Case No: CO/208/2014
Neutral Citation Number: [2014] EWHC 3810 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 17th November 2014

Before :

MRS JUSTICE COX DBE
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Between :
The Queen on the application of

ALI IZZET NAKASH
Claimant

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METROPOLITAN POLICE SERVICE
-and-
GENERAL MEDICAL COUNCIL
Defendant

Interested Party

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(Transcript of the Handed Down Judgment of
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Adrian Darbishire QC (instructed by Medical Defence Union Services Ltd) for the Claimant
Gareth Munday (instructed by Metropolitan Police Service) for the Defendant
Iain Steele (instructed by General Medical Council) of the Interested Party

Hearing dates: 16 October 2014
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Ju
Mrs Justice Cox : 
Introduction
1.	There is a strong public interest in the General Medical Council’s performance of its statutory functions, as they relate to a doctor’s fitness to practise.  The disclosure of material to the Council by other agencies, including the police, has an important role to play in the exercise of those functions.  By the provisions of s.35A of the Medical Act 1983, Parliament has granted a specific power to the Council (the GMC) to require the disclosure of information which appears relevant to the discharge of those functions.  
2.	The issue in this case is whether, as the Claimant contends, this Court should prohibit the disclosure by the Metropolitan Police Service (MPS) of material requested by the GMC, on the basis that it was unlawfully obtained by the police, in breach of the Claimant’s Article 8 rights; that it includes material of a highly personal and confidential nature; and that the material has no relevance to the issue of the Claimant’s fitness to practise as a medical practitioner.  
The Facts
3.	There is no dispute as to the relevant factual background.  
4.	In June 2011 the Claimant was working as a Specialist Registrar in the Obstetrics and Gynaecology Department of the Royal Free Hospital in London, where he had been employed for about four years.  
5.	On the morning of 5 June 2011 he carried out a transvaginal scan upon a young female patient referred to as “M”.  Although he initially asked a female nurse to accompany him as “chaperone”, in accordance with hospital policy, it is not in dispute that the Claimant invited the nurse to leave at some point during the procedure, leaving him alone in the room with M.   Later on that day M made a complaint of sexual assault by the Claimant in the course of this procedure and the police were contacted.
6.	On the following morning the Claimant contacted the Medical Defence Union advice line and told them that he had been suspended following this allegation, and that the matter had been reported to the police.  He was informed that the police might attend his home address to arrest him and was advised as to the importance of legal representation.  He was expressly advised not to say anything to his employers or to the police without legal advice.  In the afternoon of 6 June three police officers arrived at the Claimant’s home.  The officer in charge of the investigation at that stage was a Detective Constable Ryan.  
7.	It is not in dispute, for the purposes of these proceedings, that the police action on 6 June was unlawful.  I summarise the material events.  
8.	The Claimant appears to have been arrested, although no contemporaneous record of the reasons for his arrest was made.  The Claimant was not informed that he was being arrested, or of the grounds for his arrest, and no consideration was given as to the necessity for his arrest.  A failure to inform the suspect of the grounds for his arrest automatically renders the arrest unlawful.
9.	The Claimant’s home was searched and computers containing private correspondence were seized, in purported exercise of the power under s.18 of the Police and Criminal Evidence Act 1984.  Since this power arises only after a lawful arrest the search of the Claimant’s home was also unlawful.  In addition, no record of the search was maintained and DC Ryan did not inform his Inspector of the search, in what appears to have been a deliberate flouting of the rules rather than mere oversight.
10.	Following the search the Claimant was conveyed to Holborn Police Station and detained.  On the way there the Claimant told DC Ryan of the MDU’s advice that he should have a legal representative.  The Claimant alleges that DC Ryan’s response at this stage was that the police would just be taking his “version of events” and that calling the MDU meant that he “might be kept waiting for hours in the cell”.  It is not conceded that this was said, but it is agreed that I should proceed in this case on the basis that it was.
11.	The Claimant agreed to be interviewed by DC Ryan and another officer without a legal representative present.  He was then interviewed for about one and a half hours in the early evening of 6 June, when he gave full and detailed answers to a wide-ranging series of questions about M’s complaint and the surrounding circumstances.  
12.	It is not in dispute that there had been no advance disclosure and that, at times, the questions asked by the police were improper, both in form and in substance.  The Claimant’s solicitor, Mr Tennant, states in his witness statement that he would have advised the Claimant not to answer any questions in these circumstances.  
