This judgment was handed down remotely at 10.00am on 2nd January 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Justice Eyre:
Introduction.
- The Appellant formerly worked as a nurse in Birmingham. On 6th February 2024 a Fitness to Practise Panel of the Defendant found that the Appellant's fitness to practise was impaired by reason of misconduct. The misconduct consisted of a number of instances of dishonesty which the Appellant had admitted. That panel imposed a 12 month suspension running from 5th March 2024 with provision for a review at the end of that period. That review took place on 21st January 2025. On that occasion a differently-constituted panel found that the Appellant had been deliberately dishonest in the evidence which she had given in the course of the hearing before it. As a consequence of that finding the latter panel found that the Appellant's fitness to practise remained impaired. It also concluded that the only appropriate sanction was that the Appellant be struck off from the nursing register and made an order to that effect.
- The Appellant appeals both the finding that she was dishonest before the January 2025 panel and the sanction imposed. She says that the finding that she was dishonest in her evidence to the panel was wrong because the panel failed properly to take account of her circumstances and the nature of the hearing. She contends that the manner of her questioning by the panel meant that she gave answers which were then misconstrued. As to sanction the Appellant says that her striking off was excessive and unreasonable in light of the positive references which she had provided and of the steps which she had taken to remediate the impairment of her fitness to practise.
- Part of the background to the allegations leading to the original finding of misconduct was the fact that the Appellant was in an abusive relationship. The court papers contain police records and some other documents giving details of matters which occurred in the course of that relationship. As I explained at the hearing those matters did not warrant a general departure from the important principle that court hearings be conducted in public. They do, however, justify a limited restriction on public access to court documents. The order to be made at the handing down of the judgment in this matter will record the order I made at the hearing restricting the right which non-parties would otherwise have to see the statements of case in this matter without a court order. Instead, a non-party wishing to obtain a copy of the statements of case will have to make an application and obtain the court's approval for such a course. I am satisfied that such order strikes an appropriate balance between the requirement that justice be conducted publicly and the interests of the Appellant.
- The Appellant represented herself before me as she had done at the hearing before the panel on 21st January 2025.
The February 2024 Decision.
- The February 2024 decision to suspend the Appellant followed her admission of 9 charges of misconduct. The charges included two charges (each alleging "one or more" instances) of working for one hospital trust whilst on sick leave (and so receiving sick pay) from another hospital trust. In addition, the Appellant had failed to accept a call to attend to a patient requiring medication and had given a false excuse for doing so. The Appellant had worked back-to-back shifts without informing her employer that she had done so and had failed to keep records of the care provided to patients. Those matters had taken place between December 2019 and July 2020. Then, in September 2020, the Appellant falsely stated that she had obtained a negative Covid-19 test result when she had not undertaken a test.
- The Appellant had admitted those charges and had admitted that the conduct on which they were based had been dishonest. It was accepted by the Respondent that the Appellant had engaged in that conduct at a time when she was in a physically abusive and coercive relationship. That was a relationship in which she was pressurised to provide money to fund her partner's drug habit. The money which the Appellant received from her deception of her employers was handed over to her partner. There is no dispute that the Appellant ended that relationship in 2021. The material before the January 2025 panel included documents from the records of West Midlands Police referring to incidents of
violence
towards the Appellant in the course of that relationship and after she had ended it.
- The Appellant lost her nursing jobs at some point after the misconduct came to light but before the February 2024 hearing.
- The 2024 panel took account of the aggravation resulting from the facts that there were multiple instances of dishonesty; that the misconduct continued over a significant period of time; and that the misconduct placed patients at risk. However, it noted the following mitigating factors:
"You made full admissions to all of the charges;
At the time the charges arose, you were experiencing very difficult personal circumstances;
You have expressed remorse for your misconduct;
You have demonstrated developing insight; and
You have repaid the money you fraudulently obtained."
- The panel also recorded that it was "encouraged by [the Appellant's] evidence that [she had] taken steps to remove [herself] from that situation [sc the abusive relationship] with support from [her] family, friends, and external agencies".
- The panel noted that although not all dishonesty is equally serious the dishonesty found proved in the Appellant's case was very serious.
- The panel considered whether a striking off order would be proportionate but concluded that it would be disproportionate in light of the significant personal mitigation; the Appellant's full admission (including the admission of dishonesty); and her remorse.
- The panel imposed a 12 month suspension order and made provision for a review at the end of that period. It said that the reviewing panel would be assisted by:
"• Your attendance at the review hearing;
• Evidence of any coping mechanisms you have developed and any support you have utilised in order to prevent a similar situation arising again;
• Testimonials from current and/or previous employers, attesting to your honesty and integrity;
• A reflective piece demonstrating insight into the misconduct found proved, including your dishonesty, and how your actions and behaviour affected colleagues, patients in your care and the public confidence in the nursing profession; and
• Any evidence of professional development focused on areas of concerns found proved, including honesty and record keeping."
- The preceding summary of the February 2024 decision is taken from the letter which gave the Appellant notice of the January 2025. It is to be noted that the letter told the Appellant of the powers of the review panel including the power to strike her off. However, it is also of note that it reminded her of the matters which the earlier panel had said would be helpful to the review panel.
The January 2025 Hearing and the Panel's Decision.
- It is necessary to consider the circumstances of the hearing on 21st January 2025 in some detail.
- The hearing took place virtually. The transcript of the hearing was generated automatically by MS Teams. As a result there are a number of mistranscriptions. In most, but not all, instances it is possible to work out what was actually said. I have, however, taken account of the deficiencies of the transcript of this hearing and am mindful that even greater caution than normal is required in relying upon it as a record of what was said.
- The Appellant, each of the three panel members, the legal adviser, the Respondent's advocate, and the hearing coordinator were all at different locations and joined the hearing on their own computers.
