appeared by video link at

Belfast Magistrates' Court, following which he was remanded in custody. He was released

on bail on 10 December 2021 and returned to his home in Edinburgh, the bail conditions

including that he must continue to reside there, any change of address even for one night

requiring express approval of police or a court order; that he must sign in twice a day at a

nearby police station (since changed to signing on once a day three times a week); that he

abide by a curfew between 2200 hrs and 0700 hrs, and present himself at his door during

curfew hours if required to do so by police; that he surrender all passports/travel documents

and may not apply for new travel documents; that he is not permitted to leave Scotland

without express permission of the Court save to Northern Ireland for any court appearance

or consultation with his solicitor, in respect of which he must give 24 hours advance notice

of his travel arrangements; and during any travel must be accompanied by his surety and

report to police immediately on arrival. Additional conditions limit his use of electronic

devices: he may only have use of one mobile phone, which may have internet access, but the

make, model, IMEI number, telephone number and access code of this phone must be

provided to police and he may not use any other internet enabled communications device.

Neither the internet search history nor any communications may be deleted and any

automated deletion functionality must be inactivated. The device must not be solely

accessible by fingerprint or facial recognition technology, and if requested he must provide

any PIN or lock code for the purposes of examination/download. Location settings must

remain enabled on the device at all times. He is allowed an internet enabled laptop subject

to equivalent restrictions.

The Lord Ordinary's opinion

[7]

The Lord Ordinary acknowledged that this court had already decided that a

reasonable and properly informed member of the public would be surprised and offended

to learn that the reclaimer had been permitted to practise whilst under investigation and the

subject of these criminal proceedings. He considered that the question for him was the

proportionality of the extension sought, having regard to the general public interest in

maintaining confidence in the medical profession, the existence of the criminal charges, the

interests of the practitioner and the reasons why the criminal proceedings had not

concluded. He recognised that in conducting the proportionality exercise, he was required

to reach his conclusion on the basis of the evidence on the application in the light of the

current position. It was not simply a matter of automatically applying the court's decision

on proportionality in the previous application: if there had been a material change of

circumstance, then a different result might be appropriate. Conversely, if there had not been

a material change of circumstance, then the reasoning of the court would remain applicable

and might lead to the conclusion that the proposed extension was proportionate.

[8]

The Lord Ordinary declined to consider the reclaimer's argument that he was a

victim of entrapment by an agent of the British state; it was not for him to go behind the

charges and make findings in fact about them. He rejected the reclaimer's contention that

the charges that he faced were not extremely serious ones. He found no change of factual

circumstances in relation to the adverse impact of the suspension on the reclaimer's ability

to work, having regard to his bail conditions. He then addressed the passage of time before

the criminal proceedings may end, and thus before the Council's investigation may proceed

to completion. He noted that the suspension was causing the reclaimer hardship: he was

living on state benefits and due to his age might have difficulty in resuming his career after a

lengthy suspension.

[9]

The Lord Ordinary nevertheless concluded that the length of the suspension had not

yet reached the stage where it was disproportionate for it to continue. During the period of

the extension now sought, substantial progress was expected to be made in the criminal

proceedings, and it was expected that the reclaimer would either be discharged or

committed for trial. If the former, the Council would invite the IOT to revoke the interim

order. If the latter, a more realistic estimate could be made of the length of time it would

take to conclude the criminal proceedings, which estimate could inform a new

proportionality exercise in due course. In all the circumstances of the case, the Lord

Ordinary found that a reasonable and properly informed member of the public would be

surprised and offended to learn that the respondent had been permitted to practise whilst

under investigation and the subject of these criminal proceedings, and that an extension to

the order was proportionate to the nature of the offences and the risk to public confidence in

the profession. He was satisfied that it was in the public interest for the suspension order to

be extended as sought by the Council.

Timescale of the criminal proceedings

[10]

In the course of its decision on the 2022 application for extension, this court noted

that a committal hearing was due to take place at Belfast Magistrates Court in September

2022, and that any trial was unlikely to take place until at least some time in 2024. In his

opinion in the present application, the Lord Ordinary narrated his understanding of the then

current position as follows. A committal hearing, the purpose of which was for a District

Judge in the Magistrates Court to decide whether there is sufficient evidence to send the

respondent for trial, was taking place in Dungannon. Hearings on preliminary matters took

place in the week commencing 27 June 2022. The hearing of witness evidence commenced

in October 2022. A hearing of applications on admissibility of evidence was due to take

place during the week commencing 28 August 2023. The reclaimer was also making an

abuse of process application on a number of grounds; it was likely that this would be

determined at the same time as the admissibility applications. If any of the preliminary or

abuse of process applications were successful, that would be the end of the case against him.

