Parallel proceedings: casting a long shadow

Becoming the subject of a criminal investigation is a difficult enough prospect on its own. For regulated professionals, however, the additional threat of a parallel professional disciplinary proceeding waits in the wings. The High Court case of Professional Standards Authority for Health and Social Care v General Dental Council and Patel [2024] EWHC 243 (Admin) provided updated guidance on the proper approach to sanctions in professional disciplinary cases based on criminal convictions for serious offences. The decision in Patel provides a useful opportunity to set out an overview of some key principles relating to criminal proceedings and professional disciplinary cases.

No double jeopardy

It is well-established that there is no double jeopardy arising from parallel regulatory and criminal proceedings (Ashraf v General Dental Council [2014] EWHC 2618
(Admin). This is because the character, purpose, and standard of proof in criminal and regulatory proceedings are different. It is therefore open to a regulator to bring professional disciplinary proceedings based on the same alleged conduct even where a person is acquitted at their criminal trial. Equally, where a person is convicted and sentenced for a criminal offence, a regulator may bring separate disciplinary charges resulting in additional sanctions based on the same facts and evidence. As set out in the Solicitors Regulation Authority (SRA) Guidance on Parallel Investigations: ‘The purpose of disciplinary proceedings against a person convicted of a criminal offence is not to punish them a second time for the same offence, but to protect the public and to maintain high professional standards and public confidence.’

A balancing act for regulators

At the investigation stage, regulators must balance the need to proceed expeditiously with the need to avoid interfering with or prejudicing a police investigation in progress. Therefore, as a matter of policy, where a criminal investigation of a registered professional has been initiated, most regulators will wait to investigate or charge a parallel professional disciplinary case until the police investigation has fully concluded. Due to the current backlog at all stages of the criminal justice system, this can result in significant delays for professionals awaiting a charging decision from their regulator.

Reporting requirements

Most regulators have some form of requirement that professionals report to their regulator ‘without delay’ if they have been charged with or found guilty of a criminal offence. Professionals who become the subject of any criminal investigation, arrest, or charge should therefore carefully review the rules of their own regulator in order to ensure that they are in compliance with the applicable reporting requirements. A failure to report a required criminal charge or conviction to a regulator within a reasonable amount of time can and often will result in a separate and additional professional disciplinary charge.

A risk that is more than ‘fanciful’

Where a criminal investigation of a professional has been initiated, a regulator may consider applying for an interim order if it considers that the investigation gives rise to concerns about that person remaining in unrestricted practice. An interim order is a measure intended to protect the public by either restricting or preventing a professional from practising where there are sufficiently serious concerns about public safety or the public interest. A tribunal considering an interim order does not make findings of fact regarding the likelihood that the allegations are true (R (George) v General Medical Council South Staffordshire Healthcare NHS Trust [2003] EWHC 1124 (Admin). To impose an interim order, a tribunal must be satisfied only that the allegations are ‘credible’ and give rise to a risk that cannot be dismissed as ‘fanciful’ (Martinez v General Dental Council [2015] EWHC 1223 (Admin)). Where the referral concerns an allegation of criminal offending, a criminal charge is likely to provide sufficiently cogent evidence of a concern (Fallon v Horseracing Regulatory Authority [2006] EWHC 2030 (QB)). However, an interim order will not automatically follow on from a criminal charge unless there is a genuine concern arising in relation to that person’s professional role. ‘The mere fact of a criminal charge, even a serious one… does not… automatically mean that a suspension is necessary or appropriate; there is a judgment to be made’ (Bawa-Garba v The General Medical Council [2015] EWHC 1277 (QB)). A regulator may also seek an interim order prior to any criminal charges if the nature of the criminal investigation raises sufficiently serious concerns about public safety or public confidence in the profession. In cases involving very serious allegations, a tribunal may be satisfied that there is cogent evidence of such a risk even on the basis of very limited information.

Charging decision

Regulators who become aware of the criminal investigation of a professional must determine whether to bring parallel disciplinary charges. The more closely connected the alleged conduct is to the person’s professional practice, the more likely it is that disciplinary charges will be warranted. Professional disciplinary charges must be limited to conduct which ‘realistically touches on [a person’s] practise of the profession… or the standing of the profession’ (Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin)). However, convictions for serious offences of any kind will often be viewed as sufficient to undermine public confidence in the profession, even where the conduct at issue did not occur in the context of the person’s professional practice.

