Wray v General Osteopathic Council [2021] EWCA Civ 1940 (17 December 2021)

The High Court judgment at the end of 2020 followed a Professional Conduct Committee (PCC) outcome that was subsequently appealed by the registrant. The General Osteopathic Council (GOsC) appealed the case following this High Court judgment because, if unchallenged, it had the potential to limit the way in which a PCC hears evidence in cases and would change the way regulators approach registrants who have been ‘conditionally discharged” by the criminal courts.

The Respondent, Mr Elsworth Wray, is a registered osteopath. The “highly unusual” factual background is set out in paragraph 69 of the Court of Appeal judgement.

On 30 July 2020 the PCC found the Registrant guilty of unacceptable professional conduct [“UPC”] and administered an admonishment. UPC is defined by s. 20(2) of the Osteopaths Act 1993 as “conduct which falls short of the standard required of an osteopath.” The Registrant appealed to the High Court pursuant to s. 31 of the Act. Such an appeal is by way of re-hearing: see PD 52D at [19(2)].

On 15 December 2020 Collins Rice J allowed the appeal. She quashed the finding of UPC and the admonishment that had been imposed by the PCC. It is against that decision of Collins Rice J that the Council appealed.

GOsC advanced seven grounds of appeal, submitting that Collins Rice J:

  1. Wrongly went ‘behind’ the adjudication of a criminal court and dealt with a registrant in a manner that was inconsistent with his guilty plea before a criminal court: and, in so doing; wrongly interpreted section 14 Powers of Criminal Court Sentencing Act 2000 to the effect that it requires a statutory regulator to relitigate the factual basis of a guilty plea before a criminal court;
  2. Wrongly found that it was not permissible for a regulatory committee to hear contextual factual evidence after announcing its “finding of fact” and wrongly found the procedural rules of the Appellant required them to consider Facts and UPC together;
  3. Wrongly found as a matter of fact that the Respondent’s acceptance of the factual allegations upon legal advice was equivocal and wrongly criticised the Professional Conduct Committee (PCC) for not actively going behind the legal advice proffered to the Respondent by his own lawyer;
  4. Wrongly found that the PCC had made additional findings adverse to the registrant;
  5. Wrongly found that the PCC confused “objective bystanders” with those present at the scene when considering the objective bystander test;
  6. Wrongly concluded that there was no evidence of criminal conduct;
  7. Fell into significant procedural error such as the outcome was not just in that it reversed the burden of proof during the appeal proceedings.

Stuart-Smith LJ dismissed the first ground of appeal.  He said whilst “the Judge fell into error in her analysis of what was going on”

“…returning to the words of Ground 1, for the reasons I have given earlier in this judgment [para 30], the fact that the case was one relating to conduct meant that the Council was obliged to prove the facts it alleged to constitute UPC including, in this case, the facts that had given rise to the prosecution; and, in doing so, it could not rely upon the conviction as such. It was therefore open to the Registrant to “go behind” his conviction in the sense that it was open to him to challenge the underlying facts alleged against him unless to do so amounted to an abuse of process, which is not and cannot reasonably be suggested on the facts of this case. As it happens, he unequivocally accepted all the facts alleged against him in the complaint, including the facts that constituted the essential elements of the criminal offence of possessing an offensive weapon; and therein lay his real difficulty before the Judge. But, as a matter of principle, in a case relating to conduct under the Council’s rules where the relevant facts are not admitted by the osteopath, the regulator is required to “relitigate” (i.e. prove) the factual basis of a guilty plea before a criminal court that results in a conditional discharge if that factual basis is to be relied upon as constituting UPC.”

On the second ground of appeal, Stuart-Smith LJupheld this ground of appeal ruling that “I would therefore uphold the Council’s submission that the Judge erred in her interpretation of what happened before the PCC.”

An appeal won and lost

Although Stuart-Smith LJ dismissed Mr Wray’s appeal, the GOsC is deemed to have lost the appeal because Stuart-Smith LJ ultimately concluded that:

It follows that, although I disagree with the Judge’s approach to the procedure that was adopted by the PCC, I would uphold the Judge’s conclusion that the Registrant’s conduct did not amount to UPC.”

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