If not, the District Judge would require to determine the substantive issues in the committal

proceedings, and would probably timetable written submissions from parties to be followed

by an oral hearing in the next court term. If the committal proceedings did not bring the

criminal proceedings to an end, the case would proceed to trial in the Crown Court. It was

expected that the committal proceedings would have come to an end by April 2024 but it

was not possible to say when any trial would be concluded.

[11]

At an oral hearing in this reclaiming motion on 18 October, the reclaimer updated the

court on events since the hearing before the Lord Ordinary. His abuse of process application

had been refused. A final hearing in the committal proceedings had been set down to take

place on 30 and 31 October 2023, following which it was anticipated that the District Judge

would decide whether to send the charges against the reclaimer to the Crown Court for trial.

In view of the importance of that decision in the context of these proceedings, the court

continued the case to call by order when the decision became available.

[12]

When the case called again on 19 December 2023, the reclaimer informed the court

that the outcome of the committal proceedings was that the charges against him had been

sent to the Crown Court for trial, along with charges against nine co-accused persons. A

review hearing is to take place in the Crown Court in January 2024; there are likely to be

challenges in relation to disclosure and admissibility of evidence. There is as yet no

timetable in place for a trial. IB's legal advisers consider that the proceedings are unlikely to

conclude within 1-2 years.

Argument for the reclaimer

[13]

In his grounds of appeal the reclaimer made allegations of bias and discrimination by

the Lord Ordinary and also referred to seeking a protective expenses order in respect of the

reclaiming motion. Neither of these matters was pursued in the reclaimer's written note of

argument or in his oral submissions, and we need not address them.

[14]

The reclaimer emphasised that he was not asking the court to assess the veracity of

the allegations made against him. However, in its determination of the 2022 extension

application, the court had intentionally confused veracity with the seriousness of the

allegations actually made against him by the police. The reclaimer founded upon a letter

sent to the respondents on 3 May 2022 by the Police Service of Northern Ireland, in response

to a formal request for information concerning the degree of the reclaimer's involvement in

the alleged offences. When one took into account the PSNI's acceptance that the reclaimer

had not attended one of the two New IRA meetings to which the PSNI attached particular

importance, and that during the meeting which he did attend he was asked to wait in a side

room before being invited to address the main group on the topic of "internationalism" and

strengthening "international links", it was clear that the allegations did not include any

word, action, intention or engagement in issues related to terrorism. The court's

characterisation of the charges as being of the most serious kind had therefore been without

foundation. Contrary to the approach taken by the court in 2022, it was not sufficient to look

only at the terms of the charges and form a view as to their apparent severity; the Guidance

required consideration of the particular factual allegation that had been made. Moreover,

the court's reference to maximum sentences reinforced the exaggeration of seriousness:

English sentencing guidelines indicated that even if convicted of these offences, the

reclaimer would receive a short custodial or a non-custodial sentence.

[15]

When the particular facts of the charges made against the reclaimer were considered,

it was clear that a reasonable and properly informed member of the public would be

surprised and offended to discover that the reclaimer had been suspended on those

grounds. Statements to this effect by persons who knew the reclaimer well had been lodged.

The court ought to attach weight to these views.

[16]

As regards proportionality, the reclaimer submitted that the order for further

extension was disproportionate when regard was had to the particulars of the allegation. It

was unnecessary in order to maintain public confidence: any risk to the public was

addressed by the reclaimer's bail conditions and had no connection with his professional

practice. The suspension had already been in force for more than three years, and it

remained unclear when the criminal proceedings would conclude. If the suspension were to

be continued, it was likely that that would end his career in the UK and abroad, where the

value of his voluntary and charitable medical services was well recognised. The Council

and the court had failed to take proper account of the severe impact of the order on himself,

his family and those who benefited from his professional services.

Argument for the Council

[17]

On behalf of the Council it was submitted that there was no merit in any of the

grounds of appeal. The Lord Ordinary had identified and applied the correct approach to

be taken by the court when considering an application for extension of an interim order. He

did not err in law when he held that it was not the function of the court to make findings of

primary fact about the events which had led to the suspension or to consider the merits of

the case for suspension, but rather to ascertain whether the allegations made against the

practitioner justified the extension of the suspension, rather than their truth or falsity.

[18]

As regards proportionality, it was submitted that the Lord Ordinary's assessment of

the proportionality of an extension of the interim order disclosed no material error of law.