- The hearing had been due to start at 9.30am. However, there was some difficulty in relation to the hearing coordinator whom it had been intended should assist with the hearing and a replacement had to be found. This meant that the hearing did not start until 11.25am. The Appellant says that she received a couple of emails during that period explaining that there was going to be a delay but adds that the delay and uncertainty about what was going to happen in relation to the hearing increased her nervousness.
- The Appellant had provided the panel with material seeking to address the matters which the February 2024 panel had said would be of assistance on the review. This material included a reflective piece; references from her current employers and from former employers; certificates confirming the Appellant's completion of a number of courses; and the police records to which I have referred above. The references included a reference from Paula Poole, dated 25th October 2024, and one from Derek Hopkins, dated 31st October 2024. The reference from Paula Poole was in respect of care which the Appellant had given to her mother for approximately 2 months in late 2022. That from Derek Hopkins related to care given to his mother from December 2022 to May 2023.
- In her reference Paula Poole said:
"I met Stacey when she cared for my mother who was unable to care for herself in any way.
...
My mother was so important to me and to hand over her care to a stranger was so hard.
...
The excellent care both physically and emotionally Stacey gave my mother was in my opinion was excellent. Right from the start she built a good rapport with my mother. She engaged her in conversation, Listening and responding, encouraging my mother to have conversations and recount her memories of her life. As my mother was 90 years old and being housebound, she did not have much contact with the outside world. She made my mother's life more bearable.
...
I do have to say she made me comfortable in leaving her to care for my mother... Stacey's communication skills are excellent. She gave me reports on mom's condition, she also had some suggestions that would benefit her."
- Mr Hopkins said:
"I have been asked to provide a reference regarding Stacey NURRISH in relation to the period that she was engaged caring for my elderly mother.
...
My mother Eileen Hopkins, was, at the time in question, some 99 years of age but still living at home and had been living independently.
...
Understandably given her age Eileen is not always the easiest to care for/ Accordingly we sought a professional carer to visit her on a daily basis to manage her needs in relation to hygiene, nutrition, shopping and personal requirements.
This presented a problem, in that being fiercely independent, Eileen resisted the idea of having personal help. To overcome this Stacey agreed to attend to my mother in the guise of helping her with some cleaning.
Having been recommended to us Stacey undertook the task enthusiastically and quickly forged a close relationship with Eileen. She met all of her personal needs in such a manner that Eileen did not feel that she was losing her independence. Stacey kept a full daily log of her interactions with Eileen and also accounted for the use of monies provided for shopping. My siblings and I were extremely happy with the way Stacey cared for our mother and more importantly, Eileen was herself happy with the arrangement and and looked forward to Stacey's arrival. Sadly as her condition deteriorated Eileen moved into a residential home. Stacey even took the trouble to visit Eileen at the home and even now maintains contact with her."
- The Respondent's representative, Simeon Wallis, made a short opening statement. Mr Wallis summarized the allegations which the Appellant had faced and the decision of the 2024 panel. Mr Wallis noted that the previous panel had recommended a number of matters which it believed would assist at the consideration of the review of the suspension. He referred to the training which the Appellant had completed since the earlier hearing and suggested that the panel might benefit from hearing from the Appellant on those matters. Mr Wallis said that he had explained to the Appellant that the Respondent was not urging a particular course on the panel. He said that the questions for the panel were whether or not the Appellant's fitness to practise remained impaired; if so to what extent; and how such impairment could be remedied. Mr Wallis pointed out that the burden was on the Appellant to show that her fitness to practise was no longer impaired.
- Scott Handley, the chair of the panel, explained its role to the Appellant thus:
"What this panel's duty today is to do is to look at current impairment.
Is your practice currently impaired? And if we decided it is, then to take matters further, so those are the areas that we're looking at. We're looking at particularly progress since the last hearing and reassurance if that's available and possible of the issues that the previous panel highlighted. No doubt those are the areas you want to concentrate on."
- The Appellant then explained that she had been working as a beauty technician since the previous hearing. She said that she had been doing various courses and had been trying to reflect on what had happened. The Appellant explained the kind of nursing work which she would seek to do if she were able to practise and the steps which she had taken to find out about return to practice courses. She also explained that she was now single and the steps she would take to avoid returning to a relationship like that in which she had been at the time of her misconduct. Some of that information was provided in answers to questions from the chair of the panel and the Appellant also answered questions from him about the fruits of her reflection on the nature of her misconduct.
- It is clear from the transcript that the Appellant found the giving of her evidence somewhat stressful. Thus, the very first passage of her evidence which was about her current work and the steps she had taken to reflect on what had happened ended after 59 seconds with her saying "sorry" and Mr Handley saying:
"That's OK.
Just take a moment.
We've got plenty of time I don't feel under any pressure."
- Mr Wallis then cross-examined the Appellant. The questions addressed the Appellant's current personal circumstances; the fruits of her reflection and the courses she had taken; and the coping skills which the Appellant had acquired since her misconduct. Some of the cross-examination related to the references which the Appellant had provided but this was directed to establishing that the referees had been aware of the Appellant's suspension and the reasons for it when giving their references.
- The Appellant was then questioned by the members of the panel. I will return to those exchanges in some detail below.
- Mr Wallis was asked whether he had any closing submissions on behalf of the Respondent. He said that he did not. Mr Wallis said that the options for the panel were clear and that this was not a case where the Respondent was suggesting that a particular resolution was appropriate. He said that he did not "have a general argument to advance".
- The Appellant was asked if there was anything else of which she wished the panel to be aware. She said that she did not think that there was and the panel chair replied by saying:
"All right
That's' very good
Thank you and thank you for answering all our questions
It is difficult and these events happened some time ago
It's hard to remember days. We appreciate that."
- It is to be noted that neither the Appellant nor the Respondent's representative were invited to address the possibility that the panel might conclude that the Appellant's oral evidence to the panel had been deliberately dishonest. There had been no submission on behalf of the Respondent that the panel should approach the matter on that basis.
