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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Council for the Regulation of Healthcare Professionals v Nursing and Midwifery Council [2004] EWHC 585 (Admin) (31 March 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/585.html Cite as: [2004] EWHC 585 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st March 2004

Mr Justice Collins:

1. The appellant, whom I shall refer to as the CRHP, was established by Part 2 of the National Health Service Reform and Health Care Professions Act 2002 (the 2002 Act). Its general functions as set out in s.25(2) of the 2003 Act, are:-

"(a) to promote the interests of patients and other members of the public in relation to the performance of their functions by the bodies mentioned in subsection

(3) .. (…referred to as regulatory bodies), and

(b) to promote best practice in the performance of those functions,

(c) to formulate principles relating to good professional self-regulation, and to encourage regulatory bodies to conform to them, and

(d) to promote co-operation between regulatory bodies, and between them, or any of them, and other bodies performing corresponding functions".

2. The regulatory bodies cover most professionals who work in health care including nurses. Because of a reorganisation of the bodies responsible for the regulation of nurses, there are complicated transitional arrangements, but at the material time, the first respondent was the relevant regulatory body and is included in s.25(3) of the 2002 Act.

3. The CRHP was set up because of public concern that the arrangements for self regulation and the carrying out of their functions by the regulatory bodies did not always provide sufficient protection for the public. On occasions, it seemed that the interests of the professionals were put above those of the patients. The existence of the CRHP owes much to the recommendations of Professor Sir Ian Kennedy in his report on the inquiry into children's heart surgery at the Bristol Royal Infirmary.

1. Section 26(1) of the 2002 Act confers general powers to do 'anything that may be necessary or expedient for the purposes of, or in connection with, the performance of its functions'. Section 26(2) gives some examples covering investigating the performance and practices of a regulatory body and reporting and making recommendations about those matters. This is subject to a limitation that nothing can be done in relation to the case of an individual in respect of whom disciplinary proceedings have been or may be brought. This limitation is subject to s.26(4) which provides:-

"Subsection (3) does not prevent the Council from taking action, under section … 29, but action … may be taken only after the regulatory body's proceedings have ended".

4. Section 29 enables this appeal to be brought. It is headed 'Reference of disciplinary cases by Council to court'. So far as material, it provides as follows:-

"(1) This section applies to –

[(a) to (h) then cover directions, orders, determinations and steps taken by the relevant disciplinary committees of the various regulatory bodies]

(i) any corresponding measure taken in relation to a nurse, midwife or health visitor.

(2) This section also applies to-

(a) a final decision of the relevant committee not to take any disciplinary measure under the provisions referred to in whichever of Paragraph (a) to (h) of subsection (1) applies,

(b) any corresponding decision taken in relation to a nurse … and

(c) a decision … to restore a person to the register following his removal from it in accordance with any of the measures referred to in … subsection (1).

(3) The things to which this section applies are referred to below as 'relevant decisions'.

(4) if the Council considers that –

(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct, or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or

(b) a relevant decision falling within subsection (2) should not have been made,

and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court …

(7) If the Council does so refer a case –

(a) the case is to be treated by the court … as an appeal by the Council against the relevant decision (even though the Council was not a party to the proceedings resulting in the relevant decision), and

(b) the body which made the relevant decision is to be a respondent.

(8) The Court may –

(a) dismiss the appeal,

(b) allow the appeal and quash the relevant decision,

(c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or

(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court

and may make such order as to costs … as it thinks fit".

No provision is made as to the position of the individual who was dealt with in the relevant decision. In this case, he has very sensibly been joined as a respondent. That course should be adopted in all appeals brought under s.29.

2. The powers conferred extend very widely and enable not only the measure taken against the individual to be reconsidered if it is believed to be too lenient but also a decision not to take any measure whether or not it is too lenient. That is the clear combined effect of s.29(1), (2) and (4) and so the power extends to reconsideration of failures to take a measure set out in s.29(1) which must include a decision to acquit an individual of any disciplinary charge he may have faced. No doubt this is a power which must be most carefully and sparingly exercised, but, having regard to the public concerns about the effectiveness of self regulation which led to the enactment of Part 2 of the 2002 Act, it is a power which Parliament clearly intended to confer.
3. The disciplinary systems of the regulatory bodies will usually if not always involve what can be referred to as a prosecution by a person instructed by or a member of that body. That person will have a discretion as to how the case is presented and will only be able to act on material which is put before him. It may be that in a particular case relevant material which would or may have affected the result is made known to the CRHP and it is apparent that that material was not put before the committee. In such a case of what can be described as 'under prosecution', I have no doubt an appeal could be brought under s.29(4). The reference in s.29(4)(a) to the undue leniency of any finding of professional misconduct and the combination of s.29(4)(b) and 29(2) where there has been no relevant measure against an individual makes that clear. Having regard to the purpose behind Part 2 of the 2002 Act, it is hardly surprising that these wide powers should exist.
4. The grounds of appeal are stated thus:-

