Olakunle Arowojolu v General Medical Council [2019] EWHC 3155 (Admin)

In Olakunle Arowojolu v General Medical Council [2019] EWHC 3155 (Admin), Mr Justice Julian Knowles allowed an appeal under section 40 of the Medical Act 1983 and quashed the Medical Practitioners’ Tribunal’s erasure order against Dr Olakunle Arowojolu, on the ground that the Tribunal had been misdirected on how to approach evidence of an earlier complaint of sexual offending made by the complainant.

The Tribunal had found proved a number of allegations that Dr Arowojolu sexually assaulted Ms A, a receptionist, during an impromptu examination at an Essex health centre on the night of 21 to 22 July 2013. The Tribunal ordered Dr Arowojolu’s erasure from the medical register. He appealed that decision, challenging only the findings of fact. Ms A’s account was that during the examination Dr Arowojolu repeatedly touched her clitoris and vagina and later her breast, in two phases, despite her repeatedly telling him to stop. Dr Arowojolu denied those allegations, admitting only that he had performed a brief, informal examination of her stomach and offered advice concerning sit-ups. He denied any sexual misconduct or motivation.

Dr Arowojolu had been charged with sexual assault under section 3 of the Sexual Offences Act 2003. He was convicted by a jury at Chelmsford Crown Court in October 2014 and sentenced to two years’ imprisonment. On 1 April 2015 the Court of Appeal quashed that conviction for reasons unrelated to Ms A’s credibility and ordered a retrial. Before that retrial, the prosecution disclosed unused material about a historic allegation made by Ms A. When she was fourteen, Ms A had alleged that her grandfather had subjected her to sexual abuse over a two-year period. Her grandfather denied the allegations and was never charged. In a police interview shortly after writing to her father, Ms A described numerous indecent assaults including attempted rape. Family members disbelieved her and gave evidence undermining her claims. Following an initial retrial at which the jury could not agree, Dr Arowojolu was acquitted at a second retrial. The GMC then brought proceedings before the Tribunal.

At the Tribunal hearing, the appellant’s counsel, Mr Janner QC, cross-examined Ms A extensively on the grandfather allegation. Mr Janner’s case was that Ms A had a track record of making false allegations against older men in positions of authority and was a fantasist. Before the Tribunal retired, counsel for both sides agreed that the Tribunal should be directed that before it could use the grandfather evidence as showing a propensity to make false allegations, it would first have to find on the balance of probabilities that the grandfather allegation had been false or untrue. The legally qualified Chair disagreed. He directed the Tribunal that it did not need to determine the truth or otherwise of the historic allegations and should simply consider that evidence alongside all other evidence without deciding whether Ms A’s claims against her grandfather had been true or false. The Tribunal found most of the allegations against Dr Arowojolu proved on the basis that Ms A was a plausible witness and that her recent complaint was inconsistent with fabrication. At paragraph 35 and 36 of its determination, the Tribunal noted that the grandfather allegation had been made and no official action taken, but said those bare facts did not assist it in determining the truth of the current allegations. At paragraph 70, the Tribunal held that it could find no basis for concluding that Ms A had lied and no evidence that she was a fantasist.

On appeal, Dr Arowojolu advanced four grounds. Ground 1, placed foremost by Mr Janner, contended that the Tribunal had been misdirected by the Chair about how to approach the grandfather allegation, such that it failed properly to consider or address that evidence which was central to Dr Arowojolu’s case. Ground 2 contended that the Tribunal failed sufficiently to take into account the implausibility of Ms A’s account. Ground 3 argued that the Tribunal failed to give sufficient weight to Dr Arowojolu’s positive good character. Ground 4 challenged the Tribunal’s assessment of CCTV evidence. Mr Janner submitted that the grandfather evidence had been admitted to show propensity. He argued that the Tribunal should have been directed to decide whether, on the balance of probabilities, Ms A’s allegations against her grandfather were false and, if so, whether that showed she had a propensity to make false allegations which should be weighed when judging her credibility. He pointed to the direction given by His Honour Judge Lodge at the retrial, where the jury was directed first to consider whether there was a real possibility the grandfather allegation was a deliberate false complaint and, if so, to consider whether Ms A had a propensity to make false allegations and to take that into account when assessing her credibility. Mr Janner submitted that a similar direction should have been given to the Tribunal.

The GMC, represented by Ms Hearnden, submitted that the Chair’s advice was correct and that the Tribunal was not required to decide whether Ms A’s grandfather allegation had been false. Ms Hearnden argued that making such a finding would have required the Tribunal to conduct a mini-trial without the benefit of all relevant evidence. She submitted that the allegations were made in a family rather than a professional context and that there had been no positive finding that they were false. She further argued that the Tribunal had, as a matter of fact, rejected the suggestion at paragraph 70 that Ms A was lying about her grandfather. Ms Hearnden maintained that even if there had been a misdirection, it would have made no difference to the outcome.

Mr Justice Julian Knowles held that the Chair’s direction was legally erroneous and had led the Tribunal into error. He emphasised that although the proceedings were civil and not criminal, it was not sufficient for the Chair merely to direct the Tribunal to consider the grandfather evidence as part of the entirety of the evidence without addressing the issue to which it was relevant: Ms A’s credibility. Contrary to the directions given, the Tribunal did need to try to determine the truth or otherwise of the historic allegations, because only then would it have been in a position properly and fairly to consider the central defence contention that Ms A had a propensity for making false allegations against men in positions of authority. His Lordship held that this was not an impossible task. He noted that evidential incompleteness was a common feature of bad character evidence in criminal trials and that had the Tribunal been properly directed, it might for example have concluded that Ms A’s evidence about a leopard-skin thong was so outlandish as to be incredible even without hearing from her grandfather. The Chair should not have absolved the Tribunal from even trying to resolve the issue. His Lordship considered that the Chair’s reliance on R v Mitchell (Northern Ireland) [2016] UKSC 55 was misplaced. That authority concerned the dangers of excessive reliance on bad character evidence and satellite litigation, not a proposition that fact-finders need not determine whether such allegations support a finding of propensity.

Mr Justice Julian Knowles rejected Ms Hearnden’s submission that any misdirection was harmless. He observed that this was a case of one person’s word against another, that Dr Arowojolu had been acquitted by a jury, and that Ms A’s credibility lay at the heart of the defence. He was unable to say that the Chair’s misdirection on this core issue made no difference. Although he understood Ms Hearnden’s reliance on paragraph 70 as showing the Tribunal had in fact not found the grandfather evidence to be untrue, he could not be certain that the Tribunal had properly considered that evidence as going to propensity, given the material misdirection it had received. Ground 1 therefore succeeded, and the other grounds did not need to be determined. The judge held that he had no power to quash the Tribunal’s findings in part, because the appeal lay against the direction for erasure rather than against findings of fact as such. Under section 40(7) of the Medical Act 1983, his powers were limited to dismissing the appeal, quashing the direction, substituting another direction, or remitting the case. He therefore allowed the appeal and quashed the erasure order. What happened thereafter was a matter for the GMC and the Tribunal if fresh proceedings were initiated.

In short, the appeal succeeded because the Tribunal was wrongly advised that it need not determine whether Ms A’s historic allegation against her grandfather had been false, when that determination was essential to the appellant’s case that she had a propensity to make false allegations.

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