13.	However, it is also accepted that the Claimant had his rights explained to him by the Custody Sergeant on arrival at the station, before this interview commenced, and that he was told what the complaint against him was.  He was cautioned before the interview began and, at the point when the tapes were changed over during the interview, he was reminded of his right to have a legal representative present. He agreed to continue the interview without legal representation.  
14.	In the course of the interview M’s complaint was put to him in detail.  None of the Claimant’s answers is said to have been inaccurately recorded in the lengthy transcript before me.  This interview is one of the two pieces of material which the police have decided to disclose to the GMC, and to which the Claimant objects.
15.	The Claimant was released on police bail and there was then a very lengthy delay before he was charged with any offences.  This was due to the conduct of DC Ryan, who initially failed to progress this case and who then misled his superior officers about the state of his investigations into both this and other cases for which he was responsible.  
16.	Concerns about DC Ryan’s performance were first raised in November 2011. In April 2012 serious misconduct was discovered in relation to other matters, for which DC Ryan was suspended in May 2012.  He was subsequently arrested on suspicion of perverting the course of justice and for misconduct in public office, and he was dismissed by the MPS on 18 January 2013.  
17.	The investigation of the case against the Claimant was therefore taken over by another officer in April 2012.  The Claimant was eventually charged on 16 August 2012 with two offences, namely sexual assault and assault by penetration.  
18.	The Claimant denied both charges and the matter proceeded to trial.  In May 2013 the CPS notified the Claimant’s solicitors that they could not rely on DC Ryan as a credible witness and would not be seeking to rely on the interview conducted on 6 June 2011.  At the hearing before me it was thought that an agreed summary of this interview may have been adduced in evidence at trial.  I have subsequently been informed, however, that no summary was served and that at trial the Prosecution relied neither upon this interview nor upon a subsequent interview with the Claimant at which a legal representative was present. 
19.	The police examination of the Claimant’s computer, seized from his home at the time of the search, had revealed a significant amount of private correspondence (approximately 100 pages) passing between the Claimant and a friend known as “W” (another doctor), during the months before M’s complaint of sexual assault.  This correspondence was conducted via the internet telecommunication facility “Skype”.  Much of it was of a personal and intimate nature but it contained, on one page, an exchange between the Claimant and W, occurring some three weeks before the alleged assault on M, on which the Prosecution initially sought to rely at trial.  After considering Defence submissions opposing the admissibility of this evidence, however, the Prosecution withdrew their application to adduce it at trial.  I shall return to this one page extract later on, because this is the second piece of material that the police have decided to disclose to the GMC.
20.	M and the Claimant both gave evidence at the trial at Southwark Crown Court, which concluded on 2 July 2013 when the Claimant was acquitted on both charges.  
21.	The GMC has been aware of this case since 8 June 2011, when they were advised by the police that an allegation of sexual assault had been made against the Claimant and that he had been arrested on suspicion of committing a sexual offence.  An investigation was opened and effectively put on hold, pending the police investigation.  On 5 July 2011 the Claimant’s employers informed the GMC that the Claimant had resigned from his post with effect from 5 July.  
22.	The Claimant was referred to the Interim Orders Panel of the Medical Practitioners Tribunals Service (MPTS) on 7 July 2011, when an interim order was made providing for conditions upon his registration.  This order was reviewed on two occasions before, on 17 September 2012, it was varied to an order of suspension after the Claimant was charged.
23.	On 3 July 2013 the police informed the GMC of the Claimant’s acquittal on the charges and notified them that M had indicated that she would now be contacting the GMC. The interim order was then varied again, from suspension of the Claimant to conditions upon his registration and these have been maintained to date.  Tragically, the GMC was notified that M committed suicide on 8 August 2013.  
24.	On 3 July 2013 the police also informed the GMC that they had material in their possession relating to the Claimant that was not adduced at his trial.  The Claimant’s solicitor, Mr Tennant, understood, rightly, that this was a reference to the one page Skype exchange and the police interview conducted on 6 June 2011.  
