UK: The Geographical Limits of Disciplinary and Regulatory Proceedings

Last Updated: 20 December 2002

An important consideration for regulators is whether their powers are constrained by the geographical limits of the United Kingdom. This issue was considered in R(on the application of the Health Professions Council) v The Disciplinary Committee of the Chiropodists Board, 26 November 2002. The Disciplinary Committee of the Chiropodists Board (the Committee) dismissed six charges of professional misconduct against a chiropodist because some of the conduct complained of occurred in New Zealand.

At the relevant time the governing legislation was the Professions Supplementary to Medicine Act 1960 (now replaced by the Health Professions Order 2001 made under the Health Act 1999). Section 9(1) of the 1960 Act provided that (a) where a person who had been convicted by a United Kingdom Court of a criminal offence which in the opinion of the Disciplinary Committee rendered him unfit to be registered or (b) "such a person is judged by the Disciplinary Committee to be guilty of infamous conduct in any professional respect" … the Committee may direct that the chiropodist’s name shall be removed from the register.

Goldring J in the Administrative Court concluded that the Committee did have jurisdiction to hear the New Zealand complaints. The Court pointed out that whereas it was plain that a conviction outside the United Kingdom did not count for the purposes of section 9(1)(a) of the Act the legislation could also have said that conduct outside the United Kingdom would not count for the purposes of section 9(1)(b) but it did not do so. Secondly, the purpose of the 1960 Act was protection of the public. If a chiropodist had been guilty of serious professional misconduct it did not matter to a member of the public whether that misconduct arose within or outside of the United Kingdom. The issue was whether the actions amounted to conduct of such a nature as to be infamous in any professional respect, wherever committed. Goldring J added that provided the allegation of misconduct was properly proved, the fact that it may have occurred outside the jurisdiction could not be unfair to someone in the chiropodist’s position. The Disciplinary Committee had some concern regarding witnesses. However, Goldring J said that a defendant chiropodist was sufficiently protected by the Disciplinary Committees (Procedure Rules) 1964 and the chiropodist in this case had been told what the witnesses would say. He had been told that their statements would be read and he had chosen not to contest the evidence.

Practical application
The message for regulators is clear. Where primary legislation is silent as to whether a regulator can take into account events which took place outside the United Kingdom, the regulator should look at the purpose of the legislation. It may well be the case that if legislation aims to protect the public then that could involve taking action against someone who commits misconduct outside of the United Kingdom. As Goldring J pointed out, it does not matter to a member of the public whether or not the conduct was committed within the United Kingdom or elsewhere. From the point of view of someone based in the United Kingdom, there is a risk that the professional who commits misconduct overseas would commit similar activities within the United Kingdom.

A further important point emerged from the Chiropodists Board case. Whereas the claimant, the Health Professions Council, was represented by lawyers, the Disciplinary Committee was represented by its own Chairman who was not a lawyer. The Judge said "it seems to me that those who give their time to serve on such committees ought to know that, in the event of an appeal such as this, they will be represented and that, in any event, absent a wholly perverse decision, they would be indemnified for any costs incurred". Regulators should consider this dictum very carefully before deciding not to fund a committee that is on the receiving end of a Court challenge.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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