Written 7th December 2023 by James Claughton
The law, rules and regulations by which professionals such as those working in healthcare, law, teaching and financial services are held to account is commonly referred to as professional discipline.
As may be expected, regulators will use different terminology and adopt a slightly different approach to cases involving alleged misconduct or breaches of their professional standards, however, they all have a common objective to implement and uphold standards aimed at protecting the public and maintaining public confidence in their profession.
With extensive experience in both criminal and regulatory matters, Olliers are uniquely placed to represent professionals facing regulatory and criminal proceedings. Given that the two are often inextricably linked, we offer a holistic approach which ensures the best possible outcome for those we represent.
How are professional discipline and criminal proceedings linked?
Professional discipline cases will often involve allegations of misconduct with a potentially criminal aspect, for example allegations of fraud, theft, assault or sexual offences. Whilst the proceedings must, be allowed to run their own course and have decisions taken by duly appointed panels and, where necessary, Judges and/or juries, the fact is that the cases will by their nature involve many of the same characters and issues, principally, the complainant(s), witnesses and the professional.
Olliers are frequently instructed by professionals including doctors, nurses, dentists, healthcare professionals, teachers and lawyers for both criminal and regulatory investigations. If a regulated professional is under criminal investigation, it is important to consider, at an early stage, the potential for regulatory proceedings to be initiated. They should consider a dual approach to their defence to ensure consistency and moreover to avoid compromising their position in either proceedings.
Interview under caution in a criminal investigation
Ordinarily, the first stage of any criminal investigation will be the arrest and interview of a suspect (or a voluntary interview). It is important to instruct a solicitor who not only has the experience to assist with the criminal allegations but also one who understands the potential consequences for the professional when it comes to their career and the regulatory fallout. What is said or not said during the police investigation may inform and influence the regulatory investigation and so it is important that the interview does not jeopardise the position with the regulator.
Taking doctors as an example, they will see hundreds if not thousands of patients a year, therefore, a police interview can be fraught with danger, particularly if they have one or a small number of allegations put to them in respect of one patient who they may not have seen for a number of weeks, months or even years.. A doctor cannot and moreover should not, be expected to answer specific and detailed questions without access to records because even with the best will in the world and the greatest confidence in their own ability to remember particular patients, people are unlikely to be able to do so with 100% accuracy.
The police may not appreciate how difficult this could be for a doctor and they may not recognise the far-reaching consequences that inaccurate answers could have for a professional even beyond the criminal investigation. They may not therefore understand the approach taken by the professional in an interview and this may result in a premature, unfair or simply incorrect outcome to the investigation.
Instructing a firm like Olliers, with lawyers who deal with both criminal and regulatory law, with considerable experience in professional discipline cases provides the opportunity to properly address and, in a sense, influence the criminal and regulatory proceedings.
By way of an example, in what may be termed low level criminal cases such as common assault or harassment without violence, many people may consider and may even be advised to admit the allegations and accept a simple caution thereby avoiding a court appearance and all that goes with it. However, if such advice is given or taken without proper consideration of the regulatory consequences for the professional this could in fact mark the beginning of the end for the individual’s career.
Olliers’ combined criminal and regulatory expertise
Our expertise in both criminal law and regulatory procedures gives us an edge in providing advice to meet the needs of the case and an ability to foresee the problems which could arise. Even if a criminal investigation appears on the face of it unrelated to the individual’s ability to work in their particular field, this may not be so, therefore it is sensible to instruct a criminal defence lawyer who is also a regulatory/professional discipline expert.
Our lawyers can assist with the following in relation to the criminal investigation
- Advice and assistance upon arrest;
- Representation at a PACE interview
- Pre-charge representation throughout any police investigation;
- Representation at the Magistrates’ and/or Crown Court if you are prosecuted
Professional disciplinary proceedings
Upon the conclusion of a criminal investigation whether by way of a caution or prosecution, professional disciplinary proceedings will often follow, if they have not started already. Professional disciplinary proceedings usually have a lower standard of proof than criminal prosecutions, therefore instead of proving a case beyond reasonable doubt, the regulator will only have to prove a case on the balance of probabilities. This is another reason why what is said in a criminal investigation or proceedings is so important and why the professional ought to seek advice and assistance from a suitably qualified and experienced lawyer.
Following charge and prior to a criminal case being concluded, a criminal case may still have an immediate impact on the professional’s career. They may for example be called before an interim orders panel/tribunal which could lead to conditions being imposed on their practice or an interim suspension. This could have consequences for not only the professional and their reputation but also for their colleagues and family.
Like any criminal case, professional discipline proceedings will start with an investigation. The regulator will, like the police, obtain witness statements and may obtain expert reports. Unlike criminal cases, however, when it comes to evidence, the regulator also tends to have much wider discretion to admit evidence which would ordinarily be excluded in criminal proceedings such as hearsay or admissions that were made prior to caution. Regulatory proceedings focus very much on relevance and if something can be shown to be relevant to the issues in the case then it will very likely be admitted. This is yet another reason why a consistent and joined up approach, with one eye always on the regulatory consequences can be beneficial.
Specialist representation for professionals
We advise and represent professionals at all stages of professional discipline investigations from drafting an initial response through to a hearing. We also represent professionals in criminal investigations from police station interview right through to Crown Court trial.
Olliers is one of the few firms in the country that specialises in both criminal defence and regulatory defence and this sets us apart from many others in the sector therefore please do get in touch with a member of the team for an initial discussion if you find yourself subject to criminal and/or regulatory investigation.
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James joined Olliers in 2020, having studied Law with Business at the University of Liverpool followed by a Masters in Legal Practice.
James has a particular interest in the investigation stage of cases and has a significant caseload of pre charge cases. He frequently makes representations against charge on behalf of clients under investigation.