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||Neutral Citation Number:  EWHC 1377 (Admin)
||Case No: CO/5914/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MOSTYN
|| BEATA KIRSCHNER
||- and -
||THE GENERAL DENTAL COUNCIL
Jonathan Holl-Allen (instructed by Radcliffes Le Brasseur) for the Appellant
Rebecca Harris (instructed by Blake Morgan) for the Respondent
Hearing date: 5 & 8 May 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Mostyn:
- This is my judgment on the appellant's appeal made under section 29(1)(b) Dentists Act 1984 against the decision of the Professional Conduct Committee (PCC) of the respondent in protracted disciplinary proceedings which eventually concluded on 21 November 2014.
- The conduct of the appellant which was the subject matter of the disciplinary proceedings mainly took place in February 2010. She had come to this country to work as a dentist from Poland in 2005. In February 2010 and up to June 2012 the appellant was the subject of a PCT review as a result of concerns that had been raised in relation to her NHS practice. In late 2011 or early 2012 the appellant was referred to the General Dental Council. In June 2012 charges relating to clinical deficiencies or mismanagement were framed; these did not include allegations of dishonesty. A hearing before the Professional Performance Committee was fixed for January 2013. However on Christmas Eve 2012 allegations of dishonesty surfaced in a letter sent by the GDC to the appellant on that day. The January 2013 performance hearing was vacated in the light of the new allegations.
- On 31 January 2014 the appellant was formally charged with 110 separate professional infractions, although these charges had been supplied in draft to her about 4 months earlier. Most of the allegations were of clinical deficiencies or mismanagement but, as prefigured, there were two groups of allegations that accused the appellant of dishonesty. The appellant was also accused of failure to cooperate with the authorities. The case was heard by the PCC over 12 days in three tranches in March, June and November 2014. At the end the appellant was found guilty of a number of the clinical deficiency allegations and of the charges of failure to cooperate. The PCC decided in relation to these proven charges that her conduct was not so grave as to warrant suspension. The appellant does not appeal against these findings.
- Of the dishonesty allegations the appellant was acquitted of the first group but found guilty of the second. Specifically she was found guilty of dishonestly claiming payments under her NHS dental contract of £48 for three child patients, a total of £144. For this she was suspended for a year – the maximum allowed under section 27B(6)(b) of the 1984 Act. She appeals against the finding of dishonesty and the sanction.
- CPR 52.11(1) provides that every appeal will be limited to a review of the decision of the lower court unless (a) a practice direction makes different provision for a particular category of appeal or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. CPR PD52D para 19.1(1)(c) and 19.1(2) provides that this appeal under the 1984 Act "must be supported by written evidence and, if the court so orders, oral evidence and will be by way of re-hearing".
- Whether the appeal is by way of review or rehearing the appellate threshold is the same. CPR 52.11(3) provides that the appeal court will only allow an appeal where the decision of the lower court was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. No-one has suggested that (b) is in play here and so the only question I have to decide is whether the decision of the PCC was wrong. Authority has stated that the concept of wrongness should not be varnished adverbially, although, as Lord Wilson pointed out in Re B (A child)  UKSC 33,  1 WLR 1911,  2 FLR 1075,  3 All ER 929,  2 FCR 525 at para 44 the addition of the adverb "plainly" does not add anything to the concept where the exercise is evaluative rather than discretionary.
- Given that the threshold is the same what is the difference between an appellate review and an appellate rehearing? An appellate rehearing is obviously not literally a rehearing. The difference between a rehearing and a review was considered by the Court of Appeal in EI Du Pont De Nemours & Company v S.T. Dupont  EWCA Civ 1368  1 WLR 2793. May LJ stated at paras 93 - 98:
"Subject to exceptions, every appeal is limited to a review of the decision of the lower court. ... The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material. Rule 52.11(4) expressly empowers the court to draw inferences ... Submissions to the effect that an appeal hearing should be a rehearing are often motivated by the belief that only thus can sufficient reconsideration be given to elements of the decision of the lower court. In my judgment, this is largely unnecessary given the scope of a hearing by way of review under rule 52.11(1) ... On ... a rehearing the court will hear the case again. It will if necessary hear evidence again and may well admit fresh evidence. It will reach a fresh decision unconstrained by the decision of the lower court, although it will give to the decision of the lower court the weight that it deserves. "
- In truth there is not much difference between the two techniques. In this case I did not hear any oral evidence and the focus has been on whether the reasoning of the PCC was wrong (per the appellant), or whether it was tenably correct (per the respondent). If a member of the public had been sitting in my court he or she would not have concluded that an actual rehearing had been conducted. It was only a rehearing in the term of art sense that in the old days all appeals to the Court of Appeal under the RSC were technically rehearings.
