Mr Lee John Newton

Profession: Hearing aid dispenser

Registration Number: HAD00869

Interim Order: Imposed on 22 Feb 2018

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 20/12/2019 End: 17:00 20/12/2019

Location: The Health and Care Professions Tribunal Service, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

1. On 22 June 2018, at Leicester Magistrates’ Court, you were convicted of:

a) Outraging Public Decency by behaving in an indecent manner, namely used a device to film and record up ladies skirts.

2. By reason of your conviction and/or misconduct, your fitness to practise is impaired.

Finding

Preliminary matters


Service and Proceeding in Absence


1. The Panel was satisfied that the letter dated 8 November 2019 addressed to the Registrant at his registered address with the HCPC informing him of the date, time and location of the hearing, constituted good service. The Registrant had also received notice by email as has his Legal Representative. The Registrant’s Legal Representative has subsequently ceased to act as confirmed in an email to the HCPC dated 4 December 2019.

2. The Panel then went on to consider whether to proceed in the absence of the Registrant. In doing so, it considered the submissions of Mr Lloyd. The Registrant had replied by email dated 18 December 2019 stating that he would not be attending.

3. Mr Lloyd submitted that the Panel has the discretion to proceed in the absence of the Registrant. He submitted that the Panel is satisfied that notice of the hearing has been served and the Registrant has not sought an adjournment. The Panel can be satisfied that the Registrant’s absence today is voluntary. The Registrant has told the HCPC that he will not be attending and has waived his right to attend or to be represented. Mr Lloyd submitted that an adjournment would serve no useful purpose and there was a public interest in this matter being dealt with expeditiously.

4. The Panel heard and accepted the advice of the Legal Assessor. He advised that if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing then the Panel has the discretion to proceed in the absence of the Registrant. He reminded the Panel that it should exercise that discretion with care and referred it to the HCPTS Guidance Note on Proceeding in the Absence of the Registrant and to the case of GMC v Adeogba [2016] EWCA Civ 162. This makes clear that the first question the Panel should ask is whether all reasonable efforts have been made to serve the Registrant with notice, and if the Panel is satisfied that proper notice has been given, the discretion whether or not to proceed must be exercised having regard to all the circumstances of which the Panel is aware with fairness to the Registrant being a prime consideration, but with fairness to the HCPC and the interests of the public also taken into account.

5. The Panel agreed to proceed in the Registrant’s absence. In reaching this decision, the Panel has noted there has been no request for an adjournment and a clear indication from the Registrant that he will not be attending. The Panel balanced fairness to the Registrant with fairness to the HCPC and the public interest. It is of the view that the Registrant has voluntarily absented himself and no useful purpose would be served by adjourning the hearing. In these circumstances the Panel is satisfied that it is fair and appropriate to proceed in the Registrant’s absence.

6. The Panel noted that it had received the wrong bundle of papers which were in respect of an earlier application by the HCPC to sever the allegation from an allegation in respect of an alleged breach of an HCPC interim suspension order which had been imposed as a result of the criminal conviction now before the Panel. Mr Lloyd told the Panel that the application to sever was granted on 4 October 2019 and that only the allegation relating to the conviction was now before the Panel. Mr Lloyd submitted that the Panel could properly put from its mind the allegation mentioned in that bundle and should be mindful of the seriousness of the conviction case before it.

7. The Panel accepted the Legal Assessor’s advice that it should consider the fairness of the proceedings and whether it can properly, as a professional Panel, put from its mind the knowledge of another allegation. It should be mindful of any prejudice to the Registrant that might arise and balance that with the wider public interest.

8. The Panel decided that it was able to put from its mind the fact that a further allegation has been made. It was mindful that the allegation that has been severed is an allegation which alleges a breach by the Registrant of an HCPC interim suspension order imposed as a result of the conviction with which the Panel is now concerned. That allegation is serious but the conviction case presently before the Panel, of which the Registrant has had proper notice and has chosen not to attend, is more serious.

9. The Memorandum of Conviction is evidentially conclusive, and it is of a nature and gravity that there is a strong public interest in proceeding. The Panel concluded, having put the other allegation from its mind, that any prejudice to the Registrant that may arise is outweighed by the public interest in proceeding.