"The appellant considers that the decision was unduly lenient as to the penalty imposed in relation to the finding of misconduct made within the meaning of s.29(4)(a) of the [2002 Act] and that it would be desirable for the protection of members of the public for this case to be referred to the court".

The argument in support was contained in a document prepared by Mr de la Mare described as 'Appellant's outline submissions'. What was relied on was said to be a combination of superficial treatment of the evidence, mistaken appraisal of the seriousness of the evidence aggravated by a failure to consider or assess future risk and a failure to take that evidence in conjunction with previous misconduct. I shall deal with the facts of the case in due course, but it is to be noted that the grounds do not assert that any findings or lack of them were unduly lenient. This is of some importance since the Rules governing the conduct of disciplinary hearings for nurses require that, where the facts alleged in the charge are admitted, the prosecutor shall address the Committee as to the circumstances leading up to the facts and may call evidence. There is thus what in the criminal context would be termed a Newton hearing which enables the Committee to decide how serious the misconduct in issue was. Following the proof of facts, the Committee must consider whether misconduct is established even if it is admitted and the facts to which such misconduct relates. Finally, it will listen to mitigation and decide on the appropriate penalty: see Nurses, Midwives and health Visitors (Professional Conduct) Rules 1993 Approval Order 1993 (1993 No.893) as amended, paragraphs 17 and 18, which were in force at the material time.

9. It is important that the grounds of appeal specify clearly which of the provisions in s.29(4) are being relied on. If it is intended to argue that any finding was unduly lenient, whether or not in addition to the contention that the penalty was unduly lenient, the particular finding must be identified and the matters relied on in support of the argument specified. In cases where, because of under prosecution, relevant aggravating material was not put before the Committee, a finding made in the absence of such material is capable of being unduly lenient. In those circumstances, the material must be identified. If the appeal is based solely on a claim that the penalty was unduly lenient, the appellant can only rely on what was put before the Committee.

5. Before going to the facts, I should deal with an argument put forward by Mr de la Mare as to the approach I should adopt in viewing this appeal. He submits that the unduly lenient and desirable for the protection of members of the public tests set out in s.29(4) are purely internal and that the appeal is to be determined as if it were an appeal under CPR 52.11(3). If it is to be said that the CRHP should not have decided that there was undue leniency, an application for judicial review will have to be made. That submission was to my surprise not resisted by Mr Lawson. In my judgment it is clearly wrong. Since an appeal comes before a judge of the Administrative Court, it would be somewhat absurd and an unnecessary incurring of costs if judicial review to the same tribunal were needed. But, more importantly, the general rule is that an appeal in aggravation of penalty will only be allowed if it is shown that the original penalty was unduly lenient: see Lomas v Parle [2004] 1 All ER 1173. I see no reason to doubt that the true construction of s.29 requires that the Court will only allow the appeal if satisfied that undue leniency and desirability for the protection of the public is made out. If undue leniency is established, it will only be in the rarest of cases that a different view to that of the CRHP is likely to be appropriate in respect of desirability.
6. I see no reason not to apply mutatis mutandis the same test as the Court of Appeal applies in deciding whether a sentence in a criminal case is unduly lenient. That is whether the penalty falls outside the range of penalties which the Committee, applying their minds to all the relevant factors, could reasonably consider appropriate: see AG's Reference No.4 of 1989 (1990) 90 CAR 366 at p.371.
7. As I have said, there are complicated transitional provisions which govern the powers of the Committee. I shall not burden this judgment with them since it is common ground that, having found misconduct proved, the Committee could have removed the second respondent from the register, issued a caution as to his future conduct or taken no action. There was at the material time no power to suspend; that has now been or perhaps is about to be bestowed.
8. Mr. Truscott is a nurse specialising in paediatric care. In March 2002, when the misconduct occurred, he was employed as a staff nurse at the Middlesex Adolescent Unit in University College Hospital in London. That Unit is a multi-speciality ward with 14 beds caring for adolescents of both sexes aged between 13 and 19. They were often suffering from long term complex life-threatening illnesses. Apart from the usual medical staff, the Unit was attended by teachers and youth and social workers. Computers were provided in a schoolroom attached to the Unit. One of these was moved shortly before Mr Truscott started work in the Unit to a treatment room in the Unit. It was his use of this hospital computer while he was on duty in the Unit overnight on 6 nights in March 2002 that led to the charge against him.