Having regard to the evidence which was before him at the date of the hearing, his

conclusions on proportionality were reasonably open to him.

Decision

Seriousness of the charges

[19]

We recognise that in assessing the seriousness of the criminal charges against the

reclaimer, the Guidance requires consideration of "the individual features of each case and

the particular facts of the criminal charges". We are not, however, persuaded that the Lord

Ordinary, or indeed this court in its previous decision, has erred by failing properly to apply

that guidance. The reclaimer's argument invites the court to assess the seriousness of the

charges solely on the basis of the factual narrative in the PSNI letter. In our view that would

be an unwise approach to adopt. It would amount to the court reaching a view on the

substance of the case against the reclaimer based upon an assumption that the letter sets out

the entirety of that case. Such an assumption would be wholly unfounded. It would also, in

light of current information, be factually incorrect. In the course of the hearing our attention

was drawn to a decision of the Northern Ireland Divisional Court dated 30 January 2023

( [2023] NIKB 8 ) in an application by the reclaimer for judicial review of certain rulings made

by the District Judge in the criminal proceedings. Delivering the judgment of the court,

Keegan LCJ noted in relation to the first charge against the reclaimer that the alleged acts by

him included (i) attending the meeting referred to in the letter, said to be a meeting of the

executive of the IRA; (ii) meeting the chair of the IRA in Edinburgh on a number of

occasions; (iii) meeting the chair and chief of staff of the IRA in Brussels; and (iv) meeting

the chair and chief of staff of the IRA in Lebanon. The second charge related to the meeting

referred to in the letter. The evidence against him comprised material gathered from a

search of his home, evidence of meetings with persons said to be in the IRA, and covert

recordings of meetings. It is apparent that the case against the reclaimer does not consist

solely of the matters narrated in the letter.

[20]

In its previous decision, this court referred to the principles identified by the Court of

Appeal in General Medical Council v Hiew [2007] 1 WLR 2007, and the observation (at

page 2017) that in general it was unnecessary to look beyond the allegations. We remain of

the view that in assessing the seriousness of the allegations, it is appropriate to have regard

to the terms of the charges themselves. Any attempt by the court in this case to look behind

the charges would amount in effect to an assessment of the strength of the case against the

reclaimer, which is no more part of the function of this court (or of the IOT) than assessment

of its veracity. For these reasons we reject the reclaimer's contention that the Lord Ordinary

erred in law in his characterisation of the charges as being of the most serious kind; for our

part we entirely agree with it. Terrorism and the threat of terrorism has plagued the United

Kingdom for a number of decades, nowhere more so than in Northern Ireland. Despite the

Good Friday agreement, and all that has flowed from that, there remains a real and present

danger from a number of dissident groups including the new IRA. Terrorism remains a

matter of grave public concern both in Northern Ireland and the rest of the UK.

Proportionality

[21]

As already noted, the Guidance requires the IOT and this court carefully to

consider the proportionality of its response in dealing with the risk to the public interest

(including patient safety and public confidence) and the adverse consequences of any action

on the doctor's own interests. In the circumstances of the present case, where no issue of

patient safety is raised by the Council, the critical element is public confidence: specifically,

whether if the reclaimer is later convicted of the charges against him, it will damage public

confidence to learn that he has continued working with patients while awaiting trial.

[22]

In assessing proportionality in the context of public confidence, we bear in mind the

observations of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 at

page 519, cited and applied inter alia in Gupta v GMC [2002] 1 WLR 1691 (Lord Rodger of

Earlsferry at paragraph 21) and Patel v GMC [2013] 1 WLR 2694 (Eady J at paragraph 9):

"... It often happens that a solicitor appearing before the tribunal can adduce a

wealth of glowing tributes from his professional brethren. He can often show that

for him and his family the consequences of striking off or suspension would be little

short of tragic. Often he will say, convincingly, that he has learned his lesson and

will not offend again. On applying for restoration after striking off, all these points

may be made, and the former solicitor may also be able to point to real efforts made

to re-establish himself and redeem his reputation. All these matters are relevant and

should be considered. But none of them touches the essential issue, which is the

need to maintain among members of the public a well-founded confidence that any

solicitor whom they instruct will be a person of unquestionable integrity, probity and

trustworthiness. Thus it can never be an objection to an order of suspension in an

appropriate case that the solicitor may be unable to re-establish his practice when the

period of suspension is past. If that proves, or appears likely, to be so the

consequence for the individual and his family may be deeply unfortunate and

unintended. But it does not make suspension the wrong order if it is otherwise right.