Background
10. Mr Lloyd referred the Panel to the terms of the allegation. He told the Panel that the Registrant was convicted on 22 June 2018 in Leicester Magistrate’s Court on one count of outraging public decency by behaving in an indecent matter by using a device to film and record up ladies’ skirts. He pleaded guilty and was made subject to a Community Order within which he was required to carry out 200 hours of unpaid work in a 12 month period. He was also ordered to undertake up to 25 days’ rehabilitation requirement and to pay a surcharge to victim services.


11. The Police report indicated that the Registrant admitted that the USB stick found in Boots, where he had worked as a Hearing Aid Dispenser, was his. It contained some 22 videos of upskirt films taken in and around Boots, and films of other sexual acts involving the Registrant. The Registrant was referred to the HCPC on 18 January 2019.


The HCPC Submissions on Fact, Grounds, Impairment and Sanction


12. Mr Lloyd opened the case for the HCPC. He set out the background to the case and referred the Panel to the summary provided by the Police and to the Memorandum of Conviction. He told the Panel that the Registrant had admitted the charge and had pleaded guilty.


13. Mr Lloyd submitted that the conviction was serious, the conduct was sustained over some five years and was a sexually motivated course of conduct against members of the public and patients. Some patients were identified in the footage discovered on the USB drive.


14. Mr Lloyd submitted that the ground was readily made out by the Memorandum of Conviction and its seriousness. He submitted that on impairment of fitness to practise, the Registrant had provided no evidence of remorse, remediation or any insight. Mr Lloyd submitted that the Registrant was impaired on the personal component. It was also necessary to make a finding of impairment in order to protect the public and confidence in the profession. He submitted that the conviction involved an abuse of trust and was, in its covert nature also dishonest.


15. Mr Lloyd submitted that the nature and gravity of the conviction was such that a Sanction at the higher end of the sanctions available was required in order to protect the public and the wider public interest.


16. The Panel heard and accepted the advice of the Legal Assessor. He reminded the Panel of the need to assess the evidence and the evidential nature of the Memorandum of Conviction. He referred the Panel to the HCPC Practice Note on Finding Fitness to Practise is Impaired and to the guidance in CHRE v Grant [2011] EWHC 927 (Admin). He reminded the Panel to consider the Registrant’s insight and remediation, and the risk of repetition presented by him. He stressed the central importance of the public interest in its considerations. He also referred the Panel to the HCPC Sanctions Guidance and to the need to act proportionately.


Decision


17. The Panel carefully considered all of the evidence and the submissions from Mr Lloyd. It accepted the advice of the Legal Assessor.


Finding on Fact and Grounds


18. The Panel considered the evidence. It accepted the Memorandum of Conviction as conclusive evidence and it found particular 1 proved as to facts and grounds.


Finding on Impairment


19. The Panel next considered whether the Registrant’s fitness to practise is currently impaired. It kept in mind the central importance of the protection of the public, the wider public interest and the guidance provided in the Grant case. The Panel was mindful of the need to safeguard public confidence both in the profession and the HCPC.


20. The Panel has no evidence of any insight, remediation or remorse. The conviction is of a nature and gravity that means the Registrant presents a risk to the public and the public interest. The conviction is in respect of sexually motivated conduct and covers a range of sexual acts. There is nothing before the Panel to reassure it that the Registrant has to any extent reflected on his behaviour and Conviction. There is no evidence of remorse. There is no evidence before the Panel to suggest that the Registrant has taken any steps to remediate his fitness to practice. The Panel has no evidence before it to suggest that the Registrant would not repeat his behaviour. It concluded that there is therefore a real risk of repetition and that the Registrant’s fitness to practice is currently impaired on the personal component.


21. The Panel also concluded that in light of the seriousness and the nature of the conviction that a finding of impairment of fitness to practise is also required in order to maintain public confidence in the profession, and in the Regulator, and to uphold and declare proper standards. The Panel considered that the public interest is firmly engaged in this case and that a well-informed member of the public would be outraged should the Registrant not be found to be impaired. The Panel accordingly found that the Registrant’s fitness to practise is impaired on the personal and public components.


Decision on Sanction


22. The Panel accepted the advice of the Legal Assessor and reminded itself that the primary purpose of sanction is to protect the public. It was mindful of the public interest and carefully considered the guidance in the Sanctions Guidance. The Panel had regard to its findings and approached sanction, beginning with the least restrictive first, bearing in mind the need for proportionality and balancing the interests of the Registrant with the public interest. The Panel was mindful that the purpose of a Sanction Order is not to punish the Registrant, nor is it appropriate to punish the Registrant twice for the same offence.


