Mr Justice Morris:
Introduction
- This is an appeal by Charles Stuart Craig ("the Appellant"), pursuant to section 15(3) of the Farriers (Registration) Act 1975 ("the 1975 Act") against the decision of the Disciplinary Committee of the Farriers Registration Council ("the Disciplinary Committee") dated 30 June 2016 ("the Decision"). The Farriers Registration Council ("the Council") is the respondent to this appeal. By the Decision, the Disciplinary Committee found that the Appellant had been guilty of serious misconduct in a professional respect and directed that the Appellant's name be removed from the Register of Farriers ("the register").
- The Disciplinary Committee's reasons for the Decision are set out in a written determination ("the Determination") dated 24 May 2016 and further in a transcript of the proceedings on 30 June 2016.
Factual Background
- Farriers are persons engaged in the shoeing of horses. The Council is the statutory body responsible pursuant to the provisions of the 1975 Act, for maintaining the register and for regulating, in the public interest, those who are the registrants upon the register. At the time the National Farrier Training Agency ("NFTA") was the body charged with managing farrier apprenticeships.
- The Appellant is an experienced farrier of many years' standing. He held a Royal warrant for his services and is one of four elected farrier members of the Council. The other 12 members are appointees of whom only one is a farrier. He was also a member of the Disciplinary Committee, and an Approved Training Farrier ("ATF").
- The proceedings concerned allegations of misconduct towards one of the Appellant's apprentices, Joseph Hopkins ("JH") over the period July 2012 to May 2013. They arose out of a complaint, initially made by JH's parents to the NFTA and passed by that agency to the Council.
- In April 2012 JH and one other candidate had a trial for apprenticeship with the Appellant. At the time JH was aged 19. In the NFTA Candidate Application form dated 24 April 2012, JH disclosed the fact that he had dyslexia. On the same date the two parties signed the NFTA apprenticeship agreement. In May 2012 JH commenced work for the Appellant at the Appellant's yard. On 3 July 2012 his apprenticeship formally commenced. In general the apprenticeship went fairly well and the Appellant was pleased with JH's practical work.
- Issues arose in relation to the theoretical part of his training. On 6 December 2012 the NFTA sent to the Appellant an Additional Learning Needs Assessment form concerning JH. On 17 January 2013 an NFTA field officer visited the Appellant and JH. The field officer recorded that the Appellant was happy with the practical work, stating "apprentice a likeable lad that works hard". On 21 January 2013 an Improvement Notice was issued and on 25 January 2013 an Improvement Notice meeting with the Appellant took place concerning issues about his theory work for college.
- In April 2013 JH made his complaint to NFTA. On 3 May 2013 JH's apprenticeship with the Appellant was terminated by NFTA. On 16 May 2013 the Appellant responded to the complaint. Mr. Wiersma wrote in support of the Appellant's response. The subject of the complaint was ultimately referred to the Disciplinary Committee. It found some of the factual allegations against the Appellant proved but not others. The charges found proved included behaviour towards JH described as bullying and harassment.
- By way of background, the Appellant had appeared before the Disciplinary Committee on a previous occasion in late 2002 and in January 2003, had been found guilty of serious misconduct in relation to his behaviour towards four other apprentices in the period 1996 to 2001. In that case ultimately no sanction was imposed by the Disciplinary Committee. The precise nature, relevance and status of that previous decision is one of the points in issue in this appeal.
The Legislative Framework and Relevant Legal Principles
The 1975 Act
- The 1975 Act is stated to be "an Act to prevent and avoid suffering by and cruelty to horses arising from the shoeing of horses by unskilled persons; to promote the proper shoeing of horses; to promote the training of farriers and shoeing smiths … to prohibit the shoeing of horses by unqualified persons". Thus, the ultimate public interest pursued by the 1975 Act is the prevention of harm to horses.
- The Council is established by section 2 of the 1975 Act, and by section 3 there is an obligation upon the registrar ("the Registrar") to establish and maintain a register of farriers. Section 7 sets out the qualifications, and the procedure for application, for registration. One of those qualifications is the completion of an apprenticeship as prescribed by the Council.
- The Council sets standards of conduct as well as performance. The "Farriers guide to Professional Conduct 2014" provides, inter alia, that:
"employees, including apprentices, should be treated in a fair and reasonable manner, without discrimination, and in accordance with the contract of employment."
Further the Equal Opportunity & Anti-Harassment Policy in NFTA's Apprenticeship Handbook, which applied at the time material to the present case, included within its definition of harassment the following: "undermining other people, humiliating others, offensive language and misuse of authority".
The Disciplinary Committee
- The Disciplinary Committee is itself established pursuant to section 14. Schedule 3 sets out more detail in relation to the constitution and procedure of the Disciplinary Committee.
- Section 15, which is important in the context of the present appeal, makes provision for "removal of names from register". It provides, inter alia, as follows:
"(1) Where
(a) a person who is registered by the Council is judged by the Disciplinary Committee to be guilty of serious misconduct in any professional respect; or
(b) the Disciplinary Committee is satisfied that such a person was not qualified for registration at the time he was registered; or
(c) such a person has been convicted of an offence involving cruelty to animals;
(d) …
the Committee may, if it thinks fit, direct that the person's name shall be removed from the register or that his registration there in shall be suspended, that is to say, it shall not have effect during a period specified in the direction:…
…"
- Once removed from the register pursuant to a direction of the Disciplinary Committee, a person cannot be registered again otherwise than following a direction to that effect from the Committee: section 15(7). Section 16 provides for an offence where a person who is not registered on the register carries out any farriery.
The 1976 Rules
- By paragraph 4(4) of Schedule 3 the Council is required to make rules as to the procedure to be followed, and the rules of evidence to be observed, in proceedings before the Disciplinary Committee. The Farriers Registration Council Disciplinary Committee (Procedure) Rules 1976 SI 1976 700 ("the 1976 Rules") have been made under that provision.
- Rule 6 sets out the procedure at an inquiry before the Disciplinary Committee. By rule 6(6), the Committee is required to deliberate and decide in relation to any charge whether the facts alleged have been proved and, in relation to any facts found to have been proved, whether they are such as to substantiate such charge.
- Rule 7 provides for the procedure following the finding that a charge is proved, with the Council's solicitor opening the case and the respondent having the opportunity to mitigate and adduce relevant evidence. Rule 7(3) goes on to provide further as follows:
"The Committee shall then, after due deliberation, either-
(i) direct that the respondent's name be removed from the register; or
(ii) direct that the registration of the respondent be suspended for a specified period; or
(iii) make no direction with respect to the respondent; or
(iv) postpone judgment."
Rule 7(4) provides that, in the event of a decision of postponement, the Committee "shall specify either a period for which judgment is postponed, or a date on which the Committee will meet for further consideration of the judgment".
- Thus, as far as the Disciplinary Committee's powers of sanction are concerned, there is a mismatch between the 1975 Act and the 1976 Rules. The former contemplates only sanctions of removal or suspension; the latter expressly contemplates, in addition, powers to impose no sanction and to postpone judgment for a period.
- In the course of argument, I was informed that in addition to these options for sanction, in practice, the Disciplinary Committee also issues "reprimands". The power to do this is referred to in a document, disclosed after the hearing, entitled "Guidance Notes for the Disciplinary Committee" 2010 edition. Paragraph 33 of these Guidance Notes states, after identifying the above sanctions: "In addition it is accepted convention that the Committee may reprimand the Respondent for the conduct concerned" and points out that, when considering the sanctions in ascending order, the Committee should consider a reprimand after considering no direction but before considering suspension or removal. When approving these revised Guidance Notes at a Council meeting of 10 November 2010, it was recorded that "the Notes were not a legal document but provided a useful advisory aid to members of the Disciplinary Committee, giving clear guidance as to their roles".