25.	On 8 July 2013 the GMC, relying on s.35A of the Medical Act 1983, requested that the police provide a copy of the police file for the case, including the material not adduced at trial.  The MPS decided that the interview and the Skype extract should be provided to the GMC and they indicated their intention to disclose this material. They maintained that position after the Claimant’s letter before action. The Claimant then commenced these proceedings on 16 January 2014, challenging the MPS’ decision to disclose the material.  Permission to apply for Judicial Review was granted on the papers by Hamblen J.  
26.	Essentially, the Claimant submits that, given the nature of this material and the circumstances in which it was obtained, its onward disclosure to the GMC would be unreasonable, disproportionate and in breach of the Claimant’s rights under Article 8 of the European Convention on Human Rights.  He seeks an order prohibiting its further disclosure.  It is common ground that, in respect of the Skype communications, I am concerned only with the one page   extract appended to the summary grounds filed by the MPS.  No-one is suggesting that any of the other personal communications should be disclosed.
27.	The MPS and the GMC both accept that Article 8 is engaged.  Notwithstanding the circumstances in which the material was obtained, the MPS submit that the material is of relevance to the inquiry being conducted by the GMC; that there is a clear public interest in disclosing it to them; and that disclosing the material is proportionate and justified under Article 8.  The GMC, while unable to respond in detail to the suggestion that the material is not relevant to its investigation, not yet having seen it, nevertheless contends that the material appears to be relevant and that disclosure would not violate the Claimant’s rights under Article 8 because disclosure is clearly justified in the circumstances.
The Legal Framework
28.	Before referring to the specific power under s.35A it is important to consider the context for what is a wide power granted by statute to the regulatory body for medical practitioners.  
29.	The primary role of the GMC in exercising their statutory functions is defined in s.1(1A) of the Medical Act 1983 as being, “… to protect, promote and maintain the health and safety of the public.”  Their functions, in relation to complaints against medical practitioners, are contained in this Act and in the GMC (Fitness to Practise) Rules Order of Council 2004 and its associated Guidance.
30.	The GMC is entitled to restrict or remove the registration of a practitioner whose fitness to practise is found to be impaired.  Under s.35C(2) of the Act fitness to practise may be found to be impaired by reason of any or all of the following: (a) misconduct; (b) deficient performance; (c) a criminal conviction or caution in the British Isles (or elsewhere for an offence which would be a criminal offence if committed in England or Wales); (d) adverse physical or mental health; and (e) a determination by a regulatory body either in the United Kingdom or overseas.  
31.	On receipt of initial information about a practitioner the Registrar will consider if the allegation raises a question as to whether any of these categories of impairment apply.  The Registrar may conclude the matter at this stage, or refer it forward under the Rules, either for investigation or directly for adjudication.  At the investigation stage, the GMC will assess whether a case should be referred for adjudication.  Usually this will involve seeking further information from the maker of the allegation, and it may also include obtaining other, documentary evidence from third parties, such as the police or the medical practitioner’s employers.
32.	In this respect, s.35A of the Act provides, so far as material, as follows:
“(1)  For the purpose of assisting the General Council or any of their committees or the Registrar in carrying out functions in respect of a practitioner’s fitness to practise …, a person authorised by the Council may require-
(a)  a practitioner (except the practitioner in respect of whom the information or document is sought); or
(b)  any other person,
who in his opinion is able to supply information or produce any document which appears relevant to the discharge of any such function, to supply such information or produce such a document.
…
(4)  Nothing in this section shall require or permit any disclosure of information which is prohibited by or under any other enactment.
(5)  But where information is held in a form in which the prohibition operates because the information is capable of identifying an individual, the person referred to in subsection (1) above may, in exercising his functions under that subsection, require that the information be put into a form which is not capable of identifying that individual.
(5A)  In determining for the purposes of subsection (4) above whether a disclosure is not prohibited, by reason of being a disclosure of personal data which is exempt from the non-disclosure provisions of the Data Protection Act 1998 by virtue of section 35(1) of that Act, it shall be assumed that the disclosure is required by this section.
(6)  Subsection (1) above does not apply in relation to the supplying of information or the production of a document which a person could not be compelled to supply or produce in civil proceedings before the relevant court (within the meaning of section 40(5) below).
(6A)  If a person fails to supply any information or produce any document within 14 days of his being required to do so under subsection (1) above, the General Council may seek an order of the relevant court requiring the information to be supplied or the document to be produced.