- The panel's legal adviser gave advice. The adviser reminded the panel that the task for them was to consider whether the Appellant's fitness to practise remained impaired. The adviser said that as a starting point the panel could look at the matters which the previous panel had said would be helpful to a reviewing panel with a view to considering whether the Appellant had complied with those suggested actions. The adviser said that the panel could look at all the new facts and information which they had and then:
"And you ask yourselves a number of other questions then.
Has [the Appellant] shown insight into the failings of the seriousness of her past misconduct? Has that level of insight improved or gotten worse since the original hearing?
Has she taken steps, effective steps to maintain her skills and knowledge? Does she have a record of safe practice without further incident?"
That is probably something more relevant where a conditions of practice order was in place.
So you have a number of factors to take into account and a number of matters to decide upon.
As I say, you can extend the existing order, make a new order, allow the existing order to expire.
And essentially you are looking again at impairment, current impairment in light of the new, any new information you have and that includes all of the material which has been referenced in the bundle, the references, the training certificates and the answers to the questions posed both by Mr. Wallis and by you, Chair, and the panel today, and you take all of that into account in answering the relevant questions in terms of [the Appellant]'s fitness to practise and current impairment"
- The legal adviser said that she was able to provide further advice or to answer questions if needed. Mr Handley asked his colleagues if they had any questions for the legal adviser but there were no questions. It is of note that the advice did not address the test for determining whether actions were dishonest and nor were the members of the panel given any advice as to the approach to be taken in assessing the oral evidence which they had heard.
- The panel rose at 1.08pm and the members took time to consider their decision. It is of note that the decision was not announced until 5.59pm. The panel chair said that the case had taken "a good deal of thought" and it is apparent that the panel reflected at some length on the matter. The decision that the Appellant be struck off was announced then and the written reasons were sent at the same time.
- In the written decision the panel set out the history and it then turned to address impairment.
- The panel summarized the Appellant's evidence and the following passages are relevant:
"You were referred to a reference where Mr 1, who you said was a family friend, stated that you cared for his mother. You said that you volunteered to help her with daily living. You said that the author was aware of your NMC case. You said that you were not paid for this role and the author's mother was alone and lived near you. The author did not live nearby. You said that you cared for her two days a week for a period of six months. You said that you were not undertaking any other work during this time and you were claiming benefits.
...
You were referred to another reference where you cared for the Ms 2's mother. You said that she was another family friend, and you cared for her once a week overnight. You said that your mother normally provided this care and you were helping her out. You said your mother was caring for your children during this time.
The panel referred to the fact that you are described in the testimonials as undertaking 'professional caring work' in reference to your caring duties. You stated that these were voluntary roles and received no financial reward."
- The panel noted positive aspects of the Appellant's evidence thus:
"At this hearing, the panel took account of your oral evidence. It noted that you were clear that the circumstances you were in led to the misconduct found proved. The panel noted that you have provided evidence of coping mechanisms, namely counselling, attending the gym and reiki which assist you in times of stress.
Additionally, you have provided the panel with evidence of strengthened practice in relation to record keeping and effective communication. It noted in particular that you stated that effective communication allows you to speak to colleagues and be open with them which also assists you at times when you are feeling stressed.
The panel also noted that you have made great progress with regards to your personal life and the relationship you were in is over. The panel is satisfied that the specific circumstances that existed at the time of the concerns no longer exist. You now have a lot of support from your family. The panel are encouraged with the progress you have made."
- The panel then said:
"The panel also took account of two testimonials describing care you provided to two individuals. The panel noted that while the testimonials are positive, there appeared to be discrepancies between what the testimonials say and the oral evidence you provided to support it. The panel noted that Ms 2's testimonials stated, 'I met Stacey when she cared for my mother… My mother was so important to me and to hand over her care to a stranger was so hard. I do have to say she made me comfortable in leaving her to care for my mother…She gave me reports on mom's condition, she also had some suggestions that would benefit her'. However, in your oral evidence you stated that you only went to see her occasionally in the evening and stayed overnight with her. You also stated that your mother was the main provider of care but there is no mention of your mother in the testimonial.
With regards to the testimonial from Mr 1, it stated, 'Accordingly we sought a professional carer to visit her on a daily basis to manage her needs in relation to hygiene, nutrition, shopping and personal requirements.' However, the panel bore in mind that you stated you visited this particular person two days a week. The panel also noted that following further questions, you changed your answer with regards to the time spent Mr 1's mother to say that you provided care during the evenings only. However, it noted that this is contradicted by Mr 1 stating that you 'kept a full daily log' of your interactions with their mother.
The panel bore in mind that the NMC case against you included charges of dishonesty. It noted that you presented the aforementioned testimonials to the panel to persuade it that you were not currently impaired. It bore in mind that it had to make a decision as to whether these testimonials support your case that you are no longer currently impaired and you now have full insight into the dishonesty found by the original panel.
The panel determined that the inconsistencies between your oral evidence and the testimonials you provided has caused it to have concerns about your openness and honesty. As a result, the panel could not be satisfied that you have fully addressed the attitudinal concerns that led to the original panel's findings of dishonesty.
In light of this, this panel determined that you are liable to repeat matters of the kind found proved. The panel therefore decided that a finding of continuing impairment is necessary on the grounds of public protection."
- As a consequence of that finding the panel concluded that the Appellant's fitness to practise remained impaired.
- The panel then turned to consider sanction. It explained why a further suspension order was not appropriate saying:
"The panel was of the view that this was not a single instance of misconduct and your dishonesty today is evidence of attitudinal problems and evidence of repetition of the dishonesty since the incident. The panel was also of the view that an ordinary member of the public would not expect you, as a registered nurse, to stand before an NMC panel to give evidence on how you have remediated dishonesty, and be dishonest in the giving of this evidence."
- The panel then referred to the Sanctions Guidance and explained its conclusion that a further period of suspension would serve no useful purpose and that a striking off order was the "only sanction that would adequately protect the public and serve the public interest".
