Delay by a regulator - the high hurdle for registrants confirmed
R (Rycroft) v The Royal Pharmaceutical Society of Great Britain [2010] EWHC 2832 (Admin)
Wyn Williams J recently rejected an attempt by a registered pharmacist to have fitness to practise proceedings against him stayed on the grounds of delay. In the process, he reinforced the difficulties registrants face in trying to have proceedings stopped on that basis.
The allegations against the Claimant related to events between May 2002 and August 2006. Although an investigation was begun by the RPS in August 2006, a referral was not made to the Investigating Committee until April 2009, 2 years and 8 months later, and the Claimant was not notified of the referral until June 2009.
Wyn Williams J followed the line of authorities, starting in criminal proceedings and applied subsequently to professional disciplinary proceedings, that it was not enough for a registrant to establish inordinate delay. He must also establish either that he would suffer serious prejudice to the extent that no fair trial can be held or that it would be unfair to try him. The latter would generally involve bad faith, unlawfulness or manipulation on the part of the regulator. The Claimant attempted to circumvent this line of authority by establishing an implied requirement in the rules to refer an allegation within a reasonable time, the breach of which would have provided a public law remedy without the need to establish prejudice, but the Judge rejected this, in the process clarifying remarks of Sullivan J in Gwynn v GMC [2007] EWHC 3145 (Admin). He accepted that there was such a requirement, but rejected the argument that a breach of it was per se a reason to stay the proceedings.
Since the Claimant accepted that there could still be a fair trial and it was not otherwise unfair to proceed against him, the proceedings were allowed to continue, notwithstanding the Judge's acceptance that the delay had been inordinate and unjustified.
On a separate issue, the Judge would have quashed the RPS' decision to refer the parts of the allegations that were more than five years old, where the only reasons given were "the allegations are of a serious nature" and "it is necessary to refer the allegations to the Committee to maintain public confidence in the profession", although for reasons peculiar to the case he did not do so.
Jamie Carpenter
On behalf of the Hailsham Chambers Regulatory & Disciplinary Group
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