Approved Training Farriers
- One of the routes available to meet the requirement of registration with the Council was, and is, an apprenticeship qualification. Until 31 October 2013, the NFTA was the sole provider of this qualification. The NFTA was a division of the Council which managed farriery apprenticeships. All apprentices are employed by ATFs who provide on-the-job training. Off-the-job training and assessment was also carried out by three specialist colleges during block release periods. A field officer of NFTA would visit the apprentice in the workplace between college blocks.
- On 12 April 2013, OFSTED published a "Learning and Skills Inspection report" into NFTA, concluding that the Agency was inadequate, for a number of reasons including (in summary):
"Apprentices report significant examples of bullying, abuse and humiliation by ATFs, and in a very small minority of cases by college trainers, which have not been identified or dealt with appropriately by the NFTA. Apprentices' interests and needs are not at the heart of the training and in too many cases they are anxious to speak out against poor treatment since they do not think they will be believed or that the NFTA will support them"
- The NFTA ceased having responsibility for apprenticeships in October 2013. Following a resolution at a meeting of the Council on 23 October 2013, at which the Council took over responsibility for the management of ATFs, the Council put in place a detailed policy relating to ATFs, entitled "ATF Status Recruitment, Monitoring and Review Policy" ("the ATF Policy"). The ATF Policy was in force at all times material to this appeal. Its purpose is to allow the Council to "effectively monitor and review an Approved Training Farrier's (ATF) Status" and to "deal effectively with ATFs who underperform and who fail to comply with relevant FRC policy". In particular the ATF Policy makes specific provision for the Council to maintain a central list of approved ATFs and for removal from that list in certain circumstances, including a finding by the Disciplinary Committee of serious professional misconduct.
- At paragraph 4.14, the ATF Policy addresses "other issues that may affect ATF status", including under paragraph 4.14.3 detailed rules which apply in relation to "Serious Professional Misconduct". The position is as follows: First, if, following a finding of serious professional misconduct, the Disciplinary Committee suspends or removes the ATF from the register, then the farrier's status as an ATF is automatically revoked. (Automatic revocation thus applies in the present case). Secondly, if the ATF is found guilty of serious professional misconduct, but not suspended or removed, an internal review process "will begin". That review process is conducted by the Registrar and may lead to immediate removal of ATF status, suspension of status or continuation of status with or without conditions. Thirdly, where the Disciplinary Committee does not find serious professional misconduct at all, the Disciplinary Committee may, if it considers that the farrier's suitability to remain as an ATF has been called into question, still refer the case to the Registrar for an ATF Status review.
Appeals to the High Court
- A right of appeal from the decision of the Disciplinary Committee is provided in section 15(3) as follows:
"a person in respect of whom a direction is made under subsection (1) of this section may, within 28 days after notice of the direction was given to him, appeal against the direction to the High Court, or, in Scotland, to the Court of Session."
- Section 15(5) provides that on the hearing of such an appeal the Court may make such order as it thinks fit and it shall be final.
- I have heard argument on various matters which arise on an appeal under section 15(3), and considered a number of authorities, relating to appeals from other professional bodies. The following principles emerge.
- First, CPR 52.10 and 52.11 apply to an appeal to this Court from the Disciplinary Committee. It is common ground that such an appeal is an appeal by way of review and not by way of rehearing: see the fact that special provision for a s.15(3) appeal is not made in CPR Practice Direction 52D. (See, by analogy, discussion in O v Secretary of State for Education [2014] EWHC 22 (Admin) §54). However where the appeal court is being asked to reverse findings of fact based on oral evidence, there is little, if any, difference between "review" and "rehearing": see O supra, §56 and Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642 §§13, 15 and 23. Ultimately the question for this court is whether the decision below was "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings [below]".
- Secondly, as to the approach of this Court on appeal in relation to findings of fact, whilst in a case such as the present, the lower court or tribunal is the primary decision maker, the High Court will correct material errors of facts on various grounds, including insufficient evidence or mistake. The degree to which the appeal court will show deference to the lower court will depend upon the nature of the issues determined by the court below. Greater deference will be shown where the conclusions are based upon the view formed of oral evidence of witnesses, than where conclusions also involve analysis of documents or where conclusions are based on inference. Much will depend upon the extent to which the judge below has an advantage over the appellate court: see Assicurazioni supra, §§14 and 15.
- Thirdly, as regards the specific issue of findings based on preferring the account of one oral witness over that of another, there is a degree of disagreement between the parties. The Appellant supports the analysis in my judgment at paragraph 58 in the case of O, supra. In that case, I stated, in particular, that the starting point is that the lower court is in a better position to assess credibility and reliability of witnesses; that demeanour of witnesses is a significant, but not always conclusive, factor and that it may not be sufficient to explain or justify the conclusions of the court below. This analysis is founded ultimately upon the passage in the speech of Lord Thankerton in Thomas v Thomas [1947] AC 484 at 487-488.
- The Council on the other hand relies on the case of Bhatt v. General Medical Council [2011] EWHC 783 at §§6 and 9, (and certain passages in the Assicurazioni case) to support the contention that the scope for interference with findings of fact based on oral evidence heard by the Disciplinary Committee is more restricted than suggested in paragraph 58(5) of O. Findings of fact founded upon credibility of witnesses are "close to being unassailable" and "must be shown with reasonable certainty to be wrong if they are to be departed from". This submission is based upon the approach of Leveson LJ in Southall v General Medical Council [2010] EWCA Civ 407 at §47 and has been subsequently followed in a number of first instance decisions.
- In my judgment, the distinction between these two approaches may be a fine one, and in any event, on the facts of this case, little will turn upon it. Without undertaking a detailed analysis of the substantial number of potentially relevant previous cases, for present purposes I will apply, in the Appellant's favour, the approach identified in paragraph 58 of my judgment in O. Suffice it to say that both my decision and that in Bhatt can be traced back to the speech of Lord Rodger in Gupta v General Medical Council [2002] 1 WLR 1691 at §10. That speech, in turn, expressly cites with approval the passage in the speech of Lord Thankerton in Thomas v Thomas referred to in paragraph above 30. Thomas v Thomas itself was also cited with approval in Benmax v Austin Motor Co Ltd [1955] AC 370 which, in addition to Gupta, is relied upon by Leveson LJ in Southall.
- Fourthly, a professional disciplinary committee is not a judicial body and it is not required to make a record of everything it has considered in its reasoning, as long as sufficient explanation of reasons is given. It is important not to subject a determination such as that in the present case to a narrow textual analysis: see O supra at §§ 61, 62 and 63.
- Fifthly, as regards the issue of sanctions, the Council refers to case law concerning the disciplinary procedures of the Law Society and the General Medical Council and in particular Bolton v Law Society [1994] 1 WLR 512 at 517-519, General Medical Council v Meadow ]2006] EWCA Civ 1390 at §197, and Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46 at §§16-20. From these authorities, I draw the following propositions:
1) The principal purpose of sanctions in such proceedings is not punishment of the practitioner, but rather maintaining the standards and reputation of the profession as a whole and maintaining public confidence in the integrity of the profession. The second main purpose is to be sure that the offender does not have the opportunity to repeat the offence: see Bolton at 518F-H and Fatnani and Raschid at §§17-18. However what the public interest requires is likely to vary from profession to profession: see R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1 at §§49-50 and Bolton supra at 518A-B, D-E and 518H-519B, placing very strong emphasis on issues of integrity, probity and complete trustworthiness in the specific context of issues of trust relating to solicitors' dealings with property and money of members of the public.
2) It follows from the principal purpose above that particular force is to be given to the need to accord special and appropriate respect to the judgment of that body. Nevertheless the Court will not defer to the disciplinary body's judgment "more than is warranted by the circumstances": Fatnani and Raschid at §§18-20.