(6B)  For the purposes of subsection (6A), ‘the relevant court’ means the county court …”
33.	After their investigation, the GMC may decide to conclude the case against the practitioner, to issue a warning, or to refer the matter on for adjudication before a Fitness to Practise Panel.  Allegations will only be referred for adjudication if there is a realistic prospect of establishing that the doctor’s fitness to practise is impaired to a degree justifying action on registration.
34.	Provision is made for the Interim Orders Panel to suspend or impose conditions upon a practitioner’s registration pending investigation and adjudication, as has occurred in this case.
35.	If a case is referred to a Fitness to Practise Panel, the GMC may continue to investigate, in order to prepare the evidence to be presented at the hearing, and further documentary evidence may be requested at this stage.  The Panel has power to impose a wide range of sanctions, depending on their findings, from the issue of a warning, where fitness to practise is found not to be impaired, to erasure from the register in an appropriate case, where the Panel finds that a doctor’s fitness to practise is impaired.  There is a right of appeal to this Court where the Panel decides that fitness to practise is impaired and a sanction has been imposed.
36.	It is now well established that, in deciding whether a doctor’s fitness to practise is impaired, the Panel will take account not only of any past act of misconduct or deficient performance by the practitioner, but also whether the act is likely to be repeated, and of the need to maintain public confidence in the profession and to uphold proper standards of conduct and behaviour generally.  The Panel looks to the future and not to the past.  The question is always whether, in the light of all the relevant factors known to them as at the date of the hearing, the doctor’s fitness to practise is impaired.  The Guidance refers (at paragraph 55) to the fact that two or more allegations of impairment, of any kind, may be considered at the hearing and that the hearings will be “holistic”. Allegations will be brought forward based on the totality of the evidence obtained at the investigation stage and may comprise a combination of allegations relating to a practitioner’s health, performance or conduct.
The Effect of s.35A
37.	It is common ground both that the power given to the GMC to request disclosure under this section is broad in scope and that it serves an important purpose.  In Wakefield v. Channel 4 Television Corporation and Others [2006] EWHC 3289 (QB) Eady J observed that the legislation affords only limited scope for challenging such a request for disclosure.  This will be where there are specific statutory objections to disclosure (s.35A(4)), or where the request relates to information or documents which someone could not be compelled to supply or produce in any civil proceedings before the relevant court (s.35A(6)), for example documents protected by legal professional privilege.  However, the legislation must be viewed through the prism of human rights and in particular, in this context, Article 8 of the Convention and the right of each citizen to respect for his or her private life and correspondence.  
38.	The leading case in relation to the duties of the police, when a request for disclosure is received from a regulatory body such as the GMC, is Woolgar v. Chief Constable of Sussex Police and UKCC [2000] 1WLR 25 (CA).
39.	The Appellant, a registered nurse, sought unsuccessfully to prevent the disclosure to the UKCC (then the regulatory body for the nursing profession) of the contents of her interview with the police.  Acknowledging that what a practitioner says when interviewed by the police after arrest is plainly confidential, the Court of Appeal held that the public interest in the proper working of the relevant regulatory body may nevertheless justify disclosure to which the practitioner does not consent.
40.	The Court had regard to Article 8 and to the decision of the European Court of Human Rights in M.S. v. Sweden [1997] 3BHRC 248, which concerned the disclosure of confidential medical records to the Social Insurance Office for the purpose of assessing a medical claim.  Kennedy LJ, giving the judgment of the Court, pointed out that the European Court,
“… recognised that the object of disclosure was a proper one – to enable the office to determine whether the conditions for granting compensation had been met.  It also recognised the ‘fundamental importance’ of protecting personal data, guaranteed by Article 8 of the Convention.  What it then did was to ‘examine whether, in the light of the case as a whole, the reasons adduced to justify the interference were relevant and sufficient and whether the measure was proportionate to the legitimate aim pursued.’  The court noted that the information was ‘communicated by one public institution to another in the context of an assessment of whether she satisfied the legal conditions for obtaining a benefit which she herself had requested.’  Under the relevant law it was a condition of imparting the information that the office had requested it, and the office was under a duty to treat it as confidential, so paragraph 44 of the judgment reads: -
‘The Court considers that there were relevant and sufficient reasons for the communication of the applicant’s medical records by the clinic to the office and that the measure was not disproportionate to the legitimate aim pursued.  Accordingly, it concludes that there has been no violation of the applicant’s right to respect for her private life, as guaranteed by Article 8 of the convention.’”
