PROVING THINGS 136: THE IMPORTANCE OF CROSS-EXAMINATION – YET AGAIN: FAILURE TO CROSS-EXAMINE RESPONDENT LEADS TO FINDINGS BEING SET ASIDE

For the second time in a week I am reporting on the importance of cross-examination, albeit from a slightly different angle. The importance of putting the case to a witness  arises clearly and squarely in the judgment of Mr Justice Mostyn in Sait v The General Medical Council (GMC) [2018] EWHC 3160 (Admin).  In this case the respondent to disciplinary proceedings was not cross-examined about key issues and allegations.  Consequently the Tribunal’s findings on these issues were found to be unsound and were set aside.

“In my judgment, the failure to cross-examine the appellant comprehensively on the central allegation was procedurally unfair to such a degree that the appeal must be allowed on this ground.”

THE CASE

The appellant was a consultant orthopaedic surgeon.  It was alleged that his conduct towards a patient had been sexually motivated.   The Medical Practitioners Tribunal had made findings adverse to the appellant.

THE JUDGE’S FINDINGS ON APPEAL

The judge considered one of the central arguments – that the hearing was procedurally unfair.
    1. I do not consider that the merit of ground (i) has anything to do with the sort of forensic ambush exemplified by Browne v Dunn. Rather it is about the failure in this case to test the key allegation, namely sexual motivation, by any cross-examination.
    2. In my own decision of Carmarthenshire County Council v Y [2017] EWFC 36 I was confronted with a situation where a father accused of raping his own daughter years earlier was effectively deprived of the right to challenge her allegations in cross-examination. At [8] I referred to the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness, and I cited the famous decision of Crawford v Washington (2004) 541 US 36 at 62 where Scalia J, when discussing the explicit command to afford cross-examination of witnesses in criminal cases contained within the Sixth Amendment to the U.S. Constitution, stated:
“To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf. 3 Blackstone, Commentaries, at 373 (“This open examination of witnesses . . . is much more conducive to the clearing up of truth”); M. Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing “beats and bolts out the Truth much better”).”
    1. In preparing this judgment I have looked up the cited passages from Sir Matthew Hale and Sir William Blackstone. The former stated:
“That by this course of personal and open examination there is opportunity for all persons concerned, viz the judge or any of the jury or parties or their counsel or attorneys to propound occasional questions which beats and bolts out the truth much better than when the witness only delivers a formal series of his knowledge without being interrogated; and on the other side, preparatory limited and formal interrogatories in writing, precludes this way of occasional interrogations and the best method of searching and sifting out the truth is choked and suppressed. Also by this personal appearance and testimony of witnesses there is opportunity of confronting the adverse witnesses, of observing the contradiction of witnesses sometimes of the same side, and by this means great opportunities are gained for the true and clear discovery of the truth”
The latter wrote:
“The open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law: where a witness may frequently depose that in private, which she will be ashamed to testify in a public and solemn tribunal. … Besides, the occasional questions of the judge, the jury, and the counsel, propounded to the witness on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled: and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial.”
    1. These iconic voices from the past seem to me to express exactly why “testing the evidence in the crucible of cross-examination” is the best way of gaining “the true and clear discovery of the truth”; it is the best method of trial for “sifting out the truth”.
    2. That was certainly the view of Carr J in Williams where a solicitor had been accused of serious dishonesty. At [94] – [95] she stated:
“94. I fully accept that Mr Williams was on notice that he had a case to answer on the £3.9m representation (even if only as part of the build-up to an overarching case of deceitful misrepresentation as to value), and that he had, and took, the opportunity to deal with it in his witness statement. But he was not cross-examined at all on it. The question is whether that goes far enough in terms of fairness in all the circumstances. This is not in my view a question of the strict application of the rule in Browne v Dunn (supra). The situation is more nuanced, in the context of fairness overall.
95. On careful consideration, I have concluded that it did not. This was the most serious of allegations against a practising solicitor. The case involved multiple allegations, in what was a complex case. This was not a ‘single issue’ case, where it was obvious that the issue would, or might, end up as a central finding (and the only finding of dishonesty) in the case. There was ambiguity in the pleaded case. In all the circumstances, it was necessary for Mr Williams to be challenged directly on the point so that his evidence could be tested properly before a finding of dishonesty could be made. The Tribunal could not fairly find him to be dishonest without the most careful consideration of what he said in his defence (as it was put by Lewison LJ, in Clydesdale Bank (supra) at [52]). He should have had the opportunity to respond to the SRA’s allegations against him orally in the witness box, and to be judged on that evidence. I do not accept that the court should speculate in this case that such evidence would have been an “empty technicality”. Moreover, Mr Williams could have been re-examined on the point.”