The charge read as follows:-

"That you, whilst employed by University College London Hospitals NHS Trust as a paediatric nurse on the Middlesex Adolescent Unit

1(a) used a computer located in the [Adolescent Unit] to access sexually explicit and/or offensive websites on the internet on or about

(i) 7^th/8^th March 2002

(ii) 8^th/9^th March 2002, excluding 1(a)(i) above

(iii) 9^th/10^th March 2002 excluding 1(a)(ii) above

(iv) 10^th/11^th March 2002, excluding 1(a)(iii) above

(v) 11^th/12^th March 2002, excluding 1(a)(iv) above

(vi) 14^th/15^th March 2002; and

(c) That, having so accessed explicit and/or offensive websites on the internet, you are guilty of misconduct".

9. Mr Truscott admitted the facts and, later, that what he had done amounted to misconduct. The Committee in due course imposed a caution which would remain on his record for 5 years. That penalty is said by the CRHP to be unduly lenient and nothing short of a removal from the register would have been appropriate in the circumstances. The reasons given by the Committee for imposing a caution were stated thus:-

"The Committee has reached its decision. This was serious misconduct, there was abuse of trust and you generated completely inappropriate material on a hospital ward. You have lost your job through the disciplinary hearing and we have considered whether we should remove your name from the register in order to protect the public. The case has not been put on the basis that your conduct demonstrates a risk to patients and there is no evidence of direct harm to patients. You have been working and such testimonials as we have are favourable. Furthermore, the police did not find reason to pursue prosecution in your case. We accept that there was an element of cascading but, nevertheless, we are of the view that you deliberately accessed pornographic sites and are not completely satisfied that you have shown full insight into the seriousness of your actions.

We therefore think it necessary to issue you with a caution on your behaviour. You should appreciate that this is a very serious matter to be found guilty of misconduct by the Council's Professional Conduct Committee. You must understand that the committee does not condone your actions in any way.

The Committee asks you to study the NMC's Code of Professional Conduct. The Code sets out the standards of conduct that the NMC requires of its registered practitioners. The Committee expects you to consider it carefully and to follow its standards in your future practise and conduct.

The NMC will keep a record of the caution for five years. During this time anyone who enquires about your registration will be told that you have a caution on your record. If you are found guilty of further misconduct by the Preliminary Proceedings Committee or the Professional Conduct Committee within this five year period the Committee will be told about that caution on your record and may take it into consideration when deciding what action to take in future".

15. Over the nights in question, Mr. Truscott had spent in all a total of some 6 hours accessing pornographic sites. His misconduct was detected because access to those sites was blocked. The blocks were recorded and the extent of the access to the forbidden sites was noted. It was arranged that the matron in charge should go to the Unit if further access took place on the night of 14/15 March 2002 and that happened. Mr. Truscott was caught red-handed and on the desk beside him was a list in his writing setting out a number of sites. The cover of one of those which he had accessed that night and which was before the Committee, contains what is described as a 'disclaimer' in these terms:-

"Some people might find this web extremely offensive due to the content. We have sick pictures of death, raw gore, smashed up heads, disgusting disease, mutilation, general sick pictures and some other whacky shit! If you don't agree with the crap on this site do not enter.

By entering this web you agree that you are 18 or over prepared to see the most disgusting sickest pictures ever seen".

16. The extent of his accessing of the various sites was shown in a large bundle of over 200 pages which contained a detailed record of all the 'hits' on particular sites and coloured print outs of what appeared on them. This material was not given to the Committee in advance and so they were particularly dependent on the manner in which the prosecutor presented the case and the specific matters to which he referred. They had an opportunity to consider the material when they retired to consider the appropriate penalty. The transcript shows that they retired from 1.10pm until 3.15 p.m. During that time they had lunch.