41.	The principles to be applied in such cases were identified by Kennedy LJ at pages 36-37, as follows:
“… where a regulatory body such as U.K.C.C., operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of an enquiry being conducted by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that, save in so far as it may be used by the regulatory body for the purposes of its own enquiry, the confidentiality which already attaches to the material will be maintained.  As Mr Horan [for the police] said in paragraph 14 of his skeleton argument:-
‘A properly and efficiently regulated nursing profession is necessary in the interest of the medical welfare of the country, to keep the public safe, and to protect the rights and freedoms of those vulnerable individuals in need of nursing care.  A necessary part of such regulation is the ensuring of the free flow of the best available information to those charged by statute with the responsibility to regulate.’
Putting the matter in Convention terms Lord Lester [for the UKCC] submitted, and I would accept, that disclosure is ‘necessary in a democratic society in the interests of … public safety … or … for the protection of health or morals, or for the protection of the rights and freedoms of others.’  Even if there is no request from the regulatory body, it seems to me that if the police come into possession of confidential information which, in their reasonable view, in the interests of public health or safety, should be considered by a professional or regulatory body, then the police are free to pass that information to the relevant regulatory body for its consideration.
Obviously in each case a balance has to be struck between competing public interests, and at least arguably in some cases the reasonableness of the police view may be open to challenge.  If they refuse to disclose, the regulatory body can, if aware of the existence of the information, make an appropriate application to the court.  In order to safeguard the interests of the individual, it is, in my judgment, desirable that where the police are minded to disclose, they should, as in this case, inform the person affected of what they propose to do in such time as to enable that person, if so advised, to seek assistance from the court.  In some cases that may not be practicable or desirable, but in most cases that seems to me to be the course that should be followed.  In any event, in my judgment, the primary decision as to disclosure should be made by the police who have the custody of the relevant material, and not by the court.”
42.	Mr Darbishire QC, appearing for the Claimant in the present case, focuses on that last sentence in submitting that the MPS decided to disclose this material to the GMC simply because they considered it was relevant, without having regard to the fact that Article 8 was engaged and without considering whether disclosure of plainly confidential material was justified in all the circumstances. 
43.	Having regard to the evidence before the Court, there is some force in that submission.  Mr Munday, for the MPS, fairly accepted that the only evidence as to the basis upon which the MPS decided to disclose the material is contained in the letter from the MPS solicitor dated 19/12/13, as part of the pre-action correspondence between the parties, where he said this:
“My client has given consideration to your representations, and I have advised regarding the vexed question of whether disclosure to the GMC (under s35A) of the unused material (Skype and interview) would breach your client’s rights under Article 8.
Under s35A(6) my client cannot be compelled to produce documents that he could not be compelled to produce in a civil court as a non-party.  I do not accept your argument that the documents are not relevant to your client’s fitness to practise; our view is that they are relevant.  The Skype material is particularly relevant to the issue of his boundaries of behaviour in a clinical environment.
The key issue for the MPS therefore is whether the relevant material ought to be disclosed given that it is not privileged.
While not accepting for the purpose of civil liability that the material was unlawfully obtained, I appreciate the strength of the argument.  But there is a line to be drawn between good evidence obtained in breach of PACE and its codes of practice, and evidence fabricated in order to secure a conviction.  I think you will agree that the material falls into the former rather than the latter category (if the material were fabricated then it could hardly be considered relevant).
Would disclosure of the material to the GMC breach your client’s Article 8 rights?  Those rights are not absolute, but have to be weighed against the public interest in allowing the GMC to assess the fitness to practice of doctors.  In making that assessment they are entitled to be in possession of all the relevant information.
Therefore, I can see no grounds for my client to restrict the GMC’s access to relevant material.”
44.	Mr Munday frankly acknowledged that there was no further information before the Court and submitted that no useful exercise would be served by any further inquiry into the decision by the MPS to disclose this material.  In the circumstances there is little to indicate that the careful scrutiny and necessary balancing exercise required by Article 8 was carried out by the MPS prior to their decision to disclose.  If the GMC are simply “… entitled to be in possession of all the relevant information” in making an assessment of fitness to practise, I agree that leaves little scope for consideration by the discloser, as primary decision maker, of the nature of the disputed material, of its value to the discharge of the GMC’s functions and of the extent of the interference with the right to respect for private life and correspondence, as contemplated by the Court of Appeal in Woolgar.