- It follows that the panel's finding that the Appellant had been dishonest in the evidence she had given at the hearing was at the heart of the finding of impairment and of its conclusion on the appropriate sanction. In the finding of impairment that finding was expressed in the somewhat guarded terms of having "concerns about your openness and honesty". It was, however, expressed in clear terms in the decision on sanction where the panel referred to "your dishonesty today" and to being "dishonest in the giving of your evidence". It is clear that the panel proceeded on the footing that the Appellant had been deliberately dishonest in her evidence at the hearing.
- In support of her appeal the Appellant provided a further statement from Mr Hopkins dated 29th January 2025. In this Mr Hopkins made further positive comments about the Appellant. He also gave an explanation of what he had meant by the term "professional carer" in his earlier reference. I have taken no account of that further statement. The appeal is by way of re-hearing but the admission of further evidence is an exceptional course. There was no suggestion that Mr Hopkins should give oral evidence before me but if the further statement were to be admitted there would be scope for question as to the details of what is said there. I have, therefore, considered the position without reference to that statement.
The Approach to be taken on the Appeal.
- The appeal is brought pursuant to articles 29 and 38 of the Nursing and Midwifery Order 2001. The approach to be taken is governed by CPR rule 52.21(c)(3) and PD52D paragraph 19. It is, accordingly, an appeal by way of rehearing in which the court will allow the appeal if the decision of the panel was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the panel.
- The approach to be taken on such an appeal is well-established. I have had regard to the summaries of the principles set out by Cranston J in Cheatle v General Medical Council [2009] EWHC 645 (Admin) at [15]; by Nicola Davies LJ per curiam in Sastry v General Medical Council [2021] EWCA Civ 623, [2021] 1 WLR 5029 at [102] – [112]; and by Hill J in Shabir v General Medical Council [2023] EWHC 1772 (Admin) at [10] – [18] (drawing on the judgments of Collins Rice J in Sawati v General Medical Council [2022] EWHC 283 (Admin) and of Morris J in Byrne v General Medical Council [2021] EWHC 2237 (Admin)).
- The court must exercise its own judgement as to whether the decision was wrong and "it is not sufficient for intervention to turn on the more confined grounds of public law such as rationality" (Cheatle at [15]). Although appropriate deference must be paid to the determination of the professional panel the court must not abandon its duty to determine whether the decision was wrong and the degree of deference which is appropriate will depend on the particular circumstances and the particular issue under consideration.
- Where the issue is a finding of primary fact or an assessment of credibility then the court's role will be the same as in other appellate contexts (Cheatle at [15]). A high degree of deference will be appropriate in such circumstances. As Leveson LJ explained in Southall v General Medical Council [2010] EWCA Civ 407, [2010] FLR 1550 at [47]:
"How is this submission to be approached? First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it "can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread" (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217 at 221F more recently confirmed in R(Campbell) v General Medical Council [2005] 1 WLR 3488 at [23] per Judge LJ). Finally, in Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger put the matter in this way (at [10] page 1697D):
'In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position...'"
- In Assicurazioni Generali SpA v Arab Insurance Company [2002] EWCA Civ 1642, [2003] 1 WLR 577 Ward LJ was addressing the approach to be taken on a review but he made it clear an appeal by rehearing on a matter of fact differed little from a review and said at [195] – [197] that:
"195. When the Court of Appeal heard appeals on questions of fact the court was essentially conducting a review of the findings made by the judge below in as much as the Court of Appeal examined that judgment in the light of the evidence which had been presented to the court below without (save exceptionally) hearing evidence in this court. Mr Boyd Q.C. submits that the change of language compels a different approach to be adopted. I do not agree. Our task is essentially no different from what it was – we consider the judgment testing it against the evidence available to the judge and we ask, as we used to ask, whether it was wrong. The Court of Appeal can only interfere if the decision of the lower court was wrong and in deciding whether or not findings of fact were wrong, we take a retrospective look at the case and do not decide it afresh untrammelled by the judge's conclusion.
196. The trial judge's view inevitably imposes a restraint upon the appellate court, the weight of which varies from case to case. Two factors lead us to be cautious about interfering. First, the appellate court recognises that judging the witness is a more complex task than merely judging the transcript. Each may have its intellectual component but the former can also crucially rely on intuition. That gives the trial judge the advantage over us in assessing a witness's demeanour, so often a vital factor in deciding where the truth lies. Secondly, judging is an art not a science. So the more complex the question, the more likely it is that different judges will come to different conclusions and the harder it is to determine right from wrong. Borrowing language from other jurisprudence, the trial judge is entitled to 'a margin of appreciation'.
197. Bearing these matters in mind, the Appeal Court conducting a review of the trial judge's decision will not conclude that the decision was wrong simply because it is not the decision the appeal judge would have made had he or she been called upon to make it in the court below. Something more is required than personal unease and something less than perversity has to be established. The best formulation for the ground in between where a range of adverbs may be used – 'clearly', 'plainly', 'blatantly', 'palpably' wrong, is an adaptation of what Lord Fraser of Tullybelton said in G v G (Minors: Custody Appeal) [1985] 1 W.L.R. 642, 652, admittedly dealing with the different task of exercising a discretion. Adopting his approach, I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible. The difficulty or ease with which that test can be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow. Where the primary facts are not challenged and the judgment is made from the inferences drawn by the judge from the evidence before him, then the Court of Appeal, which has the power to draw any inference of fact it considers to be justified, may more readily interfere with an evaluation of those facts. The judgment of the Court of Appeal in The Glannibanta (1876) 1 PD 283, 287, seems as apposite now as it did then:-
'Now we feel, as strongly as did the Lords of the Privy Council in the cases just referred to [The Julia 14 Moo P.C. 210 and The Alice L.R. 2 P.C. 245], the great weight that is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are, as they were in the cases referred to, material elements in the consideration of the truthfulness of their statements. But the parties to a cause are nevertheless entitled, as well on question of fact as on questions of law, to demand the decision of the Court of Appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, even though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect.'"