3) As to the issue of respect for the judgment of the professional disciplinary body, certainly in the case of the GMC, the body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: see Meadow at §197. The italicised words are important; it is necessary to consider the proper scope of the areas of expertise of the particular disciplinary body by reference to the particular profession (and the public interest concerns raised by the exercise of the profession) which it regulates.
The 2003 proceedings
- On 28 January 2003, the Appellant had been found guilty by the Disciplinary Committee of serious professional misconduct in relation to behaviour towards four apprentices ("the 2003 Findings"). The underlying findings of fact were of abusive and bullying behaviour and, in one instance, of violent behaviour, in the period between June 1996 and January 2001. All but one of the charges were contested; the Appellant admitted the charge in relation to violent behaviour. As regards sanction, the Disciplinary Committee, pursuant to Rule 7(3)(iv), postponed judgment for 12 months, concluding as follows:
"… In the light of the fact that the charges do not refer in any way to your competence as a farrier - that is not in dispute - but relate to the manner in which you deal with apprentices,… we have decided to postpone judgment for up to 12 months, at the end of which the same penalties will remain open to us and to the Committee as are available today. However, provided that you take action to overcome the problems of abusive and bullying behaviour, which we have found proven, we would not expect to impose any further penalty at that date. Evidence of satisfactory completion of an appropriate approved coaching course or similar will influence our judgment."
- At the time, following that pronouncement, the Appellant's solicitor raised with the Legal Assessor the question of his ability to appeal against aspects of that decision; and in particular suggested that time to appeal would not actually start to run until the later date of postponed judgment. In the exchanges which followed, whilst the Appellant's solicitor sought to press the Legal Assessor for some clarification on the time for appealing in the case of a postponement, the Legal Assessor made it clear that that was a matter for the solicitor as the Appellant's adviser and not a question upon which the Legal Assessor was providing any answer.
- A year later, on 21 January 2004 for the Disciplinary Committee reconvened and decided to take no further action against the Appellant.
The Proceedings before the Disciplinary Committee
The charges
- The charges against the Appellant were as follows:
"Between 1 July 2012 and 3 May 2013 with regards to Joseph Hopkins ("JH"), an apprentice in relation to whom you acted as Approved Training Farrier ("ATF"), you:
1. in or about January 2013, threatened JH with violence, more particularly when JH told you about a burst pipe, you threaten to punch JH;
2. Bullied and intimidated and/or harassed JH, more particularly:
(i) Called JH abusive names to his face such as "retard", "cunt" "faggot" "twat" "spastic" "knob", "shit head" "fuck up" "knob head" "dyslexic cunt" and "princess".
(ii) Used abusive language to JH when very close to JH's face.
(iii) Encouraged clients to call JH "princess".
(iv) Told JH he was "thick" incompetent" and "lazy".
(v) Told JH that he would have to learn a new word every night and if the following morning JH could not give the correct meaning of that word, JH would have to buy lunch for you and the other apprentices, and on at least one occasion required JH to buy you lunch on the basis that he could not remember the meaning of a word.
(vi) On one occasion when JH refused to buy you lunch, threatened to telephone the NFTA and JH's father and that JH would lose his apprenticeship.
(vii) On one occasion, having stopped with JH for lunch in Reading, drove away without JH, leaving him alone without a coat or telephone and without telling him where and/or when you would return to collect him.
(viii) Told JH that it was "a load of bollocks" that JH found it difficult to answer questions as a result of his dyslexia.
(ix) At a meeting held on 21 January 2013, told JH that sooner or later you were going to sack him because he was "useless".
(x) Told JH he would have to buy lunch "for everyone" if he arrived late for work.
(xi) Threatened to sack JH if he got something wrong.
(xii) Made inappropriate comments to JH about JH's father's sex life.
3. Used racist language in front of JH, more particularly:
(i) referred to people who were going to be coming to live in a caravan with JH as "Pakis"; and
(ii) when driving in your van, shouted at people outside, using words such as "get out of the way you Paki cunt".
4. Failed to provide safety equipment required by JH for his apprenticeship and/or reimburse JH for having bought the same, more particularly eye protection, ear defenders, boots and/or chaps.
5. Failing to provide any or any adequate first aid for JH.
6. Failing to assist sufficiently with JH's theory work and/or revision.
7. Failed to pay JH for work undertaken by him for you in August 2012.
8. Required JH to undertake tasks outside the scope of his apprenticeship and/or without sufficient safety precautions, more particularly:
(i) Undertaking construction work to your house, including applying fibreglass to your attic
(ii) In about early 2013, undertaking building work to your grooms' accommodation
(iii) Sanding polo pitches
(iv) Burning rubbish, including tyres and gas canisters
(v) In about April 2013, moving your furniture from a mobile home to your house.
9. In about April 2013, gave JH approximately two hours' notice to leave a mobile home which he was renting from you, having previously agreed to give him two weeks' notice."
There were thus 9 charges, some of which included a number of sub-charges. There were in total 25 factual allegations.
The course of the hearing
- The hearing itself took place over seven days at the end of March, and in May and June 2016. JH and the Appellant each gave oral evidence. The Council also called Mr Neville Higgins, who at the relevant time was operations manager and chief executive of the NFTA. The Appellant called five character witnesses: Messrs Baker, Wiersma, Amjad, Christie and Gilchrist.
The Disciplinary Committee's findings and conclusions
- The Disciplinary Committee made its decision on the facts in the Determination. Following those findings, on 30 June 2016, a further hearing took place. The Appellant did not appear at that hearing, writing instead to say that he wished to be removed from the register. After considering the effect of his non-appearance and his request to be removed from the register, the Disciplinary Committee considered, and made its determinations, on serious professional misconduct and on sanction respectively.
(1) The Decision on the facts
- In the Determination, the Disciplinary Committee made the following findings.
- As regards the witnesses, the Disciplinary Committee found JH to be credible (paragraphs 5 and 6), but by contrast found the Appellant not to be a wholly reliable witness (paragraph 7). As to the five character witnesses, the Committee found that each testified to "their personal experience" of the Appellant and made observations on the value of their evidence. The Committee referred to the 2003 Findings (at paragraph 12) and then went on to direct itself in the following general terms (at paragraph 14):
"[The Committee] recognised that the burden of proving the allegations lay upon the Council and that the Committee needed to feel sure that a particular event or matter had occurred before it could find it proof. The Committee considers each charge and the evidence relating to that charge separately. It recognised also that while evidence of character could be relevant to questions of credibility and propensity to behave in the way alleged such evidence was not direct evidence of whether the conduct alleged had occurred. Evidence as to whether an event had occurred depended on there being convincing evidence from a witness with direct knowledge of the event."
- At paragraph 16, the Disciplinary Committee set out, with reasoning in relation to each, its findings on each of the charges and sub-charges, finding half of them proved and half of them not proved. Of the nine main charges, three were found proved, two were found partially proved and partially not proved, and four were found not proved. Those found proved were as follows: charges 2(i), (iv), (v), (viii), (x),(xii), 4, 6, 7 , 8(i), (ii) and (v).
(2) Serious Professional Misconduct
- In its findings on misconduct, the Disciplinary Committee held, that, with the exception of Charge 8 and the building work, all the allegations found proved each amounted to serious professional misconduct, (including Charge 7 on pay), and concluded:
"Looking at the case as a whole, the Committee has reached the view that Mr Craig's treatment of Mr Hopkins during his apprenticeship was wholly unacceptable and amounted to serious professional misconduct."
(3) Sanction
- Following the finding of serious professional misconduct, counsel for the Council then put forward relevant matters in relation to the issue of sanction. Those matters included the 2003 Findings. The Legal Assessor gave advice to the Disciplinary Committee. The Chairman then announced the Committee's decision on sanction in the following terms:
"In addressing this issue [i.e. sanction], the Committee has had in mind that its function is not to punish. The function of the Farriers Registration Council of which this Disciplinary Committee is part is to ensure adequate standards of competence and conduct amongst persons engaged in the shoeing of horses.