10. Mr. Truscott was interviewed by the matron and was dismissed by the Trust. That is hardly surprising and he could not have and has not made any complaint about it. The record of the interview was in the prosecutor's possession and some of Mr Truscott's answers were referred to in opening. The whole record of the interview was not put before the Committee and, I was informed to my amazement by Dr. Johnson who also appeared for Mr. Truscott at the hearing, was not in her possession. It seems his initial reaction was to say that he had accidentally accessed a site and that he could not get out because 'once you get in it goes to different sites, you can't get out of it'. That was hardly frank.

18. In due course, he admitted deliberately accessing at least three pornographic sites. The main one, which was visited on 4 nights, contained a warning on its cover in these terms:-

"This web site contains sexually explicit adult orientated material that is intended only for individuals 18 years of age or older … The material on these pages is ADULT ORIENTATED SEXUALLY EXPLICIT and related to XXX material. This site provides access to images of NUDE ADULTS possibly engaging in SEXUAL ACTS and other material of adult nature …"

He also admitted visiting two other sites. One contained the name 'lolita'. This is said by CRHP to be of some importance since the word 'lolita' suggests images of underage girls. The cover of that site is copied. Under an illustration describing what is on offer, this is said:-

"ABSOLUTELY SHOCKING VIDEOS! Only on our site you will find really unique cases concerning loss of virginity. You must see this … More than 2Gb of Hardcore teenagers video. More than 20,000 of high quality photos! Take a .. tour right now"

Below this appears the following:-

"All models appering (sic) on the website are 18 years or older".

The other website's cover has a number of photographs of naked models in various poses. It appears to be a Dutch based site. It boasts the 'hottest bookmarks' and 'more hot girls'.

11. Mr. Truscott claimed that many of the hits (and all of those which contained pictures of under age girls: there are a number of these) resulted from 'cascading'. Each hit can generate up to 30 or 40 images on a single page, each being commensurately small in size and it would, as the prosecutor said, be physically impossible to have looked at the number generated in the time scale shown by the records. Cascading occurs when visiting one site results in the opening of a number of other sites. In the case of pornographic sites, this is done deliberately by the operators to lure the visitor into entering other sites which may take his fancy. It was accepted that there may well have been some cascading, but not that it happened with the frequency alleged. The case against Mr. Truscott was put in these terms:-

"… it is accepted that Steven Truscott may not have set out initially to deliberately access each and every one of these sites, to which we mean that there must be an element of some cascading but only some, the fact is that he did repeatedly and deliberately visit [some pornographic websites]. He, further, continued to go back, again and again, night after night, surfing the net accessing the images you see in your bundle at a time when he was supposed to be the nurse in charge of the Adolescent Unit. We say … he was deliberately setting himself adrift on the sea of internet porn … and that he did deliberately and repeatedly put himself into a position where he knew he was going to be accessing sexually explicit and offensive material".

Later, the prosecutor said this:-

"What one does not have evidence of in this case is evidence of downloading of images to a separate file. This is in no way a suggestion in relation to Mr. Truscott, the case is not put on this basis, but with a professional paedophile one would expect to find those images in specialist files on their computer away from prying eyes".

12. The circumstances and the records were put to the police. After investigation by the Vice Squad, it was decided that no further action should be taken as it was considered that the material was of an adult pornographic nature. It was accepted by the matron and the geography of the Unit confirmed that, so long as Mr. Truscott was at the computer, he could see if any of the patients sought to enter the treatment room and in any event they were forbidden to do so. None of the patients were at risk of seeing any of the material and there was no evidence that any had been directly harmed. There were some good testimonials and evidence was given by a nursing sister who had known Mr. Truscott for some two years and had worked with him when he was employed as an agency nurse awaiting the disciplinary hearing and who had been informed by him of what he had done of his excellence as a nurse. But there was a matter in aggravation in that he had been given a final written warning by his employer because he had taken prescription pain-killers from the hospital for his own use. He said that that had happened because he had a painful toothache and a phobia of dentists. The finding of an internal disciplinary body was that he had stolen drugs.
13. One matter of real concern lies in the observation of the Committee that they were 'not completely satisfied that you have shown full insight into the seriousness of your actions'. When he gave evidence, Mr. Truscott said he was only aware in hindsight that he had been doing anything wrong because it would be distressing to a child if he had seen what was going on. When asked why he had not turned the computer off if he was unwillingly being cascaded with porn, his answer was 'stupidity'. But he said he had learnt from what had happened and appreciated his responsibility to his patients. But he does not seem to have appreciated that he may require some help or counselling if he has a need to go to hard porn sites. He must presumably have got some sort of pleasure from what he was doing.