- Findings that a witness has been dishonest in the giving of evidence are a form of finding of fact where particular deference is to be paid by the appeal court to the decision below. Here, the members of the panel had the benefit of assessing the Appellant's demeanour. The conclusion that a witness is or is not being honest is not to be seen as a form of intuition but it is an assessment which can be soundly-based even if the reasons underlying it cannot readily be articulated. Moreover, a transcript will rarely convey the atmosphere of a hearing not only will the impression given by demeanour and body language be lost but so also will be some nuances of expression. As Cranston J noted in Cheatle at [15] an assessment of a witness's credibility or reliability "may be derived from his or her demeanour and from subtleties of expression which are only evident to someone at the hearing".
- I also have regard to the fact that in this case the conclusion that the Appellant had been dishonest in her evidence was reached by a panel of three working together.
- Even though the appeal court must accord considerable deference to a panel's assessment of a witness that assessment is not inviolable. As was noted by Nicola Davies LJ in Sastry and by Ward LJ in Assicurazioni Generali the court must form its own judgement as to whether the decision was wrong. Moreover, the deference accorded to the assessment made by the panel which has had the benefit of seeing and hearing the witness is tempered by the repeated warnings from high authority that demeanour by itself can be an untrustworthy foundation on which to base findings as to credibility: see Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 3 WLR 640 per Dunn LJ at 675H – 676F and R (SS Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391, [2018] Imm A R 1348 per Leggatt LJ, as he then was, at [35] and following.
The Challenge to the Finding of Dishonesty.
- In her notice of appeal the Appellant said:
"During the meeting I was asked a large number of questions regarding the references I had provided. I was extremely anxious during the meeting and felt I was not explaining myself as well as I could have due to this. The meeting also started 2 hours later than it should have which also exacerbated my anxiety. I was not informed of the fact that my meeting had been delayed or given any indication as to why. I tried to explain the impact that my anxiety has on my ability to communicate clearly and this did not seem to be taken into account. I feel I was not given the opportunity to show the work and effort that I have done to improve myself, as well as to show how I have strived to make sure similar instances that led to my suspension would not be repeated within my professional role. The panelists instead continued to question me on the same topics which were discussed multiple times, leading to me not feeling as though I was being listened to which again increased my levels of anxiety which meant I was unable to think clearly and answer in the way that I had wanted to. The persistence of the same line of questioning led me to panic and change some answers which led to the panel pointing out inconsistencies which would not have happened otherwise."
The Exchanges at the Hearing.
- I have already explained the caution which must be exercised by an appeal court working solely from a transcript. Nonetheless, it is necessary here to consider the transcript in some detail.
- The questioning of the Appellant by the panel members lasted for 22 minutes. In that period there were 44 direct questions to the Appellant together with a number of other comments.
- The questioning began with Mr Handley saying:
"The panel just got a couple of questions. Couple of areas we want to look at in a bit more detail. So I'll ask my colleagues to ask you one or two more questions. We'll start with Miss Reddy."
- Helen Reddy, the registrant member of the panel, then asked about the roles and training which the Appellant had undertaken. It is clear that the Appellant was at loss for a word at points in that exchange. There was then this exchange:
Helen Reddy:
"OK.
Thank you.
And then just a question around the reference that was submitted by Derek around caring for, I think it was his mother, Eileen.
Could you just tell us a little bit more around how your role developed, how it started and then what it developed into?"
The Appellant:
"So Derek is a fam like a family friend.
His mum [became] ill and I used to go and help her with like our jobs around the house.
I used to help her [with], like with a personal hygiene.
I used to help [cook her] meals [and] to take her out shopping.
Yeah, she had.
She was very aware of everything.
She didn't have any dementia.
And yeah, basically it was just to go and help her with daily living, basically.
I volunteered to go and help her."
- Mr Handley said that the panel were about to move to a second area but before they did he wanted to come back to the arrangement with Mrs Hopkins. There were the following questions and answers:
Scott Handley: "You say you volunteered to help."
The Appellant: "Yeah".
Scott Handley: "Was this a paid role?"
The Appellant: "No, it wasn't paid. It was like at the time I wasn't not working. I was waiting for my meeting to go ahead. And they needed some help to look after [her], as [they] lived quite far away. And she only lived about 15 minutes away, so I offered to go and help her.
I think it was about two, two days a week.
Before now, she's in a nursing home, but she was on her own.
Basically, she didn't have any carers, so."
Scott Handley: "How? How did you know the family?"
The Appellant: "Derek was married to my auntie that's passed away now, but yeah, he was married to her many years ago, so it was sort of like a family friend."
Scott Handley: "OK, the letter that we've got, it says that it says. Accordingly, we sought a professional carer to visit on a daily basis."
The Appellant: "Yeah, because he knew that I was a nurse. And."
Scott Handley: "It says that that you've been recommended to them"
The Appellant: "Yeah, [but], because obviously my mum was good friends with him, so my mum recommended me."
Scott Handley: "And that was a [2] day a week job."
The Appellant: "Yeah. Sometimes it might have been some weeks. It could have been one day a week, other weeks when I had more free time, I might have popped in for a few hours a day rather than spend the whole day with her."
Scott Handley "OK. I just want to be entirely clear about this, that the letter says we sought a professional carer to visit on a daily basis. That sounds like a paid professional role."
The Appellant: "Yeah. No, I didn't get paid for it."
Scott Handley: "Why did you do it?
The Appellant: "Just as I was [saying] I was not in work and due to Derek being married to my Auntie and Eileen was on her own."
Scott Handley: "OK. And how sorry, how long did that go on for?"
The Appellant: "I think it was probably about six months before she went into the nursing home."
Scott Handley: "So"
The Appellant: "I have, [yes] I have seen her since she's been in the nursing home. I've visited her."
