Appeal court clarifies test for the cross-admissibility of evidence
The High Court clarified the test for the cross-admissibility of evidence in order to rebut coincidence in an appeal hearing. We look at the key takeaways from Professional Standards Authority for Health and Social Care v the GMC, Dr Neill Charles Garrard, [2025] EWHC 318 (Admin), 2025 WL 00493446.
Background
Dr Neill Charles Garrard (the Registrant) was subject to allegations that he had behaved in an inappropriate manner towards two vulnerable female patients in separate hospitals in March and December 2021. Both female patients were unrelated and had no connection to one another. There was no evidence that these patients had colluded in order to give their evidence.
On 13 December 2024, the panel found the allegations against the Registrant not proved.
The appeal
On appeal, the Professional Standards Authority submitted that the panel of the Medical Practitioners Tribunal had erred by misdirecting itself on the interpretation and application of the test of cross-admissibility.
The Registrant contended that the panel had not incorrectly directed itself on the law and had considered all issues fully.
The court’s decision
After hearing submissions from both parties, the court determined that the panel of the Medical Practitioners Tribunal had in fact erred by incorrectly directing itself on the test for the cross-admissibility of evidence. The court highlighted the following deficiencies in the legal advice given to the panel and which the panel relied upon when deliberating on the factual allegations.
Deficiencies in the legal advice were as follows:-
- i. The advice made no clear reference to the test for cross-admissibility.
- ii. The criteria for establishing cross-admissibility to rebut coincidence and the criteria for establishing cross-admissibility to prove propensity were conflated.
- iii. It failed to state that it is not necessary to find one allegation to be proved before relying upon the evidence in respect of that allegation in support of the other allegation.
- iv. It failed to state that where the Tribunal has excluded collusion or contamination as an explanation for similarities in the evidence of the two patients, the fact that two patients made the allegations, reduces the likelihood of there being an innocent explanation for them.
Clarification of the test of cross-admissibility
In determining whether evidence from one particular can be ‘cross-admitted’ with regards to another particular, the tribunal first needs to determine whether the evidence is relevant (i.e. that the evidence has a sufficient connection and/or similarity between the facts underpinning the respective particulars.)
In the event that that the panel is invited to conclude that the similarities between the facts underpinning the respective particulars was not caused by a mere coincidence or malice, the panel must first exclude the possibility that collusion and/or evidence contamination may be an explanation for the similarities. Once the tribunal is satisfied that it can exclude this possibility, it is open to the tribunal to find that the similarities between the facts underpinning the respective particulars is not attributable to coincidence.
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