22. The director's report to the meeting held by CRHP to decide whether to make a reference under s.29 of the 2002 Act is in the bundle. After citing the passage from the Committee's reasons stating that the case had not been put on the basis that Mr. Truscott's conduct had posed a risk to patients and the reference to the failure of the police to prosecute, he says:-

"This seems to ignore the fundamental point that this was a Paediatric Nurse with professional access to adolescents in the course of his everyday work who while on duty was accessing pornography which it can be seen included what I would consider to be a significant proportion of explicit images of girls (many apparently but some obviously) under the age of puberty far less the age of consent….There are about twenty images [of naked female children] amongst those supplied to us. We and the PCC have only been provided with a sample of probably more than a thousand images that were on the computer used by Mr. Truscott. If the images of naked children have been intentionally accessed then this is obviously worrying".

23. He accepts that there was an element of 'cascading' and that Mr. Truscott could not have deliberately sought out or taken account of all the images that were coming onto his screen. He concludes:-

"There is little, if any, direct evidence that Mr. Truscott deliberately sought out images of naked children. Some of the sites visited specialised in 'lolita', 'pre-teen' or 'apparently under age' naked female images – and this would have been quite apparent to Truscott from the web addresses of the sites amongst other things. However, this was not addressed at all in the PCC hearing and it is to be expected that Mr. Truscott would put down the appearance of these sites to 'cascading'. You may consider there to be at least an element of truth in this as the vast majority of the sites using 'lolita' or similar in their website addresses were visited in a single seven minute period on just one night where a total of six pages of files were downloaded within the relevant period. Mr. Truscott did, however, admit to visiting one of these sites, 'videololita', though there is no evidence of how he came to do this or whether he knew what it would contain.

It is also not clear whether all the naked images of children (or women appearing to be children) originated from this one seven minute episode as it is not easy to associate the pictures with the web sites from which they emanated. There are a few other references at different times to web sites containing images of 'teens' though there is also no evidence as to whether these were visited intentionally.

In my view the significant aspect of this case is his apparent propensity to seek out pornographic images of girls – many of them quite clearly under the age of consent (and in my view many under the age of puberty), while carrying out a profession with very direct access to very vulnerable children. This, in my view, should have given the PCC cause for concern as to the wider child protection issues presented by the misconduct rather than the specific issue of the likelihood of children on the ward inadvertently seeing the images.

It must be accepted that we cannot be sure that Mr. Truscott engaged in criminal activity. There is the issue about whether he intentionally sought out the images but there is also the fact that none of the images of naked children involve sexual activity, so it is possible that these would not be considered to break the law. The police decided not to seek prosecution though there is no detail on the nature of the police enquiry referred to and it surprises me that in his position of trust the matter was not pursued further by the police – although there is no way of telling exactly what form the police involvement took – whether he was formally reported to them in relation to an offence or whether advice was sought.

It is apparent that when Solicitor for the Council started to lead the committee through the process of relating the web addresses to the thumbnail images, the acceptance that this was unnecessary on the basis that Truscott had admitted the misconduct, seems to have resulted in the committee not fully considering the exact nature of some of the images – also the explanation that the police had viewed the images and deemed them to be adult pornography from sites that were not illegal may have deflected attention from their content.

There is reference in the transcript of his actions not being that of a 'professional paedophile' in that he had not catalogued his images into some sort of file – when later Truscott admits to basic understanding of accessing the internet but not having the skills to download or file anything".

24. At the meeting of the CRHP, legal advice was given that caution should be exercised in giving weight to allegations or arguments that had not been raised at the hearing before the PCC and on which Mr. Truscott had therefore not had the opportunity to make representations. Concern was expressed that the PCC had not considered whether the material accessed might show a proclivity for behaviour which would make it inappropriate for Mr. Truscott to work with children and adolescents. He had shown little insight into his misconduct and a lack of judgment in accessing the images when on duty in the Unit. The conclusion was expressed thus:-

"The meeting concluded that there was a risk that the images accessed by Mr. Truscott did evidence an unhealthy sexual interest in young people and that this might subsequently be reflected in Mr. Truscott's work since he remained free to work with children and adolescents. It was recalled in this regard, and separately, that Mr. Truscott had already shown himself to have poor judgment in the workplace and little insight into the wrongfulness of his own actions. The meeting could not safely reach any conclusion on whether or not Mr. Truscott had intentionally accessed the images of young people. It considered, however, that the material before it disclosed a real risk and that it would be desirable to take action to protect the public if it were agreed that the sanction imposed was unduly lenient.