45.	Relevance of the material is obviously an important factor, but so too is the personal and confidential nature of the material requested.  There is nothing to indicate that, in arriving at their decision to disclose these documents in this case, the MPS carried out the careful balancing exercise of competing interests required by Article 8.
46.	In this I consider the MPS were in error.  Since the primary decision as to disclosure will be made in these cases by the police, it is important that before the decision to disclose is made, there is a rational assessment of the relevant, competing interests and that consideration is given, in each case, to the extent of the interference, and whether the disclosure sought is in accordance with the law and is a proportionate response to a legitimate aim, as required by Article 8(2).  Article 8 provides as follows:
“Article 8
1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
47.	It is common ground, in these circumstances, that the Court must now carry out that exercise afresh, having regard to the material requested, the circumstances in which it was obtained and the public interest in the GMC’s regulatory functions.  There is no dispute that the disclosure of this material would have a bearing upon the Claimant’s right to respect for his private life and his correspondence, within the meaning of Article 8(1).  The issue is therefore whether any interference with that right which may be said to arise from disclosure to the GMC would be justified under Article 8(2).  
Submissions 
48.	Mr Darbishire accepts that the police may disclose documents obtained during their investigations for the purposes of the GMC’s own investigation.  He accepts too that there is a public interest in the disclosure of material which may be relevant to a doctor’s fitness to practise, including material gathered by the police which is confidential.  He accepts that, where relevant and cogent material is lawfully obtained, the public interest will usually favour disclosure to the regulator.  He points out that the material in question in Woolgar had lawfully come into the possession of the police and was of obvious importance to the regulatory body requesting disclosure.
49.	In the present case, however, he submits that there are two critical features which militate against disclosure to the GMC.  First, the confidential material under consideration is of no relevance to the GMC’s inquiry.  All the other material on the police file has been or will be disclosed to the GMC without objection, and is more than ample for the purposes of the GMC’s own inquiries.  On the other hand, the material under consideration in these proceedings is neither relevant nor cogent.  Secondly, he submits that the confidential material in this case has been unlawfully obtained, as a result of police misconduct, and should therefore not be disclosed unless its nature and contents make disclosure truly necessary. While accepting that, in general, material unlawfully obtained is not thereby exempted from disclosure by the police, disclosure of the material obtained in the particular circumstances of this case would be wholly disproportionate and cannot be justified under Article 8(2).  
50.	He submits that the judgment required in such circumstances is similar to that to be made in criminal proceedings, where there is a strong public interest not only in the admission of all relevant evidence but also in upholding the rule of law.  In such circumstances the Court may refuse to allow the state to benefit from unlawful conduct by its agents and refuse to admit evidence, unlawfully obtained, which would render the accused’s trial unfair.
51.	Mr Munday accepts that Article 8 is engaged, but submits that both the Skype extract and the police interview are clearly of some relevance to an inquiry into the Claimant’s fitness to practise as a doctor, and that there is a strong public interest in disclosing the material to the GMC for that purpose.  The Claimant accepts that material unlawfully obtained is not thereby exempt from disclosure.  Disclosure in this case is in accordance with the law (s.35A), and it is proportionate, in that it assists in the protection of public health and safety and in the protection of the rights and freedoms of others.
52.	On behalf of the GMC, Mr Steele is obviously unable to respond in detail to the submissions as to the relevance of the material, although based on the available information, he does not accept that the material is irrelevant, or that its disclosure would violate the Claimant’s rights under Article 8.  He submits that each of the aims referred to in Article 8(2) is relevant in the present context.  Further, while the GMC will accept the Court’s view as to relevance, he points out that it is for the GMC to form its own judgment as to whether the material is, in fact, relevant to its investigation, which is being carried out pursuant to its statutory functions.  The Court should therefore scrutinise with particular caution the Claimant’s suggestion that the material is wholly irrelevant and that it should not be disclosed to the Claimant’s regulatory body.