Scott Handley: "Yeah, so, so two days a week for a period of six months, you won't. You [went] round and did this work.
The Appellant: "Yeah, just yeah."
Scott Handley: "Were you doing any other work at the time?"
The Appellant: "Nah."
Scott Handley: "Claiming any benefits at the time?"
The Appellant: "Thanks. Yeah, I was [claiming] benefits."
- Questions about the Appellant's current role followed and Mr Handley asked the Appellant if her current employers were aware where she was that day and was told that they were.
- Dora Waitt, the other lay member of the panel, then asked the Appellant questions about whether the former colleagues who had provided references for her had been told that she had admitted charges of dishonesty and was told that they had.
- After the questioning by Miss Waitt Mr Handley returned to the care which the Appellant had given to Mrs Atkins and to Paula Poole's mother. The following exchanges ensued:
"Scott Handley: Thank you. Miss [Nurrish], I just want to go back. Just one thing that I'm not quite clear about. You've explained to us the situation with Eileen, family friend, etcetera."
The Appellant: "Repl."
Scott Handley: "How did you come to be giving care to Paula Pools mother?"
The Appellant: "I'm sure there's another family friend. She had come out of a Hospice. She lives around the corner from where I live now. And Mum, [is] one of Paula's. One of like my mum's good friends, so. My mum would come and sit with me at night time and I would go and sit with Paula."
Scott Handley: "Was this at the same time you were looking after [Eileen]?"
The Appellant: "Yeah, because I wasn't working and I am. I missed my nursing. I took up and went and helped to care for some elderly ladies."
Scott Handley: "It says in the letter from Paula Paul that she only met you as a result of you doing this caring."
The Appellant: "Yeah, because I my mum's best friends with her, but I wasn't. I wasn't familiar with Paula at the time. But we got to know each other and then sadly [indistinguishable]. Sorry, Eileen and Mom passed away. Mary passed away. Mary had carers in the daytime and they were just worried because at night time she [would] wake up now and again and she just want it wasn't with Mary, wasn't really. It was more for support because she was in the House on her own. She'd had. She had carers in the day and district nurses went out to her."
Scott Handley: "So it was. It was during the night time."
The Appellant: "Yeah"
Scott Handley: "How often were you there?"
The Appellant: "I think I went about. Probably. Once, once a week, my mum used to stay there most of the time it was just when my mom was tired that I would offer to help".
Scott Handley: "[unintelligible] Did you stay overnight?"
The Appellant: "Yeah."
Scott Handley: "And what were you doing about childcare at those times?"
The Appellant: "My mom. My mom had her because she woke up a lot through the night, so my mum wasn't getting much sleep but my mum could sleep at mine and it was only around the corner from my house."
Scott Handley: "Did you have any other family friends that you also looked after during that time?"
The Appellant: "Only my nan, but she's passed away now."
Scott Handley: "[unintelligible]"
The Appellant: "[unintelligible]"
Scott Handley: "These letters."
The Appellant: "Yeah."
Scott Handley: "Present as if you have been maybe entirely legitimately carrying out carrying work on behalf of two separate families during this period. That's how these references read. Is that not the case?"
The Appellant: "It hasn't been since I've been suspended."
Scott Handley: "No, I'm not so much concerned about that."
The Appellant: "I haven't."
Scott Handley: "Are these two letters reflective of you having carried out? Well, as, as Dennis says, professional caring work on behalf of him. Have you been carrying out [caring] roles?"
The Appellant: "I have been caring for them, yes."
Scott Handley: "Were you doing this for financial reward?"
The Appellant: "No, I never got paid. The only the only thing I did get off Murray was a Christmas present. I got a scarf and stuff for Christmas."
Scott Handley: "You will. You will understand why the panel is concerned to understand fully what's happening here, aren't you?"
The Appellant: "Yeah."
Scott Handley: "Are you quite clear in your evidence today that these were effectively voluntary roles?"
The Appellant: "Yeah."
- Mr Handley then turned to the charges which had related to the Appellant's actions in working for one hospital while claiming sick pay from another. He probed the Appellant's understanding of the gravity of that conduct.
- Miss Waitt then asked questions about the timing of the care which had been given to the mother's of Mr Hopkins and Miss Poole in this way:
Dora Waitt: "Yeah. I just would like to know time scale way. It's time scale wise."
Scott Handley: "Yeah."
Dora Waitt: "Where do the two caring roles fit in with your work at the College of the past two years as a beautician technician?"
The Appellant: "I haven't. I have the one lady's been in a care home now for over a year and the other lady passed away. I work from 8:30 till 4:30. And with Eileen, it was mainly like of a night time to put her into bed because she was ….. She was independent, but she just needed Say a shopping [indistinguishable]. A shower before bed, so that would only take, say, an hour or two. And the[n] Marie she was. She was cared for by my mum most nights. Or her daughters. And mainly it would be like a Friday night or a Saturday night."
Dora Waitt: "OK. So they occurred whilst you were working with the college and doing the beautician technician work at the college as well."
The Appellant: "Marie was before while I was not at work."
Dora Waitt: "OK. OK. Thank you very much"
- Mr Handley also asked questions about the dates. The Appellant said that the care for Eileen Hopkins was from the end of 2022 to May 2023 and that for Miss Poole's mother was for two months at the end of 2022. This exchange then followed:
Scott Handley: "OK. And then the work in the college? When did that start?"
The Appellant: "That started.April 20. No, it didn't. It was September 3."
Scott Handley: "OK. Yeah. So that was, that was well after Eileen. And so I think you said to my colleague this what I just wanted to be sure on the dates that you were looking after Ireland at the same time you're working in the college."
The Appellant: "Yeah, yeah. Know that I was. It was when I was with the two ladies. I'm getting my dates mixed up now."
Scott Handley: "Yeah, it's difficult. It's a long time ago, I know. I just want to be sure that you said originally your evidence was that you were. You're out of work, you were claiming benefits because you weren't working and you enjoyed helping people. You volunteered to help these two ladies."
