Sexual misconduct appeals: a round-up of recent successful High Court challenges

Ros Foster is a Partner at Hill Dickinson, one of the solicitor firms the PSA regularly instructs in its fitness to practise appeals. In this guest blog, Ros highlights some of our recent sexual misconduct appeals and outlines the legal principles they have established. 

The last year has seen a series of successful High Court challenges to the way in which regulators and fitness to practise panels have dealt with cases involving sexual misconduct targeted at colleagues of the perpetrator. 

These cases have considered every stage of the ‘prosecution’ process, from the handling of non-engaging witnesses to the correct treatment of evidence where allegations have been made by more than one witness and the need for proper consideration of the motivation for the behaviour and identification of the aggravating and mitigating factors.

Learning point 1 – dealing with non-engaging witnesses

The judgment in the case of Ahmed1 was concerned with the regulator’s approach to non-engagement by the witness who had been the subject of the behaviour to which the allegation related. The registrant is a pharmacist and the witness was a junior colleague. An incident occurred between them one lunchtime that led the witness to make a complaint about the registrant’s behaviour. That complaint was the subject of two investigations and there was evidence by way of text messages exchanged between the two men about the incident. The witness’ engagement with the regulator was sporadic but tailed off and he stopped responding. He was not sent the notice of hearing. At the hearing the regulator argued, and the Panel agreed, that it would be “wholly inappropriate” to issue a witness summons in respect of the witness as he was vulnerable.

The regulator did not properly open its case but offered no further evidence in respect of the allegations that were admitted. The Committee closed the case with no further action. The PSA referred the case to the High Court on the basis that there had been serious procedural irregularities. The appeal was allowed and the matter was remitted for reconsideration.

The judgment tells us that the following steps should have been taken:

1. The Judge commented at the appeal hearing that sending a notice of hearing to a non-engaging person may encourage their attendance. In this case the hearing was to be conducted remotely which may have persuaded the witness to participate.
2. Proper consideration should have been given by the regulator and the Committee to the issue of a witness summons. That a witness was the victim of an alleged sexual misconduct did not automatically mean either that they were vulnerable or that summonsing them was inappropriate.
3. Vulnerability should be considered separately and was only relevant to the issue of whether special measures should be taken in relation to the witness.
4. The other evidence should be considered. Even where there are only two witnesses of fact to the actual incident there may be other evidence, such as contemporaneous communications and that generated by any investigations that were conducted.
5. Panels should consider whether to admit any of the evidence of a non-engaging witness as hearsay and not take a blanket approach.
6. Regulators intending to offer no evidence must properly open their case first and take the Committee through the evidence available in order that the Committee may make an informed decision.

At a remitted hearing, the junior colleague gave evidence and the Fitness to Practise Committee imposed a removal order.

(See PSA -v- (1) GPhC & (2) Ahmed [2024] EWHC 3335 (Admin).)

Learning point 2 – charging practices and the importance of motivation

In Dugboyele, an Obstetrics and Gynaecology Registrar faced 48 allegations of sexual harassment in relation to seven junior midwifery colleagues over a period of years. He admitted a charge of harassment on grounds of sex contrary to the Equality Act 2010 on the basis that the GMC did not promulgate a charge that the conduct was sexually motivated. The panel preferred the evidence of the witnesses over that of the doctor and found a number of allegations proved. Notwithstanding these findings the panel found that Dr Dugboyele’s fitness to practise was not impaired and he was issued with a warning.

The GMC and the PSA referred this decision to the High Court. Both appeals were successful on all grounds. Mr Justice Murray substituted a finding of impairment and remitted the matter for sanction. A six-month suspension was imposed in June 2025.

This case emphasises the importance of motivation in assessing the seriousness of misconduct, particularly in cases of alleged sexual misconduct. In Dr Dugboyele’s case, the harassment charge meant that there was sufficient evidence before the panel to evaluate motivation and the PSA’s appeal was not premised on under-charging. Had there been no harassment charge it would have been necessary to appeal on grounds of under-charging. A specific charge of sexual motivation (where supported by the evidence) is always preferable and the GMC had changed its charging guidance in relation to cases involving sexual misconduct between colleagues by the time the appeal was heard.

(See GMC & PSA -v- Dugboyele [2024] EWHC 2651 (Admin).)

Learning point 3 – cross-admissibility

The case against Dr Garrard involved allegations brought by two young female patients in acute mental health units. They were distinct in place and time, but the behaviour complained about bore similarities such that the allegations were heard together. Having heard live evidence from both women and expert evidence from the defence, the Tribunal did not find any of the substantive allegations proved. The PSA referred the case to the High Court on the basis that the Tribunal’s approach to the ‘cross-admissibility’ of the evidence of the two women – ie the extent to which the evidence of one could be considered in relation to the allegations about the other – had been wrong. The appeal was allowed and the matter was remitted for reconsideration. (Our attempts to persuade the Judge to remit with a direction that the new panel consider the evidence of the witnesses from the transcripts, to avoid them having to give evidence again, were unsuccessful.)

The judgment sets out the approach to be taken to cross-admissibility in disciplinary proceedings as follows:

1. Different principles apply according to whether the cross-admissibility is being sought to rebut coincidence OR establish a propensity.
2. The panel must first identify the purpose for which cross-admissibility is sought and then apply the correct test.
3. If cross-admissibility is being sought to rebut coincidence, as was the case in relation to Dr Garrard, the panel must advise itself as follows:
   1. It must exclude collusion or contamination as the explanation for the similarity before it can decide whether the allegations are unlikely to be the product of coincidence.
   2. If collusion/contamination can be excluded, the fact of two patients making similar allegations reduces the likelihood of there being an innocent explanation.
   3. It is not necessary to find an allegation in relation to one patient proved before relying on that allegation in support of an allegation in relation to the other patient.
4. By contrast, if cross-admissibility is being sought to establish propensity, before attaching weight to the evidence the panel will need to be satisfied to the requisite standard that the allegations in relation to the first patient took place before relying on evidence in respect of that allegation to deduce propensity in relation to allegations relating to the second patient.

(See PSA -v- (1) GMC & (2) Garrard [2025] EWHC 318 (Admin).)

Learning point 4 – aggravating and mitigating factors

In Shah, the PSA successfully argued that the panel had failed to identify a series of aggravating factors that could have made a material difference to sanction. Mr Shah had subjected two colleagues to sexually motivated behaviour while a) in a position of authority over them and b) during the Covid restrictions when they were particularly isolated. Charges of harassment on grounds of sex and sexually motivated conduct were brought and found proved. A 12-month suspension with review was imposed. The PSA referred the decision to Court. The appeal was allowed and the matter remitted for reconsideration of sanction.

The judgment makes clear that panels must:

1. Consider the aggravating and mitigating factors afresh at sanction stage even where they have been the subject of findings at the fact or misconduct/impairment stage.
2. Apply the Sanctions Guidance to the findings made at the misconduct/impairment stage.
3. Properly explain conclusions that striking off would be disproportionate.

(See PSA -v- NMC & Shah [2005] EWHC 1215 (Admin).)