- What is the legal test for dishonesty in disciplinary proceedings such as these? Disciplinary proceedings have many hallmarks of criminal proceedings in that they may result in severe, even draconian, sanctions being meted out which can have a devastating effect on the professional's career and reputation. But they are civil proceedings nonetheless. And it is to state the obvious that in mainstream civil proceedings heard, say, in the Chancery Division or the Commercial Court, a finding of dishonesty and an award of heavy damages and costs can have an equivalently dramatic effect on a person's economy and reputation. So it would be a surprising state of affairs if there were a different legal test for dishonesty in disciplinary proceedings on the one hand, and mainstream civil proceedings on the other. Yet that appears to be the position that the law is in, and it would seem that it would be possible for a professional person to be found guilty of dishonesty in civil proceedings and to suffer heavy damages and costs but later, on the very same facts, to be found not guilty of dishonesty in disciplinary proceedings. That is (to put it mildly) an unhappy state of affairs. In my opinion the position needs to be conclusively clarified by the higher appellate courts or by legislation.
- In the mainstream civil sphere the House of Lords in Twinsectra Limited v Yardley and Others  UKHL 12,  2 AC 164 considered a case where a solicitor had been acquitted of dishonest conduct by Carnwath J but where that finding had been reversed in the Court of Appeal. The House of Lords restored the original finding. In formulating the test for dishonesty it modified the purely objective approach of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan  2 AC 378. It adopted a mixed or combined test of objectivity and subjectivity in line with the criminal direction propounded in the well known case of R v Ghosh  QB 1053. In para 20 Lord Hoffmann stated that the principles "require a dishonest state of mind, that is to say, consciousness that one is transgressing ordinary standards of honest behaviour". At para 35 Lord Hutton stated:
"There is, in my opinion, a further consideration which supports the view that for liability as an accessory to arise the defendant must himself appreciate that what he was doing was dishonest by the standards of honest and reasonable men. A finding by a judge that a defendant has been dishonest is a grave finding, and it is particularly grave against a professional man, such as a solicitor. Notwithstanding that the issue arises in equity law and not in a criminal context, I think that it would be less than just for the law to permit a finding that a defendant had been "dishonest" in assisting in a breach of trust where he knew of the facts which created the trust and its breach but had not been aware that what he was doing would be regarded by honest men as being dishonest."
And at para 36:
"… dishonesty requires knowledge by the defendant that what he was doing would be regarded as dishonest by honest people, although he should not escape a finding of dishonesty because he sets his own standards of honesty and does not regard as dishonest what he knows would offend the normally accepted standards of honest conduct."
- One might think that such emphatic and unambiguously clear statements would have cemented the law for a long time. However, after a mere three years the Twinsectra test was significantly modified by the decision of the Privy Council in Barlow Clowes International Ltd v Eurotrust International Ltd  UKPC 37,  1 WLR 1476, an appeal from the Isle of Man. At para 10 Lord Hoffmann stated:
"Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant's mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards."
At paras 15 and 16 Lord Hoffmann held that there was "ambiguity" in para 20 of Twinsectra (per Lord Hoffmann himself) and in paras 35 and 36 (per Lord Hutton). The statements at para 20 of Twinsectra that the defendant must have "consciousness that [he] is transgressing ordinary standards of honest behaviour" and at para 35 that "the defendant must himself appreciate that what he was doing was dishonest by the standards of honest and reasonable men" only meant that "his knowledge of the transaction had to be such as to render his participation contrary to normally acceptable standards of honest conduct. It did not require that he should have had reflections about what those normally acceptable standards were."
- This revised test, which strictly speaking was only a statement of Manx law, was recently applied in Central Bank of Ecuador & Ors v Conticorp SA & Ors (Bahamas)  UKPC 11, an appeal from the Bahamas. Lord Mance stated at para 9:
"It is common ground that whether the respondents procured or assisted in any breach of trust in a manner which the law will regard as dishonest must be assessed in the light of the conduct to which the respondents were party and their actual state of knowledge at the relevant times. But it also common ground that, if objectively no honest person would in that light have acted as they did, it is unnecessary to show that the respondents actually recognised that what they were doing was dishonest."