The Appellant: "Yeah, I'm getting, oh, hot and flustered."
Scott Handley: "That's OK is that? Is that how it was that you were not working at that time? And then you got the job at the college?"
The Appellant: "Yeah, yeah. Yeah, yeah."
Scott Handley: "And was that after these, after the ladies, OK."
The Appellant: "Yeah, it was AF though."
Scott Handley: "So there was no overlap[?]"
The Appellant: "No."
Scott Handley: "OK. OK. No, no, don't worry. It's a long time ago."
The Appellant: "Sorry."
Scott Handley: "It's hard to remember all the all the dates, OK? That's fine, that's fine."
- Mr Handley asked Miss Waitt if those exchanges had resolved the question which she had and was told that they had.
- Mr Wallis made a closing submission for the Respondent in the terms I have summarized above. There was then this exchange between Mr Handley and the Appellant.
Scott Handley: "Miss Nourish, then finally, it's your opportunity. Is there anything else you want the panel to be aware of? We will take account of all the information you've provided. Is there anything else you'd like us to hear?
The Appellant: "I don't think so."
Scott Handley: "All right. That's very good. Thank you and thank you for answering all our questions. It is difficult and these events happen some time ago. It's hard to remember days. We appreciate that."
Discussion and Analysis.
Factors supporting the Appellant's Contention.
- There are a number of factors which support the Appellant's contention that the finding that she was dishonest in her evidence was wrong.
- The hearing was conducted virtually with the consequence that the Appellant and those assessing her evidence were not in the same room. The difficulties flowing from this must not be overstated and experience has shown that the reliability of a witness's account can be assessed over a remote link. Nonetheless, the scope for assessing body language and nuance is reduced in a virtual hearing when compared to a hearing in which the witness and those assessing the evidence are in the same physical space. This means that the deference to be accorded to the panel's assessment of the Appellant's honesty is reduced.
- The hearing started 2 hours later than the time when it was due to begin. The Appellant said that this increased her nervousness. It is apparent from the transcript that the Appellant was nervous at the beginning of her evidence. She contends that her nervousness increased in the course of the hearing and she attributed that to the manner of her questioning by the panel. As to the former point the transcript provides at least some support and shows that the Appellant appeared confused at times. As to the latter point I have already noted that the members of the panel asked the Appellant 44 questions in the course of 22 minutes. I remind myself that short questions and short answers can be exchanged quickly nonetheless this was not a case where there was a series of measured and structured questions with measured replies. Moreover, there is force in the Appellant's point that the panel members seem to have returned to the same topic at different times having given the impression that they had moved on from that issue and had been satisfied with the Appellant's answers.
- The members of the panel are not to be criticized for not asking questions in the way in which a professional advocate would. Nonetheless, it was not put to the Appellant directly that she was at risk of the panel concluding that she was lying to them in her evidence. The nearest the panel got to that was when Mr Handley said to the Appellant "are you quite clear in your evidence today that these were effectively voluntary roles?" That had been preceded by the exchange in which Mr Handley had said "you will understand why the panel is concerned to understand fully what's happening here, aren't you?" to which the Appellant had replied "yeah". Mr Handley's reference to the Appellant understanding and to the panel's concern in those terms is somewhat cryptic and the Appellant's monosyllabic reply cannot be seen as an acknowledgement that the Appellant understood that the panel were concerned that she was deliberately giving an untruthful account.
- Not only was the point not put directly to the Appellant but at least some of the comments by the panel members gave the impression that they were satisfied with the Appellant's answers. Thus Mr Handley had said to the Appellant "ok, ok, no, no, don't worry. It's a long time ago" and "it's hard to remember all he dates. OK? That's fine, that's fine". Similarly, Miss Waitt confirmed that Mr Handley's questions and the Appellant's answers had resolved the question she had.
- The Appellant was invited to make her closing submissions but it was not suggested to her that she might care to address the question of the truthfulness of her evidence and its relevance to the finding of impairment. I have set out above the exchanges between the Appellant and the chair of the panel at the end of the hearing and before the legal advice. There was nothing there to forewarn the Appellant that the panel were considering concluding that she had been lying in her evidence not that they had not accepted her explanation of the points they had made based on the references. Nor was she given an opportunity to address that point.
- It is of note that the Respondent's representative did not question the Appellant on the basis that there were discrepancies between her account of matters and the picture which appeared from the references. Nor did he suggest in his closing submissions that the Appellant's evidence to the panel in answer to the panel's questions had been deliberately untruthful. Moreover, the panel did not ask him if he wished to make any submissions on that issue.
- The legal advice to the panel explained that the crucial question for the panel was whether the Appellant's fitness to practise remained impaired. The legal adviser pointed to the factors which the 2024 panel had said would be helpful on a review. The legal adviser noted that those had been addressed by Mr Wallis and the Appellant and said that those could be seen as a starting point (an approach which the Appellant could have expected to be taken in light of the comments made by the 2024 panel). The legal adviser did not provide and was not asked to provide advice on either the test for dishonesty nor did she give any warning as to the care which was needed in assessing oral evidence and in drawing inferences from the demeanour of a witness.