The case… involved the sustained mistreatment and abuse of a young apprentice farrier by an ATF over a period of almost a year. The Committee has recognised in its consideration of this case that it must act proportionately and should impose the least restrictive sanction available that can satisfy the public interest in maintaining confidence in the profession of farriery and in the regulation of that profession.
Mr Hopkins, the complainant in this case, was aged 19 when he began his apprenticeship. He was dyslexic. Over the course of the next nine months or so, he was the subject of regular bullying and harassment through repeated verbal abuse. He was subjected to threats of financial sanction if he failed to remember words or was late for work and was not reimbursed for the purchase of protective equipment. He was not paid for a month's work. The difficulties experienced as a result of his dyslexia were not addressed. Important aspects of his apprenticeship, in particular theory work and revision, were ignored. The Committee has found Mr Craig's conduct to be wholly unacceptable. …"
- The Chairman then referred to the 2003 Findings and to the fact that the Appellant had not appeared before the Committee but had written to the Registrar stating that he had resigned as a farrier and ATF and had also alleged that the Disciplinary Committee was biased. The Committee would not take that letter into account. The Chairman then continued:
"The Committee is conscious that any sanction involving suspension or removal from the Register will be likely to have a substantial financial impact on Mr Craig. However it has not received any evidence from Mr Craig as to his financial position and it has reminded itself that its function is to protect the public interest by imposing a sanction which, in its view, is sufficient, but not more, to maintain public confidence in the profession of farriery and in the regulation of that profession."
- After reciting that the Committee had considered the available sanctions in ascending order of severity, he continued:
considered the"… The Committee first considered whether to take no action but concluded that this was much too serious a case for that. The Committee next considered whether a reprimand would be sufficient but concluded that it would not be. The Committee concluded that it was not appropriate to postpone judgment in this case. This was the course taken on the previous occasion and resulted eventually in no further action being taken. Unfortunately that earlier course does not appear to have produced a lasting improvement in Mr Craig's behaviour. The Committee next gave careful consideration as to whether a period of suspension from the Register would satisfy the public interest. After careful consideration, the Committee concluded that this would not in this case be sufficient.
This was the second occasion upon which Mr Craig had appeared before this Committee and the Committee noted that the earlier findings were of abusive, bullying and violent behaviour over an extended period of time. In this case, the Committee's findings were of bullying and intimidating behaviour directed at one individual over many months. In the present case, the matters proved go beyond abusive and intimidating conduct. They include a failure to pay a month's wages, a failure to supply essential protective equipment or to reimburse in respect of the purchase of such equipment and a failure to address properly the theory and revision aspects of the apprenticeship.
In the light of the seriousness of all these matters and having regard to Mr Craig's previous disciplinary history, the Committee considers that the only proportionate sanction is to direct that Mr Craig's name be removed from the register."
The Appeal
- The Appellant's grounds of appeal are as follows:
• Ground 1: In holding that the Complainant was a convincing and reliable witness the Disciplinary Committee failed to take into account their rejection of charges 1, 2 (ii), (iii), (vi), (vii) and (xi), 3, 5, 8(i) (iii) and (iv) and 9. These charges were the subject of detailed and clear evidence from JH which the Committee did not accept. Having resolved these issues in favour of the Appellant any reasonable Committee would have concluded that the Complainant's evidence was at best exaggerated and was certainly not a sufficient basis for any findings of fact against the Appellant.
• Ground 2: The Disciplinary Committee erred in treating findings of fact made against the Appellant by a Disciplinary Committee in January 2003 as conclusive (or any) evidence of the facts considered at that hearing. The January 2003 hearing was not a final hearing but a preliminary hearing which never proceeded to any final consideration of sanction let alone final order. Despite submissions on the Appellant's behalf that in the absence of any final order the Appellant had been unable to appeal these findings, which he disputed, the Committee treated them as being determinative of facts critical to their conclusions.
• Ground 3: The Disciplinary Committee held that the Appellant was an unreliable and evasive witness because he said in evidence that he could not remember conversations which had taken place either in the late 1990s (nearly 20 years previously) or in 2013 three years prior to the hearing. These holdings defy common sense.
• Ground 4: In reaching their findings of fact, the Disciplinary Committee gave no, or no sufficient reasons, for rejecting the evidence of the five third-party witnesses called on the Appellant's behalf and/or preferring the evidence of the Complainant.
• Ground 5: The sanction imposed upon the Appellant, of removal from the register, was in any event wholly disproportionate to the misconduct found by the Committee. That misconduct was limited to the Appellant's treatment of one apprentice. Even within the terms of the Committee's (flawed) findings of misconduct there was no justification for any sanction other than restriction upon the Appellant's status as an Approved Training Farrier. The Appellant was willing to agree to take on no further apprentices.
Ground 1: Inconsistent findings
Appellant's submissions
- The Appellant submits first that the Disciplinary Committee was wrong to find that JH was a convincing and reliable witness, because the Committee failed to take into account their own conclusions on those charges which were based on detailed evidence from JH and which they rejected. The Appellant identified 13 instances where the Disciplinary Committee rejected JH's evidence. Having found JH's testimony to be unreliable on so many issues, any reasonable Committee would have concluded that all his evidence was, or might be, tainted by exaggeration at the best and probably by deliberate untruth.
- There is no witness who corroborates the account of JH in respect of any of the charges which were found proved, and no reason is given for believing JH on some of the charges and not believing him on other of the charges. It is inherent in the findings where the Disciplinary Committee rejects JH's evidence that he was or may have been exaggerating, and on that basis the Disciplinary Committee can only have concluded that they could not be sure in relation to his evidence in relation to the charges which were found to be proved. Further in respect of Charge 7, the finding of failure to pay in August 2012 was wrong on the totality of evidence.
The Council's submissions
- The Council submits that the Disciplinary Committee was best placed to assess the credibility of the witnesses. The Determination shows a very careful approach to the evidence. It found that JH gave careful and balanced evidence and made concessions. As specifically directed by the Legal Assessor, the Disciplinary Committee properly considered each factual allegation separately and applied the criminal standard of proof to each. The fact that the Disciplinary Committee was not sure about a number of allegations did not require it to reject all of JH's evidence. The Disciplinary Committee found the Appellant to have been unreliable; and that JH's evidence was to be preferred to that of other witnesses. This was a reasonable conclusion.
Discussion and conclusions
- In my judgment, it is not wrong, in principle, to accept the evidence of a witness on one charge, but not on another, unless there is an overall finding that the witness cannot be relied upon in general: see R v Fanning [2006] EWCA Crim 550 at §§ 6, 19, 24 to 28. It is perfectly possible for a disciplinary committee to find one allegation proved on the basis of the evidence of one witness, whilst at the same time feeling unable to find another allegation proved on the basis of some other part of the evidence of the same witness, and for this reason it is important that each charge is considered separately: see Gupta, supra, §12.
- This is not a case where the Disciplinary Committee found, in respect of those "not proved" counts that JH was generally not a reliable witness or not credible. Rather it found on specific issues that in relation to such specific charges, that it could not be sure that the evidence established the fact alleged. The standard of proof is the criminal standard; and the Disciplinary Committee was entitled to find in relation to charges which were found to be "not proved", that they were not sure i.e. that the allegation had not been proved to the criminal standard. The Disciplinary Committee gave logical reasons for accepting some, but not all, of JH's evidence, including the fact that it was applying the criminal standard of proof.
- The Disciplinary Committee expressly rejected the Appellant's contention that JH was acting maliciously and seeking to exaggerate so as to damage the Appellant (paragraph 5). The only suggestion put forward by the Appellant as to why JH had made his evidence up, was that he wanted to damage the Appellant. No reason was advanced for this and it was not accepted by the Disciplinary Committee. In my judgment, there is no inconsistency between the finding that JH did not seek to exaggerate on the one hand and the finding that some of his evidence in respect of particular charges was not accepted and might have gone too far, and thus might be characterised as having been exaggerated. The Disciplinary Committee made a clear finding as to JH's overall reliability, supported by examples of such reliability.