- Unsurprisingly, in Abou-Rahmah & Anor v Al-Haji Abdul Kadir Abacha & Ors  EWCA Civ 1492,  Bus LR 220 the Court of Appeal accepted that the revised Barlow Clowes test applied in English civil proceedings. See the judgment of Arden LJ at paras 64 - 69 where she explained that there were exceptional circumstances which justified not following the earlier, technically binding, decision of the House of Lords in Twinsectra but rather the later Barlow Clowes decision of the Privy Council which was, strictly speaking, only of persuasive value. It is well known that nowadays in the Rolls Building the Barlow Clowes test is routinely applied where adjudicating allegations of dishonesty.
- It appears, however, notwithstanding that one might think that the matter had been settled since 2006, that this test has not been applied in the species of civil proceedings that is a disciplinary or regulatory process. Rather, the Twinsectra/Ghosh test has continued to be invariably applied: see Uddin v GMC  EWHC 2669, per Singh J; Mills v GDC  EWHC 89 (Admin) per Patterson J; Lavis v Nursing and Midwifery Council  EWHC 4083 (Admin) per Cobb J; Sharma v GMC  EWHC 1471 (Admin) per HHJ Pelling QC; Hussein v GMC  EWCA (Civ) 2246, per Longmore LJ. In none of these cases was the Twinsectra/Ghosh test questioned. In none of them was the modification to the test by the Privy Council in Barlow Clowes and its adoption by the Court of Appeal in Abou-Rahmah even mentioned. In Hussein the Twinsectra/Ghosh test was in fact slightly modified for disciplinary proceedings by Longmore LJ. He stated:
"…this was a professional disciplinary hearing and it seems to me that in future it would be right and proper for the first part of the direction to be adapted to read that the panel should decide "whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest". There may be a not unimportant difference between the two as shown by the decision of the judge in this very case."
- The researches of Counsel have unearthed only two cases where the Barlow Clowes development has been grappled with in appeals from disciplinary decisions. They are Bryant v Law Society  1 WLR 163 (Richards LJ and Aikens J) and Professional Standards Authority for Health and Social Care v Health and Care Professions Council and Elizabeth Abosede David  EWHC 4657 (Admin), although in the latter case Popplewell J was not referred to the former. In that latter case Popplewell J accepted that there were two different tests available but in the absence of argument to the contrary proceeded on the basis that the Twinsectra/Ghosh test was the appropriate one to be applied, albeit modified not only in the way proposed by Longmore LJ but also to make clear that the civil standard of proof applied to both of its limbs.
- Bryant v Law Society tackled the problem head on. In their judgment at para 151 Richards LJ and Aiken J, sitting as a Divisional Court, noted the decision of Bultitude v The Law Society  EWCA Civ 1853 where the Court of Appeal applied the Twinsectra/Ghosh test in a disciplinary case. Notwithstanding the later Barlow Clowes development and its adoption by the Court of Appeal in Abou-Rahmah, they held at paras 153 and 154:
"153. In our judgment, the decision of the Court of Appeal in Bultitude stands as binding authority that the test to be applied in the context of solicitors' disciplinary proceedings is the Twinsectra test as it was widely understood before Barlow Clowes, that is a test that includes the separate subjective element. The fact that the Privy Council in Barlow Clowes has subsequently placed a different interpretation on Twinsectra for the purposes of the accessory liability principle does not alter the substance of the test accepted in Bultitude and does not call for any departure from that test.
154 In any event there are strong reasons for adopting such a test in the disciplinary context and for declining to follow in that context the approach in Barlow Clowes. As we have observed earlier, the test corresponds closely to that laid down in the criminal context by R v Ghosh; and in our view it is more appropriate that the test for dishonesty in the context of solicitors' disciplinary proceedings should be aligned with the criminal test than with the test for determining civil liability for assisting in a breach of a trust. It is true, as Mr Williams submitted, that disciplinary proceedings are not themselves criminal in character and that they may involve issues of dishonesty that could not give rise to any criminal liability (e.g. lying to a client as to whether a step had been taken on his behalf). But the tribunal's finding of dishonesty against a solicitor is likely to have extremely serious consequences for him both professionally (it will normally lead to an order striking him off) and personally. It is just as appropriate to require a finding that the defendant had a subjectively dishonest state of mind in this context as the court in R v Ghosh considered it to be in the criminal context. Indeed, the majority of their Lordships in Twinsectra appeared at that time to consider that the gravity of a finding of dishonesty should lead to the same approach even in the context of civil liability as an accessory to a breach of trust. The fact that their Lordships in Barlow Clowes have now taken a different view of the matter in that context does not provide a good reason for moving to the Barlow Clowes approach in the disciplinary context."
