Shine v Fitness to Practise Committee

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 14 July 2008
• Neutral Citation: [2008] IESC 41
• Court: Supreme Court
• Docket Number: [S.C. No. 47 of 2007],[2004/993JR]
• Date: 14 July 2008

THE HIGH COURT

[2004/993JR]

BETWEEN

MICHAEL SHINE

APPLICANT

AND

THE FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL

AND

THE MEDICAL COUNCIL

RESPONDENTS

Abstract:

Professions - Medical profession - Fitness to practise - Fair hearing - Delay - Whether real and serious risk of unfair hearing - Medical Practitioners Act 1978, Part 5

A number of complaints regarding the applicant's conduct as a medical practitioner alleging indecent assault were made to the Medical Council. The applicant applied by way of judicial review for inter alia an order of prohibition preventing the Fitness to Practise Committee of the Medical Council from further proceeding with enquiries under Part 5 of the Medical Practitioners Act 1978 into his conduct on grounds of delay.

Held by O'Donovan J. in prohibiting the Fitness to Practise Committee from proceeding with enquiries arising from certain complaints and refusing to prohibit enquiries into other complaints that the issue was whether there was a real or serious risk that by reason of the delay the applicant would not obtain a fair hearing.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 19th day of December, 2006

2 In these judicial review proceedings, the applicant seeks:

3 1. An order of prohibition preventing the first and/or the second respondent, or either of them, from further proceedings with all current enquiries under Part 5 of the Medical Practitioners Act, 1978, into the conduct of the applicant.

4 2. A stay upon the taking of any further steps for the purpose of proceeding with all current enquiries pursuant to Part 5 of the Medical Practitioners Act, 1978, into the conduct of the applicant

5 pending the determination of these proceedings. .

6 3. Declarations that;

• (a) the delay herein is of such duration that, by reason of the delay alone, any enquiry into the conduct of the applicant should not take place,

• (b) that there has been no, or no adequate, explanation for the delay in making of complaints by the complainants herein,

• (c) that the holding of an enquiry by the respondents, or either of them, would constitute a violation of the applicant's constitutional rights and would be in breach of Article b of the European Convention for the Protection of Fundamental Rights and Problems,

• (d) that the first named respondent erred in law and/or in fact in finding that the delay by the complainants in making their complaints was reasonable in all the circumstances,

• (e) that the finding by the first named respondent that the said delay was reasonable was irrational and/or unreasonable, (f) that there was no, or no adequate basis for the first named respondent's apparent finding that the applicant was in a position of dominion over the complainants,

• (g) that the first named respondent has erred in law and/or in fact in finding that the hearing of complaints from different complainants could be heard together in the course of a single enquiry, and

• (h) that the hearing of complaints from different complainants in the course of a single enquiry would be in breach of the

  principles of natural and constitutional justice and in breach of fair procedures.

  4. (If necessary) an order extending the time for the bringing of these proceedings.

7 Insofar as the said reliefs sought herein are concerned, it is, I think, relevant to point out that, in a recent unreported judgment of the Supreme Court in a case of H v. the Director of Public Prosecutionsdelivered on the 31 st day of July, 2006, it was held (interalia) that, in cases where there has been an accusation of sexual abuse and a significant delay between the alleged abuse, the complaint and the preferment of charges against the accused there is no longer a necessity to enquire into the reason for the delay in making the complaint. In such cases, the issue for the court is whether the delay has resulted in prejudice to an accused person so as to give rise to a real or serious risk of an unfair trial. As Murray C. J. stated in the course of the judgment which he delivered in that case:

8 "The court would thus restate the test as, the test is whether there is a real or serious risk that the applicant by reason of the delay, would not obtain a fair trial or that a trial would be unfair for the consequence of lied in the light of the circumstances of the case." Accordingly, it appears to me that delay, simpliciter, cannot be an issue in this case.

9 In my view, it also follows from that judgment that the question as to whether or not the applicant was in a position of dominion over the complainants herein is irrelevant insofar as these proceedings are concerned.

10 In the light of the foregoing, I am satisfied that the applicant is not entitled to the reliefs sought at 3(a), 3(b) and 3(f) aforesaid.