- As to the 13 "not proved" charges expressly relied upon by the Appellant, in respect of at least four charges, the Disciplinary Committee's conclusion was not based on disbelieving JH's evidence at all, and in at least a further 8 instances, the Disciplinary Committee's conclusion was based on the case not being proved to the criminal standard. As regards particular charges highlighted in argument, I comment as follows.
- As regards Charge 2(iii), I do not accept the Appellant's contention that the Committee, in its conclusion, misrepresented JH's evidence and, implicitly, that it did this so as to avoid having to find that JH was being untruthful. JH's evidence that the Appellant had told clients to call him "Princess" does not indicate how JH knew this – whether he had been present during any conversation between a client and the Appellant, or that the client had told JH or indeed that JH had merely inferred this. The Disciplinary Committee's conclusion that he had "inferred" was one which it was entitled to reach on the basis of the evidence. The Appellant's submission here amounts to an overtextual analysis of the Determination. The Committee concluded that it was not sure of the allegation here not least because there was a possible alternative explanation for clients calling JH the name.
- As regards Charge 2(vi) (not accepting the threat when JH refused to buy lunch), this was another case where the Disciplinary Committee was not satisfied so that it was sure. This charge has to be read in the light of the finding that charge 2(v) was found proved and of the other findings of bullying behaviour. Against this background, the Disciplinary Committee's doubt that in fact JH would have refused to buy lunch was one which it was reasonably entitled to reach. This is an instance of the Committee not accepting JH's evidence and finding, effectively, that it may have been exaggerated, but it did so on the basis that it was not "sure".
- As regards Charge 3, the Disciplinary Committee did not accept JH's evidence as to the use of racist language. The Committee emphasised here the need for it to be "sure" and it could not be, not least when set against the evidence from Mr Amjad suggesting the contrary.
- As regards Charge 5 and the first aid boxes, the Disciplinary Committee accepted JH's evidence that one first aid box was depleted. It is the case that JH's evidence also made the wider allegation that all first aid boxes were depleted. In the face of evidence from other witnesses, the Committee did not accept that wider allegation. To this extent, JH's evidence on this point was exaggerated. However I do not accept that in the Determination, the Disciplinary Committee was misrepresenting JH's evidence. The fact that it referred only to the part of his evidence that it accepted, does not mean that it was ignoring or seeking to avoid referring to the part that it did not accept. Further the Committee's conclusion, even if it shows that some of his evidence was exaggerated in one particular respect, does not undermine the reliability of JH as a witness or his credibility as a whole.
- In my judgment, this is a case where the Disciplinary Committee's advantage of hearing and seeing all the witnesses was considerable, and the fact that it found some of the charges not proved is not a reason to conclude that its very specific findings of fact on the charges found proved were wrong.
- However, in respect of one of the charges found proved – Charge 7 – I consider that the Committee's conclusion was flawed because it failed to take account of relevant evidence. The allegation was that the Appellant had failed to pay JH for the month of August 2012. The Committee found it proved on the basis of the admitted fact that, unlike other months, there was no written record of such payment being made and further that "it accepted JH's evidence". JH's evidence in chief was a simple assertion that he did not get paid in that month. The Appellant's evidence was that, although he accepted that he had no records and no specific recollection of payment for that month, he considered that he must have paid in that month because there had never been any dispute about payment. He thought that the reason there was no documentation is that JH had been paid in cash. Critically, when the Appellant's evidence to that effect was put to JH in cross examination, JH responded "okay". That response from JH, in my judgment, is at the very least, capable of being considered to be evidence that JH accepted that it was possible that he had been paid in cash. In the Determination, the Committee makes no reference to this evidence of JH and had it been taken into account, it may well have concluded that it could not be sure of the charge. In my judgment, this finding is based on a failure to take account of relevant evidence.
- For these reasons, save in respect of Charge 7, Ground 1 of the appeal is rejected. As regards Charge 7, the appeal succeeds. The relevant finding of fact in relation to charge 7 and the specific finding of professional misconduct based on that finding will be set aside.
Ground 2: The 2003 Findings
- In the earlier proceedings, the Appellant had disputed the allegations in relation to three of the apprentices, but had admitted that he had used violent behaviour in relation to a fourth apprentice. There was no appeal against the 2003 Findings, nor any challenge to them by way of judicial review.
- In the course of argument before the Disciplinary Committee in the present case, the Appellant contended that the 2003 Findings should be excluded from its consideration altogether; the Appellant had felt very unjustly treated in those earlier proceedings. He could not appeal because the statutory appeal was only available where the defendant has been suspended or struck off. He was not able to clear his name. The earlier findings needed to be treated with exceptional care because it could have a very unjust effect. Their probative value was very low and their prejudicial effect was very high. However the Appellant did not contend that in order to establish the facts underlying the 2003 Findings, it was necessary for the Council to call evidence to prove them nor did he himself put forward any case as to why the 2003 Findings were wrong.
- The Disciplinary Committee did not accept this submission, stating, at paragraph 12 of the Determination, as follows:
"The Committee also received evidence relating to previous findings made against Mr Craig. Mr Knight opposed the admission of this evidence but the Committee consider that Mr Craig had introduced evidence of his good character so that it was appropriate for the Committee to receive evidence of any previous disciplinary findings."
- After then setting out those findings, the Determination continued:
"Mr Craig had denied the allegations as regards [three of the apprentices] but the Committee found these allegations proved on the basis that Mr Craig had lost his temper, and sworn at and being abusive towards his apprentices. These findings are in contrast to the evidence given by the witnesses referred to above [namely the five character witnesses]. In the light of these findings Mr Craig is not of good character in relation to the type of behaviour alleged in these proceedings. However, the Committee has been careful to avoid concluding that, because Mr Craig was guilty of this type of conduct at the end of the 1990s, he must also be guilty of the conduct alleged against him in this case some 12 years later."
- In addition to taking the 2003 Findings into account in assessing, generally, the character evidence provided by the five character witnesses, the Disciplinary Committee took them into account in three further respects: in its assessment of credibility of the Appellant himself (paragraph 7); in its assessment of the reliability of the evidence of Mr Christie (paragraph 10) and in its consideration of sanction (transcript p.45 ll.4-15).
The Appellant's submissions
- The Appellant contends that the Disciplinary Committee was wrong to rely, in the Determination, upon the 2003 Findings as evidence of the underlying conduct which were the subject of those Findings. He submits, that in the earlier proceedings there was no final order capable of rendering the 2003 Findings res judicata; and thus, the 2003 Findings were not evidence of the facts then found, for the purpose of the present proceedings. Because the Appellant had had no opportunity to appeal against the 2003 Findings, there was no order which was "final". The wrongful admission of the record of the 2003 Findings as conclusive evidence of the matters found by the earlier Committee, led the Committee wrongly to reject the Appellant's evidence, the evidence of Mr Christie and the Appellant's other witnesses. They were wrongly taken into account in its decision on sanction. The events underlying the 2003 Findings had to be proved at the current hearing and no one did prove them. The Appellant did not accept the underlying findings before this Disciplinary Committee.
The Council's submissions
- The accurate position in relation to the 2003 Findings is as follows. The Appellant denied the charges of mistreatment against three farriers and was not prepared to plead to the charge alleging violence in relation to a fourth. The Disciplinary Committee heard evidence called on behalf of both the Council and the Appellant. During the hearing the Appellant admitted the charge to which he had not been prepared to plead. On 28 January 2003 the Disciplinary Committee found all charges proved and made a finding of serious professional misconduct. In these proceedings the Disciplinary Committee could correctly proceed on the basis that at the conclusion of the previous hearing the Appellant had been found guilty of serious misconduct in respect of findings of abuse and bullying of four apprentices.