- This decision is not strictly binding on me and I doubt its correctness. The decision in Bultitude must surely be regarded as having been overreached or superseded by the adoption by the Court of Appeal of the Barlow Clowes modification in Abou-Rahmah. I do not agree that in Abou-Rahmah Arden LJ was a lone voice, as is suggested in Bryant. It is obvious that Rix and Pill LJJ agreed with her, although on the facts of that case the difference between the two tests was immaterial. It is noteworthy that in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd  EWCA Civ 347,  Ch 453 Lord Dyson MR at para 74 was of the view that the Court of Appeal in Abou-Rahmah had followed the decision of the Privy Council rather than the earlier decision of the House of Lords. Further, in Starglade Properties Ltd v Nash  EWCA Civ 1314 the Court of Appeal had no doubt that the Privy Council test had been adopted by the Court of Appeal in Abou-Rahmah. The judgment of Leveson LJ is very pertinent. He was of the view that the Court of Appeal, Criminal Division should revisit the issue so that there was no marked difference between the concept of dishonesty for the purposes of civil liability and the concept of dishonesty as understood in the criminal law.
- In para 154 of Bryant Richards LJ and Aiken J refer to the extremely serious consequences for the defendant both professionally and personally if a finding of dishonesty is made by a disciplinary tribunal. It would likely lead to him being struck off. This spectre was another reason for retaining the more demanding Twinsectra/Ghosh test. But as I have already explained (and as Lord Hutton specifically accepted in Twinsectra at para 35) any finding of dishonesty is likely to be calamitous for a defendant, and particularly so if he or she is a professional. If policy reasons are relevant (and I doubt that they are) a much more important argument in favour of the same test is that it negates the risk of inconsistent verdicts on identical facts. At present the scope for confusion is immense. A defendant can face the prospect of being found dishonest in one civil court but not in another, depending on the nature of the proceedings.
- In my opinion there should be but one test for dishonesty in all civil proceedings, whatever their nature. That test should be as propounded by the Privy Council in Barlow Clowes and as very recently confirmed by it in Central Bank of Ecuador. The Privy Council is the Supreme Court in all but name, and if it propounds a legal test then we should faithfully follow it unless it conflicts with an earlier binding domestic decision. And if it does then, as Arden LJ explains in Abou-Rahmah at para 68, we should still follow the Privy Council if it is clear that it was intending to clarify English law as well as the law of the territory from which the appeal came. As she explains, that would satisfy the necessary criterion of exceptionality.
- Under the Barlow Clowes test the only relevant mental state of a defendant accused of dishonesty in civil proceedings is his or her knowledge. Once the knowledge of the defendant has been established it is then for the tribunal to act as the "spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice" (per Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council  AC 696, 728) and to determine if the defendant, possessed of that knowledge, and having engaged in the transactions in question, was dishonest by ordinary standards. Ordinary standards mean general ordinary standards and not the standards of the class or cohort from which the defendant happens to come, although it is hard to see that they would or could be different. In neither of Twinsectra nor Barlow Clowes was this tweak to the objective test suggested and neither could it be inferred. In the former case the defendant was a solicitor but he was judged by general ordinary standards.
- Of course, if the Barlow Clowes test were adopted for disciplinary proceedings, as I think it ought to be, the tribunal may conclude on the evidence that a defendant accused of dishonesty was actually aware that he was doing wrong; but such a finding would not be necessary to establish dishonesty. The presence or absence of such awareness would however be highly relevant in the sanctions phase of the proceedings.
- It would, however, be a step too far for me, notwithstanding my great misgivings, to hold that Bryant does not represent the law concerning dishonesty in disciplinary proceedings. Or that the Twinsectra/Ghosh test has not been adapted as suggested in Hussein. As things stand the test is as set out by Miss Harris in para 16 of her supplemental skeleton. The tribunal should first determine whether on the balance of probabilities, a defendant acted dishonestly by the standards of ordinary and honest members of that profession; and, if it finds that he or she did so, must go on to determine whether it is more likely than not that the defendant realised that what he or she was doing was by those standards, dishonest.