- The panel's conclusion that the Appellant was dishonest in her evidence was founded on the discrepancies, as the panel saw it, between the references from Mr Hopkins and Miss Poole. There are a number of reasons why that was a questionable approach:
i) The alleged discrepancies relate in large part not to direct contradiction between the Appellant's evidence and express statements in the references but from differences between that evidence and matters which the panel inferred from the references. Thus, the panel understood Mr Hopkins's reference to a "professional carer" as meaning that the Appellant was being paid for the care she provided. That is certainly a possible reading of the reference but it is not the only one. There was no oral evidence from either Mr Hopkins or from Miss Poole and so no scope for inviting them to clarify what was meant nor to confirm that the inferences drawn by the panel were correct.
ii) The references and the Appellant's evidence all related to events some years before the hearing. The hearing was in January 2025. Mr Hopkins's reference was written in October 2024 about events in the period from late 2022 to May 2023. Miss Poole's reference was also written in October 2024 and related to events at the end of 2022. That further reduces the reliability of the inferences which the panel drew from the references as to the scale of the care provided by the Appellant. It also means that the Appellant was being asked in January 2025 about the details of events which had happened between 2 years and 18 months before the hearing. She was, moreover, being asked about those matters without forewarning and when she legitimately believed that the hearing would be concerned with other matters.
iii) Not only were the references provided some time after the events in question but they were provided by referees writing with a view to being supportive of the Appellant. In those circumstances the referees were clearly seeking to portray the Appellant's actions positively. Account is to be taken of that when considering how the references are to be interpreted and the inferences to be drawn from them. The panel do not appear to have considered the possibility that the referees had given a heightened view of what the Appellant had done while in her evidence the Appellant was avoiding overstating matters.
- The reasons for the panel's conclusion that the Appellant had been dishonest were set out in very short terms. The panel were entitled to give their reasons shortly but there is no indication that they had given any consideration to the matters to which I have just referred. There is no reference to the caution which is needed before a tribunal of fact can safely conclude that a witness is giving deliberately dishonest evidence as opposed to being confused or mistaken. There is, similarly, no indication that the panel took account of the inherent unlikelihood of the Appellant being deliberately dishonest and of dishonesty rather than mistake or misunderstanding being the explanation for the discrepancies. In considering that aspect account should have been taken of the fact that the Appellant had admitted the charges against her at the 2024 panel hearing and had admitted that her actions had been dishonest. In addition, the dishonesty found by the panel would mean that the Appellant obtained references which showed that she had been receiving payment (on the panel's reading of them) and/or had been providing care for particular periods; that she then provided those references to the panel; and that having done so she then deliberately gave an account which was false and which was contradicted by the references which she had obtained and provided (and which the Appellant knew was contradicted). Such a course of action is not impossible but it does not seem inherently likely and that factor meant that the panel should have considered whether there was some other explanation.
- It is not immediately clear what the motivation for the Appellant's alleged dishonesty to the panel is said to have been. The Appellant was not suspended until the February 2024 hearing. It is not clear whether the suggestion was that the Appellant was covering up the fact that she had been working and receiving payment at a time when she was receiving benefits or that the Appellant was working in a caring capacity when she should not have been. Again this is something which is not spelt out in the decision and something which was not put directly to the Appellant in the course of questions from the panel.
Factors supporting the Panel's Finding.
- There are factors operating against the Appellant and in favour of the panel's decision.
- The most potent of those is that the panel saw and heard the Appellant and formed an assessment based on her answers to their questions. This is a powerful consideration. As I have explained above an appeal court must be exceptionally wary before reversing a finding of fact based on an assessment of oral evidence.
- The panel's decision was based on its view that there were discrepancies between the account set in the references and that given by the Appellant. The panel considered the references and made an assessment of the picture they showed. In addition, the Appellant was asked to explain and expand on her account and to address the panel's concerns (albeit subject to the limitations set out above).
- There is force in the point which is implicit in the panel's approach to the references. This is that it is surprising that the Appellant provided care of the kind and for the duration to which Mr Hopkins and Miss Poole referred without being paid. However, the panel did not spell this out in either the questioning nor in the decision nor did it grapple with the explanation which the Appellant had given of her connexions with Mr Hopkins and Miss Poole and of the fact that she was missing nursing.
- It is clear that the panel did not reach its conclusion lightly. It took time to reach its conclusion.
Conclusion.
- I am satisfied that the panel's finding that the Appellant had been deliberately dishonest was wrong and cannot stand. If the evidence before the panel had been approached with proper caution and with regard to the circumstances of the hearing it would not lead to a finding of dishonesty. Neither the inferences which were drawn from the references nor the asserted discrepancies in the Appellant's evidence were sufficiently clear or well-founded to enable the panel safely to conclude that there was dishonesty. I am influenced in that assessment by the failings in the conduct of the hearing; the cross-examination of the Appellant on a topic which was not foreshadowed; the form the questioning took with questioning returning to the same topic at different points after the panel had appeared to indicate that it was satisfied with the Appellant's answers; the failure to put directly to the Appellant the suggest that she was being untruthful in her answers; and the failure to invite either the Respondent's representative, the Appellant, or the legal adviser to address the question of whether the evidence had been dishonest. In addition, the panel's reasons for concluding that the Appellant had been dishonest were expressed in very short terms. There was no indication that the factors militating against dishonesty had been considered, let alone that there had been the engagement with those factors which would be required before a finding of dishonesty could properly be made. Those failings could be characterized as separate serious procedural irregularities rendering the conclusion unjust or as an aspect of the circumstances making the finding of dishonesty unsafe. Whichever route is taken the conclusion is that the panel was wrong to find that the Appellant's evidence to it was deliberately dishonest.
- The finding that the Appellant's fitness to practise remained impaired was based on the finding of deliberate dishonesty and so cannot stand when that finding is overturned.
Sanction.
- The striking off of the Appellant was on the basis that her fitness to practise remained impaired. I have concluded that the finding of impairment cannot stand and so the sanction falls away. If, however, the panel had been correct in finding that the Appellant had been deliberately dishonest in her evidence at the hearing then neither the finding of impairment nor the sanction could be faulted. The charges which the Appellant had admitted in 2024 had involved deliberate and persistent dishonesty. If, having been given a chance to show remediation and insight the Appellant had lied in her evidence to the panel she would not have been able to say that striking off was an unduly severe response.
Conclusion.
- The panel's finding that the Appellant's fitness to practise was still impaired and the consequent striking off are to be set aside. Subject to any submissions to the contrary I will remit the matter for a differently-constituted panel to consider afresh whether the Appellant's fitness to practise remains impaired and, if so, the appropriate sanction.