Discussion and conclusions
- There are two issues here. First, the extent to which the 2003 Findings were evidence of the underlying conduct there found; and secondly, if they were such evidence, whether the Disciplinary Committee were right to admit that underlying conduct as evidence of "bad character".
- As to the first issue, this raises questions of res judicata (in this case, cause of action estoppel). Cause of action estoppel is capable of applying to decisions made in disciplinary tribunal hearings, and thus in the present case: R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales, supra §§27, 29. Where a decision or determination gives rise to a cause of action estoppel, it is conclusive in later proceedings involving the same cause of action as to all points decided in that decision; the conclusions in the decision cannot be challenged in subsequent litigation between the same parties: Phipson on Evidence 18th edn §§43-15 (2) and 43-23. In order to found cause of action estoppel, the decision in question must be "final". However finality does not depend on whether a decision can be appealed. Rather finality is concerned with the question whether the decision can be varied or set aside by the court that delivered it: Phipson, supra, §43-05, first two sentences.
- In my judgment, the 2003 Findings were a final decision by the Disciplinary Committee both as regards the facts found and the consequential finding of serious professional misconduct. There was no need for a subsequent "order" (whether by way of sanction or otherwise) to render that decision final. It is clear from Rules 6(6) and 7(1) that a decision on the facts and on the charge are distinct "findings". Once that decision was taken, there was no basis upon which the Appellant could have asked for that decision to be varied or set aside by the Disciplinary Committee itself. Even if, contrary to the foregoing, either the order postponing judgment or the subsequent order of "no direction" were to be treated as the "final" order, the fact that there was no right of appeal against either of those orders, does not mean that the principle of cause of action estoppel does not apply. It is common ground that there was no right of appeal under the 1975 Act against either of those "orders". In principle, there might have been a right to challenge by way of judicial review, although whether such a challenge would have been considered premature or academic might well have been raised in response.
- I conclude therefore that the 2003 Findings gave rise to cause of action estoppel and were conclusive evidence, for the purposes of the present proceedings, of the underlying facts there found.
- In any event, even if I had found that they did not give rise to cause of action estoppel, in my judgment, the 2003 Findings were at least admissible (even if not conclusive) evidence of the underlying facts which the Council was able to rely upon before the Committee. The Appellant himself did not seek, in the present case, to adduce any evidence to contradict the evidence provided by those Findings; what is more, the Appellant had admitted one of the charges in the 2003 Findings.
- In these circumstances, I am satisfied that the Disciplinary Committee was, at the very least, entitled to rely upon the 2003 Findings as evidence of the Appellant's previous conduct towards other apprentices.
- As to the second issue, in my judgment, the Disciplinary Committee's approach to the admissibility and relevance of this previous conduct was correct. It directed itself correctly as to the relevance of this previous conduct, both in considering whether the Appellant was of good character, in relation to issues of credibility and propensity generally (at paragraphs 12 and 14) - and in its direct consideration of the evidence of Mr Christie and other witnesses. I comment below on the relevance of the 2003 Findings on the issue of sanction.
- For these reasons, Ground 2 of the appeal is rejected.
Ground 3: The Appellant was an unreliable witness
The parties' submissions
- The Appellant submits that the Disciplinary Committee's conclusion at paragraph 7 that the Appellant was unreliable and evasive because he could not remember conversations which had taken place either in the late 1990s or in 2013 was irrational.
- The Council submits that this ground of appeal does not accurately describe the Disciplinary Committee's reasons for preferring the evidence of JH or for finding the Appellant to be unreliable. The finding in relation to the Appellant's evidence on swearing was justified, and the Appellant's submissions ignore the evidence concerning JH's father's sex life. The Disciplinary Committee heard and saw the Appellant give his evidence and was fully entitled to make the findings it did in relation to his credibility.
Discussion and conclusions
- The reliability of the Appellant's evidence was a matter for the Disciplinary Committee to assess. In paragraph 7 of the Determination, it found that the Appellant's evidence was at times evasive and that he was a not wholly reliable witness. It gave two examples to support this conclusion.
- First, in relation to JH's father's sex life, in a letter in response to the complaint to the NFTA dated 16 May 2013, the Appellant had himself referred to conversations between the Appellant and JH about JH's father's sex life. Then, in the course of JH's cross examination, the Appellant's solicitor questioned JH about these conversations. It follows that the Appellant must have been well aware of those conversations. Yet when the letter of 16 May 2013 was put to the Appellant in cross-examination, he claimed that he did not know of or remember any such conversations. Against this background his claimed inability to remember those conversations was a cogent reason for the Disciplinary Committee's finding that the Appellant was evasive and not reliable. That finding was justified.
- Secondly, as regards the Appellant having been abusive in the past, the relevant exchanges in cross-examination show that, in response to a question as to whether he had, in the past, sworn at apprentices, the Appellant instead answered, or sought to answer, a different question, namely as to who he had sworn at. Further in this regard, the Disciplinary Committee was aware that the Appellant had told the NFTA that he did not deny using uncouth language. Further the Disciplinary Committee was entitled to take account of the 2003 Findings that he had used bad language in relation to other apprentices.
- In my judgment, having heard and seen the Appellant give evidence and having explained its reasons, in particular in relation to the two examples it gave, the Disciplinary Committee was entitled to reach the findings it did in relation to the Appellant's credibility. There is no error in those findings and Ground 3 is rejected.
Ground 4: other witnesses called by the Appellant
The parties' arguments in general
- The Appellant submits that the Disciplinary Committee should not have rejected the evidence of the five third party witnesses called by him. Four of those witnesses gave evidence which contradicted JH's evidence and the fifth gave character evidence in favour of the Appellant. The Council submits that the Disciplinary Committee was entitled to accept or reject the evidence of these witnesses in whole or in part, and it was not obliged to give a detailed analysis of its reasons in respect of each of them. In respect of each of these witnesses, I summarise the Disciplinary Committee's conclusion and the Appellant's argument on this appeal.
Mr Baker
- In the Determination, the Committee recorded Mr Baker saying that he had found the Appellant to be completely reasonable in his dealings with him "though he was not a man he would like to cross because he was a forthright man, although he had not used forthright language to Mr Baker". The Appellant submits that Mr Baker's evidence was that he had known the Appellant for more than 20 years and found him an honest and straightforward man. In cross-examination he indicated that he had been shocked with the way the investigation had been handled and had voted against the proceedings.
Mr Amjad
- In the Determination, the Disciplinary Committee commented that Mr Amjad had never heard the Appellants swear or use the word "Paki". The Appellant contends that, having accepted Mr Amjad's evidence that the Appellant did not behave in a racist way, the Committee failed to take account of his further evidence that the Appellant did not behave badly. That evidence was that he had never heard the Appellant swearing at JH, and that he would have heard it if he had been shouting at JH in the yard.
Mr Wiersma
- In the Determination, the Disciplinary Committee recorded that Mr Wiersma had never heard the Appellant lose his temper or use bad language. As to his evidence that he had concerns about JH's conduct, the Committee pointed out, first, that Mr Wiersma had never mentioned those concerns to the Appellant, and, secondly, that the concerns were inconsistent with the Appellant's own view of JH's progress as expressed to the field officer on 17 January 2013. The Disciplinary Committee concluded: "in view of the inconsistency, the Committee was not prepared to attach great weight to Mr Wiersma's evidence." The Appellant submits that this conclusion overlooked both the time that had passed between the favourable report to the field officer and the time of Mr Wiersma's criticisms and, secondly that much of what he had criticised about JH's behaviour had taken place behind the Appellant's back. There is no inconsistency between Mr Wiersma's comments about JH arising from events in February and April and the Appellant being happy with JH in January.