- That is the test that was applied by the PCC in this case, save that the Hussein adaptation was not applied as that had not been issued by Longmore LJ at the time that this case was heard. Neither counsel has suggested that the PCC was wrong to apply that test. The question is whether its factual findings meet the standards of that test so as to allow a verdict of dishonesty to be rendered.
- The acts of dishonesty by the appellant which were found proved by the PCC and which amounted to defalcations totalling £144 arose in the following circumstances. The appellant had agreed a value for a Unit of Dental Activity (UDA) of £16 under her contract. For a Band 2 course of treatment, which included sealant restorations (i.e. fillings) she could claim 3 UDAs or £48. This is the sum that would be paid for the course of treatment whether it amounted to one filling or a greater number. For three child patients she determined that each needed four fillings. For each course of treatment she was therefore entitled to £48. However in each case she did two fillings as one course of treatment and then after a hiatus of at least 62 days did the other two fillings and claimed in each instance a separate course of treatment for those later fillings. It was said that this was illegitimate "splitting" and that she had therefore dishonestly claimed £48 x 3 = £144.
- The appellant acted as she did because she was told that she was entitled to do so. In her evidence-in-chief the exchange went as follows:
"Q: Was anything said to you while you were in Nottingham about the interval before you could submit a further claim for treatment?
A: Yes that I can open the new course of treatment after 62 days.
Q: Who said that to you?
A: Now, I do not remember, but probably I got this information from other colleagues or … and they got this information from our provider. I do not remember exactly who told me this. I remember when I came to Oasis Dental Care, to Lincoln, I got this information from the practice manager. This I remember. But in Nottingham, there were so many dentists, probably from …Because maybe I was not at this day at work when the provider told to the dentists this information, passed this information to the dentists, so when I came on another day maybe I got this information from my colleague. I do not remember exactly now.
Q: All right. When did you move from Nottingham?
A: December 2006.
Q: When you moved from Nottingham, where did you then go?
- Under cross-examination the exchange was as follows:
"Q: From where did you obtain the information that after 62 days you could open a new course of treatment?
A: That was in practice in Lincoln. In Nottingham and Lincoln. In both practices I was told that I can open a new course of treatment in 62 days.
Q: By whom?
A: By another dentist or practice manager.
Q: Have you ever sought to verify it in the regulations or anything of that nature? Have you seen that 62 days anywhere in any documentation?
- In re-examination the appellant confirmed that she had never telephoned the NHS Business Service Authority for advice on claiming.
- It would have been possible for the PCC to have found that this evidence was false. Were it to have done so it would have been incumbent on it to have spelt this out with the utmost clarity. If a defendant is to be fixed with a finding that he or she has given deliberately false evidence then it is elementary that he or she must be told with pitiless clarity why and how: see Phipps v GMC  Lloyds Rep Med 345 per Wall LJ at para 85.
- In this case however no such finding was made. The key findings were as follows:
"The Committee however, taking into account the whole of the evidence, formed the view that whilst you had persuaded yourself that splitting claims was acceptable, in part because it did not harm your patients, you knew, at that time, that you were making claims to which you were not entitled under the contract".
"You confirmed in evidence that you are familiar with the definition of a course of treatment within the regulations. Furthermore you demonstrated this understanding by explaining how the system works for a complex Band 3 treatment carried out over many appointments, which is still one course of treatment until all the identified work has been completed. You had worked under the new contract since its inception (2006) and the Committee does not accept that you did not understand the meaning of a course of treatment in relation to simpler procedures such as sealant restorations.
Although the Committee recognises that you may have received inappropriate advice from colleagues in the past, it does not consider it plausible that this would have been confirmed by the NHS Business Service Authority or that, as an intelligent capable professional, you would not have ensured that you understood the contract correctly in respect of this issue once you became a contract holder and provider.
While recognising that the claim form may have been filled in by a Trainee Dental Nurse, the Committee does not accept that you would not have checked the form to ensure the details were filled in as you would have wished. Furthermore you accepted that you signed the claim forms, ticking the box that states 'all the currently necessary care and treatment that the patient is willing to undergo has been carried out'. This was not true.