23. The Panel considered that the aggravating feature was the sustained, sexual nature of the Conviction which involved the public and patients. The Panel considered that the mitigating feature was the Registrant’s early admission and his guilty plea. The Panel was mindful that the Registrant has not yet completed his 24-month Community Order within which he was required to carry out 200 hours of unpaid work and to undertake an activity requirement of up to 25 days.


24. The Panel first considered taking no further action and Caution. The Conviction is of a nature and gravity such that neither of these orders would be appropriate or proportionate and would fail to protect the public and the public interest.


25. The Panel next considered a Conditions of Practice Order. The Conviction involves serious, repeated indecent conduct that does not lend itself to conditions of practice. Given the nature of the Conviction the Panel concluded that it would not be possible to formulate realistic, workable or proportionate conditions of practice. Further, the Panel decided that conditions would not sufficiently protect the public or the public interest.


26. The Panel next considered imposing a Suspension Order. The Registrant has demonstrated no insight and no remediation. The Conviction is serious and related to a pattern of inappropriate conduct. The Panel has identified a risk of repetition. There is nothing before the Panel to indicate that the Registrant is willing or able to resolve or remedy his behaviour. The Conviction represents a serious breach of fundamental tenets of the profession involving an abuse of trust and of his professional position. The Registrant is yet to complete his sentence. The Panel concluded that a Suspension Order would not be sufficient or proportionate and would fail to protect the wider public interest.


27. The Panel next considered a Striking Off Order. It was mindful of the Sanctions Guidance at paragraphs 130 and 131. The Registrant’s actions were deliberate, persistent and sexually motivated and have led to a serious criminal Conviction. They involved a breach of trust. The Panel concluded that that the Conviction is such that nothing less than a Striking Off Order would be sufficient to protect the public and the wider public interest.

 

Order

ORDER: That the Registrar is directed to strike the name of Mr Lee John Newton from the Register on the date this order comes into effect.

 

Notes

Decision on Interim Order


1. The Panel heard from Mr Lloyd and took account of all the information before it. He submitted that an interim order was necessary on public protection and public interest grounds given its decision to Strike Off the Registrant. The Panel accepted the advice of the Legal Assessor. He referred it to the HCPTS Practice Notes on Proceeding in Absence and on Interim Orders and he reminded the Panel that the primary purpose of an interim order was protection of the public and that it was necessary to balance the interests of the Registrant with the need to protect the public.

2. There has been no change in circumstances since the Panel decided to proceed in the absence of the Registrant. The Registrant has chosen not to attend. The Panel determined to proceed in respect of the interim order application. The Panel noted that the Registrant had received notice of the possibility of an interim order following a Final hearing in the Notice of hearing dated 8 November 2019.

3. The Panel decided that that it would be wholly incompatible with those findings, and with the sanction imposed, to conclude that an Interim Order is not necessary for protection of the public or in the public interest. Given its findings the Panel determined that it is appropriate and necessary to impose an Interim Suspension Order for a period of 18 months to cover any appeal period. When the appeal period expires this interim order will come to an end unless there has been an application to appeal. If there is no appeal the Striking Off Order shall apply.

Decision on Interim Order


1. The Panel heard from Mr Lloyd and took account of all the information before it. He submitted that an interim order was necessary on public protection and public interest grounds given its decision to Strike Off the Registrant. The Panel accepted the advice of the Legal Assessor. He referred it to the HCPTS Practice Notes on Proceeding in Absence and on Interim Orders and he reminded the Panel that the primary purpose of an interim order was protection of the public and that it was necessary to balance the interests of the Registrant with the need to protect the public.

2. There has been no change in circumstances since the Panel decided to proceed in the absence of the Registrant. The Registrant has chosen not to attend. The Panel determined to proceed in respect of the interim order application. The Panel noted that the Registrant had received notice of the possibility of an interim order following a Final hearing in the Notice of hearing dated 8 November 2019.

3. The Panel decided that that it would be wholly incompatible with those findings, and with the sanction imposed, to conclude that an Interim Order is not necessary for protection of the public or in the public interest. Given its findings the Panel determined that it is appropriate and necessary to impose an Interim Suspension Order for a period of 18 months to cover any appeal period. When the appeal period expires this interim order will come to an end unless there has been an application to appeal. If there is no appeal the Striking Off Order shall apply.

 

Hearing History

History of Hearings for Mr Lee John Newton

Date Panel Hearing type Outcomes / Status
20/12/2019 Conduct and Competence Committee Final Hearing Struck off