Mr Christie
- In the Determination, the Disciplinary Committee recorded that Mr Christie had painted a very favourable picture of the Appellant and had not observed any behaviour of the kind alleged by JH. His evidence that he had known many apprentices work with the Appellant over a 26 year period and he "wouldn't have cited one that he'd take it out on" was "quite inconsistent with the [2003 Findings] and cast doubt upon Mr Christie's reliability as a witness". The Appellant submits that Mr Christie gave detailed evidence which contradicted every aspect of JH's evidence of conduct in the workplace. The rejection of his evidence as being inconsistent with the 2003 Findings was wrong because those Findings were inadmissible and because the contrary was not put to Mr Christie in cross-examination. Further it was wrong to reject his evidence of consistently good current practice on the basis of criticism relating to a period of 20 year old history.
Mr Gilchrist
- In the Determination, the Disciplinary Committee recorded Mr Gilchrist's evidence that he, as an apprentice, had never experienced anything untoward with the Appellant. However the Committee pointed out that Mr Gilchrist's apprenticeship had begun in July 2014 i.e. after the date of the relevant events concerning JH. The Appellant submits that the Disciplinary Committee gave no indication of having rejected Mr Gilchrist's evidence. It must simply have chosen to ignore it. This was wrong.
Discussion and conclusions
- First, the Disciplinary Committee, in the Determination, proceeded on the basis that these five witnesses were relatively peripheral and did not give direct evidence in relation to the particular events alleged. It described JH and the Appellant as "the principal witnesses" (paragraph 4), whilst, by contrast, the five witnesses "testified to their personal experience of [the Appellant]" (paragraph 8). In my judgment, this approach to assessment was cogent and one which the Disciplinary Committee was entitled to take.
- Secondly in relation to each of the particular witnesses, in my judgment, there is no basis for concluding that the Disciplinary Committee's assessment was wrong or that it was not entitled to approach their evidence, in conjunction with the other evidence before it, in the way in which it did.
- As regards Mr Baker, he had no personal experience of JH at all or any knowledge of the manner in which the Appellant had conducted himself in relation to JH. Mr Baker's evidence was not such that the Disciplinary Committee was required to make a choice between it and the evidence of JH.
- As regards Mr Amjad, the Disciplinary Committee did not say that it had rejected Mr Amjad's evidence in general. In relation specifically to charge 3(ii), it took Mr Amjad's evidence into account and, relying in part upon that evidence, found that charge not proved. Because it accepted part of his evidence, it did not follow that the rest of his evidence was directly relevant or probative in assessing whether or not the Appellant was guilty of other charges.
- As regards Mr Wiersma, he had written a letter to the NFTA setting out strong support for the Appellant and alleging very serious criticisms of JH and his behaviour. In cross-examination he accepted that he had not mentioned those matters to the Appellant. In fact, the Appellant's own evidence to the Disciplinary Committee was that the Appellant was content with JH's practical work and that the only thing that had gone wrong was that on a particular Friday he had not done his paperwork for college and that was the issue which had been the subject of the Improvement Notice of 21 January 2013. Mr Wiersma had only been present for two periods, each of about a week. The Disciplinary Committee was entitled to form the view that Mr Wiersma's criticisms of JH were not to be given real weight, because they were not shared by the Appellant and because Mr Wiersma had not seen fit to report them to the Appellant himself.
- As regards Mr Christie, the Disciplinary Committee was entitled to reject the positive picture of the Appellant painted by Mr Christie, including by taking account of the 2003 Findings of serious misconduct. In cross-examination, Mr Christie accepted that the Appellant used bad language and that his language was riper than "bloody hell". Further, and in any event, as the Disciplinary Committee pointed out at paragraph 8, Mr Christie gave no direct evidence concerning events relating to JH. His evidence was only of his own personal experience arising from times when he had been present.
- Finally, Mr Gilchrist could only speak about the Appellant's behaviour towards him in an apprenticeship which began after the period relevant to JH's complaint. This was no more than character evidence. It is clear from paragraph 11 of the Determination that, contrary to the Appellant's argument that it had ignored this evidence, the Disciplinary Committee did take this evidence into account, but it did not weigh in the balance sufficiently to establish that the Appellant had not behaved towards JH as alleged. This is a conclusion which the Disciplinary Committee was entitled to reach.
- For these reasons, Ground 4 of the appeal is rejected.
Ground 5: Sanction
The Appellant's submissions
- The Appellant contends that the effect of the order is to prevent the Appellant from ever working again. He is a highly respected farrier of many years' standing. Even taking the Council's case at its highest, nothing justifies depriving the Appellant of his principal livelihood. There is no public interest in stopping the Appellant working as a farrier.
- The sanction was unnecessary and disproportionate. There was and is no criticism of the Appellant's skills as a farrier or his dealing with his clients. Any sanction should have been limited to the question of whether the Appellant should continue to take apprentices. He is willing to relinquish his status as an ATF.
- It was within the powers of the Disciplinary Committee merely to require that the Appellant did not take apprentices in the future. The power to strike off includes the power to retain on the register, but subject to conditions. Alternatively there was the option of postponing sentence on the basis that the Appellant should not take apprentices in the meantime. That could have been done by way of a contract between the Council and the Appellant requiring the Appellant to give up his ATF registration. Further, in the light of the ATF Policy, the Disciplinary Committee could and should have considered recommending to the Council removal as an ATF. In any event, the Committee failed to acknowledge that there would be a review of the Appellant's ATF status in any event.
The Council's submissions
- First, the sanctions available to the Disciplinary Committee do not include any power to impose any restriction upon a farrier's status as an ATF. There is no power to impose conditions upon registration unlike in other regulatory frameworks, nor any power to direct that a contract be entered into between the Council and a registered farrier. As to the ATF Policy, the Council submits that the roles of the Council and the Disciplinary Committee are entirely separate. It is the Council (through the Registrar) which is responsible for monitoring standards of ATFs. The Act makes no provision for ATF status at all and the Disciplinary Committee has no powers in respect of that status. Farriers appears before the Disciplinary Committee to answer complaints against them in their capacity as farriers. It was not open to the Committee to create a new sanction on an ad hoc basis for the purposes of this one case.
- Secondly, the Disciplinary Committee approached the issue of sanction correctly, identifying the public interest in maintaining the reputation of the profession, the declaration of standards of conduct for those in the profession and the need to act proportionally in the interests of the registrant. The approach to be applied is no different from that applicable to any other disciplinary panel. Here the panel members are intimately involved in the setting of standards for farriers and are better placed that the court to judge what the public interest requires. The public interest lies not just in the proper shoeing of horses. In particular at the time there was good reason to be concerned with standards of conduct towards apprentices. The relevant public interest was "protecting the public perception of a profession which allows people to carry on behaving so badly towards apprentices" and in maintaining public confidence in maintaining proper treatment of apprentices and that the profession is properly regulated.
- Thirdly, the Appellant's position fails to take account not only of these public interest considerations but also the nature and extent of the Appellant's conduct. The abusive threatening and bullying behaviour was rightly found to be unacceptable and, on its own, is conduct which is wholly incompatible with membership of the profession. Aggravating features included the fact that JH was a teenager and had a learning disability, that the Appellant had been in a position of trust and that he had had been found guilty in the past of behaving this way. In any event bullying by any farrier is not acceptable: see the Anti-Harrassment policy and the OFSTED report which led to the NFTA being disbanded.
- Finally, the Appellant did not attend the hearing on sanction where he could have put forward mitigation. He showed no remorse, but rather he protested that the Committee was biased.
Discussion and conclusions
- First, as regards the Disciplinary Committee's powers in relation to sanction, I accept that the Disciplinary Committee has no express power itself to direct removal of a farrier from the list of approved ATFs nor to impose conditions, nor to direct the conclusion of a contract. However in my judgment it was open to the Committee to consider whether removal as an ATF (without removal from the register) was an appropriate sanction in the present case.