    1. I do not read these paragraphs to suggest that cross-examination is not generally necessary where the allegation is either simple or single-issue. If the allegation is serious (and an allegation of sexually motivated misconduct against a doctor is about as serious as it gets) then in my judgment the allegation must be fully and squarely put in cross-examination to the accused doctor. The content of the doctor’s replies, as well as his demeanour, will equip the Tribunal to decide whether the allegation is, or is not, true.
    2. Chen v Ng fully supports my view. It was not a particularly complex case and the grounds on which the judge disbelieved Mr Ng were rational and plausible. Yet on the facts of that case it was unfair for judgment to be thus rendered without those grounds having been squarely put to him in cross-examination.
    3. In this case there was a remarkable failure to cross-examine the appellant about his alleged sexual motivation beyond the perfunctory couple of questions at the very end of the exercise to which I have referred above. In my judgment this is not good enough. Mr Hare QC argues that it would have been a pointless and futile exercise given the nature of the defence which was to deny in relation to the first allegation that he ever called Patient B “pretty”, and in relation to the events of 9 May 2016 to deny that he instigated the meeting or said the things that he was found to have said. It would have been just a pointless mechanistic exercise. I do not agree. The case of sexual motivation should have been put very clearly to him in cross-examination and he should have been given a much fuller opportunity to respond to it. Better that the cross-examination should be unduly long than unfairly short or non-existent, as Lord Herschell explained in Browne v Dunn at page 71:
“Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth …”
    1. In my judgment, the failure to cross-examine the appellant comprehensively on the central allegation was procedurally unfair to such a degree that the appeal must be allowed on this ground.
    2. I turn to ground (iii). As set out above, a central plank of the finding of sexual motivation was that the appellant had engaged in a “pattern” of such behaviour. This requires examination of the finding of sexual motivation in respect of the earlier consultations where the appellant called Patient B “pretty”. It is noteworthy that in relation to Patient A the appellant was found to have called her, as well as her mother, “pretty”, albeit in a hospital setting and in the presence of her (Patient A’s) partner. The Tribunal dismissed the allegation that this was done with sexual motivation and instead found that it was a clumsy attempt at conversation. The Tribunal does not explain why it reached a different conclusion in relation to the same phrase being used in conversation with Patient B. I have referred above to Patient B’s written evidence where she assumed that in using this phrase “he was just being friendly to put me at ease”.
    3. I have already explained how this aspect was not subject of any cross-examination at all beyond a single question. I have also explained that there is a virtually complete absence of reasoning as to how the conclusion was reached that at the consultations the use by the appellant of the word “pretty” was with sexual motivation. I have concluded that there was virtually no evidential foundation, nor was there any clear or sufficient reasoning, for the finding that in this respect there was sexual motivation. Even now, notwithstanding the seriousness of the finding made against him, the appellant does not know how many times, or in what context, he is said to have uttered this word with sexual motivation. I recognise that it will be a rare case where a finding of fact is set aside but I am satisfied that in this instance the finding was clearly wrong and must be set aside.
    4. In Arunkalaivanan v General Medical Council [2014] EWHC 873 (Admin), another sexual-motivation case, Miss Amanda Yip QC (as she then was) at [62] rightly emphasised the need for proper scrutiny of all the evidence in order to determine whether a sexual motivation could be inferred. This emphasis does not covertly elevate the standard of proof in cases of this type. That remains as the simple balance of probabilities. Rather, it reflects the principle that the more serious the allegation, the greater the need for evidential clarity, as to which see Re H & Ors (minors) [1995] UKHL 16[2006] AC 563 at [73] where Lord Nicholls of Birkenhead stated:
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
  1. Having set aside the earlier sexual motivation finding it follows that there was no “pattern” of sexually motivated actions by the appellant. In my judgment that fatally undermines the reasoning in paragraph 120 of the findings concerning the appellant’s state of mind on 9 May 2016.
  2. For these reasons ground (iii) succeeds.
  3. I am clear that disposal of this appeal requires me to set aside the findings in relation to Patient B and the consequential finding of impairment of fitness to practise by virtue of misconduct and to direct that the allegations in respect of Patient B should be retried. The decision I have reached is largely based on procedural unfairness, and I am not in a position to determine for myself what the result would have been had the process been procedurally fair. Therefore, the matter must be retried.