The meeting considered whether the sanction imposed by the PCC was unduly lenient. It noted that a more severe sanction was available and that Mr. Truscott remained eligible to practise. Indeed, Mr. Truscott had continued to practise in the field of paediatrics and this caused the meeting considerable concern in the circumstances of this case. Mr. Truscott had not shown any or sufficient insight into his admitted misconduct.

Attention was drawn to the fact that the web pages accessed by Mr. Truscott included a number that used the descriptions 'teens', 'pre-teens', 'lolita' or 'barely legal'. Looking at the transcript, Mr. Truscott had also apparently admitted to visiting a site called 'videololita'. There was no evidence as to whether Mr. Truscott had intentionally visited these sites and it was accepted that most of the sites with these descriptions were visited in one short period and that these visits might be explained by the concept of 'cascading' that Mr. Truscott had relied on at the PCC hearing. The meeting considered, however, that the PCC should have specifically addressed its mind to the risk implied by the presence of these web pages in the list supplied and to the existence of images of naked children or young people. In the circumstances where it was not clear precisely how and why Mr. Truscott came to access these images and where the PCC had not addressed itself to the risk that an interest in such images on the part of a paediatric nurse implied, it could not be said that the caution imposed afforded adequate protection to the public. Mr. Truscott remains free to work with children (and did so pending his disciplinary hearing before the PCC) and it could not be assumed that future employers would learn of the caution or of the facts underlying it".

25. Emphasis has been placed on the images of under age naked girls and the concern that must follow that this may show a dangerous trend in a paediatric nurse. It may well be that an unhealthy attraction to hardcore pornography coupled with the circumstances in which the visits to the sites took place and the previous history of taking drugs from the hospital shows that the public may be at risk and that, at least until he does something positive to address his problem, Mr. Truscott should not be able to work as a paediatric nurse. He did not seek to get out of the sites when the images were 'cascading' and, in the knowledge of what had happened, he went back to the sites night after night and, if he had not been caught, he was likely to have continued.

26. I fully recognise the force of these considerations. However, the evidence before the PCC, whether or not their attention was specifically drawn to it, would have justified a conclusion that, as he contended, Mr. Truscott had not deliberately accessed sites which produced images of naked under age girls. Suggestions of paedophilia were not put forward. Although a caution may seem a somewhat light penalty, it is regarded in the profession as a serious matter and its existence and the reasons for it will be disclosed whenever Mr. Truscott seeks employment as a nurse during the period of 5 years while it remains in force.

27. I do not doubt that the penalty was lenient. I am sure that if the PCC had decided that he should be removed from the register, an appeal against sentence would have been unlikely to succeed. But that is not the test and the adverb 'unduly' must be given its proper weight. Accessing adult pornography is not criminal and the circumstances in which Mr. Truscott accessed it demonstrates poor judgement but is perhaps more material to whether he could remain in his employment. It fully justified his dismissal.

28. This is very much a borderline case and I am satisfied that the CRHP was correct to refer it. However, the lack of deliberate accessing of what can be termed child pornography persuades me that undue leniency has not been established.

29. The burden rests on the CRHP to establish that the action in question was unduly lenient. There is an element of double jeopardy of which account must be taken. It is of less importance in the context of s.29 of the 2002 Act because the emphasis is on the protection of the public rather than punishment of the individual concerned.

30. I have been pressed by Mr. Lawson and Dr. Johnson with authorities which show that the court has been reluctant to interfere with penalties imposed by professional bodies since the members will have been chosen for their knowledge and experience of their professions and what is needed to protect their integrity. Those considerations are subsumed in the need for it to be shown that the penalty is unduly lenient and knowledge and experience is not likely to be so relevant in dealing with issues of fact. I would only add that the provisions of s.29(4) mean it is important for PCCs to make findings on matters which may be in issue in mitigation or aggravation of penalty.

31. In the result this appeal is dismissed.