- It is clear from the terms of the ATF Policy, disclosed for the first time after the oral hearing of this appeal, that a possible outcome of these disciplinary proceedings was the removal of the Appellant as an ATF without him being removed from the register of farriers. First, a sanction of "no direction" imposed by the Disciplinary Committee in this case (instead of removal from the register) would have led, under the ATF Policy, to a review by the Registrar of the Appellant's status as an ATF. Secondly, I do not accept the submission that, effectively, the Disciplinary Committee itself has no "jurisdiction" or role in relation to ATF status (as opposed to status as a farrier). That it does is clear from the situation where, following a disciplinary hearing, there is no finding of misconduct at all, and yet the Disciplinary Committee itself has express power to refer the case to the Registrar for ATF status review. That power is conferred otherwise than pursuant to the Act or the 1976 Rules. Furthermore, that the Disciplinary Committee is prepared to take action, when there is a finding of misconduct, which action is not expressly provided for in the Act or the 1976 Rules is confirmed by its practice of issuing "reprimands": see paragraph 20 above.
- Under the ATF Policy, where there is a finding of misconduct, then, (1) where removed from the register, the farrier is automatically struck off as an ATF and (2) where the farrier is not removed from the register, there will automatically be an internal review of ATF status by the Registrar. In the latter case, then, even without making a positive recommendation, the Disciplinary Committee, effectively, has the power to cause ATF status, at the very least, to be reviewed. In those circumstances, in my judgment, it must be within the power of the Disciplinary Committee, in considering sanction, both to consider the fact that ATF status will in due course be reviewed, and further to make a recommendation that such a review should take place or indeed to make a recommendation that, upon ATF status review, the Council and the Registrar should consider removal as an ATF. As regards the asserted separation of the roles of Council and the Disciplinary Committee, I note that in its decision on sanction in the present case the Committee itself considered that it was "a part", and exercising a function of, the Council: see paragraph 45 above.
- Accordingly I conclude that the Disciplinary Committee had the power, following a finding of misconduct, to take steps and/or make recommendations which would or might result in loss of ATF status but not removal from the register.
- In this case, the Disciplinary Committee was considering a complaint against the Appellant in his capacity as an ATF and the serious professional misconduct here was concerned wholly with conduct in that capacity. To that extent, I do not accept the distinction sought to be drawn by the Council between the role of farrier and the role of ATF. It appears that, when considering sanction, the provisions of the ATF policy, and in particular the effect of a finding of misconduct by it upon a farrier's status as an ATF was not raised or drawn to the attention of the Disciplinary Committee. In this way, no consideration was given to the issue whether removal as an ATF would be sufficient sanction nor to the fact that, if the Committee did not impose any sanction, then in any event there was a prospect that upon that review, the Appellant's status as an ATF would be removed.
- Secondly, as regards the correct approach to sanction, wider considerations of the public interest are necessarily important. That public interest does include the reputation of the profession of farrier and public confidence in farriers. Nevertheless, in my judgment, what the public interest requires is likely to differ as between different professions: see paragraph 34(1) above. In the present case, the primary objective of the Act and the regulation of the profession of being a farrier is to protect horses from harm. Integrity and standards of good conduct are important, but in my judgment these will raise considerations of a different kind to those required of those acting, say, in the medical professions, the teaching profession or the legal or accounting profession. It is in no way to undermine the need for appropriate standards of behaviour to recognise that the protection and confidence which the public requires is not of the same order. I accept the Appellant's submission that what might be regarded as appropriate standards of behaviour necessary for the protection of the public are likely to be different when handling the health or financial affairs of a member of the public, from those required regarding the profession of farriery. Certainly the Council is responsible for regulating apprenticeship and maintaining confidence that horses will be treated well and that apprentices will be treated well. Secondly, in relation to the second element of the Bolton/Raschid approach, just as in the case of medical issues, the expertise of the disciplinary panel is expertise in medical matters, then in the present case, the particular specialist expertise of the Disciplinary Committee relates to matters concerning the shoeing of horses and the profession of being a farrier. In my judgment, whilst the Committee will have particular knowledge of the impact of deterrence on ATFs, I am not persuaded that it has a peculiar expertise in appropriate standards of conduct to be shown towards employees or trainees.
- Thirdly, in the light of the OFSTED report in this case the crucial consideration for the Disciplinary Committee was, and is, deterrence of bullying in the future – by the Appellant and by others. The Committee rightly treated this as a matter of serious concern. As regards the Appellant himself, the second main purpose of sanctions is to ensure that the offender does not have the opportunity to repeat the offence: see paragraph 34(1) above. In the present case, that particular objective would be met by the lesser sanction of removal as an ATF and removal from the register is, in this context at least, a disproportionately severe sanction. As regards other ATFs, it might be that the mere prospect of being removed as an ATF (as opposed to being removed from the register) would not be a sufficient disadvantage to prevent future bullying behaviour by other ATFs. However, on the material before me it is not clear that removal from the register is the only way of deterring such conduct by others nor that being prevented from being an ATF is not such a deterrent.
- Fourthly, the Disciplinary Committee took account of two particular matters in reaching its conclusion on sanction. First, it correctly relied upon the fact that the Appellant put forward no mitigation and declined to attend the hearing on sanction: he exhibited no remorse and put forward no evidence on the effect upon his livelihood. Secondly, it relied upon the 2003 Findings as previous misconduct. However this was conduct which had happened some considerable time ago - between 11 and 16 years earlier - a factor which in my judgment reduces the extent to which the 2003 Findings are an aggravating feature. The Committee's view that there had been no "lasting improvement" was, in my judgment, harsh. It appears that in the intervening period the Appellant had been a successful and appropriate ATF, and there was evidence from the character witnesses which supported this. By analogy with the approach to criminal sentencing, in my judgment, the time elapsed since previous "offences" is a material consideration.
- Finally, in the light of my conclusion in paragraph 62 above, the Committee was not entitled, as it did in reaching its conclusion on sanction, to take account of its finding in relation to Charge 7.
- The Appellant is a competent and experienced farrier and the sanction imposed deprives him of his ability to earn his living, at least in so far as it is earned from that profession. To impose such a sanction is a draconian step. The Disciplinary Committee failed to consider the possibility that a more appropriate and proportionate outcome in this case would be removal as an ATF, without removal from the register. Taking steps which would or might lead to that, more limited, outcome was an option open to the Disciplinary Committee. In this case, I do not accept that the public interest and the reputation of the profession of a farrier necessarily required removal from the register.
- In these circumstances, I consider that the decision to remove the Appellant from the register was flawed, most particularly because the Disciplinary Committee failed to take account of an alternative sanction, and was therefore wrong and unjust because of a serious irregularity in the proceedings below. There will therefore be an order setting aside the direction made removing the Appellant's name from the register. Ground 5 of the appeal succeeds.
- I have considered whether it is appropriate for this Court to substitute a different sanction. The Appellant submits that the matter should not be remitted to the Disciplinary Committee, since the same panel is likely to reach the same result. However, in my judgment, the better course is to remit the matter to the Disciplinary Committee, so that it can reconsider the position fully, taking account, first, of the content of this judgment and the conclusion that recommendation for removal as an ATF is within its powers and secondly, the likely deterrent effect upon others of removal as an ATF (as compared with removal from the register) and thirdly, any specific mitigation which the Appellant wishes to put forward.
Conclusions
- In the light of my conclusions at paragraphs 62 and 115, this appeal succeeds (a) in relation to the finding of misconduct based on Charge 7 and (b) in relation to sanction. Otherwise, in the light of the conclusions at paragraphs 62, 77, 83 and 97 the appeal in relation to the findings of fact and misconduct fails and to that extent it is dismissed.
- Finally I am grateful to Mr Bradly and Mr Stevenson of counsel for the assistance that they have provided to the Court in the presentation of oral and written argument in this matter.