53.	Secondly, even if the material were unlawfully obtained, Mr Steele submits that such a consideration carries little weight in the balancing of competing interests in this case.  The question whether the material is relevant to the GMC’s investigation does not depend on the question whether it would be admissible at any future fitness to practise hearing before the Panel.  In this sense the question whether the material would have been admissible in the criminal proceedings is not relevant to this Court’s task.  The material might, for example, suggest further relevant lines of enquiry for the GMC to pursue in the course of its investigation.  The material is to be disclosed not to the public at large, but to the Claimant’s regulatory body, for the specific purpose of investigating the Claimant’s fitness to practise.  The GMC is mindful of its confidential nature and it has a role to play in the consideration and evaluation of this material for this specific purpose.  There is a strong public interest in favour of disclosure of this material, to enable the GMC to carry out its statutory functions.
Discussion and Conclusion
54.	Since the circumstances in which both documents were obtained are admitted, the focus in the hearing before me was on the contents and the relevance of the documents, which I have considered very carefully.  For obvious reasons, the contents were not referred to in any detail in the course of oral argument and it is unnecessary to refer to them in detail now, save in the respects addressed below.  
The Skype Extract
55.	I acknowledge that the Skype extract, while merely one small part of the extensive correspondence unlawfully seized, is nevertheless personal, private correspondence between the Claimant and another individual; and that its unlawful seizure represented a serious intrusion into the Claimant’s private communications, within the confines of his own home.  
56.	I cannot, however, accept Mr Darbishire’s submission that this extract cannot be said to have any relevance to the GMC’s investigation.  While the extract may not, in itself, be probative of M’s complaint, or of any other complaint against the Claimant, or of there having been any specific act of misbehaviour by him, or even of any intended act, it is not necessary for the material to be directly probative in this sense in order for it to have relevance.  The inquiry being carried out by the GMC, as the Claimant’s regulatory body, is broader than the focussed inquiry of the CPS and the Crown Court.  In my view, this conversation cannot be said to be irrelevant to the GMC’s investigation into this Claimant’s fitness to practise as a doctor.
57.	The GMC will be concerned not only with M’s specific allegation of criminal conduct, but with all the circumstances surrounding that allegation, including the circumstances in which M was examined, what the Claimant was doing and thinking at the time, and how the Claimant was behaving generally, both towards her and towards the nurse acting as ‘chaperone’. The Claimant’s acquittal on the criminal charges does not mean that the GMC, acting entirely independently, cannot entertain professional concerns as to his fitness to practise.  The fact that the Skype evidence was considered inadmissible at his criminal trial does not render it immune from disclosure under s.35A.  In circumstances where M’s complaint was of an inappropriate and sexually motivated examination, under the guise of a gynaecological examination while she was in his care, the Claimant’s references in this extract to his own sexual arousal during a previous conversation with a different patient, just some three weeks before the incident with M, and to this patient being attracted to him, appear to me to be relevant to an investigation into this Claimant’s fitness to practise. 
58.	Mr Darbishire suggests that the extract amounts to no more than a fleeting reaction in the form of a humorous, self-deprecating story, or a “joke”.  Yet there seems to me to be another, quite different interpretation which could legitimately be placed upon this exchange, raising concerns as to the Claimant’s professional behaviour towards female patients under his care and as to whether he maintains appropriate boundaries with patients whose trust in him, within a clinical setting and during the course of highly intimate examinations, renders them particularly vulnerable.  
59.	It is not for this Court to determine which interpretation, if either, is correct.  Rather, it is for the regulatory body charged with the investigation into this Claimant’s fitness to practise.  Similarly, the GMC is best placed to decide whether there are in fact further lines of enquiry to be pursued, arising from this communication, and all the other circumstances of the case.  
60.	Mr Darbishire is right that, in general terms, someone’s privately expressed observations, as to what they were thinking in particular circumstances, is deserving of the highest protection.  I agree that, under Article 8, a very high degree of respect will attach to such private communications.  However, where those observations relate directly to communications between doctor and patient in a clinical setting, they cannot be said to be irrelevant to an investigation by the GMC, who will be conducting a much broader inquiry and considering more than the question whether a criminal offence was committed against M on 5 June 2011.  
61.	Given my clear view as to the relevance of this Skype extract to the regulator’s inquiry, I accept Mr Steele’s submission that the circumstances in which it was obtained will carry little weight in the balancing exercise required under Article 8.  The scope and purpose of the GMC’s investigation remain exactly the same.  The fact that the material was obtained unlawfully does not, in my judgment, outweigh the legitimate aim served by its disclosure under s.35A, namely to enable the GMC, in the exercise of their statutory functions, to protect public health and safety and to protect the rights and freedoms of others.  For these reasons disclosure of the Skype extract does not violate the Claimant’s rights under Article 8.  Disclosure is a proportionate response to that important and legitimate aim.
