Kamran Khan, representing the Nursing and Midwifery Council (“NMC”), successfully applied for a Panel of the Fitness to Practise Committee to recuse itself on the grounds of bias.
It had been alleged that on 25 February 2020, the Registrant had:
1. Driven a motor vehicle after consuming so much alcohol that the proportion of it in her breath exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act and Schedule 2 to the Road Traffic Offenders Act 1988; and
2. Intended to attend her employment at the care home she was attached to, whilst under the influence of alcohol.
In light of those two allegations (the first of which had already been admitted), it was alleged that the Registrant’s fitness to practice was impaired by reason of her conviction (Charge 1) and misconduct (Charge 2).
The matter was listed for a 9 day trial before a Fitness to Practise Committee, starting on 24 July 2023.
Over the course of the first 4 days, the Panel heard oral evidence relating to the facts stage of proceedings. Following closing submissions around lunchtime on Day 4, the Panel went into private deliberations.
On the morning of Day 5, all parties were called in on an urgent basis at the request of the Legal Assessor. The Legal Assessor informed everyone present that over the course of deliberations on Day 4, the Panel Chair had been engaging in external discussions via WhatsApp about the law governing this case. More importantly, that the Panel Chair had also conveyed the state of the Panel’s collective thought process as to the merits of the parties’ case. It also became abundantly clear that these discussions had taken place without the knowledge of the Legal Assessor or the other two Panel members.
Application for Panel Recusal
On the evening of Day 5, the Panel Chair voluntarily recused herself from proceedings, as she was of the view that she was no longer in a position to continue hearing this matter in light of her own conduct. The question then was whether the remaining two panellists could resume the trial as a quorate of two.
On day 6, Kamran applied for the remaining panel member to recuse themselves from this trial. Taking into account Article 6 of the ECHR and the “fair-minded and reasonable observer test” as set out in Porter v Magill  UKHL 67, the following submissions were made:
1. That there are traditional and established principles that properly constituted panels must be independent and impartial when it comes to the decision-making process. Therefore, whatever is discussed between a panel and legal assessor is covered by the veil of privacy, and that veil should not be pierced for any purpose (unwittingly or otherwise).
2. That because the Panel Chair’s conduct in deliberately piercing the veil of privacy was so egregious and procedurally irregular, there was a very real risk that the rest of the Panel might be tainted by the views canvassed and obtained by the Panel Chair outside of the prescribed forum. This inevitably contravened the principles of panel independence and impartiality.
3. That a fair-minded and reasonable observer, who is neither “complacent nor unduly sensitive or suspicious” (as per Lawal v Northern Spirit  UKHL 352, para. 14) would consider there to be a real risk to the fairness of proceedings if the remaining panel did not recuse itself, given the Panel Chair’s unequivocal expression of the Panel’s deliberations in an external forum.
4. That whilst it was deeply regrettable that a 9 day trial should collapse after 6 days, and that the Registrant be subject to a re-trial, the interests of justice demanded that a new Panel hear this case afresh.
Panel Decision on Recusal
The Panel determined that in light of all of the circumstances, there was a serious piercing of the veil which must be kept sacred from infraction. The Panel decided that the messaging during private deliberations and the nature and extent of those message amounted to serious and highly irregular breaches of the inviolable principles of procedure and justice.
The Panel therefore decided that a fair-minded and informed observer would conclude that there is a real possibility that the remaining panel was biased as it unwittingly heard of the Panel Chair’s contributions during deliberations in the circumstances where she had received outside influences from others on the law and facts.
In reaching its conclusion, the Panel was of the view that a fair-minded and informed observer would conclude there is a real possibility that the remaining panel was biased, both in terms of actual bias, albeit unwittingly, and in terms of objective impartiality being the appearance of bias.