The reputation of the profession is more important than the fortunes of any

individual member. Membership of a profession brings many benefits, but that is a

part of the price."

[23]

The same obviously applies to the importance of maintaining public confidence in

members of the medical profession.

[24]

That involves a fine balancing exercise and, while we are satisfied that there is no

error of law in the Lord Ordinary's assessment, the continued passage of time and the

information as to the prospects for a trial date have caused us to look again at whether the

reclaimer's continued suspension from the practice of medicine is proportionate. As the

reclaimer points out there are long waiting lists for cataract surgery in Scotland and if so

employed his skill and expertise could help tackle the backlog. He has presented

testimonials from other medical practitioners and those with whom he has campaigned on

the issue of Palestinian rights. By the time of a trial five or six years, perhaps more, may

have passed since the suspension of his registration. We accept that it is highly unlikely,

given his present age and the length of time that he would have been out of practice, that if

the appellant were acquitted he would be able to resume his medical career. It cannot be

emphasised strongly enough that not only does the appellant deny the charges he faces but

he is presumed to be innocent, a presumption that will remain with him unless and until the

jury convict him of the charges.

[25]

The Lord Ordinary addressed the issue of passage of time and the various stages of

the criminal proceedings in Northern Ireland in paragraphs 22 and 23 of his opinion. At

paragraph 23 he noted that the committal proceedings would conclude sometime in 2023 "or

possibly into 2024". As to the prospects for a trial date in the Crown Court he said "it is not

possible to say at this stage when the trial will be concluded."

[26]

On one view the information which was provided to the court at the hearing on

19 December does not advance that position. It is still not possible to say when a trial may

be concluded, though the fact that ten were committed for trial suggests that a trial is still

some way off and almost certainly will not be held in 2024 and perhaps not 2025. As it was

for the Lord Ordinary, the length of time before a trial can be completed is a matter of grave

concern and weighs heavily in the reclaimer's favour in balancing the public interest with

the rights of the reclaimer. The question for us is where that balance falls.

[27]

Any assessment as to whether or not an interim order should be granted, or

maintained, will be highly fact specific. Accordingly other cases in which the court have

considered whether to continue a suspension of a practitioner's registration can only be

illustrative. In Patel v GMC [213] 1 WLR 2694 the claimant was a general practitioner who

had been charged with conspiracy to defraud in relation to payments of £1.8 million under

the staff bonus scheme of a school of which he was a governor. The court terminated the

suspension.

[28]

In D v GMC [2015] EWHC 847 (Admin) the claimant was again a general practitioner

who had been charged with blackmail. The allegation was that he had threatened to send

naked photographs of his ex-girlfriend to her family and future in-laws unless she paid him

£94,000. The judge (Lang J) quoted with approval cases in which blackmail is described as

"one of the ugliest and most vicious crimes" regarded by the public "with loathing and

contempt" and as "a very nasty offence". In reaching her decision it is clear that she had

regard to the strength of the prosecution case including certain admissions from the accused.

She described it as one of these rare cases in which the serious nature of the allegations

means that there is a real likelihood of serious damage to the public confidence in the

profession if the claimant was allowed to continue practice pending trial even although he

may be acquitted; para 44. The court refused to terminate the interim order.

[29]

We have not found this to be an easy decision and we have considerable sympathy

with the reclaimer. If he is acquitted there is little doubt that the damage to him is

substantial. He will as a result of the suspension of his registration have been deprived of his

profession and his livelihood for a substantial period of time. It is likely that these effects

would last into the future as well if as seems likely he is unable to rebuild his career.

[30]

Nevertheless we consider that the balance falls firmly in maintaining the interim

order.

[31]

One matter that has been confirmed since the hearing in October is that the appellant

has been committed for trial, following protracted committal proceedings, in which the

prosecution case was examined in detail. The District Judge heard evidence from

28 witnesses, examined witness statements and heard audio and visual recordings, some of

which were said to involve the appellant. That independent and apparently rigorous

examination of the prosecution case is significant, confirming as it does that the prosecution

case against the reclaimer is sufficient to justify sending him for trial.

[32]

In our opinion, if the reclaimer is subsequently convicted of the offences which he

presently faces, the public would be concerned to know that during his time on bail he had

been allowed to continue practice as a medical practitioner. Involvement in terrorism is the

very antithesis of what is expected of a doctor, whose professional obligation, is to protect

and save lives. The public would of course know that the reclaimer enjoyed the

presumption of innocence but they might balance that with the knowledge that not only had

prosecution lawyers considered that there was a sufficiency of evidence but that had been

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