The Interview
62.	Mr Darbishire realistically concedes that parts of this lengthy interview could be said to be of some relevance to the GMC’s inquiry in assessing fitness to practise, but he submits that its limited probative value is far outweighed by the circumstances in which the interview was carried out.  He points to the vulnerability of the Claimant in the circumstances in which he found himself, and to his complaint, during the interview, about being put under pressure.  He submits that the whole interview is tainted, as a result of DC Ryan’s deceit in suggesting that the matter was not serious and in effectively depriving the Claimant of a solicitor, and that the reliability of its contents is wholly undermined.  Some particular relevance and cogency needs to be shown before the entire, unedited interview can be disclosed to another body for the purposes of being used against the Claimant; and none can be identified in this case.  Disclosure would be wholly disproportionate in the circumstances.
63.	I have considered these submissions and the contents of this interview with care, mindful of the circumstances in which it was carried out.  Mr Darbishire is right to concede that its contents have some relevance to the GMC’s investigation. The Claimant was giving a full and detailed account of the events and circumstances surrounding M’s complaint, just one day after she made it and when the events of that day were still fresh in his mind.  I accept Mr Munday’s submission that it is therefore the best evidence there could be of the Claimant’s account of what happened and his state of mind at the time.  
64.	Of particular relevance, in the context of an investigation into the Claimant’s fitness to practise, are his answers to questions concerning the chaperone’s presence at the procedure.  At different points in this interview the Claimant agreed that he had sent the chaperone away before the procedure had ended; that he continued it in her absence; that he had “relaxed the rules” in this respect; and that there was in this respect a failure in his professional duty.  Of further relevance, in my view, are his statements as to his relationships with female patients generally and his use of such phrases as “lovely young woman” and “attractive” to describe M.
65.	I refer to these passages in particular, because they seem to me to bear directly on the GMC’s inquiry, but they have to be read in the context of the Claimant’s account as a whole in this interview, not least in fairness to the Claimant himself.  The interview deals in detail, for example, with his knowledge and understanding of hospital policies and procedures and with his usual practice.  It would be inappropriate to attempt to separate out some questions and answers as having more relevance than others.  The interview is to be taken as a whole.
66.	In considering whether its relevance to the GMC’s inquiry is outweighed by the unlawful circumstances in which this interview was conducted, I take into account Mr Darbishire’s submissions as to the effects of DC Ryan’s conduct and the absence of legal advice at this stage.  On the other hand, it is not in dispute that the Claimant was cautioned before the interview began, and it is not suggested that any of its contents have been inaccurately transcribed.  While DC Ryan may have suggested, by his remarks on the way to the station, that the matter was not serious, realistically the Claimant can by then have been in no real doubt as to the seriousness of his situation, understanding the nature of M’s complaint against him. He had also been given firm advice by the MDU, in the clearest terms, not to say anything to the police without legal representation.  Whatever DC Ryan may have said on the way to the station, there is no dispute that the Claimant was advised as to his rights in police custody by the Custody Sergeant on his arrival.  
67.	Notwithstanding the contents of Mr Tennant’s witness statement and Mr Darbishire’s submissions, there is in fact no evidence before me from the Claimant himself, suggesting that he was seriously misled, or that his will was overborne as a result of what occurred, and that he spoke when he would otherwise have stayed silent.  It is clear from the contents of the interview that he freely answered all the questions asked of him, over the course of some ninety minutes; and he continued to answer the questions after he was reminded of his right to legal representation at the point when the recording tapes were changed.  His reference to feeling that he was being put under pressure comes towards the end of the interview, when the officer was challenging the Claimant’s account of what happened in the room with M.
68.	My conclusion in relation to the disclosure of this interview is the same, namely that its disclosure to the GMC is reasonable and justified.  While I have considered it separately, my reasons for this conclusion are also the same.  Both the Skype extract and this interview are documents which are relevant to the GMC’s investigation and that is all I am concerned with at this stage.  Notwithstanding the circumstances in which they were obtained, their disclosure is, in my judgment, clearly justified under Article 8(2).  
69.	For these reasons the MPS are entitled to disclose this material to the GMC pursuant to their request under s.35A.  The claim is therefore dismissed.