For these reasons, the Committee considers that reasonable and honest people would recognise that this was dishonest. The Committee was also satisfied that you realised that this was dishonest by ordinary standards."
At page 252 in relation to allegation 3(c)(xvi):
"You were only entitled to one payment in respect of one course of treatment, yet you knowingly made a second claim in respect of this course of treatment. For the reasons set out in relation to 3(c)(x) the Committee is satisfied that you knew that this was not a proper pattern of claiming. The Committee found proved that your actions in making the claim on 27 April 2010 were dishonest by ordinary standards and that you knew that they were dishonest by those standards."
At 256 in relation to allegation 3(g)(xiv):
"[The PCC] is satisfied that you knew that the second claim was not proper because you knew that you had already claimed payment for this course of treatment in January. Whilst the information in the claim (taken on its own) was appropriate it was rendered dishonest by your knowing submission of a duplicate claim. The Committee found that your action in making the claim on this date was dishonest according to the ordinary standards of reasonable and honest people. It also found that you realised that what you were doing was dishonest."
- Mr Holl-Allen submits that the first key finding at 245 is internally inconsistent and incoherent. I agree. It is an oxymoron. It is impossible to construe rationally as it simultaneously holds that the appellant had persuaded herself of the acceptability of making a split claim while knowing that she was not entitled to do so. There is an equivalent internal inconsistency in the second paragraph of the second finding at 250-251. The PCC accepted that the appellant had received inappropriate advice from colleagues about the acceptability of splitting claims while at the same time finding that it did not accept that the appellant did not understand the correct and true position. In this paragraph the PCC adds to the confusion finding that "it does not consider it plausible that this would have been confirmed by the NHS Business Service Authority" where the appellant had given perfectly clear evidence that she had not telephoned the BSA for advice about making claims.
- In my judgment in circumstances where the appellant had clearly stated in evidence that she had received information from colleagues that she was entitled to split the treatment in the way she did and to make two claims the PCC could only have convicted her of dishonesty if it either (a) found that that evidence was false or (b) found that the appellant had received later information which had corrected her false belief. Either way it was incumbent on the PCC to spell out with the utmost clarity that it found the appellant to be lying when she stated that at the relevant time she held the operative belief that she was entitled to split the treatment.
- Miss Harris has valiantly sought to defend the PCC's decision. She submits that the PCC's determination contained more than adequate and sufficient reasons for reaching the conclusion that the appellant knew that what she was doing was dishonest. I am afraid that I disagree. On the contrary it is my clear view that the PCC's findings that "you had persuaded yourself that splitting claims was acceptable" and "you may have received inappropriate advice from colleagues in the past" and the absence of any findings that this belief had ceased to become operative in April 2010 make it impossible for the subjective element of the Twinsectra/Ghosh test to be satisfied. The knowledge or belief of the appellant was not Nelsonian (deliberately blinding oneself to the true facts) or that of Robin Hood (applying a different moral standard to those commonly accepted) but was a common or garden belief that what she was doing was actually allowed. In the light of those findings it was simply impossible for the PCC to have correctly concluded that it was more likely than not that the defendant realised that what she was doing was, by the standards of ordinary and honest dentists, dishonest.
- Even if the Barlow Clowes test were applied I think that it would have been difficult to convict the appellant of dishonesty although the decision would have been much closer to the line. Under this test the only relevant mental state is what the appellant actually knew and not whether under an examination of her own conscience she thought that what she was doing was wrong. Here her knowledge or belief was that what she was doing was acceptable, even if it was totally mistaken. The question would have been whether the appellant, possessed of that knowledge, and having engaged in the transactions in question, was dishonest by ordinary standards. That would depend I think on the objective tenability of the knowledge or belief. If the knowledge or belief was so outlandish and the mistake therefore so ridiculous then I think that a tribunal or court would be entitled to find dishonesty proved. In my opinion the PCC would have struggled to have found that the knowledge or belief of the appellant was so obviously mistaken as to have justified a finding of dishonesty. But just as Sir James Munby P did in Re H-L (A Child)  EWCA Civ 655,  1 WLR 1160 at para 9 one cannot help recalling the well-known words of the Duke of Wellington.
- I therefore allow the appeal, quash the findings of dishonesty, and remit the case to the PCC to reconsider the sanction.
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