The substantive hearing 

A disciplinary tribunal is entitled to refuse to go behind a conviction at a substantive hearing save in ‘exceptional circumstances’ (Shrimpton v Bar Standards Board [2019] EWHC 677 (Admin)). A conviction is not conclusive evidence binding on a tribunal, but ‘something more than a re-run of the arguments and evidence at trial would be required to amount to exceptional circumstances’. ‘Equally reliance on evidence that had not been admitted at trial would not be sufficient since that evidence, and the arguments that it ought to have been admitted, would have been, or ought to have been, the subject matter of any appeal.’ Even where there is new evidence available, it is open to a disciplinary tribunal to conclude that new evidence is not sufficient ‘if that evidence could have been adduced at trial and there was no good reason why it had not been’ (Shrimpton at [50]). An additional pitfall of seeking to go behind a conviction is that a person who does so will likely be considered to lack ‘insight’ into their conduct—a key factor at the impairment stage of fitness to practise proceedings. It is therefore rarely practical for professionals to seek to contest the underlying facts of a conviction at a professional discipline hearing. Instead, it will generally be the wiser course to focus on submissions relating to impairment, namely whether the conviction has any bearing on the professional’s current ability to safely practise or on public confidence in the profession.

New high court guidance in Patel 

Nearly 20 years ago in Council for the Regulation of Healthcare Professionals v General Dental Council [2005] EWHC 87 (Admin) (‘Fleischmann’), the High Court set out the proper approach to sanctions in professional disciplinary cases involving convictions for serious offences. Mr Justice Newman said in Fleischmann at [54]:

‘…as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise… The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained.’

Although the Fleischmann principle has been described as ‘a useful general rule’ which ‘was sensible in most cases’ (Chandrasekera v Nursing and Midwifery Council [2009] EWHC 144 (Admin)), it had over time come to be treated by disciplinary tribunals and regulators as a formal rule which could only be departed from in exceptional circumstances.

In the Patel case, Mr Justice Sweeting considered the applicability of the Fleischmann principle to the case of a registered dentist, Mr Patel, who was convicted of causing death by careless driving. Mr Patel was sentenced to 15 months’ imprisonment suspended for two years and was disqualified from driving for three years. Mr Patel was then brought before the General Dental Council (GDC) Professional Conduct Committee (the committee) on charges of causing death by careless driving and failing to timely inform the GDC that he had been charged with a serious criminal offence.

The committee found the charges proved and found that Mr Patel’s fitness to practise was impaired on public interest grounds. The committee concluded that a reprimand was the most appropriate and proportionate sanction. The committee were aware of the Fleischmann principle, but considered that there were a number of factors justifying a departure from the general principle, including Mr Patel’s good standing in the profession, his charitable work, the impact of a suspension on his family, the nature of the offence in terms of the lack of criminal intent, and the significant lapse of time since the incident. The Professional Standards Authority (PSA) and GDC both considered that the sanction was not sufficient to maintain public confidence in the profession, and appealed the decision.

Sweeting J examined the anomalous results that can be caused by an overly rigid application of the Fleischmann principle, particularly in respect of suspended sentences (Patel at [19]). He noted that the operative period of a suspended sentence will often be longer than the corresponding custodial period would have been if the offence had been so serious that the sentence could not be suspended. In a case of immediate custody, the ‘completion’ of the sentence for purposes of allowing the professional to return to practice would therefore be much sooner than in the case of a suspended sentence, particularly one which involved a relatively short custodial sentence suspended for a lengthy period ([19]). ‘The general public might well conclude that a case in which the court felt able to suspend a custodial sentence was less serious than one in which only immediate custody was appropriate and that the professional sanction would likewise reflect such a distinction’ ([19]).

Sweeting J made clear that ‘it follows, in my view, that Fleischmann cannot be applied as if it were a rule; both it and the ‘general principle’ derived from the GDC Guidance must bend to the overarching requirement to impose a sanction which is just, proportionate and only that which is necessary to maintain public confidence’ ([19]). Patel therefore rows back any overly formalistic application of the Fleischmann principle that supersedes the overall justice of a case. Particularly in cases where a short custodial sentence has been suspended for a longer suspension period, it will now be possible to argue that the person should be able to resume practice before the end of the period of suspension. This helps remedy the incongruity caused when a professional faced a longer period of professional suspension in a case where a suspended sentence was imposed than in a case involving immediate custody.

Collateral effects 

A professional who becomes the subject of a criminal investigation will need to have one eye on the potential collateral effects on their professional standing. A criminal investigation may trigger an independent investigation by a regulator, an application for an interim order, or professional disciplinary charges leading to suspension or striking off, in the most serious cases. This can lead to harsh outcomes for professionals who face the prospect of two sets of consequences for the same actions. Nonetheless, the new guidance in Patel should remind tribunals and regulators alike to bring back some flexibility and fairness to the sanctions determination in cases involving professionals charged with serious criminal offences.

First published in New Law Journal 28th Feb 2025.