11 BACKGROUND

12 At all times material hereto, the applicant worked as a consultant surgeon at Our Lady's Hospital, Drogheda in the Co. Louth and at consulting rooms, firstly at Lawrence Street and, subsequently, at Fair Street in the City of Drogheda. During the period covering the years 1994 to 1997, inclusive, a number of complaints regarding the applicant's conduct as a medical practitioner; in particular, alleging indecent assault, were made to the Medical Council who, in turn, made applications to the Fitness to Practice Committee of the Council to conduct an enquiry into the applicant's conduct. In that regard, six notices of intention to hold an enquiry into the applicant's conduct pursuant to Part 5 of the Medical Practitioners Act, 1978, issued between the months of February, 1996 and May, 2004. These six notices related to the complaints of 29 complainants with regard to alleged incidents ranging over a period from 1964 to 1994 inclusive. The first notice of enquiry aforesaid was dated the 21st day of February, 1996 and related to the complaints of Francis Downes, Richard King, Joseph Hand, Cianan Murray, John Joseph Gregory, John McCaffrey, Liam Gallagher, James O'Grady, Peter Moroney, Michael McNally, John Fahy, Aidan McConnon, Liam Lynch, Mark Downey, Robert Cluskey and Aidan Tuite. That notice indicated an intention to hold an enquiry on 11th March, 1996. However, that hearing was adjourned at the request of the applicant's solicitors for the purpose of taking proper instructions in relation to the matter and, thereafter, at the request of the applicant's solicitors, it was agreed between the applicant's solicitors and the Medical Council that the enquiry into the conduct of the applicant would be adjourned pending the outcome of a criminal investigation into the applicant's conduct and the conclusion of any prosecutions arising from that investigation. In that regard, on the 23rd day of December, 1996, a total of 14 summonses relating to 11 different

13 complainants and alleging offences contrary to s. 62 of the Offences Against the Person Act, 1861, were issued in respect of the applicant. Subsequently, two further summonses relating to six different complainants; also alleging offences contrary to s. 62 of the Offences Against the Person Act 1861 were issued in respect of the applicant. These summonses arose from the same alleged incidents as had given rise to the complaints aforesaid with regard to the applicant's conduct which had been made to the Medical Council. The applicant sought to prohibit his prosecution in respect of the said charges by way of judicial review on the grounds that the delay in bringing the said charges was such that there was a real and serious risk that he would not get the fair trial to which he was constitutionally entitled. His application in that behalf was dismissed by the High Court on the 18th day of February, 1999 and, following an appeal, was dismissed by the Supreme Court on the 19th day of December, 2000. In the month of October, 2003, before the Circuit Criminal Court in the County of Louth, the applicant was tried in respect of six of the summonses aforesaid which had been issued against him i.e. those in relation to William Valentine Archer, Mark Downey, John Kieran Fahy, John Gerard McCaffrey, Peter Moroney and James O'Grady. On the 30th day of October, 2003, the applicant was acquitted on all counts; in the case of William Valentine Archer, by direction of the trial judge and, in all of the other cases, by the jury. The remaining criminal matters are outstanding and no indication has been given as to what are the intentions of the Director of Public Prosecutions in relation thereto. It is also relevant to note that, prior to the applicant's trial aforesaid, the trial judge, his Honour Judge Michael O'Shea, stated a case to the Supreme Court on the constitutionality of S. 62 of the Offences Against the Persons Act 1861 which was rejected by the Supreme Court.

14 Following the applicant's acquittal aforesaid, on the 10th day of February, 2004 and, again, on the 7th day of July, 2004, the applicant's case was mentioned before the Fitness to Practice Committee of the Medical Council for the purpose of fixing a date for the hearing of an enquiry into the applicant's conduct. At the said hearing on the 7th day of July, 2004, the applicant's solicitor requested that the enquiry be further deferred pending the outcome of the outstanding criminal proceedings against the applicant; a request which was refused by the said committee who thereupon fixed the 15th day of November, 2004 as the date for the hearing of an enquiry into the applicant's conduct in the light of the complaints made by Aidan Tuite, James O'Grady, Liam Gallagher, Paul Meegan, Anthony Callery and Liam Archer. At the same time, the Committee advised the applicant's solicitor that, having regard to the applicant's acquittal aforesaid, the first three allegations made by each of John McCaffrey, James O'Grady, John Fahy, Mark Downey, Liarn Archer and Peter Moroney, being complaints which were similar to those...